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Smith, J.
Appellee filed this suit against Gruy A. Thompson as receiver, and trustee for the Missouri Pacific Railroad Company and Mrs. Charles Keene, to recover damages to compensate an injury which he alleged was sustained through the joint and concurring negligence of the railroad company and Mrs. Keene.
Appellee at the time of, and for four years prior to the time he sustained the injury which forms the basis of this suit was employed as a brakeman by the railroad company. The train on which he was employed when injured, was a local freight train, several cars of which were moving in interstate commerce, and the suit was brought under the Federal Employers’ Liability Act of Congress, April 22, 1908.
The complaint alleges and the testimony shows that at about 6:30 p. m., on November 24, 1945, appellee was employed as head brakeman in switching a freight train at Elaine, Arkansas. The night was dark, but the weather was clear.
The railroad depot is east of the railroad tracks, and there are three tracks between the depot and the state highway which parallels the railroad on the west. The first track West of the depot is the house track, the next the main line track, and the third is the passing track. The highway is about 100 or 125 feet west of the passing track, and runs through the town of Elaine. The principal street of the town, after crossing the highway at a right angle, proceeds east and crosses the railroad tracks at a point about 100 or 125 feet north of the depot. This is also a right angle crossing. A photograph offered in evidence, as well as the testimony of ■the witnesses, shows that the distance from the junction of the highway and the street to the railroad crossing is about the same as that from the depot to the railroad crossing. The depot is south of the railroad crossing.
The freight train went into the passing track for two purposes, one being to spot a car so that local freight destined to Elaine might be unloaded, and the other was to allow a southbound passenger train then about due at Elaine to pass on the main line track.
Appellee detailed the circumstances of his injury as follows: The train was heading in the passing track, which was about one mile long, and would accommodate about 100 cars. He was working ahead of the engine and got down to throw the switch so the train could go into the passing track. As the ,engine approached the crossing he saw a car which Mrs. Keene was driving, coming-north down the highway parallel to the railroad tracks, but he did not nay much attention then. The car turned at tlie junction of the highway and the street, and proceeded east to the railroad crossing. He was on the east, or the engineer’s side of the engine and when the engine was about twenty feet or more from the crossing he saw the car coming down the street towards the railroad crossing when he swung out to flag the car down with his lantern. The ear was about seventy-five feet from the crossing when he began flagging it. ' He continued to wave his lantern until he thought the car had stopped, when he turned around to see what the brakeman was doing, whose duty it was to spot the car and give him a signal which he would communicate to the engineer to stop the train, and when he turned around he was pinned between the engine and the car. He had been standing on the step in front of the engine and held the grabiron of the engine while he was flagging the car, and which he continued to do until he thought the car had stopped.
It was necessary to “cut” the train, by which was meant to leave a portion of it north of the crossing and the remainder south of it, to leave the street open for ’ traffic.
Mrs. Keene lived near Elaine and was thoroughly familiar with the location of the highway and the streets and the railroad crossings. She was riding in a borrowed car with a lady companion. The windows of the car were closed and Mrs. Keene and her companion were engaged in conversation. Mrs. Keene testified that she diet not see the brakeman whose place would have been on the left side of the engine, the side which she approached as she neared the crossing, and she expressed the belief that the fireman was not in the cab. It is certain that she did not see the fireman as she did not see the train. The theory of the case is that if the fireman had been in his place, keeping a lookout, he would have seen the car and given warning by ringing the bell. Both Mrs. Keene and her companion testified that the bell was not rung, nor was the whistle blown.
Three grounds of negligence are alleged against the railroad company; (1) that a proper look-out was not kept; (2) that signals were not given and (3) that proper care for.Mrs. Keene’s safety was not exercised after her peril had been discovered or should have been discovered.
Two verdicts were returned. One assessed damages against the railroad company in the sum of $7,500 and the other assessed damages against Mrs. Keene in the sum of $2,500. She satisfied the judgment against herself and the railroad company has appealed from the judgment against it. Mrs. Keene very properly satisfied the judgment which had been rendered against her, as the testimony shows beyond question that she was negligent, indeed we have reached the conclusion that her negligence was the sole proximate cause of the injury and "that the judgment against the railroad company must be reversed and the cause dismissed as to it.
The great preponderance of the testimony is that signals were given. Indeed appellee himself so testified. He was confined in the railroad hospital' from the date of his injury until January, and was unable to resume his employment for some months thereafter. While confined in the hospital in January there was a joint investigation under the railroad rules as toj the manner in which appellee was injured. He testified ’that at that time his recollection was very distinct. Asked then about the signals he answered, “I said and I still believe that he (the engineer) gave the crossing signal just as we were easing into the passing track.” He did not deny making this statement at the trial, nor did he deny its truth, but he did qualify it by saying that the whistle was blown “not at the crossing’, it was back just before he got to the depot.” As has been said the depot is about 120 or 125 feet from the crossing. The effect of such testimony as that given by appellee himself is the subject of the extensive note to the case of Kanopka v. Kanopka, 154 Atl. 144, 113 Conn. 30, appearing in 80 A. L. R. 619. The effect of the cases cited in the annotator ’s note as stated by the annotator, is that a party may not complain that his own testimony was believed when it was not given under some mistake or misapprehension, and we think appellee cannot complain that we accent Ms testimony as true that a signal was given, although other witnesses testified that if given, they did not heap it.
But it is certain and undisputed that a signal was given, although Mrs. Keene and her companion did not see it, and this signal was given by appellee himself when he waved his lantern and continued to wave it' as the car approached the crossing until he thought the car had stopped. This was appellee’s own testimony.
The testimony given by appellee himself disposes also of the question that no proper lookout was kept. There was a lookout, and appellee was keeping it, and he was doing so effectively. He was riding on the front of the engine as it approached the crossing, and he gave the engineer no signal to stop the train because he thought the car had stopped. This testimony disposes also of the contention that the doctrine of discovered peril applies. If there was any negligence in this respect, it was that- of appellee- himself, and he may not base his cause of action upon his own negligence.
In the case of St. L.-S. F. Ry. Co. v. Smith, 179 Ark. 1015, 19 S. W. 2d 1102, we said:
“Since this suit was brought and prosecuted under the Federal Employer’s Liability Act, which does not define negligence, the question as to the sufficiency of the evidence to establish negligence must be determined by that act and the applicable principles of the common law as construed by the Federal Courts. Mo. Pac. R. Co. v. Skipper, 174 Ark. 1083, 298 S. W. 849. As said by the Supreme Court of the United States in Atlantic Coast Line R. Co. v. Davis, 279 U. S. 34, 49 S. Ct. 210, 73 L. Ed. 601: ‘It is unquestioned that the case is controlled by the Federal Employers’ Liability Act, under which it was prosecuted. Hence if it appears from the record that, under the applicable principles of law as interpreted by the Federal courts, the evidence was not sufficient in kind or amount to warrant a finding that the negligence of the railroad company was the cause of the death, the judgment must be reversed.’ Citing Gulf M. & N. R. Co. v. Wells, 275 U. S. 455, 457, 72 L. Ed. 370, 371, 48 Sup. Ct. Rep. 151, and cases cited.”
A photograph offered in evidence showed a paved sidewalk leading from the highway to the railroad tracks and it and the testimony shows that there was a space between the sidewalk and the paved street, in which space cars might be parked, all facing the depot, and that cars were so parked, two of these being trucks having high sideboards, and Mrs. Keene testified that these trucks parked side by side obstructed her view of the approaching train. The train was moving north according to all the testimony, including that of appellee himself, at a speed of about four, five or six miles per hour, and Mrs. Keene testified that she approached the crossing at about the same speed. It is undisputed that the headlight of the engine was burning brightly, casting its rays toward the crossing. It is possible, although highly improbable, that the parked cars may have obstructed Mrs. Keene’s view of the approaching train as she traveled towards the crossing, but not for the entire distance of that journey, as the undisputed testimony is to the effect that there was a clear space of ten to twelve feet from the west rail of the track to the rear of the parked cars, where the view was not obstructed. There appears therefore to be only one reasonable explanation of Mrs. Keene’s failure to see the train, and that is that she did not look. The conversation between Mrs. Keene and her companion just before the collision related to the difficulty in shifting the gears of the car.
The witness best placed to see exactly what happened was one Griffin, who was called as a witness for appellee. Griffin was 45 years old, and had lived in Elaine since 1918, and he had no connection with the railroad. He testified that he was present when the collision occurred, and that he was about thirty feet from the track walking from the west side to the east. He saw the man on the front end of the train with a lantern. The car came from behind him and passed him when he was about thirty feet from the crossing. He thought the train was about fifty to seventy-five feet south of the crossing when the whistle sounded, but he did not know whether the bell was ringing or not, bnt that the whistle was blown while the train was on the passing track. The headlight was burning brightly and could be plainly seen.
It is insisted for the reversal and dismissal of the judgment that at the time of the injury appellee was riding on the running board attached to the cow catcher, in violation of a rule promulgated by the railroad company, for his safety, bnt we find it unnecessary to consider this question, or appellee’s explanation of his violation of the rule for the reason that in our opinion the negligence of Mrs. Keene was the sole proximate cause of appellee’s injury, for which of course the railroad company is not liable.
The case of Penn. Ry. Co. v. Chamberlain, 288 U. S. 333, 53 Sup. Ct. 391, 77 L. Ed. 819, arose under and involved an application and construction of the Federal Employers ’ Liability Act being a suit to recover for the death of a brakeman alleged to have been caused by the railroad’s negligence. It was there said:
“We think, therefore, that the trial court was right in withdrawing the case from the jury. It repeatedly has been held by this court that-before evidence may be left to the jury, ‘there is a preliminary question for the judge, not whether there is literally no' evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.’ Pleasants v. Fant, 22 Wall. 116, 22 L. Ed. 780. And where the evidence is ‘so overwhelmingly on one side as to leave no room to doubt what the fact is, the court should give a peremptory instruction to the jury.’ Gunning v. Cooley, 281 U. S. 90, 50 S. Ct. 231, 74 L. Ed. 720; Patton v. Texas & Pacific Railway Co., 179 U. S. 658, 21 S. Ct. 275, 45 L. Ed. 361. The rule is settled for the federal courts, and for many of the state courts, that whenever in the trial of a civil case the evidence is clearly such that if a verdict were rendered for one of the parties the other would be entitled to new trial, it is the duty of the judge to direct the jury to find according to the views of the court. Such a practice, this court has said, not only saves time and expense, but ‘gives scientific certainty to the law in its application to the facts and promotes the ends of justice.’ Bowditch v. Boston, 101 U. S. 16, 18, 25 L. Ed. 980; Barrett v. Virginian Ry. Co., 250 U. S. 473, 476, 39 S. Ct. 540, 63.L. Ed. 1092, and cases cited; Herbert v. Butler, 97 U. S. 319, 24 L. Ed. 958. The scintilla rule has been definitely and repeatedly rejected so far as the federal courts are concerned. ’ ’ (Citing numerous cases.)
If it be contended that the jury might have found that no signals were given, and that had signals been given Mrs. Keene would not, or might not have driven her car in front of an advancing train, several answers suggest themselves, among others these:
The jury did not so find. The verdict against Mrs. Keene for a very substantial amount reflects the finding that she was guilty of negligence, which was a proximate, cause of appellee’s injury.
The case is an anomalous one. The suit was brought to compensate a single injury against two defendants having no relation to each other, and different rules are applicable in determining their respective liability. The suit against Mrs. Keene is determinable by the laws of this state, but our state laws are not determinative of the liability of the railroad company. As against the railroad company the Federal Employers’ Liability Act governs and as said in the case of St. L.-S. F. Ry Co. v. Smith, supra, “the question as to the sufficiency of the evidence to establish negligence must be determined by that act and the applicable principles of the common law as construed by the federal courts. ’ ’
That opinion contains a quotation from the case of C. M. & St. P. Ry. Co. v. Coogan, 271 U. S. 472, 46 Sup. Ct. 564, 70 L. Ed. 1041, reading as follows: “The rights and obligations of the petitioner depend upon that act and applicable principles of common law as interpreted by the federal courts. The employer is liable for injury or death resulting in whole or in part from the negligence specified in the act; and proof of such negligence is essential to recovery.”
Mrs. Keene is no longer a party to this suit. She discharged her liability as found by the jury and the present appeal presents only the case of appellee against the railroad company and liability in that case depends upon the federal- act and applicable principles of the common law as interpreted by the federal courts.
For this reason, we think the case of Sands, et al., Receivers, M. & N. A. Rd. Co. v. Linch, 122 Ark. 93, 182 S. W. 561, L. R. A. 1916E, 204, does not apply. There the railroad company had failed to fence its right-of-way as required by a local act, which failure resulted in certain sheep entering upon the railroad tracks, one of which was struck by a motor car, resulting in an injury to plaintiff who was riding on the car. It was there said: “While the statute was designed primarily for the protection of livestock and for the benefit of the owners of such stock that might be injured by a failure to comply with the requirements of the act, nevertheless, where such failure is the proximate cause or contributes proximately to cause a personal injury to an employee of the company, or anyone else, a breach of the statutory duty may be shown as evidence of negligence on the part of the company causing the injury.’-’
So here, if we were considering a suit by or against Mrs. Keene, the question of the failure to blow the whistle or ring the bell, thereby giving warning of the movement of the train, would be important, under common law principles, as ordinary care required that notice of the movement of the train be given by blowing the whistle or otherwise; but blowing the whistle or ringing the bell were not the only methods by which warning could be given. The undisputed testimony is that a warning which should have sufficed was given according to appellee’s own testimony. The evidence appears therefore to be “so overwhelming on one side as to leave no room to doubt what the fact is,” that the negligence' of Mrs. Keene was the sole proximate cause of appellee’s injury, there being no substantial evidence of negligence on the part of the railroad company contributing to the injury.
The judgment must therefore be reversed and the cause will be dismissed. | [
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Robins, J.
In ber suit in circuit court against appellant for damages growing out of trespass by appellant on ber dwelling bouse, appellee was by a jury awarded $500 for physical suffering and mental anguish and $250 for damage to ber personal property. From judgment on the verdict this appeal is prosecuted.
The property involved formerly belonged to appellee’s husband, and after bis death her daughter, Nancy Fulton Poole, acquired the interests of other heirs therein. Appellee bad lived at this location — in different dwelling houses — for forty-five-years.
On November 10, 1944, appellee and her said daughter sold and conveyed this home to appellant, but in the deed of conveyance they reserved use and possession of the property for a period of two years, it being stipulated, however, that they might not sublet the property during that time and that, if appellee should “change place of residence and vacate” the property, appellant might thereupon take possession.
During the month of July, 1946, appellee went to the home of her daughter in Caddo Gap, a short distance from her home, taking with her a number of her personal belongings. Appellee testified that she did not intend to change her residence or to vacate her home, but that her stay in Caddo Gap was to be temporary and that she procured her son to staj^ in her home and look after her belongings until she should return.
Appellant, taking the position that appellee had vacated the property and that he was therefore entitled to immediate possession, notified appellee’s son to surrender possession and upon his refusal to do so forcibly entered the property and, with a crew of workmen, began to make certain repairs. In doing this, he caused windows and doors to be removed and plastering to be removed from the walls. When appellee returned to hex-home at a late hour she was forced to spend the night in the home in its dusty and disordered condition. Appellee was a lady advanced in years axid for some time had suffered from asthma. There was testimony indicating that her physical condition was made worse by staying in the home after it had been torn up by appellant.
In her complaint appellee alleged that she was entitled to $2,500 damages for physical and mental suffering, for $1,000 for damage done by appellant to her personal property and for punitive damages in the sum of $1,000 and for loss of the use of the home the sum of $150. All claims of appellee, except for physical axid mental suffering and for damage to personal property, were disallowed by the jury.
For reversal it is first urged by appellant that the undisputed testimony showed that appellee had changed her residence, vacated the property and sublet it to her son. There was substantial testimony to show that appellee’s trip to her daughter’s home was merely in the nature of a visit and not an abandonment of the property. This issue was submitted to the jury under proper instructions and the jury sustained appellee’s contention. This finding is binding on us.
It is next urged that the verdict of the jury is inconsistent in that the jury failed to award damage to appellee for being deprived of the use of the property' during the remainder of the period during which she was entitled to it. A sufficient answer to this contention is found in the fact that, as shown by the abstract, there was no testimony as to the rental value of the property; and the jury, for that reason, could not properly have assessed damages for loss of the use of the property.
Appellant complains of the refusal of the court to give his requested instruction No. 5 as follows: “On the question of damages, the jury is told that any and all acts of the plaintiff which might have contributed to her illness or discomfort which are not directly traceable to defendant’s carelessness or negligence are not actionable as to this defendant. The plaintiff is presumed to be a person of ordinary prudence, and it was her duty to avoid exposure in a vacant house whoever the owner of it might be. ’ ’
While some cautionary instruction as to the duty of appellee not to negligently incur injury might have been proper, the instruction in the form offered was not correct. The demand of appellee for damages was not based on' any careless or negligent conduct of appellant. She alleged that his acts were wanton, willful and intentional, and in instructions given by the court on behalf of appellee appellant’s liability, if any, was predicated on wanton, willful and intentional acts on the part of appellant. There is authority for holding that where a willful tress-pass causes physical injury, accompanied by mental anguish, such injury and mental anguish may constitute recoverable elements of damage. See annotations, 53 L. B. A. 632; annotations, 32 A. L. B. 922. Furthermore, the extent of appellee’s duty as to avoiding exposure was, under the circumstances shown, a question for the jury —not the court — to determine.
We find no error in the giving or refusal of instructions by the court. No ruling on testimony is complained of by appellant, and, since the jury settled fact questions against him, it follows that the judgment must be affirmed. | [
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McHaney, Justice.
In Smyrna Baptist Church v. Burbridge, 205 Ark. 108, 167 S. W. 2d 501, we reversed the same chancery court because a démurrer to the complaint of the present appellees was sustained, which sought to recover damages from appellant growing out of the wrongful issuance of an attachment from a court of justice of the peace, which attachment was wrongfully levied on certain lumber and logs cut from the land here involved. On a- retrial the court rendered a decree' awarding damages against appellant in excess of $1,000, including interest at 6% from 1936 to date of judgment on unliquidated demands, and in a cancellation of appellant’s tax title to the 20-acre tract, and in quieting the title thereto in the trustees of the Smyrna Baptist Church.
It is stipulated that, in 1859, the then owners conveyed to D. W. Irwin and M. ■ L. Stewart, deacons of said church and in trust for it, the tract described as the west half of the northeast quarter of the northeast quarter of section 22, Twp. 15 S., range 9 W., containing 20 acres. It was further stipulated that in 1910 this same tract forfeited for the non-payment of taxes in 1909 and was sold to appellant by the collector for the tax, penalty and costs of $1.95, and that, after the expiration of the redemption period of two years, the clerk issued to appellant a clerk’s deed, describing the land as above; and that appellant has paid the taxes due on said tract each and every year from 1911 through 1937.
In 1936, appellant learned that the timber on said 20-acre tract was being cut and sawed into lumber and caused the attachment above mentioned to he issued and levied on certain lumber and logs at a small mill' and certain lumber in the City of Warren made from logs cut from said land. These attachments gave rise to the present action for damages for their wrongful issuance.
■ The facts, stated as briefly as possible, are that sometime after acquiring title to this land the Smyrna Baptist Church built a church house on this land and also established a cemetery thereon. The church house was used for religious services until about the year 1900, or shortly thereafter, when it was totally destroyed by fire and has never been rebuilt. The church organization and membership has apparently disintegrated and for about 45 years has ceased to function as a church, hut the burial ground or cemetery is still occasionally used to bury the dead. The cemetery is fenced and contains about two acres, only a part of which is located on this 20-acre tract. It is kept in order by certain interested parties who meet there from time to time, annually, perhaps, for this purpose.
The three men who claim to be trustees in this action for the church do not show a very good title to their offices. Neither of them is a member of the church and all live considerable distances from this land. We do not hold them to be intruders or usurpers, but one witness testified that, to her knowledge, there was only one living member of said church.. The proof also shows that, sometime after the fire, all or practically all of the members secured letters of separation from the church clerk to join other churches.
On this showing we are of the opinion that the church was abandoned as a church from at least five to nine years before this 20-acre tract was assessed by the assessor and put on the tax books by the clerk in 1909.
All property, except such as is exempt by the constitution and laws of this state, is subject to taxation. Our constitution, Art. 16, § 5, provides “ . . . the following property shall be exempt from taxation: . . .; churches used as such; cemeteries used exclusively as such; . . .”. Section 13603 of Pope’s Digest exempts from taxation, in subsection first, “all public school houses and houses used exclusively for public worship, and the grounds attached to such buildings necessary for the proper occupancy, use and enjoyment of the same, and not leased or otherwise used with a view to profit.” Subsection third exempts “all lands used exclusively as graveyards, or grounds for burying the dead, except such as are held by any person, or persons, company or corporation, with a view to profit, or for the purpose of speculation in the sale thereof.”
In Brodie v. Fitzgerald, 57 Ark. 445, 22 S. W. 29, this court held that, to be exempt, the property itself must be devoted to charitable purposes and not merely the income from it. In Pulaski County v. First Baptist Church, 86 Ark. 205, 110 S. W. 1034, it was held that a vacant lot belonging to the church and adjacent thereto was subject to taxation. So it appears to us that, even had the church continued to exist, it would not have been entitled to have exempt the whole 20 acres from taxes, but only such part of it as was used exclusively for church purposes, including the cemetery;
The trial court held that, under § 11368 of Pope’s Digest the whole tract of 20 acres was exempt from taxation. We cannot agree. This section provides that all lands “not exceeding forty acres,” that have been or may be conveyed to any person in trust for the use of any religious society in this state, either for a meeting house or burying ground shall descend, etc. It makes no reference to exemption from taxation, but simply provides that such land and the improvemenks thereon shall descend in perpetual succession to the trustees and their successors who may be appointed trustees according to the rules and regulations of such society. The previous section, 13603, above quoted, limits the exemption from taxation to “all lands used exclusively as graveyards, or grounds for burying the dead,” and only such lands as are so used exclusively for such purpose are exempt. This is in accord with the constitutional provision above quoted that the exempted area is “cemeteries used exclusively as such.” The fact that a two-acre cemetery is located on a 20-acre tract does not exempt the whole tract. The same is true as to churches. Pulaski County v. First Baptist Church, supra.
When the church burned in or about 19Q0 and disbanded as a church no part of the 20-acre tract was thereafter used for church purposes, exclusively or otherwise, except the cemetery, and it was the duty of the assessor to assess the whole of said tract, except that part used as a cemetery and which was under fence. This he did in 1909 by assessing the whole tract, and appellant bought it at the tax sale in 1910. He has paid the taxes every year since to and including 1937, and perhaps subsequent years.
Section 8921 of Pope’s Digest provides: “Payment of taxes on wild and unimproved land in this State by any person or his predecessor in title, for a period of fifteen consecutive years (at least one of said payments being made after the passage of this Act), shall create a presumption of law that such person, or his predecessor in title, held color of title to said land prior to the first payment of taxes made as aforesaid, and that all such payments were made under color of title.” The land here is wild and unimproved and there is no adverse occupant except the dead. Appellant has paid the taxes for more than 15 years consecutively and we think vested the title thereto in him. We so held in Murphy v. Wall, 208 Ark. 395, 186 S. W. 2d 436. In Koonce v. Woods, 211 Ark. 440, 201 S. W. 2d 748, we said: “We do not have a statute establishing a period directly applicable to the facts here; but by analogy certain legislative acts should be considered. Schmeltzer v. Scheid, 203 Ark. 274, 157 S. W. 2d 193, emphasizes the State’s policy of protecting rights of one who in good faith pays taxes on real property. By Act 66 of 1899, Pope’s Digest, § 8920, payment of taxes on unimproved and unenclosed land under color of title for a period of seven consecutive years constitutes an investiture of title. Towson v. Denson, 74 Ark. 302, 86 S. W. 661, and other cases cited in Schmeltzer v. Scheid. By subsequent legislation (Act 199 of 1929, Pope’s Digest, § 8921) one who pays taxes on wild and unimproved land for a period of fifteen years has color of title as a presumption of law. These statutes, of course, are not limitation measures. They establish, in the one case, an investiture of title, and in the other there attaches color of title as a legal presumption.
“A presumption of law, or a fact, or a condition, is just as binding on the State as on individuals; and the State, by acceptance of a taxpayer’s money, as in the instant case, should be bound in a court of equity by analogous conditions which the lawmakers saw proper to declare as public policy. By this we do not mean that the State can be estopped by acts of its officials they were not authorized to consummate. On the contrary, the same principle heretofore promulgated is given effect, and it is this: After a long lapse of time a grant or conveyance by the State or its officials will be presumed — not as a matter of fact, but one of law.” See, also, Deniston v. Langsford, 211 Ark. 780, 202 S. W. 2d 760.
So, we conclude that tbe purchase of the 20-acre tract in 1910 and the continuous payment of taxes by appellant for all these years vested the title to said tract in him, subject to the right of the people of the community to continue to bury their dead in the cemetery and to keep the fence and the ground within the fence in repair, and to that end may have ingress and egress thereto and therefrom.
The decree will be reversed and the cause remanded with directions to dismiss the action of appellees for damages, and to enter a decree vesting and quieting the title to said tract in appellant in accordance with this opinion. | [
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Ed. F. MoFaddin, Justice.
This is an election contest; and the controlling question on this appeal is whether the appellant Blackard was a qualified elector of Johnson' county, Arkansas, on November 5, 1940, within the purview of our poll tax law. We hold that he was; and Act 155 of 1943 is our authority for such holding.
The facts regarding Blackard’s status are these: Prior to his entry into the armed forces of the United States he was a resident of Johnson .county. He received his honorable discharge from the Army on November 14, 1945, and immediately returned to Johnson county, and has resided there ever since. In February, 1946, he purchased a poll tax receipt under the provisions of Act 155 of 1943. This was evidently a 1944 poll tax receipt, and its regularity is not questioned on this appeal. A 1944 poll tax receipt was required for voting at any election held between October 1, 1945, and October 1, 1946.
In order to vote at any election held from October 1, 1946, to October 1,1947, Blackard was required by law to have a 1945 poll tax receipt. On September 14, 1946, Blackard delinquently assessed his 19.45 poll tax before the'assessor, and went immediately to the tax collector’s office, where he paid $1.00 and received his 1945 poll tax receipt bearing this notation: “If paid on or before October 1, 1946, will entitle the taxpayer, if otherwise qualified, to vote at any election held in this State prior to October 1, 1947.’.’
It is admitted that the assessor did not certify the delinquent assessment to the County Clerk, and that the County Clerk did not certify the supplemental assessment to the collector, as required by Act 37 of 1941. Because of this latter omission, it is claimed by appellee that Blackard was not a qualified elector on November 5,1946. Appellee cites, in: support of his contention, § 4695, Pope’s Digest, and a number of our cases, of which the following are a few: Cain v. Carl-Lee, 168 Ark. 64, 269 S. W. 57; Taaffe v. Sanderson, 173 Ark. 970, 294 S. W. 74; Collins v. Jones, 186 Ark. 442, 54 S. W. 2d 400; Martin v. Gray, 193 Ark. 32, 97 S. W. 2d 439; Trussell v. Fish, 202 Ark. 956, 154 S. W. 2d 587; Wilson v. Luck, 203 Ark. 377, 156 S. W. 2d 795; Stephens v. O’Neal, 210 Ark. 570, 196 S. W. 2d 917. In the last-cited case we said: “We have many times held that to be a qualified elector one must both assess and pay his poll tax in the manner provided by law.”
But, irrespective of the foregoing authorities, Blackard’s 1945 poll tax receipt was valid under Act 155 of 1943 (hereinafter referred to as “Act 155”). It is captioned: “An Act to Allow Men and Women in the Armed Services of the United States to Vote, If Otherwise Qualified, Without Assessing for Poll Tax If They Are Discharged or Returned Prom Service After the Time for Assessing Has Expired.” Section I says:
“Any man or woman who has been discharged or has returned from service in any branch of the armed service of the United States shall be entitled to secure a poll tax at any time before the date of any election held before the next succeeding time for assessing shall close by presenting to the Sheriff and Collector or Collector as the case may be his affidavit showing such service in the armed forces, his discharge from such service and the date of his return to his voting precinct.” We have italicized the words “before the next succeeding time for assessing shall close,” because they are the words that caused the circuit court to make the ruling which we now reverse.
Viewing this statute in the light of the law existing prior to its passage, and giving the statute the effect which it seeks to accomplish, we think that the italicized words refer to the time for regularly assessing in the next poll tax year; and do not limit the right of the veteran to pay for and obtain a poll tax receipt — without assessment — for the year in which the regularly assessing period had expired prior to the time of the veteran’s discharge. We emphasize that the act means time for regularly assessing, and does not mean time for delinquently assessing; for, otherwise, the act would not facilitate in any way the veteran’s opportunity to become a qualified elector. He is not required to assess delinquently. He is relieved from assessing.
With the italicized words construed as just stated, it is'clear that § I of Act 155 means: that, if a veteran returns from the service too late to assess regularly for a poll tax, then such veteran, by making proof (to the collector) of his veteran status, date of return and precinct, may — at any time before any election — pay the collector $1.00 and receive a valid poll tax without being obliged to assess delinquently.
Applying this statute — as so construed — to the case at bar, we have this situation: Blackard.returned from the service on November 14, 1945. He had ample time (i. e., from the first Monday in January, 1946, to the third Monday in August, 1946, — as fixed by § 13683, Pope’s Digest) in which to assess regularly his 1946 poll tax which, if thereafter paid before October 1, 1947, would have qualified him to vote in any election held between October 1,1947, and October 1,1948. Thus, Act 155 would not relieve Blackard of assessing his 1946 poll tax. But when Blackard returned from the service on November 14, 1945,' the time had already expired in which he could have regularly assessed his 1945 poll tax (on which he would vote from October 1, 1946, to October 1, 1947), because the time for regularly assessing that poll tax was from the first Monday in January, 1945, to the third Monday in August, 1945 — as fixed by § 13683, Pope’s Digest. In such situation, Blackard could invoke in his favor the provisions of Act 155, and make proof (to the collector) of his veteran’s status, date of return and precinct, and pay his $1.00, and receive from the collector a 1945 poll tax receipt, and thereby become a. qualified elector for the period from October 1, 1946, to October 1, 1947, — insofar as concerned the requirements for assessing and paying his poll tax. That is exactly what he did. It is true that he also appeared before the assessor, and delinquently assessed. But such was entirely unnecessary, and this unnecessary delinquent assessment cannot be used to defeat his rights under Act 155.
Appellee makes several contentions, which we now list and discuss:
1. It is argued that Blackard had obtained in February, 1946, a poll tax receipt (valid to October 1,1946), under this Act 155; and therefore Blackard could not invoke the Act a second time. But we find nothing in the Act that limits a veteran to only one use thereof. Section I says that he can obtain a poll tax receipt “at any time.” The Act must be so construed as to facilitate a veteran’s exercise of franchise, and therefore is not limited to one instance, when the facts — as here — permit two instances.
2. It is argued that Blackard .did not, on September 14, 1946, tender to the collector the affidavit required by § I of the Act. This contention is true; but there is no showing in this record that Blackard did not make the affidavit when he obtained his poll tax receipt under this Act in February, 1946. In the absence of a showing to the contrary, we must presume that the collector complied with the law in February, 1946; and if an affidavit was filed then, it would suffice for the issuance of the subsequent poll tax receipt on September 14, 1946.
3. It is argued that the collector did not stamp on the poll tax receipt issued on September 14, 1946, the language required by § II of Act 155 to be so noted on the receipt'. This is true; but such omission by the officer could not defeat the elector’s right of suffrage. In Henderson v. Gladish, 198 Ark. 217, 128 S. W. 2d 257 (in speaking of a poll tax receipt issued by an officer who did not comply with the requirement that the receipt be written in pen and ink), we said:
“To hold that one who has complied with the law by regular payment of the tax, but who becomes the victim of a careless, a designing, or an uninformed collector or deputy, would have the effect of completely disregarding' the primary qualification of an elector, which, as has been shown, is the actual timely payment of the tax.”
Conclusion: In the excellent briefs filed by both sides, many interesting questions are presented. We are urged to discuss the constitutionality of any act requiring the assessment of poll tax, and we are urged to discuss the rule of substantial compliance regarding delinquent assessments: but we find it unnecessary to discuss any of these matters, because Act 155 is the governing Act in this case. We do, however, think it proper to call attention to the fact that the matters herein arose before the effective date of Act 220 of 1947, so we have not considered that Act in this decision.
The judgment is reversed, and the cause is remanded, because the circuit court erred in holding that the appellant Blackard was not a qualified elector of Johnson county, Arkansas, on November 5, 1946, within the purview of the poll tax law.
Act 220 of 1947 is entitled: “An Act to Eliminate the Necessity of Assessing Poll Taxes for Voting Purposes: Amending Sections 4696 and 4699 of Pope’s Digest of the Statutes of Arkansas, as Amended by Act 82 of the Acts of 1939, and for Other Purposes.” | [
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Smith, J.
This is an appeal from a decree of the Garland Chancery Court granting appellant’s husband a divorce. It was alleged that the parties had lived apart, without cohabitation for a period of more than three consecutive years, and this allegation appears to be undisputed, at least it is proved by the testimony.
For the reversal of this decree it is insisted that a bona fide residence in this state was not shown as required in the recent case of Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585, where that question was raised by the answer of the defendant. Here, however, the question was not raised in the answer.
The testimony shows that appellee came to Hot Springs on May 10,1946, and secured employment there, as a clerk in a store in which he was engaged when the decree was rendered, which was more than four months after he became a resident of Hot Springs.
The principal insistence for the reversal of the decree is that there has been no separation without co-. habitation for the period of three years within the meaning of Act 20 of the Acts of 1939, p. 38, which makes that fact a ground for divorce. Appellee’s testimony on that question was to the effect that after a prior separation which had continued from March, 1939, to August, 1940, he and his wife again separated on July 24, 1943, and that on July 31, 1943, he was inducted into the military service of the United States, and it is undisputed that the separation has continued since July 31, 1943, and that there has been no communication of any kind between the parties since that date;
The insistence is that appellee’s period of service in the army should not be taken into account in determining whether the separation had continued for three years when the suit was filed. But the separation had occurred before appellee’s induction into the army, and the running of the statute was not suspended by his military service, and had continued more than three years when he filed suit for divorce. There was therefore, a separation for more than three years. Schouler’s Divorce Manual, page 203; Colston v. Colston, 297 Ky. 250, 179 S. W. 2d 893.
The answer alleged that the separation and the continuation thereof was through no fault of appellant, but the statute makes that fact unimportant, save only in the settlement of the property rights of the parties and the question of alimony. Clark v. Clark, 201 Ark. 10, 143 S. W. 2d 540; Jones v. Jones, 201 Ark. 546, 145 S. W. 2d 748, and case's there cited.
The answer alleged that plaintiff had withdrawn money belonging to her which he should have returned. The only testimony in support of this allegation is an answer to an interrogatory reading as follows: “We had an interest in my father’s liquor store, but my husband, without my knowledge drew out $5,000 just before he left for the Army, and then he received $1,500 from my father for the shares of stock which were in his name. My father then took over the store.”
She did testify that “We had an interest in my father’s liquor store” but she did not testify what her interest, if any, was and the testimony wholly fails to sustain this allegation.
Appellee testified “We had a property settlement in either September or October, 1943, and there is no property to be divided between us now; and I don’t own any property of any nature, other than an equity in an insurance policy.
The decree will be affirmed, but the' entire costs of the case will be assessed against appellee. | [
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Robins, J.
This suit was instituted in the chancery court by appellant, Clinton Special School District No. 1 of Van Burén County, against appellees, Arlie and Vendis Henley, husband and wife, to restrain appellees from trespassing upon a one-acre tract in Clinton, ownership of which appellant asserted, to reform description in the deeds through which appellant claimed, and to quiet its title.
By an amendment to the complaint, appellant asked that Alice Ragsdale (now Keeling), Hazel O ’Dell Renfroe, Ada Duncan Olson and Archie Tipton, who had executed deeds through which appellant deraigned title, and Ottis Autry and Leah Autry, who, appellant alleged, through mistake, had conveyed the tract by deed to appellees, Arlie Henley and Vendis Henley, be made parties; and reformation of all these deeds was prayed by appellant.
Appellees, Arlie and Yendis Henley answered, denying all allegations of the complaint as to a mistake in the 'description in the several deeds and asserting ownership of the land by virtue of a deed executed to them by Ottis B. Autry and Leah Autry.
Ottis and Leah Autry, who had been made parties on appellant’s amendment to its complaint, answered, admitting that they had made an error in the description in the deed executed by them to appellees Henley and wife, and consenting to a decree reforming the deed, as prayed by appellant, so as to exclude the tract in controversy.
The lower court found the issues in favor of appellees and dismissed appellant’s complaint. . This appeal followed.
Appellant and appellees deraigned their title through a common source, Mrs. Alice Keeling (formerly Mrs. Alice Ragsdale). Appellant holds conveyance executed to it by Beulah Tipton on September 11, 1937. Beulah Tipton obtained conveyance therefor from Ada Duncan (now Olson) on September 7, 1937. Ada Duncan held a deed executed to her by Hazel O’Dell (now Renfroe) on April 17, 1937; and Mrs. Alice Ragsdale had executed deed to Hazel O’Dell on January 30, 1935.
The evidence is undisputed that the land was incorrectly described in all these conveyances in appellant’s chain of title. Under these deeds the land was described as being exactly one-fourth of a mile north of where it is actually located, and where all parties to said conveyances intended to locate it by the description in the several deeds. This error occurred by the scrivener of each deed erroneously fixing the starting point as being the northeast corner of the northeast quarter of the southeast quarter of section 15, instead of at the northeast corner of the southeast quarter of the southeast quarter of said section 15, where this starting point actually was.
Appellees made no effort to disprove the testimony offered by appellant to show this evident error in description in deeds constituting its chain of title, but their defense was that they actually bought the land in dispute and obtained deed therefor, and at the time they purchased it they had no notice of appellant’s claim of ownership. The above mentioned deeds through which appellant deraigned title were not recorded until after appellees bought.
Appellant introduced witnesses, among them officials of the school district, who testified that the district, on obtaining its deed from Mrs. Tipton, took possession of the tract in dispute and used it as a playground for children attending grammar school located immediately adjacent. This testimony was in no way contradicted. Appellees admit that when they bought there was on the disputed tract a goal post such as is used in basketball games, but appellee, Arlie Henley, said that he was told that one of the neighbors had fixed the place up as a playground for the children.
We have often held that actual possession of real estate is notice to the world of the claim or interest of the one in possession, regardless of whether such claimant has on record a written instrument creating in him an interest or title. Hardy v. Heard, et al., 15 Ark. 184; Sisk v. Almon, et al., 34 Ark. 391; R. G. Atkinson & Co. v. Ward, 47 Ark. 533, 2 S. W. 77; Sproull v. Miles, 82 Ark. 455, 102 S. W. 204; Barrett v. Durbin, 106 Ark. 332, 153 S. W. 265; Naill v. Kirby, 162 Ark. 140, 257 S. W. 735; Dunford v. Dardanelle & Russellville Railroad Company, 171 Ark. 1036, 287 S. W. 170; Hargis v. Lawrence, 135 Ark. 321, 294 S. W. 755.
We conclude that the possession of the school district of the tract involved was open and notorious and was such as to put appellees on notice of appellant’s claim of ownership. An investigation of the claim under which appellant was using the tract as a playground and basketball court would have disclosed the fact — virtually conceded — that appellant had bought and paid for this tract, and the further fact that it was not in reality a part of the property which the Autrys purposed to sell and convey to appellees.
It follows that the lower court erred in dismissing appellant’s complaint; and for this error the decree appealed from is reversed and the cause is remanded with directions to grant appellant the relief prayed in its complaint. | [
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Robins, J.
Appellant, Note Elliott, was charged by information with the illegal possession of intoxicating liquor for sale. A jury found him guilty and fixed his punishment at & -fine of $250. He urges these two grounds for reversal of the judgment entered on the verdict: First, that the lower court erred in instructing- the jury that conviction might be had if the illegal act was committed within one year of the filing of the information, instead of telling the jury that the illegal act must have been committed within one year of the date fixed in the information; and, second, that the evidence was insufficient to establish guilt.
I.
The court did not err in instructing the jury that they might find the defendant guilty if it was shown that the illegal possession occurred within one year before filing of the information. Stelle v. State, 77 Ark. 441, 92 S. W. 530; Pate v. Toler, 190 Ark. 465, 77 S. W. 2d 444.
__ For the court to have instructed the jury that the illegal possession might have occurred within one year before the date fixed in the information would have been erroneous. The limitation for prosecution of misdemeanors is one year. Section 3703, Pope’s Digest. Under appellant’s theory, the court might have authorized the jury to convict for án act that occurred more than a year before the filing of the information.
H.
The sheriff of Drew county testified that on a previous occasion he had reason to believe appellant was engaged in “bootlegging,” but not having proof thereof had warned appellant to desist; that on July 26, 1947, after obtaining a search warrant, he searched appellant’s home and found there a suitcase containing seventeen half-pint bottles of liquor, with the seals thereon unbroken. From appellant’s home the sheriff went to the “East End,” where he found appellant’s car parked at some “negro joints.” He searched the car and found therein six more bottles of liquor behind the front seat. The sheriff further testified that appellant told him h^ was using the whiskey in his “business,” that he (appellant) was playing dice games all the time, and he was using the whiskey to get the other players in such a condition as would enable appellant to win their money. There was no other testimony, except that of the sheriff.
The proof as to the amount of the liquor, the place and manner in which it was kept, as well as the explanation of his use of it given to the sheriff by appellant was sufficient to justify the jury’s conclusion that the liquor was possessed illegally.
Neither the provisions of Act 91 of the General Assembly of Arkansas, approved February 18,- 1947, nor the provisions of Act No. 423 of the General Assembly of Arkansas, approved March 28,1947, were invoked in this case.
The judgment of the lower court is affirmed. | [
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Holt, J.
On August 24, 1946, appellant, Walter S. Bartb, sustained injuries which arose out of and. in the course of his employment by Reynolds Metals Company. Appellee, Liberty Mutual Insurance Company, was its insurance carrier and under the terms of its insurance policy and in accordance with the provisions of the Workmen’s Compensation Law (Act 319 of 1939) paid the sum of $102.86 to appellant under § 13(b) and an additional amount of $537.45 to cover doctor’s, hospital and medical bills as provided in § 11, or a total of $640.31.
May 6, 1947, appellant sued a third party, The Southern Acid & Sulphur Company, Inc., alleging, in substance that the negligence of this company was the proximate cause of appellant’s injuries and sought the recovery of $3,000 for pain and suffering and disfigurement.
On August 19, 1947, appellee, insurance carrier, intervened in the suit and prayed for judgment and a lien upon that part of two-thirds of the net proceeds recovered by appellant (plaintiff below) against the Southern Acid & Sulphur Company, Inc., to reimburse it for the amount, supra, it had paid appellant as provided under the terms of the Compensation Act.
Appellant in his answer to the intervention of appellee alleged that he had “not sued for any loss of wages, nor any doctor’s, medical or hospital bills, nor for loss of time from work, nor any disability from any injury or disfigurement from any injury. He has only sued for physical pain and mental anguish and the disfigurement itself; that, therefore, the Workmen’s Compensation Act does not apply,” etc.
On September 8th thereafter a judgment, by consent,. in the sum of $2,000 was entered against the Southern Acid &'Sulphur Company, Inc., “in full settlement of the cause of action set forth in the complaint, and any and all causes of action arising out of the accident complained of as between plaintiff and defendant,” etc.
By direction of the court, the $2,000 was paid into the registry of the court and under the judgment, the court declared as a matter of law that appellee, insurance carrier, was entitled to a lien in the amount of $640.31 against the proceeds of the $2,000 judgment paid into the court by the Southern Acid & Sulphur Company, Inc.
This appeal is from the action of the court in sustaining appellee’s intervention and awarding it a lien against the proceeds of the judgment against the Southern Acid & Sulphur Company, Inc.
Appellant says: “The issue is, whether, under the facts presented by this record, and under the provisions of the Workmen’s Compensation Law, the appellee is entitled to have $640.31 out of the $2,000 Southern Acid & Sulphur Company, Inc. paid appellant in settlement of the dispute between appellant and Southern Acid & Sulphur Company, Inc., on the issue raised by appellant’s complaint against Southern Acid. Appellant asked for damages from Southern Acid for conscious pain and suffering and for disfigurement only, wholly and apart from any loss of wages or doctor’s, hospital or medical bills or diminished earning capacity.”
In the recent case of J. L. Williams & Son v. Smith, 205 Ark. 604, 170 S. W. 2d 82, which involved the Workmen’s Compensation Act, we said: “The cause of action of one claiming under the Workmen’s Compensation Act is purely statutory, ’ ’ and that one claiming under its provisions “has no claim or cause of action except the one giv§n him by” the Act.
Section 4 provides: “The rights and remedies herein granted to an employee subject to the provisions of this Act, on account of personal injury or death, shall be exclusive of all other rights and remedies of such employee, ... to recover damages from such employer on account of such injury,” etc.
In the present case, appellant after having accepted benefits under the Workmen’s Compensation Law, as indicated, elected, as was his right, to bring an action in tort for damages against the 'Southern Acid & Sulphur Company, Inc., a third party, which he alleged was guilty of negligence proximately causing his injuries. The fact that he had already accepted benefits from his employer or the insurance carrier did not preclude him from bringing a tort action against the third party.
Section 40 of the Compensation Law specifically gives him this right. That section provides: “Third Party Liability, (a) (1) The making of a claim for compensation against any employer or an insurance carrier for the injury or death of an employee shall not affect the right of the employee, or his dependents, to make claim or maintain an action in tort against any third party for such injury, but the employer or his insurance carrier shall be entitled to reasonable notice and opportunity to join in such action. If they, or either of them join in such action, they shall be entitled to a first lien upon two-thirds of the net proceeds recovered in such action that remain after the payment of the reasonable costs of collection, for the payment to them of the amount paid to and be paid by them as compensation to the injured employee. (2) The commencement of an action by an employee or his dependents against a third party for damages by reason of an injury, to which this Act is applicable, or the adjustment of any such claim shall not affect the rights of the injured employee or his dependents to recover compensation, but any amount recovered by the injured employee or his dependents from a third party shall be applied as follows: Reasonable costs of collection shall be deducted; then one-third of the remainder shall in every case, belong to the injured employee or his dependents as the case may be; the remainder, or so much thereof as is necessary to discharge in actual amount the liability of the employer and the insurance carrier for compensation, shall be paid to such employer or insurance carrier; and any excess shall belong to the injured employee or his dependents.
“(b) An employer or insurance carrier who shall have paid a lawful claim under this Act for the injury or death of an employee shall have the right to maintain an action in tort against any third party responsible for such injury or death. After reasonable notice and opportunity to be represented in such action by counsel shall have been given to the compensation beneficiary, the liability of such third party to such compensation beneficiary shall be determined in such action as well as his liability to the employer and insurance carrier. After recovery shall be had against such third party by suit or otherwise, the compensation beneficiary shall be entitled to any amount recovered over and above the amount that the employer and insurance carrier have paid or are liable for in compensation, after deducting reasonable costs of collection, and in no event shall the compensation beneficiary be entitled to less than one-third of the amount recovered from the third party, after deducting the reasonable cost of collection. Settlement of such claims and the distribution of the proceeds therefrom must have the approval of the Court or of the Commission. ’ ’
Having elected, however,, to proceed in tort against the third party under the above provisions of the Compensation Law, the proceeds of the $2,000 recovered must be applied under the act as follows:
“Reasonable costs of collection shall be deducted; then one-third of the remainder shall in every case, belong to the injured employee . . .; the remainder, or so much thereof as is necessary to discharge in actual amount the liability of the employer and the insurance carrier for compensation, shall be paid to such employer or insurance carrier; and any excess shall belong to the injured employee ...”
As we have indicated, appellant had the right to sue the third party, Acid Company, for his damages, but he cannot bring successive suits for parts. His suit, and damages recovered, are an entirety.
Here, appellant sued only for mental pain and suffering and disfigurement, and seeks to defeat appellee’s lien on the ground that the Compensation Act does not cover these elements of damage, but covers only loss of time, wages, hospital and doctor’s bills. We think, however, that since appellant could have sued for all elements of damages in one tort action, that is not only for mental pain and suffering and disfigurement, but for. loss of time, wages, medical and hospital expenses, when he, as here, elected to sue only for mental pain and suffering and disfigurement he was limited to the one recovery and could not defeat appellee’s lien on the proceeds of sucia recovery.
.The principles of law announced in Hydrick v. St. Louis Iron Mountain & Southern Railway Company, 118 Ark. 402, 177 S. W. 5, L. R. A. 1916B, 742, apply with •equal force here. In that case an injured passenger sued to recover for pain and suffering, medical attention, disfigurement and humiliation. He made no claim for loss of time or diminished earning capacity. He recovered a substantial judgment. He later brought another suit on the same injury and sought damages for loss of time ,and diminished earning capacity. The trial court sustained the plea of res judicata and on appeal this court said:
‘ ‘ The judgment of the Circuit Court was right. The cause of action and the damages recovered therefor are' an entirety. The party injured must demand all the damages which he has suffered or ever will suffer from the injury, grievance or cause of action upon which this action is founded. He cannot split a cause of action and bring successive suits for parts, because he may not be able at first to prove all the items of the demand or because all of the damages have not been suffered. If he attempted to do so, a recovery in the first suit, though for less than his whole demand, will be a bar to the second action. ...
“It is common learning that a plaintiff can not thus split up a cause of action, and bring several actions for the different items of damage, resulting from the one cause of action. If he'does bring an action for some only of such items of damage, he is barred from bringing another action for any other items of damage from the same cause, ’ ’
We conclude, therefore, that the action of the trial court in awarding appellee judgment and a lien on the proceeds of the settlement, supra, was correct, and accordingly, the judgment is affirmed.
McP addin and Mill wee, JJ., dissent. | [
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Bobins, J.
Appellants ask us to reverse two orders of the chancery court — one order refusing to set aside a decree rendered by a special chancellor and the other refusing to rehear the case.
There is no dispute as to the facts.
Byers and his wife, appellees, brought suit in circuit court against E. E. Harris and his wife who are the appellants, for possession of certain lands. Byers and wife prevailed on trial before a special judge of the chancery court, to which the case had been transferred. Harris and wife appealed to this court, asserting that the decree was not responsive to the evidence. The decree was affirmed by us on November 18, 1946. See Harris v. Byers, 210 Ark. 695, 197 S. W. 2d 730.
On petition for rehearing filed by appellants in this court on December 5, 1946, appellants, for the first time, raised the question of the lack of authority on the part of the special chancellor. This petition was overruled by us.
On November 30,1946, appellants filed motion in the chancery court asserting that Hon. E. L. Westbrooke, the special chancellor who heard and decided the cause, was not authorized to render the decree, which was dated November 30,1945, though not entered on the record until in March, 1946. Afterwards motion, requesting that the case he submitted to and tried by the regular chancellor, was filed by appellants. In this motion they alleged that Hon. Francis Cherry, the regular chancellor, who had been away in military service, returned and resumed his duties as such chancellor on December 1,1945. The lower court refused to set aside the decree of the special chancellor and refused to permit a retrial.
Appellants cite our opinion in the case of Cates v. Wunderlich, 210 Ark. 724, 197 S. W. 2d 482, as authority for their contention herein. In that case we held that a decree rendered by Judge Westbrooke, but not entered of record until some days after Judge Cherry resumed his duties, was void. But in that case the power of Judge Westbrooke to render and cause to be entered the decree was challenged at the time the decree was entered, and the same question was duly raised on appeal here.
In the early case of Sweeptzer v. Gaines, 19 Ark. 96, the authority of the special judge who had presided below was questioned in the Supreme Court for the first time. Disallowing this contention, this court in that case said: “Hence, the rule long since established by the decisions of this court, to he extracted from the various cases, that in order to present any question of that sort for revision here, the power and authority of the special judge must have been questioned in the court below, and the grounds of the objection stated in the record.” Authorities supporting this rule are set forth in the concurring opinion of Judge Hart in the case of Gordon v. Reeves, 166 Ark. 601, 267 S. W. 133; and while Judge Hart expressed the fear that the majority opinion in that case impaired somewhat the force of this rule, we do not find that it did so.
We said in the case of Strahan v. The Atlanta National Bank of Atlanta, Texas, 206 Ark. 522, 176 S. W. 2d 236: “In Blagg v. Fry, 105 Ark. 356, 151 S. W. 699, a special chancellor tried the cause, and on appeal it was insisted — for the first time — that the regular chancellor had no right to withdraw. In disposing of the contention, this court, after citing Sweeptser v. Gaines, 19 Ark. 96, said: ‘Both appellees and appellants were present at the trial of the cause in the chancery court, and, so far as the record discloses, no objection was at any time or in any manner made to the special chancellor acting as judge in the case. This court will not now for the first time hear such an objection. As held in the case of Sweeptser v. Gaines, supra, in order to be available here, the power and authority of a special chancellor must have been questioned in the chancery court’.”
In the case at bar no objection whatever to the authority of the special chancellor was made in the lower court when the suit was tried and the decree rendered, nor. did appellants make any objection in this court to the authority of Judge Westbrooke until after the cause had been heard by us de novo and the decree rendered by Judge Westbrooke had been affirmed by us on its merits. We refused to sustain appellant’s objection to Judge Westbrooke’s authority raised in their petition for rehearing.
It was certainly too late, after the case had been thus disposed of in the lower court and in this court, for appellants to renew their challenge to Judge Westbrooke ’s authority.
The decree of the lower court is affirmed. | [
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Ed. F. MoFaddin, Justice.
Appellants — W. M. Suit and H. C. Suit — seek to reverse a circuit court judgment against them for $1,000 on two forfeited bail bonds. On August 14, 1947, the Montgomery Circuit Court entered •the judgment here involved, the germane portions of which recite:
“That on the 26th day of August, 1945, Bly Suit was indicted by the grand jury of Montgomery County, Arkansas, for child abandonment and . . . for wife abandonment; that on the 21st day of December, 1945, Bly Suit, W. M. Suit and H. C. Suit . . . executed two bonds of $500 . . . , conditioned that Bly Suit would appear in circuit court ... , to answer said charges and would render himself amenable to the orders and process of said court and if convicted render himself in execution thereof; that ... on the 6th day of August, 1946 . . . , defendant Bly Suit appeared in person and entered a plea of guilty to each of said indict ments and charges; that the court then and there pronounced sentence or judgment upon him, fixing his punishment at $500 and six months in jail; the court suspended the execution of said judgment, at this time, to give the defendant an opportunity to comply with an order made by the judge of the chancei-y court of Garland county previously made, and ordered defendant to remain under the present bond; that on December 11, 1946, the court revoked the suspension order made on the 6th of August, and ordered a warrant for the arrest of defendant who is still at large.
“This court entered an . . . order . . . , declaring a forfeiture on the bond executed by W. M.Suit and H. C. Suit, and ordered the clerk to issue his summons for their appearance in this court to show cause why a judgment against them on said bonds should not be rendered; defendants . . . filed an answer, and after argument of attorneys, and without the introduction of any evidence, but considering the case from the record as made above, the court finds that plaintiff should have judgment against the defendants W. M. Suit and H. C. Suit in the sum of $1,000 with interest, and that execution should issue upon said judgment.
“It is therefore, by the court considered, ordered and adjudged, that plaintiff have judgment, against the defendants and each of them in the sum of $1,000; that execution be issued . . . ” ’
From that judgment there is this appeal.
I. Absence of Motion for Neiv Trial and Bill of Exceptions. At the threshold of this appeal, the State points out that the transcript contains neither a motion for new trial nor a bill of exceptions, and therefore urges affirmance, citing these cases: Eveland v. State, 189 Ark. 517, 74 S. W. 2d 221; Independence County v. Tomlinson, 93 Ark. 382, 125 S. W. 423; School District v. School District, 64 Ark. 483, 43 S. W. 501; and Good Samaritans v. Anderson, 171 Ark. 1033, 287 S. W. 194.
But appellants contend that the judgment here involved shows all the facts, and that the alleged error on which they rely — subsequently to be discussed — appears on the face of the judgment: therefore — they urge — that neither a motion for new trial nor a bill of exceptions is necessary; and they cite Ford v. State, 100 Ark. 515, 140 S. W. 734 ; Burns v. Harrington, 162 Ark. 162, 257 S. W. 729; Buchanan v. Halpin, 176 Ark. 822, 4 S. W. 2d 510.
Ford v. State, supra, was a bond forfeiture case, just as this one, and we there said: “Counsel for appellee urges that the appeal should be dismissed because no motion for a new trial, or bill of exceptions has been filed. Neither a motion for a new trial nor a bill of exceptions is necessary where the errors complained of do not grow out of the evidence or instructions, but appear from the record itself. Independence County v. Tomlinson, 93 Ark. 382, and 95 Ark. 565, 125 S. W. 423; Norman v. Fife, 61 Ark. 33, 31 Ark. 740; Ward v. Carlton, 26 Ark. 662.” Language to the same effect may be found in each of the other cases cited by appellants. Since the question which appellants here urge is one that appears on the face of the judgment, we conclude that neither a motion for a new trial nor a bill of exceptions is necessary to present the question.
II. Were Appellants, as Sureties, Discharged When the Defendant Was Sentenced¶ That is the real question presented. The judgment, as previously copied, recites that the defendant Bly Suit appeared in court on August 6, 1946, and entered a plea of guilty, and “that the court then and there pronounced sentence or judgment upon him, fixing his punishment at $500 and six months in jail; the court suspended the execution of said judgment, at this time, . . . ” The appellants claim that, when the court pronounced sentence, such act terminated all liability of the sureties on the bail bond, and that the suspension of the execution of sentence was a judicial leniency that did not and could not continue the liability of tbe sureties on the bond; and they cite, inter alia, Ford v. State, supra, and Richardson v. State, 169 Ark. 167, 273 S. W. 367.
In Ford v. State, Ford and Pressly were sureties on the bail bond of Phillips, who appeared in court, and entered a plea of guilty. The court pronounced sentence, ‘ ‘ and upon motion of the defendant and leave of the court judgment was suspended” until the next term of the court. At the said next term Phillips failed to appear, and the court forfeited the bail bond, and rendered judgment against Ford and Pressly as the sureties. On their appeal to this court, we said: “Where a party is present in court and pleads guilty, and the sentence of the court is pronounced, he is no longer in the custody of the bail, but is in the custody of the proper officers of the law, and his sureties are thereby discharged by the operation of the law without a formal order to that effect. The reason is that the condition of the bond then will have been fully complied with. ’ ’
In Richardson v. State, supra, in speaking of the fact that the court had pronounced sentence in Ford v. State, we said: “The effect of this proceeding was to take the defendant out of the custody of the bail and place him in the custody of the proper officers of the law.”
In short, we have made the pronouncing of sentence to be the act that releases the sureties' on the bond. The statutory form of bail bond (§ 3765, Pope’s Digest) is the same in the case at bar as in the cases of Ford v. State, supra, and Richardson v. State, supra; and we adhere to the holding that the pronouncing of sentence is the act terminating the liability of the sureties on the bail bond.
Appellee contends that there is one fact in the case at bar which distinguishes it from Ford v. State; and that fact is, that here the court specifically directed that the defendant should remain on his present bond. Appellee points to this language in the judgment, supra: “ . . . the court suspended the execution of said judgment at this time . . . and ordered defendant to remain under the present bond.” It is cleai that the court, in suspending the enforcement of the sentence, attempted to keep the bail bond in full force. Was it within the power of the circuit court to so bind the sureties ? This precise question has not been decided by our court under facts identical to those here; but other courts have passed on such a situation.
In State v. Romaine, 47 Okla. 138, 148 Pac. 79, the fact showed: that the defendant had appeared in court, and had received his sentence, and the court had allowed the defendant to remain at liberty for ten days on his original bond; and that during the ten-day interval Romaine had absconded. The State sougfht judgment against the sureties- on the original bond; and under such facts the Supreme Court of Oklahoma held that, when Romaine was sentenced, he was no longer in custody of his bail, but in custody of the law, and that the bond was discharged by such sentence. We quote:
“Upon judgment being rendered and sentence passed, the custody of the defendant under the law passed from his bail to the proper officer, and the court was not at liberty to vary or enlarge the terms of their undertaking. The same conclusion was reached in somewhat similar circumstances in the following cases: Ex parte Williams, 114 Ala. 29, 22 South. 446; McGarry v. State, 37 Kan. 9, 14 Pac. 491; Sowders et al. v. State, 37 Kan. 209, 14 Pac. 865; State v. Zimmerman, 112 Iowa 5, 83 N. W. 720; Miller v. State, 158 Ala. 73, 48 South. 360, 20 L. R. A., N. S. 861; Towns et al. v. Hale et al., 68 Mass. 199; Roberts v. Gordon, 86 Ga. 386, 12 S. E. 648.”
In People v. Brow, 253 Mich. 140, 234 N. W. 117, the facts showed that the court' sentenced the defendant to prison, but delayed the imprisonment for a short period after sentence, directing that during such interval the original bail bond would remain in force. In the interval the defendant absconded, and the State sought to enforce a judgment against the sureties on the original bond. The Supreme Court of Michigan denied the State’s claim, saying:
“The defendants’ (sureties’) obligations under the conditions of this bond required them to have their principal in court until his case was finally determined. It was terminated when sentence was imposed. The court had no authority to continue the bond in force beyond that time without the consent of the sureties. They were not present when sentence was imposed, and did not consent. Therefore they were not bound by the order of continuance.” It is interesting to .note that, as persuasive to its conclusion, the Michigan court cited our own case of Ford v. State, supra.
It has been suggested that the trial court had the right during the trial to allow the defendant to stand on his bond, and that this same power of the trial court could extend to a situation like the one here. The vice in such argument lies in the fact that, although the statute (§ 3772, Pope’s Digest) specifically states that the trial court may allow the defendant to remain on his bond during the trial, nevertheless, such statute does not provide that the trial court has such power after sentence has been pronounced.
Furthermore, it is insisted that the sureties might have been in court and might have consented to the defendant standing on his bond. But, in such event, the court should have taken a recognizance as provided by § 3770, Pope’s Digest. The judgment does not recite that the sureties were in court; and this is not a suit on a recognizance, but a suit on the original bond. Prima facie, the trial court in this case attempted to extend the bond past the pronouncement of sentence. Our cases hold that the liability of the sureties on the bail bond is terminated when sentence is pronounced, and we adhere to that holding. In 20 A. L. B. 594 there is an annotation, “Bail: Stage of proceeding at which sureties are discharged in criminal case”; and it is there stated that the weight of authority is to the effect that the sureties are discharged when sentence is pronounced.
By Act 76 of 1923' (§ 4053, Pope’s Digest) the Legislature enacted a law allowing the trial court to defer the passing of sentence. Under that act we held — in Richardson v. State, supra, — that the liability of the sureties on the bail bond continued until sentence was pronounced. Then, by Act 262 of 1945 the Legislature amended § 4053, Pope’s Digest, and enacted á law requiring the trial court to pronounce sentence, but permitting the trial court to suspend the execution of the sentence. When this 1945 act was passed, the cases of Ford v. State and Richardson v. State had both been decided, each definitely holding that, when sentence was pronounced, the bail was released. So, if the Legislature had intended that the original bail bond could remain in force after the sentence had been pronounced, then the 1945 act should have so stated. In the absence of any such legislation, we must follow our cases, and hold that the liability of the sureties on the bail bond is ended when sentence is pronounced. A new bond or a recognizance could easily be taken.
The judgment of the circuit court is reversed, and the cause is remanded with directions to proceed in a manner not inconsistent with this opinion.
In the Arkansas report this case is styled as above; in- the Southwestern Reporter this case is styled Phillips v. State, since Phillips was the person who was indicted, and later failed to appear in court. The correct style is Ford v. State. | [
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Minor W. Milwee, Justice.
This appeal involves the validity of Ordinance No. 392 of the City of Stuttgart, Arkansas, enacted on August 6, 1946, for the purpose of establishing a building line on the east side of Main Street in said city. The pertinent provisions of the ordinance are contained in §§ 1, 2, 3, 5, and 7, which read as follows:
“Section 1. That no fence or other improvements and no buildings of any description shall be built nearer to the center line of Main Street in said city of Stuttgart, between First Street in said city and Sixth Street in said city, on either side of said center line of said Main Street, than fifty (50) feet, either east or west, of said center line, as said center line now exists between First and Fourth Street.
“Section 2. All improvements or buildings of every description hereafter built or erected along that narrower portion of Main Street herein designated must conform in frontage location to an even line with all other buildings from First Street south along Main Street to the beginning of said narrower portion of Main Street, so that hereafter all buildings or improvements made or constructed on either side of Main Street from First Street to Sixth Street shall be located, fifty (50) feet from the center line of said Main Street, as said center line now exists between First and Fourth Streets.
“Section 3. Nothing in this ordinance shall be construed to interfere with any building now standing nor shall this ordinance interfere with the repairing of any building now existing but it shall apply to any new building or improvement of any kind that may be erected in the future.
“Section 5. Compliance with this ordinance may be enforced by mandamus or injunction proceedings brought by any citizen or property holder owning property in the City of Stuttgart; and if any such improvements or building should be started or begun contrary to the provisions of this ordinance, the city council may cause the same to be removed or remove it through its agents and employees.
“Section 7. The setting back of the building line from the center line of said Main Street, as herein provided for, will greatly reduce the fire hazard by giving more space and room to fight fires and will greatly reduce the traffic hazard by providing more space for pedestrains and will improve health conditions by providing more aid space with a wider unbuilt area. Therefore this ordinance is necessary for the immediate preservation of the-public health, peace and safety, and an emergency is hereby declared and said ordinance shall take effect and be in force from and after its passage and publication.”
Stuttgart is a city of the first class and its principal business district is located along the east and west sides of Main Street from First Street on the north 'to Sixth Street on the south. Main Street is a thoroughfare over which traffic of principal highways leading into the city passes. Beginning at the south line of lot 6 in block 18 of Union Addition to the city and extending north for approximately three blocks, Main Street is 100 feet wide and all lots fronting on the east side of the street in this area extend 140 feet east and west. However, Main Street, is only 82% feet wide from the south line of said lot 6 extending south to Sixth Street. Plaintiff, C. W. Strait, owns a parcel of land extending 60 feet north and south and 157% feet east and west and fronting on the present east line of Main Street in this area. There is an apartment building situated on the eastern part of this parcel and the west line of the apartment house is 70 feet from the present east line of Main Street.
On September 5, 1946, plaintiff filed this suit in chancery court to enjoin the city and its officers from enforcing the provisions of the ordinance. Plaintiff alleged in his complaint that he was contemplating the erection of an office building on his lots between the apartment building and the present east line of Main Street; that the power to establish building and setback lines has not been delegated by the General Assembly of Arkansas to the City of Stuttgart, and that the city is without power to enact the ordinance which is, therefore, void; that the enforcement of said ordinance would' confiscate that portion of plaintiff’s property lying within 17% feet of the present east line of Main Street; that the ordinance violates the due process clauses of both the state and federal constitutions in that it contains no provision whereby plaintiff may be compensated for the loss of his property.
In its answer the city denied that enforcement of .the ordinance would confiscate plaintiff’s property or that it violated the due process clauses of the state or federal constitutions. The answer also denied that plaintiff would suffer any damage on account of the enforcement of the ordinance and alleged that the property of plaintiff would be benefited thereby in an amount far exceeding any damage that might be suffered. The cause was submitted to the chancellor upon the pleadings and the following stipulation:
“The plaintiff is the owner of the south 23 feet of lot 8, and all of lot 9, and the north 13 feet of lot 10, in block 18, of Union Addition to the City of Stuttgart. The said described property being 60 feet north and south and 157 5/10 feet east and west, and extending eastward from the present east line of Main Street to the alley running north and south through said block 18.
“That situated on the eastern end of said above described property is a frame building known as the ‘Magnolia Apartments’ and the distance from the west side of said building to the present east line of Main Street is 70 feet.
“The enforcement of Ordinance No. 392 of the Ordinances of the City of Stuttgart will prevent him (plaintiff) from erecting thereon any buildings or structures of any kind and character whatsoever on the 17% feet between the proposed building line and Main Street.
“A drawing of said block 18 of Union Addition showing the present east line of Main Street and the boundary lines of the property owned by various persons on that part of block 18, beginning with lot 7 and extending southward to Sixth Street, is hereto attached, made a part hereof and may be received in evidence.
“The City of Stuttgart has not adopted the provisions of §§ 9690-9696 of Pope’s Digest and has not created a Planning Commission as provided in said statutes, and is in no position to exercise any of the powers delegated to the city by the above mentioned statutes.”
The chancellor held the ordinance invalid and permanently enjoined the officers of the city from enforcing its provisions. The city has appealed.
The right of the City of Stuttgart to establish building or setback lines on the property of plaintiff must be determined by the nature and scope of the power which has been conferred on the city by the General Assembly of this state. In the case of Nesler v. Paragould, 187 Ark. 177, 58 S. W. 2d 677, this court said: “The right to enact ordinances is a power conferred on municipal corporations by legislative grant, and therefore its authority to legislate is limited to the authority found in an express grant of power, or which is necessarily implied in the express grant in order to make effective the attainment of the purpose for which the express authority is given. Argenta v. Keath, 130 Ark. 334, 197 S. W. 686, L. R. A. 1918B, 888.” This rule was reaffirmed in Bennett v. City of Hope, 204 Ark. 147, 161 S. W. 2d 186, where the court said: “Municipal corporations derive their legislative powers from the general laws of the state. Article 12, § 4, Constitution of Arkansas. In City of Argenta v. Keith, 130 Ark. 334, 197 S. W. 686, L. R. A. 1918B, 888, we said: ‘A municipal corporation has no powers except those expressly conferred by the Legislature, and those necessarily of fairly implied as- incident to or essential for the attainment of the purposes expressly declared. Willis v. City of Fort Smith, 121 Ark. 606, 182 S. W. 275; Bain v. Fort Smith Light & Traction Co., 116 Ark. 125, 172 S. W. 843, L. R. A. 1915D, 1021; Morrilton Waterworks Imp. Dist. v. Earl, 71 Ark. 4, 69 S. W. 577, 71 S. W. 666.’ ”
The only legislative act which expressly delegates to municipal corporations the power to establish building or setback lines is Act 295 of 1937 which amended Act 108 of 1929. These acts authorize cities of the first and second class to provide for city zoning and planning through the creation of a Planning Commission. Section 3 of Act 295 of 1937 amended § 5 of Act 108 of 1929, and now appears as § 9694 of Pope’s Digest, the third and fourth paragraphs of which read as follows: “Whenever the plan for a major street system has been adopted by the Planning Commission and properly filed, the City Council, upon recommendations of the Planning Commission, is hereby authorized and empowered to establish, regulate and limit, by order, building or setback lines on such major highways, and to prohibit any new building being located within such building or setback-lines within the corporate limits of the city.
“The City Council shall provide for the method by which this section of the Act shall be enacted and enforced and shall provide for a Board of Adjustment with powers to modify or vary the regulations, in specific cases, in order that unwarranted hardship, which constitutes a substantial deprivation of use as distinguished from merely granting a privilege, my be avoided, the intended purpose of the regulations strictly observed and the public welfare and public safety protected. These regulations shall not be ’adopted, changed, or amended until a public hearing has been held thereon, fifteen (15) days’ notice regarding the time and place of which shall be published in a newspaper of general circulation within the city.”
Now it is conceded in the stipulation of the parties that the city is not in position to exercise any of the powers delegated to it by the above mentioned statutes, since it has not created a planning commission nor adopted the procedure set out in such acts. It, therefore, becomes unnecessary for us to determine the validity of these acts insofar as the power of the city to establish building lines is involved herein.
For reversal of the decree, however, the city insists that it had ample authority to enact the ordinance under the provisions of Act 352 of 1907 which is entitled, “An Act conferring upon cities of the first class the power to better regulate the building, razing or removing houses.” The act reads as follows:
“Section 1. The following enlarged and additional powers are hereby conferred upon cities of the first class, namely: They shall have the power to regulate the building of houses, and to provide that no house or structure shall be erected within the city limits except upon a permit to be issued by such officer or officers as the City Council shall designate, and to provide that no permit shall be issued for the building of any house or structure deemed to be unsafe, unsanitary, obnoxious, or detrimental to the public welfare.
“Section 2. They shall also have the power to order the removal or razing of, or to remove or raze any buildings or houses that have become in the opinion of the council dilapidated, unsightly, unsafe, unsanitary, ob noxious, or detrimental to the public welfare, and shall provide by ordinance the manner or (of) removing and making such removals.” The foregoing sections now appear as §§ 10053 and 10054, Pope’s Digest.
We agree with counsel for the city that the 1907 act was not repealed by Acts 108 of 1929 and 295 of 1937, supra, but we cannot agree that the act authorized the city to establish building lines, or that such power is necessarily implied from its provisions. By the terms of the act cities of the first class are authorized to enact ordinances prohibiting the erection of buildings anywhere within the city without a permit first being procured. The city is also empowered to prohibit the erection of any structure within the city limits that is deemed to be unsafe, obnoxious, or detrimental to the public welfare, and may order the removal of such structures. The power expressly delegated relates solely to the kind and character of buildings which may be erected and not the location thereof. The power to regulate is confined to the type of structure that may be erected or removed anywhere within the city. Building and setback lines are not mentioned in the act. The exercise of the power to establish such lines might deprive a property owner of a substantial use of his property without compensation to him for the loss of this valuable right. Before it should be said that a property owner may be deprived of such a valuable right the power of a municipal corporation to do so should be unmistakably clear from language of the legislative grant.
The fact that the Legislature of 1937 through Act 295, supra, did mean to specifically delegate to cities of the first and second class the power to fix building lines would indicate a recognition by the lawmakers that such authority had not been given in prior enactments'. Bragg v. Adams, 180 Ark. 582, 21 S. W. 2d 950. We think it is clear that there was no intention on the part of the lawmakers to delegate the power to fix building and setback lines to municipal corporations in the Act of 1907, supra.
The city also contends that it has authority to enact the ordinance in question under the provisions of Act 102 of 1939, wliicli amends § 9619 of Pope’s Digest. This statute contains express grants of power to all municipalities and provides: “They shall have the power to regulate the erection, construction, reconstruction, alteration and repair of buildings; to make regultions for the purpose of guarding against accidents by fire; to require the use of fire-proof or fire-resistant materials in the erection, construction, reconstruction, alteration or repairs of buildings, and to provide for the removal of any buildings or additions thereto erected contrary to such prohibition.” This statute is an amendment of the 13th section of an Act of March 9, 1875, the same act which contained the so-called “general welfare clause,” which now appears in § 9543 of Pope’s Digest. The welfare clause provides: “and they shall have power to make and publish such by-laws and ordinances, not inconsistent with the laws of this State, as to them shall seem necessary to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of such corporations and the inhabitants thereof.”
Act 102 of 1939, supra, clearly defines and limits powers which are expressly delegated in reference to building regulations. It neither expressly nor impliedly authorizes the establishment of building and setback lines. It is true that the general welfare clause contains a general grant of power and municipal corporations have a broad discretion in determining what is necessary for the public welfare, but this clause may not be used to enlarge special grants of power set out in Act 102 of 1939 with reference to building regulations. This rule was laid down-in the early case of Tuck v. The Town of Waldron, 31 Ark. 462. This case construed the provisions of the original act of March 9, 1875 and the court there said: ‘ ‘ The rule seems to be, as stated by Judge Dillon, that ‘When there are both special and general provisions, the power to pass by-laws under the special or express grant, can only be exercised in the cases, and to the extent, as respects those matters, allowed by the charter. or incorporating act; and the power to pass by-laws under the general clause does not enlarge or annul the power conferred by the special provisions in relation to their various subject matters, but gives authority to pass by-laws, reasonable in their character, upon all other matters within the scope of their municipal authority, and not repugnant to the 'Constitution and general laws of the State.’ ” See, also, Buell v. The State, 45 Ark. 336; Mena v. Smith, 64 Ark. 363, 42 S. W. 831.
Since it is conceded that the City of. Stuttgart is in no position to exercise the power to fix building lines by proceeding under Act 295 of 1937, it must be concluded that it was without power to enact the ordinance in question. The right of the city to widen the street and appropriate the property of plaintiff by the exercise of the power of eminent domain is, of course, not involved herein.
The decree of the trial court holding the ordinance invalid is affirmed. | [
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Holt, J.
Juanita Yates, appellee, on July 9, 1946, sued E. W. Yates for divorce and alimony.. She alleged statutory grounds for divorce and prayed for “a reasonable sum each month for her support,” costs, attorneys’ fees and all proper relief. Constructive.service was had on E. W. Yates, he being a nonresident. The attorney ad litem, appointed for him, filed his report November 25, 1946, stating that “I have made due inquiry as to the whereabouts of the defendant, Edward W. Yates, and his whereabouts cannot be ascertained.” On the same date, November 25th, an order of general attachment was issued directing the sheriff of Howard county to attach the property of Yates or so “much thereof as will satisfy the claim of Juanita Yates, the plaintiff, . . . for $3,000 and $25 for the cost thereof.” Bond was executed by appellee and on November 30th an attachment was levied on the following Howard county land: “Fractional SE% of NWy4, W% of W% of SE% arid SW14 of NEy4, all in section 18, township 6 south, range 30 west.” On November 27, 1946, the clerk issued a general attachment order directed to the sheriff of Little River county and a levy was made on the following property in Little River county.: “Sy^ of NWy4> section 9, township 13 south, range 32 west, and lot 4 in block 1, Bell’s Addition to the town of Rocky Comfort, called Foreman. ’ ’
.Thereafter, on December 27, 1946, appellee filed an amendment to her complaint in which she alleged: “Shortly before defendant abandoned plaintiff on May 12, 1946, he sold and disposed of the following personal property, which belonged to plaintiff, all the equipment used in his office, including sheets, pillows, pillow cases, and hospital beds, one automobile sold for $1,000, one registered Holstein male, and 3 registered Holstein cows, 2 horses, 10 rolls of wire, a lot of farm tools and implements, several other head of cattle, 3 ice boxes and 1 juke box in a negro cafe in Foreman, worth $100; he also collected the money arising from the sale of two houses belonging to the plaintiff in the negro section of Foreman.
“Plaintiff is a trained nurse, and for many years prior to said separation, she worked right with the defendant in his office continuously without salary or compensation of any kind, and through the joint efforts of plaintiff and defendant, they had accumulated savings, just prior to said separation, amounting to at least $10,-000, which was in cash and in government bonds, and when the defendant abandoned and deserted the plaintiff, as aforesaid, he took with him all of said money and bonds and the proceeds from the sale of all of said property belonging to the plaintiff, and has fully failed to account to the plaintiff or turn over- to her any part of said money and bonds.”
Her prayer was “that she have and recover of and from the defendant, the full value of all of her said property so converted to his own use by him, and also such a sum as will reasonably and fairly compensate her for her portion of said joint earnings of plaintiff and defendant, and for all other proper and equitable relief to which she may be entitled.”
January 2, 1947, the cause was tried and a decree entered granting appellee a divorce, and a personal judgment against E. W. Yates for $5,000. The attachments were sustained and it was ordered that ‘ ‘ all interests of defendant, E. W. Yates, . . . sold for the satisfaction of this decree.”
Pursuant to the decree, the lands were sold, and purchased by appellee. Her bid for the Howard county land was $1,000, and$2,000 for that in Little River county. Both of these amounts were credited on the decree for $5,000. The sales were duly reported, approved, and confirmed on April 12, 1947, and certificates of purchase issued to appellee.
Subsequent to the decree, E. W. Yates remarried,' and on July 11, 1947, thereafter, died. The cause has been revived here in the name of his administrator, widow and James E. Yates.
Among the grounds .for reversal, appellant alleges and contends that “the amendment stated a new cause of action and the judgment thereon was void because no new service was had after the amendment was filed.”
We think this contention must be sustained.
The record shows, as above indicated, that appellee filed her original complaint July 9, 1946, an amendment thereto on December 27, 1946, and approximately six days later, January 2, 1947, secured her decree:
E.' W. Yates was constructively summoned to answer the original complaint. No summons, personal or constructive, was had on him following the filing of appellee^ amendment to her complaint.
We think it clear that appellee’s amendment to her original complaint stated a new cause of action and that the trial court lacked jurisdiction to proceed thereon in the absence of service on Yates.
Appellee, in her original complaint, sought a divorce and alimony. She did not ask that property rights be adjudicated, but in her amendment, as above noted, for the first time, she sought a property settlement and alleged that Yates had sold and disposed of' a large amount of personal and real property belonging to her, the proceeds of which, along with other property and accumulated savings through their joint efforts amounting to $10,000 in cash and government bonds, Yates took with him when he abandoned her.
In accordance with her prayer that she recover from Yates “the full value of all of her said property so converted to his own use by him, and also such sum as will . . . compensate her for her portion of said joint earnings of plaintiff and defendant,” the court awarded her a personal judgment against defendant, E. W. Yates, in the amount of $5,000.
The general rule is stated in 49 C. J. S., page 340, § 194, in this language: “Where the complaint is amended in a matter of substance after default, a valid default judgment cannot be entered on the amended pleading unless the defendant, is duly notified of the amendment and given opportunity to plead. Where the declaration or complaint is amended in a matter of substance after defendant has defaulted, the amendment opens the case in default, and a valid default judgment cannot thereafter be entered on the amended pleading, unless the defaulting defendant is properly notified of, or served with, the amended pleading and given an opportunity to plead, and then fails to do so within the proper time.”
The original complaint here was amended in matter of substance and it was therefore necessary to obtain a second service upon Yates to afford him the opportunity to answer and make defense.
In the recent case of Shepherd v. Grayson Motor Company, 200 Ark. 199, 139 S. W. 2d 54, we said: “Of course if the substance of the amendment was to set up a new or different cause of action, or separate cause of action, then it would have been necessary to get a new service before a judgment could bev rendered on the amended complaint.”
The Supreme Court of California in Cole v. Roebling Const. Co. et al., 156 Calif. 443, 105 Pac. 255, said of the reason for the rule: “The reason for this rule is plain. A defendant is entitled to opportunity to be heard upon the allegations of the complaint on which judgment is sought against him. His default on the original complaint is limited in its effect to that complaint; and, if by amendment a matter of substance is added, he should be given the opportunity to contest the same before any judgment is given against him on account thereof. The law, therefore, requires that the amended pleading shall be served on all the adverse parties, including defaulting defendants.”
Por the error indicated, the decree is reversed and the cause remanded with directions to set aside the sale of the property involved, cancel the certificates of purchase to appellee, and for further proceedings consistent with this opinion. | [
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Bobins, J.
The sole question is whether appellant is owner of bauxite deposit on forty acres in Saline county, upon which'he has been living for fifty-six years, or whether appellee owns same by virtue of a reservation in the contract of sale and in the deed by which its predecessor conveyed the l$nd to appellant.
On August'21, 1892, appellant bought this land from appellee’s predecessor in title, St. Louis, Iron Mountain & Southern Bailway Company, and entered into a written agreement of purchase with it by which he agreed to pay for it the sum of $129. This agreement contained the following reservation, which also appeared in the deed executed by the railway company to appellant, dated January 6, 1896: “Beserving also unto the said St. Louis, Iron Mountain &. Southern Bailway Company, its successors and assigns, all coal and mineral deposits in ánd upon the said lands, with the right to the said party of the first part, its successors and assigns, at any and all times to enter upon said lands, and to mine and remove any and all coal and mineral deposits found, thereon, without any claim for damages on behalf of said second, party, his heirs or assigns.”
On trial in chancery court, where each party asked for decree quieting title in the bauxite deposits, appellant introduced numerous elderly residents of Saline county, who testified that existence of bauxite deposits in that locality was unknown at the time appellant purchased the land in 1892.
Appellant, who was 81 years old, testified that he was a farmer and bought the land for a home; that he had lived on it and paid taxes on it since 1892. He fur-, ther stated that there was no mineral reservation in the contract and. that when he bought the land he had neyer heard of any’bauxite in that yicinity.
Appellee’s evidence, consisted of copies of historical tracts, newspaper articles and advertising folders, in which reference was made to bauxite mining in Arkansas, and also copies of recorded leases and deeds pertaining to bauxite deposits.
It was stipulated that appellant had paid all taxes assessed against the land since his purchase thereof, but that since the passage of the Arkansas law requiring separate assessment of mineral rights appellee had assessed and paid taxes on such rights as to the land sold to appellant.
The lower court by its decree quieted title of appellee to the “bauxite ore in or under or that may be produced from” the land in question as against any claim of appellant. This appeal ensued.
A reservation in a conveyance by the railway company executed in 1892, identical with the reservation involved herein, was considered by this court in the case of Missouri Pacific Railroad Company, Thompson, Trustee, v. Strohacker, 202 Ark. 615, 152 S. W. 2d 557, decided May 26, 1941. In that case the railway company insisted that under this reservation it had title to gas and oil deposits in certain lands in Miller county. This court, in its opinion, reviewed the authorities oh the question and concluded that “if the reservations had been made at a time when oil and gas production, or explorations, were general, and legal or commercial usage had assumed them to be within the term ‘minerals’, certainly appellant [the railroad company] should prevail.” But the court declared: “Although there were court decisions holding oil and gas to be minerals, such was not the general construction; and this was particularly true- in a country where oil and gas were not given the slightest commercial consideration in connection with.land values. ‘All coal and mineral deposits’ undoubtedly were thought to mean, in addition to coal, deposits of substances commonly recognized as minerals; and as to such the reservations are good. ’ ’ In that case we held that this reservation was not sufficient to cover oil and gas.
In tlie case of Missouri Pacific Railroad Company, Thompson, Trustee, v. Furqueron, 210 Ark. 460, 196 S. W. 2d 588, we were asked to overrule. our decision in the Strohacker case, supra, which we declined to do.
In the Strohacker case it was shown that oil'was discovered in the United States in Pennsylvania on August 29, 1859; later, in 1860, in Kansas; in Colorado in 1862, in Wyoming in 1867, in California in 1875, in Indian Territory in 1891, and in Texas in 1887; and that the possibility of existence of oil in Arkansas was recognized as early as 1885. The earliest reported case, involving oil or gas in Arkansas, was decided in 3911. Under this factual situation we held in the Strohacker ease that recognition of oil and gas as minerals was not sufficiently general in this part of the country in 1892 to authorize a holding that these deposits were contemplated in the reservation used in the deed of the railroad company involved in that case.
According to the proof offered by appellee below the existence of bauxite in Arkansas was not announced until 1891. One of appellee’s exhibits was an article published in the “Journal of Geology” in April, 1897, by Mr. J. C. JBranner, in which it was said: “The geological survey of Arkansas was begun in June 1887. In that month I discovered some of the bauxite beds of Pulaski county, but the nature of these deposits was not announced until January, 1891, when I gave [in a letter to Governor James P. Eagle] a short account of their distribution and character. ’ ’
Appellee introduced copies of a number of leases and conveyances found on record in Saline county in which there appears a mention of bauxite or bauxite operations. The earliest of these was executed on August 31, 1895.
There is no proof that existence of bauxite in Arkansas was generally known in 1892; in fact the commercial use of bauxite is of comparatively recent origin in the United States. Certainly the general exploration for and use of petroleum in the United States antedated that of bauxite.
While bauxite may be said to be a .mineral it cliff ers in an important aspect from ordinary minerals. It is a clay formation which contains alumina in very small particles. This alumina is extracted by a complicated refining process and forms the basic ingredient of aluminum.
“Bauxite is a term given to an earth that contains alumina in sufficient quantities to make it worth working for the extraction of aluminum.” American Bauxite Company v. Board of Equalization of Saline County, 119 Ark. 362, 177 S. W. 1151.
Generally, the operation of mining bauxite is not n subterranean one, but is accomplished by digging of open pits. Sovereign Camp Woodmen of the World v. Arthur, 144 Ark. 114, 222 S. W. 729. Manifestly, such an operation would destroy the value of the land for farming-purposes, or any other purpose. To give the contract between appellant and the railroad company the construction asked by appellee we must hold that Carson and the railroad company entered into a contract in 1892, b}7 which the railroad company would have had the right, (assuming that the bauxite was to be removed by the open pit method) the day after Carson paid for his farm homo, to enter upon it and utterly destroy its value without any liability upon the part of the railroad company for damages. Such a construction, under the situation of the parties shown here, would be an extremely unreasonable one. A reservation as broad as the grant is ordinarily void. 26 C. J. S., Deeds, p. 447, § 139.
We conclude that the rule announced in the Strohacker ease, supra, as well as the unreasonableness, under the circumstances, of the construction asserted by appellee, requires a holding that bauxite was not in the contemplation of the parties to the contract when this reservation of mineral rights was made.
It follows that the decree of the lower court must be and is reversed and the cause remanded to the lower court with directions to enter a decree quieting title in appellant to the bauxite on the land described in the complaint.
McHaney, Holt and MoFaddin, JJ., dissent. | [
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Minor W. Millwee, Justice.
This is a suit by appellees, Pearl Moore Roy and Joel Y. McComb, to require appellant, E. C. Ollar, Jr.,'to specifically perform a contract for the purchase of certain lands in Jefferson county, Arkansas. The facts are undisputed and the only question involved is whether appellees are vested with fee simple title to the lands under the terms of their mother’s will.
Sallie Bryan MeComb, mother of appellees, died testate in Woodruff county, Arkansas, in December, 1922. At the time of her death she held fee title to 160 acres of land in section 16, and an undivided one-third interest in remainder to 160 acres in section 21, all in township 7 south, range 7 west, Jefferson county, Arkansas. The tract in section 21 was subject to the life estate of Sallie Bryan MeComb’s stepmother who died in 1941.
The will of Sallie Bryan MeComb was duly probated in Woodruff county in 1923 and later filed for record in the probate court of Jefferson county. Appellees took possession of the lands in section 16 immediately following the death of their mother in 1922. On the death of the life tenant in 1941, appellees also took possession of the tract in section 21 and have held possession at all times since, claiming ownership in fee of the respective tracts. Appellees were the only children of Sallie Bryan MeComb. Pearl Moore Roy was'56 years of age at the time of the trial and had one child, a son, 30 years of age. Joel Y. MeComb was 51 years of age, unmarried and had no children.
. On October 1, 1946, appellees entered into a written contract with appellant and agreed to sell the lands which they claimed title to under the provisions of their mother’s will. Pursuant to the contract, appellees tendered their deed to the lands, but appellant refused to accept the title, insisting that appellees acquired only a life estate, or a title less than fee, under the will and could not, therefore, convey a merchantable fee title to appellant in accordance with the written contract.
The will of Sallie Bryan MeComb contains the following provisions which are involved here:
“That all the property I own and money in banks and stocks be equally divided in half to my two children (Pearl Moore Roy and Joel V. MeComb) . . .
“If my son Joel Y. McComb should die bearing no children of his own the said inherited property must come back to his sister, ‘Pearle Moore Roy.’
“If Pearle Moore Roy should die the said property goes to her children equally divided and in case she leaves no children property goes back to her brother, Joel V. McComb.”
The trial court construed the will as vesting a fee simple title in appellees to the lands involved and decreed specific performance of the contract.
It is first insisted by appellant that the first paragraph above does not in express terms constitute a devise in fee to the appellees. It is true that the testatrix did not use the technical wording ordinarily employed in deeds and other legal documents. In the case of Baum v. Fox, 192 Ark. 406, 91 S. W. 2d 601, this court approved the rule stated in 28 R. C. L., Wills, § 201, p. 237-8, as follows : “By the earlier common law it was an established rule that a devise of lands, without words of limitation, conferred on the devisee an estate for life only. An exception was soon recognized in the case of a will so that an estate in fee could be given without the use of the technical words required in a conveyance or deed, the gift in such a case being known as an executory devise. Modern legislation has largely abolished the former rule, so that words of inheritance or perpetuity are no longer necessary to devise a fee, and whenever an estate in lands is created by will, it will be deemed to be an estate in fee simple if a less estate is not clearly indicated. Especially when the testator shows that he desires not to die intestate the courts will construe his will as creating a fee rather than a life estate and thus avoid a partial intestacy.” While the language used by the testatrix in the instant case is that of a layman, we hold that it was her intent to create an estate in fee to appellees when the words employed are construed in the light of the above rule.
It is next contended that even though the words used in the first paragraph are sufficient to constitute a devise in fee, it is limited by the subsequent paragraphs so that the estate created is a base, or determinable, fee only. It is also argued that the testatrix intended to devise the lands to appellees for life with remainder over to their bodily heirs, with a possible executory devise to the survivor. We think a decision of this question is controlled by the recent cases of Ramseur v. Belding, 206 Ark. 415, 175 S. W. 2d 977, and Jackson v. Sanford, 208 Ark. 888, 187 S. W. 2d 945. The case first cited involved a suit for specific performance of a contract for the sale of lands which appellees claimed title to under their father’s will. The will contained the following clause: “Item Five: All of the remainder of my estate, both real, personal, and mixed, is to be divided equally between my son, Miller G. Belding, and my daughter, Martha Belding Bradshaw. In the event of the decease of either, the heirs of their body will take his or her share per stirpes.” In construing this clause of the will this court said: “Item five in the first sentence gives appellees the fee in the remainder of the testator’s estate, subject of course to the widow’s life estate in one-third. The second sentence in that item is the one that causes the trouble, or doubt, here which provides: ‘ In the event of the decease of either, the heirs of their body will take his or her share per stirpes.’ Appellants contend that this provision gives appellees only a life estate. We think- the trial court correctly held that it did not have this effect and that such was not the intention of the testator, for several reasons. In the first place, had the testator intended for his son and daughter to have only a life estate in the remainder of his estate, it would have been a very simple matter to have said so in clear and concise language. In the next place, a- clear fee is granted them in the first sentence of item five. The second sentence, according to appellants, cuts down the estate already granted to a life estate. This may not be done unless such intention is clearly indicated by the language used. Bernstein v. Bramble, 81 Ark. 480, 99 S. W. 682, 8 L. R. A., N. S. 1028, 11 Am. Cas. 343; Baum v. Fox, 192 Ark. 406, 91 S. W. 2d 601. The general rule is that ‘whenever an estate in lands is created by a will, it will be deemed to be an estate in fee simple, if a less estate is not clearly indicated.’ Quoted from 28 R. C. L. 237 in Baum v. Fox, supra. Here, we think a less estate is not indicated clearly or otherwise. What the testator intended by £In the event of the decease of either,’ etc., in the second sentence of item five, was the decease of either prior to his death.”
In the Jackson case, supra, the will contained a paragraph reading as follows: ££Third: At the death of my beloved wife, I direct, devise and bequeath all of said property remaining and undisposed of by her shall be divided equally, to share and share alike, between our children, as follows: Stephen Wyatt Sanford, Ollie Mae Hudson, Florrie Sanford, Robbins S. Sanford, Sloan M. Sanford and John William Sanford; and in the event that either of said children shall die without issue, then the interest of said child so dying shall go to the said children living, to share and share alike.” The death of the testator’s wife occurred prior to that of her husband. In construing this clause, we reaffirmed the rule announced in Ramseur v. Belding, supra, and earlier cases which are discussed in the opinion, and said: "What we think the testator meant by the last clause of the third paragraph was that if any child should die without issue before his (testator’s) death, such child’s interest or share in said estate should go to the said children living, to share and share alike. ’ ’
Applying this rule of construction to the will in the instant case, we hold the testatrix meant by the second paragraph above quoted that had Joel V. McComb died without children prior to his mother’s death, his share of the estate would have gone to his sister, Pearl Moore Roy. The same construction is applicable to the third paragraph. Since the appellees survived their mother they became vested with title to the lands in fee simple under the will and can convey such title to appellant. The decree of the trial court so holding is accordingly affirmed. | [
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Robins, J.
This appeal involves validity of two deeds executed by the State Land Commissioner- — one dated August 28, 1939, conveying forty acres to appellee, J. A. Yarberry, and the other of the same date conveying forty acres to A. F. Yarberry. These lands, situated in Pulaski county, had been forfeited and sold to the State for nonpayment of taxes of 1935.
Appellants assert title by inheritance from their deceased mother, who was the owner when these lands were sold to the State.
It is conceded that .the delinquent tax sale held in Pulaski county in 1936 was void, having been so adjudged by us in the case of Schuman v. Metropolitan Trust Company, 199 Ark. 283, 134 S. W. 2d 579.
But the contention of appellees, upheld by the lower court is that, since they entered into possession immediately upon receiving their respective deeds from the Land Commissioner in 1939 and thereafter for more than two years remained in possession thereof, they have acquired good title under the provisions of § 8925, Pope’s Digest.
The State of Arkansas on January 21, 1939, instituted suit in the chancery court to confirm its title to the lands involved herein as well as to other lands forfeited and sold to the State for taxes. On April 22,1940, appellants and other heirs of Henrietta Baum who died on January 9, 1940, filed an intervention in the State’s confirmation suit, and, having discovered that appellees, J. A. Yarberry and A. F. .Yarberry, were in possession of the land, they amended their intervention on December 10, 1941, and made the Yaiherrys parties defendant.
While the controversy between appellants and the Yarberrys was pending in the chancery court, appellants, on February 22,1946, instituted an ejectment suit against said appellees and against the appellees Stonecipher and Spann, who had purchased certain portions from the Yarberrys, asking judgment for these lands and for an ascertainment of the amount due for improvements placed on the land by appellees. This suit was transferred to the chancery court and consolidated with the confirmation suit.
The chancery court on November 10, 1942, on motion of the State, dismissed the State’s confirmation suit in so far as it involved these lands; but the controversy between appellants and appellees was not tried until May 26, 1947, when the lower court decreed that appellees were owners of the respective tracts claimed by them.
It was shown conclusively that the Yarberrys entered into possession of the two tracts on August 29,1939, made improvements thereon and they and their grantees had thereafter arid for more than two years remained in possession.
It is apparent that neither the title nor peaceful possession of appellees was in any manner challenged until December 10, 1941, when they were made parties to appellants ’ intervention. At'this time appellees ’ possession of the property, under their respective deeds from the Land Commissioner, had continued for more than two' years.
Section 8925, Pope’s Digest, provides: “No action for the recovery of any lands, or for the possession thereof against any person or persons, their heirs and assigns, who may hold such lands by virtue of a purchase thereof at a sale by the collector, or commissioner of State lands, for the nonpayment of taxes, or who may have purchased the same from the State by virtue of any Act providing for the sale of lands forfeited to the' State for the nonpayment of taxes, or who may hold such land under a donation deed from the State, or who shall have held two years actual adverse possession under a donation certificate from the State, shall be maintained, unless it appears that the plaintiff, his ancestors, predecessors, or grantors, was seized or possessed of the lands in question within two years next before the commencement of such suit or action, and it is hereby intended that the operation of this Act shall be retroactive.”
We have frequently held that this is a valid statute of limitation and that possession for two years of tax forfeited lands under a deed from the land commissioner vests a good title in tlie purchaser or donee, regardless of the invalidity of the tax sale by which the State acquired same. Sparks v. Farris, 71 Ark. 117, 71 S. W. 255, 945; Ross v. Royal, 77 Ark. 324, 91 S. W. 178; Rucker v. Dixon, 78 Ark. 99, 93 S. W. 750; Kelley v. McDuffy, 79 Ark. 629, 96 S. W. 358; Schuman v. Kerby, 203 Ark. 653, 158 S. W. 2d 35; Chavis v. Henry, 205 Ark. 163, 168 S. W. 2d 610; Bridwell v. Davis, 206 Ark. 445, 175 S. W. 2d 992; Terry v. Drainage District No. 6, Miller Coibnty, 206 Ark. 940, 178 S. W. 2d 857; Sims v. Petree, 206 Ark. 1023, 178 S. W. 2d 1016; Honeycutt v. Sherrill, Trustee, 207 Ark. 206, 179 S. W. 2d 693; Jaedecke v. Rummell, 207 Ark. 286, 180 S. W. 2d 842.
That the period of limitation fixed by this statute is a comparatively short one, and that an enforcement of the rule provided in this statute may, in some cases, work a great hardship or apparent injustice are matters addressing themselves to the legislative branch of government.
The decree of the lower court was in accordance with the statute and our construction thereof; and it is affirmed. | [
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Holt, J.
A jury found appellant, Everett Gray, guilty of possessing intoxicating liquor for sale without a license. A fine of $250 was assessed and from the judgment is this appeal.
For reversal, appellant contends that the evidence was not sufficient to support the verdict, that the court erred in admitting testimony of State Police Officer Boone Bartlett to the effect that he, in company with Sheriff Hickmán, checked appellant’s automobile about the first of August, 1947, between Russellville and Dardanelle, and found eight pints of liquor, four in the glove compartment and four in the trunk of the car, and. that there was also error in permitting testimony bearing upon the rep utation of appellant, as being a bootlegger. There was no complaint as to any of the instructions.
The evidence tended to show that on June 1, 1947, the Chief of Police of Russellville and a Deputy Sheriff, having received information that appellant, was selling intoxicating liquor illegally, concealed themselves in a garage across the street from appellant’s residence. Mr. Gilbert, Chief of Police, gave his version of what followed: (Appellant’s abstract) “I am Chief of Police in Russellville. On the 1st day of June, 1947, we made a raid on Everett Gray (commonly called Butch Gray) in front of his home in Russellville. We had had some complaints against him (appellant) and about people making several trips to his house that afternoon, and we went down there to watch him. . . . He would go in the house and come out with something in his hands. We wa,tched him through a hole in the garage and saw him come down there with two men. He went in the house and came out with his arms full. He put it in the glove compartment and handed the man one bottle. When we raided him, he stuck one bottle under the seat by his feet. We got five half pints and two pints. This is the liquor on the table. ’ ’
The Deputy Sheriff, Reece Gilbert, corroborated the above testimony and also testified that they saw appeh. lant make several trips to his residence on similar missions with other parties in his car before they arrested him and seized the liquor. Both of these witnesses, along with several others, testified that appellant had the reputation of being engaged in the illegal sale of intoxicating liquor.
While appellant denied his guilt, the testimony was ample to support the jury’s verdict.
The trial court did not err in admitting testimony bearing upon the general reputation of appellant, as being engaged in bootlegging. Appellant was prosecuted under Article VI, § 1, Subdivision (c) of Act 108 of the General Assembly of 1935, and § 7 of that act makes such testimony admissible. That section provides: “The gen eral reputation of the defendant or defendants for moon-shining, bootlegging, or being engaged in the illicit manufacture of, or trade in, intoxicating liquors, shall he admissible in evidence against said defendant or defendants.”
In the recent case of Hughes v. State, 209 Ark. 125, 189 S. W. 2d 713, we held such testimony to be admissible.
Nor was there any error in admitting evidence of a recent similar offense by appellant. Boone Bartlett, a State Police Officer, testified that about the last of July, 1947: -‘ ‘ Sheriff Hickman and I stopped him between here and Dardanelle on Saturday night between 11 and 12 o’clock. We asked him if he had any whiskey, and he said, ‘That he had some in the glove compartment.’ We looked in there and he had four half pints of P. M. We asked him if that was all that he had, and he said, ‘Yes.’ We opened the trunk and found four more half pints of P. M. in a sack. . . . Did you arrest him? A. No, sir.”
It appears that this evidence of the search of appellant’s car was made approximately sixty days subsequent to the charge of the illegal sale involved here. It was properly admitted for whatever light it might shed upon the character of appellant’s business. In this connection, the trial court properly told the jury: “Evidence has been introduced upon the part of the State purporting to show that on other occasions defendant was guilty of similar offense for which he is being charged. This evidence, if believed, would not of itself warrant a conviction of the defendant in this case, hut is permitted to he introduced only as shedding light on the nature of the business followed by the defendant, if it does so shed such light, and for no other purpose.”
Judgment affirmed. | [
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Ed F. McFaddin, Justice.
This is a suit between members of a family to determine ownership of property.
John Scanlon, Sr. departed this life intestate in 1908, the owner of the realty here involved, being lots 4, 5 and 6, block 9, Moose Addition to Morrilton. He was survived by his wife, Mary Scanlon, and three sons and one daughter. The sons are the appellees, Jim, John and George Scanlon. The daughter, Margaret Scanlon Blair, was mother of the appellant Catherine Hawkins. The widow Scanlon and the three sons continued to live on the property after 1908. In 1912, Margaret Scanlon Blair, the daughter, became a widow, and returned to the property with her baby daughter, then two years of age (present appellant). In 1913, Mary Scanlon died, and the three Scanlon brothers and the sister, together with her daughter, continued to live on the property. There were several houses on the lots, and Mrs. Blair was in charge of them for herself and her three brothers.
In 1929, all the buildings, except one, were destroyed by fire; and the insurance money of $8,000 was used to finance the building of an apartment house on lot 4. To complete the financing of this building, the four heirs executed a mortgage on lot 4 to the Jefferson Standard Life Insurance Company for a loan of $3,500. George and Jim Scanlon worked on the building, and furnished the plumbing fixtures and many other items. When the apartment building was finished, the three brothers and the sister and her child occupied one apartment, and rented the other four apartments' to tenants. Mrs. Blair continued to have charge of the apartment property, and also the other house reconstructed on lots 5 and 6.
In 1931, the economic 'depression adversely affected the fortunes of these people. The three Scanlon men left Morrilton in search of employment; and Mrs. Blair had difficulty in obtaining sufficient rental returns to pay taxes and keep the loan current. She made her living as a seamstress. By 1933, her daughter Catherine had completed her education, and had begun to work; and her small salary helped to provide sustenance. Later (in 1942) Catherine Blair married, and she and her husband (Mr. Hawkins) lived with Mrs. Blair, and assisted in providing for her in her illness.
In 1931, Mrs. Blair and George Scanlon mortgaged lots 5 and 6 for $1,242.72 to T. P. Austin. The use to which this money was put is not definitely shown. In 1932, George Scanlon executed a deed to Margaret Blair for all of his interest in lots 4, 5 and 6 for the recited consideration of $1,250. In 1933, Jim Scanlon deeded liis interest in the lots to Margaret Blair for the recited consideration of $2,000. The description in this deed was later found to be erroneous, so in 1936 he cured all defects by executing a quitclaim deed to Margaret Blair. The effect of these three deeds will be discussed in topic heading I hereinafter.
In 1936, Margaret Blair and John Scanlon obtained a loan from the Morrilton Federal Savings & Loan Association for $2,000, and used the money to retire the Jefferson Standard loan. Later, Mrs. Blair and John Scanlon obtained an additional loan from the same association for money to apply on taxes, interest, etc. The mortgages to the Morrilton Federal Savings & Loan Association are still unsatisfied, and constitute a first lien on the property.
Then, in 1939, Mrs. Blair’s health failed. She was an invalid until her death in 1943. During this illness the three brothers continued to visit her and send her money just as they had done at all times since 1931. Be it said to the eternal credit of the three Scanlon men that they were true and loyal brothers to their sister. The record is- replete with instances of their continued sending of money to Mrs. Blair. She -was just as devoted a sister as they were brothers. It was a fine family relationship; and it is lamentable that it must end in this litigation. After Mrs. Blair’s death in 1943, Catherine Hawkins and her husband continued to live in the apartment building, and she collected the rents and tried to look after the property as her mother had formerly done.
The property had been sold for delinquent improvement district taxes; and in 1942 Jim Scanlon paid $1,000 to dispose of the claim of the tax purchaser. The redemption deed was taken in the name of Catherine Hawkins, but the fact that Jim Scanlon paid the money is admitted by all parties. This will be discussed in topic heading III. At a date not shown, Catherine Blair claims to have paid $1,600 to settle the Austin mortgage that had been executed in 1931. Then comes this litigation.
In 1945, Catherine Hawkins, claiming to be the owner of an undivided three-fourths interest in the property, filed the present suit for partition. She alleged that John Scanlon was the owner of the remaining one-fourth interest. She further alleged that the property could not be divided in kind, and should be sold subject to the two mortgages to the Morrilton Federal Savings & Loan Association.
Appellees, Jim and George Scanlon, intervened, and John Scanlon made common cause with them; and they claimed that Catherine Hawkins owned only an undivided one-fourth interest in the realty and the furnishings in the apartment house, and that the three Scanlon brothers each owned an undivided one-fourth interest. Interwoven with the question of the ownership of the realty and the aforementioned furnishings, there were questions of advances and accounting.
The chancery court found and decreed: (1) that the appellant and the three appellees were tenants in common of the realty, each owning an undivided one-fourth interest subject to the Morrilton Savings & Loan Association mortgages; (2) that the furnishings in the apartment building (with the exception of clothing and • a piano) were'owned by Catherine Hawkins individually; and (3) that the appellees were not entitled to an accounting from Catherine Hawkins for the rents she had collected from the property. From the decree all parties have appealed: Catherine Hawkins on direct appeal, and appellees on cross appeal. We will discuss and decide the various contentions in the topic headings hereinafter set forth.
I. Ownership of the Realty. Catherine Hawkins’ claim for three-fourths interest in the realty was based on the fact that she was sole heir of her mother who owned one-fourth interest by inheritance, and who had acquired by deeds the one-fourth interest of George Scanlon in 1932 and the one-fourth interest of Jim Scanlon in 1933 and 1936, to which said deeds we have previously referred. To overcome this record ownership and the effect of the deeds made to Margaret Blair, the said Jim and George Scanlon, supported by John Scanlon, testified that Margaret Blair never paid them anything for the deeds, and that the real consideration was their trust and confidence in Margaret Blair. John Scanlon testified that Jim and George executed the deeds to Margaret, so that she could use their record interest to obtain additional money to finance the property for the benefit of all of them. His testimony on this point is:
“Q. Do you know whether or not the conveyance of George’s interest was ail outright sale?
“A. No, sir; it was not.
“Q. Do you know whether or not Jim’s conveyance of his interest was an outright sale?
“A. No, sir; it was not.
‘ ‘ Q. Did your brothers and your sister agree upon that method of dealing with the property while they were absent from it?
“A. Yes, sir.
££Q. Were financial conditions such at that time that you did have to refinance the original debt against the property?
££A. Yes, sir.
££Q. Was Jim to give his sister a deed to his undivided interest for the same purpose that George gave her a deed to his?
££A. Yes, sir.
££Q. Was your sister Margaret to hold their undivided interests in trust until the debts were paid?
“A. Yes, sir.
“Q, Did she ever pay either of your brothers anything for their interest in the land?
“A. No, sir.”
George Scanlon testified that he deeded his interest to his sister to “hold it in trust.” Jim Scanlon testified to like effect.
But when we give full effect to appellees ’ testimony, we find them seeking to engraft by parol testimony an express trust on the deeds that they had made to Mrs. Blair; and this is forbidden by our statute. Section 6064, Pope’s Digest, reads :
“All declarations or creations of trusts or confidences of any lands or tenements shall be manifested and proven by some writing signed by the party who is or shall be by law enabled to declare such trusts, or by his last will in writing, or else they shall be void; and all grants and assignments of any trusts or confidences shall be in writing, signed by the party granting or assigning the same, or by his last will in writing, or else they shall be void.”
This section comes to us from Chápter 65, § 10 of the Revised Statutes of 18.38, and was adopted into our statute law from § 7 of the English statute of 29 Chas. TT, Chapter 3. This section, 6064, Pope’s Digest, has many times been before this court. Some of our cases are: McDonald v. Hooker, 57 Ark. 632, 22 S. W. 655, 23 S. W. 678; Harbour v. Harbour, 103 Ark. 273, 146.S. W. 867; Veasey v. Veasey, 110 Ark. 389, 162 S. W. 45; Queen v. Queen, 116 Ark. 370, 172 S. W. 1018, Ann. Cas. 1917 A 1101; Jeffery v. Patton, 182 Ark. 449, 31 S. W. 2d 738. Many other cases on' the same statute are collected in West’s Arkansas Digest, “Trusts,” § 43.
The facts in the case at bar bring it within the interdiction of this statute. The appellees claim that Jim and George Scanlon deeded the property to Margaret Blair on her agreement to hold the property in trust for them. But she gave no instrument in writing to this effect; and only an instrument in writing is competent evidence under this statute insofar as realty is concerned. The deeds were placed of record in 1936; appellees knew in 1939 that their sister had an incurable malady, but they required no conveyance or instrument in writing. She died in 1943. They cannot now be heard in their effort to prove an express trust by parol evidence. They made a clear case of an express trust. The case of Armstrong v. Armstrong, 181 Ark. 597, 27 S. W. 2d 88 is limited to its own peculiar facts of fraud and imposition, and does not apply here because such facts are not here present. In Spradling v. Spradling, 101 Ark. 451, 142 S. W. 848, Mr. Justice Frauenthal stated the rule here applicable as follows: “When 'a trust arises from an agreement between the parties or from the declaration of the beneficial owner of the property, made to establish a trust, if is within the statute of frauds, and must be proved by writing, in the absence of fraud or imposition. Kirby’s Digest, § 3666; Robinson v. Robinson, 45 Ark. 481; Bland v. Talley, 50 Ark. 71, 6 S. W. 234; Salyers v. Smith, 67 Ark. 526, 55 S. W. 936; Grayson v. Bowlin, 70 Ark. 145, 66 S. W. 658.” The arguments made by the appellees in the case at bar are similar to those unsuccessfully made by appellees in Mitchell v. Powell, 194 Ark. 638, 109 S. W. 2d 155.
Without dwelling on the point further, we conclude that Catherine Blair is the owner of three-fourths of the realty, and John Scanlon is the owner of one-fourth of the realty; and to this extent the decree of the lower court is reversed on the direct appeal, and the cause remanded for a decree in accordance with this opinion.
II. Ownership of the Personalty. The chancery court allowed each party to remove his clothing from the building, and awarded George Scanlon the piano. We affirm the aforementioned portion of the decree. Furthermore, appellees concede that the furnishings in Mrs. Blair’s apartment belong to Catherine Hawkins. What we are now about to say does not relate to the clothing, the piano, and tlie furnishings in the apartment occupied by Mrs. Blair. The chancellor in the third finding in the opinion said:
“The personal property consisting of all furniture and fixtures, except that designated as realty, the court holds belongs to the plaintiff.”
As to the decree based on this finding, appellees have cross-appealed; and we reverse the chancery court on this point.
When the building was first completed, Mrs. Blair rented the four apartments unfurnished, but thereafter she furnished the apartments for rental. Catherine Hawkins testified as to this:
“Q. Mrs. Hawkins, yon recall when the apartment house was first constructed? A. Yes. Q. Were the apartments rented furnished or unfurnished? A. They were unfurnished. Q. How long were they rented unfurnished? A. Two or three years. Q. WTlo furnished the apartments for rental?. A. Mother did. Q. Where did she get the money for furniture? A. She bought it with the income of the house.”
When we recall that the apartment building was constructed in 1929, and that Jim Scanlon did not execute his deed until July, 1932, and that John Scanlon did not execute his first deed until January, 1933, it is clear that the apartments were furnished with the rent money obtained before Jim and George Scanlon parted with their title; and therefore their part of the rent money, along with the part of John Scanlon and Margaret Blair, had already been used to buy the furnishings. Furthermore, the record reflects that up until May 3, 1932, Jim Scanlon had sent Margaret Blair a total of $1,210, and that George Scanlon collected $750 in insurance, part of which was used to buy furniture for the apartment building. In the light of all this evidence, it is apparent that the appellees each owned an undivided one-fourtli interest in all the personal property in the four rented apartments in the building, before the three Scanlon deeds. John Scanlon would still own his fourth, since he all the time was le gaily entitled to one-fourth of the rents, and Catherine Hawkins testified that the apartments were furnished with the rent money.
The deeds executed by Jim and George Scanlon did not attempt to convey their interest in the personal property. Furthermore, the interdiction of § 6064, Pope’s Digest, applies only to realty, and not to personalty. So, even if Jim and George Scalon transferred to Mrs. Blair their interest in the personal property, they could still establish the trust by parol evidence. An express trust may be shown by parol evidence as regards personalty. Scott v. Miller, 179 Ark. 7, 13 S. W. 2d 819; Oliver v. Oliver, 182 Ark. 1025, 34 S. W. 2d 226; and Hand v. Mitchell, 209 Ark. 996, 193 S. W. 2d 333; and see generally 54 Am.’Juris. 55. The testimony in the case at bar meets the test prescribed in our cases as above cited; and we therefore hold that the personal property in the four rented apartments is owned one-fourth by the appellant and one-fourth by each of the appellees.
III. Jim Scanlon’s Right to Subrogation. The property became delinquent for improvement taxes, and was purchased by a third party; and in 1942 Jim Scanlon paid the holder of the tax title the sum of $1,000 for a deed to the property. Catherine Hawkins handled the transaction for Jim Scanlon, and took the deed in her name. He was not a volunteer, because he paid the money at the request of Catherine Hawkins; so he is entitled to relief under the principle of equitable subrogation. Stephenson v. Grant, 168 Ark. 927, 271 S. W. 974; Robertson v. Lewis, 195 Ark. 989, 115 S. W. 2d 264. We therefore hold that from the proceeds of the sale of the realty Jim Scanlon is entitled to recover $1,000 with interest at 6% from April 25, 1942, until repaid.
IY. Catherine Haioltins’ Claim for Priority. Catherine Hawkins claims she is entitled to a prior claim for $1,600, because she testified that this was the amount she paid for the Austin note and mortgage. Under this present opinion she receives three-fourths of the realty, .so it is proper that she should pay three-fourths of the Austin note; and the only contention remaining about the Austin indebtedness is whether Catherine Hawkins should recover from John Scanlon one-fourth of the amount she claims to have paid Austin.
On that issue, we point out that Catherine Hawkins did not testify as to when she paid the Austin note. She did say that her mother left no debts, “except a few small ones,” so it may be inferred that the Austin note was paid during the lifetime of Mrs. Blair. Catherine Hawkins did not testify whether she paid the Austin note from her own funds, or from money received by her from the Scanlons. So, we hold that the evidence is insufficient to show that she paid the Austin note with her own money; and we therefore deny her claim for reimbursement.
Y. Accounting. Since Jim and George Scanlon have no interest in the realty, their claim for an accounting for rents necessarily passes out of the case. John Scanlon is, of course, entitled to an accounting, and his right was recognized by Catherine Hawkins when she filed a detailed and verified statement of all receipts and disbursements, and stated that $144.38 was the amount belonging to John Scanlon. On remand the chancery court will enter a decree in favor of John Scanlon for said $144.38, and also for any other net amounts that may have accrued to him after the accounting period covered in the said statement.
Conclusion: The decree of the chancery court is reversed, and the cause is remanded, for the decree heretofore entered to be changed only to the extent indicated in this opinion. Costs of this appeal, as well as all other' costs, will be adjudged to be paid from the proceeds of the sale of the realty.
This statute was discussed in some detail in Reiter v. Carroll, 210 Ark. 841, 198 S. W. 2d 163, in regard to the revocation of wills. The historical setting and discussion apply with equal force to the prohibition of parol testimony to establish an express trust on a written instrument. | [
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Smith, J.
The transactions between the present parties to this litigation were numerous, intricate and confusing. The People’s National Bank of Stuttgart was an original defendant, but the suit against the bank was dismissed before the final submission of the case.
We state only the facts relating to the last contract between Campbell and Selig, appellant and appellee, respectively, as the rights and liabilities of the parties arise out of tliem. The first, dated April 15, 1930, reads as follows:
“Whereas, O. S. Selig has on this day conveyed to P. R. McCoy an undivided one-half interest in lots twenty-five and the south half of twenty-four of block eighteen (18) of Union Addition to the City of Stuttgart; and,
“Whereas, Joe S. Campbell has on this day borrowed sixty-five hundred dollars ($6,500) from the People’s National Bank, of Stuttgart, Arkansas, and executed a chattel mortgage upon rice crops and personal property for the purpose of securing the repayment of the same on or before December 15th, 1930; and,
“Whereas, upon the payment by Joe S. Campbell of three thousand dollars ($3,000) upon the indebtedness against lot twenty-five and the south half of lot twenty-four above mentioned in favor of Union Trust Company of Little Rock, the said Joe S. Campbell would have been the owner of an undivided one-half interest in the said property and the said O. S. Selig the owner of the other half interest in said city property; and,
“Whereas, The deed executed on this day by the .said O. S. Selig in favor of P. R. McCoy conveying said property is made for the purpose of conveying to the said P. R. McCoy the undivided one-half interest in said city property belonging to Joe S. Campbell.
“Now, Therefore the said Joe S. Campbell agrees to deposit in the Peoples National Bank of Stuttgart the sum of three thousand dollars ($3,000) out of the sixty-five hundred dollars ($6,500) which is beinghorrowed by Mm of said bank upon the chattel mortgage above referred to and it is understood by the said Joe S. Campbell that the said three thousand dollars ($3,000) is to be retained by said bank and used by it in retirement and payment of a like amount of the indebtedness against the said city property above referred to and that upon said payment the interest of O. S. Selig and P. R. McCoy in said city property will equal, each owning and undivided one-half interest therein.
“Now if the said Joe S. Campbell shall fully repay the indebtedness due to the Peoples National Bank of Stuttgart by him on or before December 15th, or before the maturity of said indebtedness then the said P. R. McCoy agrees to re-convey the undivided one-half interest in said city property to O. S. Selig, but should the said Joe S. Campbell fail or refuse to repay said indebtedness in accordance with the chattel mortgage and note or notes evidencing said indebtedness then the said deed of conveyance to said city property in favor of P. R. McCoy shall constitute a mortgage upon said city property and any and all interest which the said Joe S. Campbell may now have or may then have in said city property shall be subject to foreclosure in like manner and form as though the said deed constituted a mortgage upon said property from the said O. S. Selig and the said Joe S. Campbell in favor of the said P. R. McCoy as trustee for the Peoples National Bank of Stuttgart, Arkansas.
“And I, Nancy Campbell, wife of the said Joe S. Campbell for and in consideration of the said sum of money, do hereby release and relinquish unto the said P. R. McCoy as trustee for the Peoples National Bank of Stuttgart, Arkansas, all my rights of dower and homestead in and to said city property.
“In witness whereof the parties hereto have subscribed their names on this 15th day of April, 1930.
' “/s/ Paul R. McCoy
“/s/ O. S. Selig
“/s/ Joe S. Campbell
“/s/ Nancy Campbell.”
This contract was reaffirmed in a second contract, dated June 29,1931, much of it being identical, with these additional recitals.
“Whereas, under a previous agreement dated April 15th, 1930, the sum of three thousand dollars ($3,000) was deposited in the Peoples National Bank by Joe S. Campbell with the understanding that said amount would be paid to the Union Trust Company of Little Rock upon an indebtedness owing by the said O. S. Selig to said Union Trust Company and secured by a first mortgage upon the property hereinafter described; and,
“Whereas, the said three thousand dollars ($3,000) or approximately all of said sum is still on deposit in said bank and shall remain there for the purposes herein expressed, and when said amount is paid to the said Union Trust Company then the said Joe S. Campbell shall become the owner of an undivided one-half (%) interest in the said above described property and the said O. S. Selig shall become the owner of the other half of said property subject to the lien of any unpaid indebtedness due the Union Trust Company and the said Joe S. Campbell’s interest in said land being subject to an indebtedness in favor of the Peoples National Bank in the sum of six thousand dollars ($6,000)
We shall refer to these contracts as the agreement.
The essential facts leading up to the execution of this agreement which must be stated to understand it are as follows. Selig and Campbell, in conjunction with a third party, whose interests they acquired, bought lots in the City of Stuttgart, on which they erected a gasoline filling station, largely with borrowed money. The title of the lots was taken in the name of Campbell, but it is undisputed that he and Selig owned the lots as tenants in common, of equal interests. On April 2,1928, Campbell conveyed the lots to Selig, by warranty deed, for which no money consideration was paid Campbell by Selig. Their banking business was conducted with the Peoples National Bank of Stuttgart, and the officers of the bank and others refer to this account as the Pilling Station Account, and we shall refer to it by the same name.
While the apparent owner of the entire title, Campbell borrowed $10,333.33 from the Bankers Trust Company of Little Rock, and gave as security therefor a deed of trust on the filling station lots. This debt was not paid and a decree was rendered foreclosing the deed of trust, pursuant to which decree the lots were sold by the commissioner appointed to make the sale to Selig'for the consideration recited in the deed of $12,500. There is some uncertainty as to how Selig paid this consideration, which testimony involves certain other obligations, a statement of which would only tend to confuse- the issues in this ease. But the agreement set out above makes certain the fact that Selig did not intend to acquire title in severalty as sole owner.
The agreement refers to obligations which had been incurred in buying the lots and building the station, and recites the fact that Campbell lacked $3,000 of having put as much money in the venture as had Selig, and by the terms of the contract it was agreed that Campbell should advance $3,000 to be deposited with the Peoples National Bank to equalize the interest of the parties. It was contemplated that the $3,000 to be deposited with the bank should be applied to a debt owed jointly by Campbell and Selig to the Union Trust Company of Little Rock. The $3,000 was raised by Campbell in a manner presently to be stated, but instead of paying it to the Union Trust Company, it was credited by the bank to the Pilling Station Account with the knowledge and consent of Selig.
Campbell borrowed $6,500 from the bank, $3,000 of which he attempted to apply as directed, and for which payment he was allowed credit on the books of the bank as shown by an audit of the Pilling Station Account.
Campbell at the time was engaged in the oil business, and in growing rice on rerfted land. To secure the payment of this $6,500 loan, Campbell gave a chattel mortgage to the bank on his rice crop, and certain personal property, and he further secured the note evidencing the loan in the following manner. Selig conveyed to P. R. McCoy, an officer of the bank, an undivided one-half interest in the lots. The agreement above copied recites that the deed “is made for the purpose of conveying to the said P. R. McCoy the undivided one-half interest in said city property belonging to Joe S. Campbell.”
It will be observed that the agreement recites that upon payment to, or deposit with the bank the sum of $3,000 “the interest of O. S. Selig and P. R. McCoy in said city property will.equal, each owning an undivided half interest therein.” This payment was made and Campbell and Selig became owners of equal interest in the lots, but Campbell’s interest remained subject to the lien on that interest created by the agreement, which bjf the terms of the agreement Campbell was required to discharge.
There was no consideration advanced by McCoy for this deed to him, its admitted purpose being to give the bank a mortgage on Campbell’s interest to secure the payment of the $6,500 note to the bank which had been reduced to $6,000 when the second contract was entered into.
After the execution of the agreement Campbell exercised no control whatever over the filling station, and did not receive any of the rents collected thereon, and his inactivity is the basis of the plea of laches which the court sustained in dismissing the suit, which is one for an accounting.
Campbell attempts to excuse his inactivity by saying that he was insolvent and it was agreed that the rents should be applied to the payment of any indebtedness due the bank. The execution of this agreement was categorically denied by Selig, and the bank officials. We do not find there was such an agreement, but whether there was such an agreement as to the application of the rents or not, the law would so apply any rents collected or received by the bank, if while being collected the bank was in the attitude of a mortgagee in possession.
That such was the attitude of the bank appears certain if any effect is to be given to the provision of the agreement that if Campbell failed to pay the bank its debt “then the said deed of conveyance to said city property in favor of P. R. McCoy shall constitute a mortgage upon said property,” and might be foreclosed as such. The express purpose and the sole consideration for the deed from Selig to McCoy was to secure the payment of Campbell’s note to the bank and it was therefore a mortgage.
The payment of the debt thus secured would have left Selig as the apparent owner of the property, but the agreement recognized Campbell’s interest.
This $6,500 note was not paid, but there is an admitted credit thereon of $500, resulting from the sale of rice by Campbell, but Campbell claims that if he is given credit for the rents collected by Selig, and those deposited through the Filling Station Account, the note has been paid.
The bank kept a record of all deposits to the credit of the Filling Station Account, and of all checks against it, and caused an elaborate audit thereof to be made, which was not considered or passed upon by the court for the reason found by the court, that Campbell’s action for an accounting was barred by his laches. According to this audit Campbell was indebted to the Filling Station Account in a large sum of money, possibly equal to or greater than the value of his undivided one-half interest in the property. But Campbell was offered no opportunity to except to this audit, which was not in the nature of a master’s report and we pass upon only a single item which will be involved in the accounting which must be had and concerning which much testimony was offered. This is a $1,500 item arising out of the sale of rice by Campbell to McGill Milling Co. In payment for certain rice McGill Milling Company gave Campbell a thirty-day draft, as was its custom in buying rice, which Campbell deposited with the bank, and was given credit therefor. This and other drafts issued by McGill Milling Company were taken up by a check given by McGill Milling Company, on. a St. Louis bank, which was returned unpaid for the lack of funds. Thereafter the bank annulled this credit and we think properly so.
The testimony is sharply conflicting as to whether this draft was cashed or received for credit on account, but we think it was received for collection in the manner stated. We are confirmed in this view by the fact that on June 29, 1931, the $6,500 note was marked paid and Campbell executed a new note for $6,000, which recited that Campbell was then indebted to the bank in that amount, which would not have been the correct balance due if Campbell had been entitled to credit for the McGK.ll draft of $1,500. This $6,000 note referred to in the agreement above copied was executed subsequent to the draft transaction.
The execution of this $6,000 note appears to have been the last direct transaction Campbell had with Selig and the bank. He made no direct payment on this note, and made no inquiry about it and remained quiescent until May, 1944, when he filed this suit. This fact, no doubt, caused the court to dismiss the suit for laches, but Campbell testified that he knew the rents were being credited on the debt, and he had no other way of paying it, and that he waited until he thought enough rents had been collected to pay the debt.
The- bank carried the $6,000 note as a subsisting obligation in its favor until June 29,1935, when the bank examiners advised that it could no longer be carried. Thereupon McCoy, the president of the bank, deeded the lots to the bank to “freshen up” the Campbell note. There was no unpaid or delinquent interest on the note when this was done. Thereafter Selig and the bank treated the property as if they were the owners of it, but continued to credit the rents to the Filling Station Account, except that the bank was paid $625 as a dividend, 'this in addition to the interest.
According to McCoy, the bank president, the Campbell note again got stale and again in 1941, “We got Selig to allow us to deed it (the lots) over to him. All we wanted was the part coming to us.J ’
The lots were deeded back to Selig, who gave the bank a note secured by a mortgage on the lots, for $5,000, and Selig’s possession of the lots and his right thereto appears not to have been questioned until this suit was filed May 28,1944. No contention is made that Campbell was advised of these transactions between -Selig and the bank, and Campbell testified that he was unaware of them until he filed this suit for an accounting.
We think the plea of laches cannot be sustained in this case, notwithstanding the long period of time during which Campbell allowed Selig and the bank to control the property. This delay, though long continued, does not sustain the plea of laches for the reason that the situation as between Campbell and Selig remained unchanged and there has been no loss ’ of evidence which would make it inequitable to require Selig to account for the rents.
The cashier of the bank testified that all the papers and transactions concerning this property were in the files of the bank relating to the Filling Station Account, and it was from these files that an expert accountant made a statement showing the account in detail. But as we have said the court below did not consider this audit of the account, and it remains to be stated and the decree will be reversed and the cause remanded for that purpose.
The bank was a mortgagee in possession until the date of the deed from it to Selig, and Selig and Campbell were at all times tenants in common, no knowledge having-been brought home to Campbell that the relationship had been repudiated or that there was a holding- adverse to him.
The decree dismissing the complaint for laches will therefore be reversed and the cause will be remanded, with directions to state the account between Selig and Campbell, and if so advised the court may appoint a master for that purpose, who may make such use of the accountant’s audit as may be necessary and proper.
Inasmuch as Campbell personally made no payments on the $6,000 note, the interest thereon will be computed with annual rests in accordance with its tenor. A finding will be made as to all rents collected, against which will be charged all debts against the Filling- Station Account which may have been paid. A finding will be made as to all expenses incurred in maintaining- the filling station, and all taxes, general and special, insurance and other charges which have been paid out of the proceeds of the rents collected. All this for the purpose of determining whether Campbell’s part of the rent has paid his one-half of the filling station debts and operating expenses, and the obligations assumed by him in the agreement and if not what payment by Campbell will be required for that purpose, and Campbell will be given 30 days in which to pay Selig any balance required to equalize their interests, after .the entry of the decree to be rendered in accordance with this opinion, and if not paid within that time the agreement for a mortgage upon Campbell’s interest hereinabove referred to, will be foreclosed as a mortgage by a sale of Campbell’s interest in the property, and the proceeds applied to the discharge of his filling station obligations, and the balance, if any, remaining will be paid to Campbell. | [
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Robins, J.
This suit involves title to 72 acres in Mississippi county owned in' his lifetime by Luther Walker. Walker died intestate in 1933, leaving him surviving his widow, Irene Walker, and his two daughters, appellant Maxine Walker Rhodes and Kitty Jo Walker Harry, as his sole heirs.
On March 22, 1940, said widow, Irene Walker, and her said two daughters executed, acknowledged and delivered to appellee, J. C. Ellis, a warranty deed by which they conveyed, for an expressed consideration of $3,300 paid in cash, said land to appellee, who then went into, and has since remained in, possession thereof.
At the time of execution of this conveyance' Kitty Jo Walker Harry was only 17 years of age, and appellant, Maxine Walker Rhodes, was 19 years old.
This suit was instituted on May 1, 1946, by these two daughters of Luther Walker against Irene Walker and appellee. In their complaint they alleged that they were the owners of the land and that their action was brought to disaffirm and to have canceled the deed executed by them to appellee. For grounds of cancellation they alleged that Kitty Jo Walker Harry was a minor when she executed the deed and that she received only $100, an inadequate sum, for her share in the land; and that appellant, Maxine Walker, though of age, was ignorant of business matters and acted at the suggestion of her mother and appellee, and she received for her share the same inadequate sum as her sister. It is also alleged that the deed when executed purported to convey only a 34-acre tract, but the record thereof erroneously showed the 38-acre tract as being a part of the land conveyed. (This part of the complaint seems to have been abandoned). • '
The prayer of the complaint was. for cancellation of the deed to appellee and for an accounting from appellee as to rents.
Irene Walker did not answer. The answer of appellee was a general denial.
The chancery court found that Kitty Joe Walker Harry was an infant when she executed the deed to appellee, and that, said deed being void, she was the owner of an undivided half interest in the land; and she was decreed to be. the owner thereof and entitled to $140 from appellee for rents; and it was further decreed that since appellant, Maxine Walker, was of age when she executed the deed she had no interest in the land.
Appeal was prayed by appellant, Maxine Walker, and also by appellee.
Appellant, for reversal of the decree urges that the deed, as to her interest, should be set aside for fraud. Her principal ground for establishing this asserted fraud is the inadequacy of consideration received by her.
It appears that Irene Walker in 1937 borrowed money from appellee to secure funds with which to pay the taxes on this land, and gave a mortgage thereon, in a renewal of which in the same year both of her daughters, though minors, joined. Thereafter she traded on a running account with appellee, who was a merchant and ginner, and the mortgage securing this indebtedness was renewed for a larger amount. Finally, the indebtedness, which was more than $3,000, was extinguished by the execution of the deed; and appellee paid the widow $300 and each of the daughters $100.
There was a conflict in the testimony as to the value of the land. One of the witnesses thought the land inside the levee (33 acres) was worth in 1940 $100 per acre, and placed a small value on that part not protected by the levee. Others valued the protected land at from $50 to $85 per acre and thought the other land worth much less.
Appellant’s claim of inadequacy of consideration seems to be mainly based on a contention that she herself did not,receive a sufficient sum for her share. But in considering the amount of consideration in a deed the value or amount of property or money that may pass from grantee (to others as well as to grantor) by reason of the transaction must be taken into account.
Dealing in his work on “Deeds,” 1911 Ed., vol. 2, p. 1453, with the nature of consideration in conveyances Mr. Devlin quoted this from Bouvier’s Law Dictionary: “ ‘Valuable consideration those which confer some benefit upon the party by whom the promise is made, or upon a third party at his instance or request; or some detriment sustained at the instance of the party promising, by the party in whose favor the promise is made.’ ” See, also, Logan v. Lee, 10 Ark. 585.
Furthermore, we are unable to say from the record before us just what the share of appellant was in 1940. Irene Walker had a homestead interest in the land for her life, and appellant’s right to occupancy or rents and profits would not mature until her mother’s death. In addition to the homestead right, Mrs. Walker had a dower or one-third interest for her life. Mrs. Walker’s ave is not shown by the testimony and we have no basis' for calculating the value of Mrs. Walker’s interest in the land in 1940, so as to arrive at a fair valuation of this appellant’s share at that time.
While there are intimations that the amount of indebtedness claimed by appellee was éxcessive, we are unable to say that such a contention is borne out by the evidence. Appellee introduced an itemized copy of his account; and Mrs. Walker, when testifying in regard to it said: “Q. So you don’t know how much of this account was for your personal benefit and how much for the benefit of Kitty Jo and Maxine? A. No, I, don’t. . . . Q. You are charged up here, Mrs. Walker, from December, 1936, until August 31, 1939, with $3,329.99. You are supposed to have received goods or money of that value from Mr. Ellis, is that right? A. I got money and groceries. Q. I am asking you if you got $3,329.99? A. I don’t know. I didn’t keep up with it.”
The land may have been worth something more than appellee paid for it, but we are unable to say that thefe was shown by the proof such an inadequacy of consideration as to shock the conscience or to raise a presumption of fraud. This being true, we may not set aside the deed for such inadequacy. McDonald v. Smith, 95 Ark. 523, 130 S. W. 515; Cunningham v. Love, 202 Ark. 375, 150 S. W. 2d 217.
There is also a suggestion that the deed was fraudulent as to appellant because she was coerced and deceived by her .mother and appellee. Such .a charge is not sustained by the testimony. The original deed is before us and it shows that this appellant signed it in a fairly legible hand. There is testimony that she could not read, but there is no testimony to the effect that she did not know and understand that she was signing a deed; nor is there any substantial testimony indicating that its contents were misrepresented to her.
It follows that the lower court’s decree dismissing appellant, Maxine Walker’s, complaint for want of equity must be affirmed.
Appellee has appealed from that part of the decree awarding to Kitty Jo Walker Harry an undivided one-half interest in the land. He argues that since Kitty Jo Walker Harry waited more than six years after the deed was executed and more than five years after she became of age' before bringing her suit her claim was barred by laches. It was not shown that appellee expended any considerable sum for repairs and improvements on the property after he purchased it, nor did the' evidence reflect any other circumstances showing that it was inequitable for Kitty Jo Walker Harry to ask for her share in the property.
We have held that a minor may institute action to set aside a conveyance made by him during minority at any time within seven years after becoming of age. Barker v. Fuestal, 103 Ark. 312, 147 S. W. 45; Barker v. Cunningham, 104 Ark. 627, 150 S. W. 153.
Where there is no intervening equity which of itself requires application of doctrine of laches, a court of equity ordinarily will not divest the owner of his title to land for laches unless he fails to assert such title for a period at least equal to that fixed by the statute of limitations. Earle Improvement Company v. Chatfield, 81 Ark. 296, 99 S. W. 84; Updegraff v. Marked Tree Lumber Company, 83 Ark. 154, 103 S. W. 696; Dickinson v. Norman, 165 Ark. 186, 263 S. W. 387.
We conclude that the lower court did not err in refusing to hold that the rights of Kitty Jo Walker Harry were barred by laches.
But the lower court failed to recognize appellee’s ownership, by virtue of the deed from Irene Walker to appellee, of Irene Walker’s unassigned dower interest. While a widow may not convey to a stranger her homestead interest in land of her deceased husband, in equity no such rule prevails as to sale and conveyance by a widow of her unassigned dower interest. Griffin v. Dunn, 79 Ark. 408, 96 S. W. 190; Flowers v. Flowers, 84 Ark. 557, 106 S. W. 949, 120 Am. St. Rep. 84; Barton v. Wilson, 116 Ark. 400, 172 S. W. 1022; Tandy v. Smith, 173 Ark. 828, 293 S. W. 735. And such a conveyance by her vests in her grantee the equitable right to have the dower interest assigned. Bowen v. Black, 170 Ark. 237, 279 S. W. 782.
Irene Walker had a dower interest in all the land involved herein, and she conveyed this interest to appellee Ellis. -Therefore the share of Kitty Jo Walker Harry in the land is subject to this unassigned dower interest held by appellee Ellis.
*
It follows that on the appeal of appellant, Maxine Walker, the decree is affirmed, and on the appeal of appellee Ellis so much of the decree as fixes the respective interests of appellee Ellis, and Kitty Jo Walker Harry is reversed with directions to adjudge their respective shares in accordance with this opinion; appellee to recover costs of this court and the court below. | [
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Ed. F. McFaddin, Justice.
This appeal is the aftermath of Tolley v. Tolley, 210 Ark. 144, 194 S. W. 2d 687.
In the first case Mrs. Tolley filed, in the White Circuit Court, an action in ejectment against Mr. Tolley for 40 acres of land, and also sought a money judgment against him. Her action was based on a Kansas judgment. The circuit court sustained a demurrer to her complaint, and she appealed. In deciding that case, we said in our opinion of May 27, 1946: “It follows, therefore, that the judgment here appealed from is affirmed as to so much thereof as sustained the appellee’s demurrer to the ejectment action; but is reversed and remanded with directions to overrule the demurrer to so much of the complaint as sought a money judgment based on the Kansas decree for the $195 and also for the unpaid and unsatisfied award for weekly support adjudged by the Kansas decree and past due at the time of the filing of this action in the White Circuit Court.”
Thereafter, on June 20, 1946, our mandate was filed ip the cirpuit court; and on July 15, 1946, judgment yras rendered in the circuit court for Mrs. Tolley against Mr. Tolley for $486.60 as the money judgment. Mrs. Tolley obtained execution on the circuit court judgment, and levied it on the same 40 acres of land that she had de7 scribed in her ejectment action. So much for the first case.
Thereupon the present case was instituted by James E. Wilson and Elizabeth Wilson, his wife, as an injunction suit in the White Chancery Court, against Mrs. Tolley. The Wilsons alleged that on June 10,1946, they had paid James A. Tolley $700 in cash for the said 40 acres, and had received his warranty deed which they placed of record on July 15, 1946. The Wilsons claimed that they were bona ficle purchasers, and prayed that Mrs. Tolley be enjoined from proceeding with her execution against the said land. Mrs. Tolley, in opposing the injunction, alleged, inter alia, that the Wilsons had both actual and constructive notice of her action against • Tolley; that they were not bona fide purchasers for value; and that their claim was subordinate to her rights.
Trial in the chancery court resulted in a decree in favor of the Wilsons, which also quieted their title to the 40 acres. Mrs. Tolley has appealed, presenting the issues herein discussed.
I. The Lis Pendens. When Mrs. Tolley filed her ejectment action (the first case) in 1944, she filed a lis pendens notice under the provisions of § 8959, Pope’s Digest; but her ejectment action failed — as set forth in our former opinion — so the lis pendens notice became nugatory. Our lis pendens statute is not applicable to an action seeking only a money judgment, since, by its terms, it applies only to actions affecting “ title or any lien on real estate or personal property.” Therefore, the filing of the lis pendens notice in the action seeking a money judgment did not constitute any lien or notice.
II. The Kansas Judgment. In her first case Mrs. Tolley filed an. action in White county, to enforce a Kan sas judgment, but the mere filing of the action in White county did not give the Kansas judgment the force and effect of a lien. A judgment of another state cannot be executed upon in this state until the foreign judgment is first reduced to a domestic judgment. In Leflar on Conflict of Laws, § 186, this appears: 1‘ The full faith and credit clause of the federal Constitution (Art. IV, § 1) renders compulsory as between the. American states the common law rule of res judicata. It requires each state to give to the judgments of other states the same conclusive effect between the parties thereto and their privies as is given such judgments in the state in which they were rendered. . This does not mean that execution will be levied in one state on accou/nt of a judgment rendered in another.” (Italics our own.)
In the American Law Institute’s Restatement of the Law on the Conflict of the Laws, § 433, in discussing the enforcement of a foreign judgment, the.rule in the United States is given: “A foreign judgment will not be enforced by issuing an execution on it.”
Prof. Joseph II. Beale, in his three-volume treatise' on the Conflict of Laws, in § 433.1 (p. 1377), in discussing the enforcement of a foreign judgment, says: . “At common law a foreign judgment will not be enforced by issuing execution on it. A new suit must be brought in the state where execution is sought.”
In Cole v. Cunningham, 133 U. S. 107, 33 L. Ed. 538, 10 Sup. Ct. 269 (1890), the United States Supreme Court said of judgments rendered in one state and sought to be enforced in another: “No execution can be issued upon such judgments without a new suit in the tribunals, of other states, and they enjoy, not the right of priority or privilege or lien which they have in the state where they are pronounced, but that only which the lex fori gives to them by its own laws, in their character of foreign judgments.”
It follows, therefore, that the Kansas judgment constituted no lien in Arkansas until a domestic judgment was rendered thereon.
III. The Opinion of This Coiort of May 26, 1946. Mrs. Tolley contends that when the Arkansas Supreme Court reversed and remanded her first case, our opinion was tantamount to a judgment in her favor for her money claim. But in this she is in error. The full effect of our opinion on her money claim was to remand the case with directions' to the trial court to overrule Mr. Tolley’s demurrer. We rendered no judgment for any definite amount for Mrs. Tolley on her claim for a money judgment. Mr. Tolley’s possible defenses had not been interposed. Section 8189, Pope’s Digest, says: ‘‘A judgment is the final determination of the rights of the parties in an action. ’ ’ Tested by this statute, it is clear, that Mrs. Tolley had no domestic money judgment against Mr. Tolley until July 15, 1946, when the White Circuit Court rendered such judgment.
IV. Were the Wilsons Bona Fide Purchasers for Value? On this fact question, the evidence preponderates to the effect that the Wilsons actually paid their money of $700 to Mr. Tolley, and obtained their deed on June 10, 1946, which was prior to Mrs. Tolley’s judgment of July 15, 1946. The fact that the Wilsons knew that Mr. Tolley was being sued for a money judgment did not, in itself, make the Wilsons mala fide purchasers. Mrs. Tolley has not alleged that the Wilsons were acting-in a fraudulent conspiracy with' Mr. Tolley. In fact, she has not alleged that Mr. Tolley was insolvent, or that he had no other property subject to execution. In the briefs, here, there is innuendo to such effect, but there was neither allegation made nor proof offered to support it. The evidence in this record conclusively shows that the only fact known by the Wilsons in this matter was that Mrs. Tolley was suing Mr. Tolley for a money judgment. That fact — standing alone — is not sufficient to reverse the findings of the chancery court, to the effect that the Wilsons were bona ficle purchasers for value, since they paid a fair price for the land. South Omaha Natl. Bank v. Boyd, 79 Ark. 215, 97 S. W. 288; Acker v. DeVore, 123 Ark. 347, 184 S. W. 852.
V. Priority as Between Wilson’s Deed and Mrs. Tolley’s Judgment. Finally, Mrs. Tolley points out that her judgment was obtained on July 15, 1946, and that appellee’s deed was not recorded until July 15,1946; and she claims that her judgment is superior. But in this conclusion she is in error. Our judgment lien statute is § 8255, Pope’s Digest, and reads in part: “A judgment . . . shall be a lien upon the real estate owned by the defendant . ... from the date of its rendition.” (Italics our own.)
Mr. Tolley sold and conveyed the land to the Wilsons on June 10, 1946, so he did not own the land on the day Mrs. Tolley’s judgment was rendered. The recording of the Wilsons’ deed was not necessary to pass title from Mr. Tolley to the Wilsons. In Apperson v. Burgett, 33 Ark. 328, we held that a prior, though unrecorded, deed was superior to a subsequent judgment. To the same effect, see Strauss v. White, 66 Ark. 167, 51 S. W. 64; Howes v. King, 127 Ark. 511, 192 S. W. 883; and Snow Bros. Hdw. Co. v. Ellis, 180 Ark. 238, 21 S. W. 2d 162.
The assignments raised by the appellant are without merit, and the decree of the chancery court is in all things affirmed.
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Robins, J.
Appellants, in January, 1945, purchased 160 acres in. Pulaski county, the deed conveying said land to them being executed on January 29,1945, by J. R. Sawyer and wife and E. B. Lambert and wife. In June, 1946, appellee, Capital City Lumber Company, entered these lands and cut and removed certain timber therefrom.
This suit was instituted by appellants in the lower court against appellees to recover the value of the timber and other damage to the land said to have been inflicted by appellee, Capital City Lumber Company. By an amendment to their complaint appellants alleged that the cutting of the timber was willful and unlawful and asked, for treble damages.
Appellee, Capital City Lumber Company, in its answer, admitted appellants’ ownership of the land, but alleged that appellee, Capital City Lumber Company, was the owner of the timber thereon by virtue of two deeds — one dated December 12,1942, and the other dated July 18,1944 — executed to said appellee by J. B. Sawyer and Marie Sawyer; and, though these deeds were not filed for record until December 22, 1945, said appellee alleged that appellants had actual notice of the prior sale of the timber to said appellee.
The lower court, after one of the appellants and the real estate dealer who negotiated the trade had testified, stopped the trial and gave a peremptory instruction in favor of appellee, Capital City Lumber Company. A non-suit was taken as to other defendants.
From judgment entered on the instructed verdict appellants prosecute this appeal.
The testimony showed that on January 20, 1945,” appellants and Sawyer executed a written “Agreement and Purchase of Sale,” covering the 160-acre tract, at the office of a Little Rock real estate agency, and at the same time appellants paid $1,500 in cash, agreeing to execute interest bearing notes for the balance of $2,500.
This agreement contained no reference to a prior sale of the timber, and the real estate agent testified that, when he effected the trade and had the parties sign the contract, he had no knowledge of the prior sale of the timber, and for that reason no reference to such a sale was made in the agreement.
Appellant, Wilford Barker, testified that a day or two after he signed the contract and made the $.1,500 payment on the purchase money he and his wife moved out on the land, and while he and Sawyer were then going over the farm Sawyer, for the first time, told him that the timber had been previously sold.
The lower court took the position that, since appellants admitted receiving information about the sale of the timber before the purchase was finally consummated by delivery and acceptance of the deed, appellants had no cause of action for the cutting and removal of the timber. The lower court erred in this conclusion. Appellants, according to the testimony, before being advised as to the sale of the timber, had made a binding contract to purchase the land and this contract bound the owners to convey it to appellants on the terms set forth therein. A substantial part of the consideration had already been paid by appellants to the parties who had record title and who were in actual possession.
When they paid the installment of purchase money and obtained the written contract evidencing the - sale, appellants, as shown by the' evidence, had no notice, actual or constructive, of the rights of the lumber company. Upon execution and delivery of the contract, and payment of part of the purchase money, appellants’ rights as vendees of the land became vested, and completion of the transaction by execution and delivery of the deed could have been compelled by appellants through proper legal proceedings.
In the case of Roach v. Richardson, 84 Ark. 37, 104 S. W. 538, we said that a vendee under a bond for title has such title to the land described therein as is. descendible by inheritance; and we held in the case of Sorrels v. Warnoch, 116 Ark. 496, 173 S. W. 417, that one who had equitable title to land was entitled to the timber thereon. “An unrecorded timber deed, although executed before a second sale of the land by the grantor, is not good as against an innocent purchaser of the land, for value and without notice. ” Bunch v. Pittman (Headnote 1), 123 Ark. 127, 184 S. W. 850.
Notice of the claim of the lumber company under its unrecorded timber deeds, received after appellants became the equitable owners of the land, was not sufficient to divest appellants of the interest in the land and the timber which they had acquired and partially paid for; nor were appellants required, on account of such information, to seek cancellation of a bargain they had made in good faith and without any knowledge of said appellee’s claim.
The lower court erred in withdrawing the case from the jury; and for this error the judgment of the lower court is reversed and the cause remanded with directions to grant a new trial to appellants; and for further proceedings not inconsistent with this opinion. | [
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McHaney, Justice.
This is an action by appellee against appellant’ for specific performance of an alleged contract for the sale by appellant to appellee of certain real property in the City of Blytheville.
Appellee alleged in his complaint that appellant, on September 19, 1945, submitted to him a written offer to sell to him certain real property, in the form of a letter to him of said date; that appellee accepted the offer upon the terms and conditions set forth therein; and prayed a decree for specific performance. Certain other matters were alleged in the complaint, but we think they are unimportant here. The letter of appellant offering to sell said property and dated as above and addressed to appellee, was attached to the complaint and is as follows: “Dear John: I have talked to you several times in regard to selling you the property that is located on lots five and six, block twenty-one, Blythe Addition. You are now renting the west half of this building from me. If you are still interested in buying this property, you can do so on the following proposition. Purchase price $22,500, down payment $7,500.
“I have a loan approved by the Jefferson Standard Life Insurance Company for $15,000, payable in quarterly payments with interest at five per cent, per annum. Interest to be figured on the balance due each time. This loan can be had on ten or twelve year time, with prepayment privilege in half time of the loan. You can take this loan over for payment of that much on the property.
‘ ‘ On the $7,500 down payment, you can pay me $1,500 cash and $400 a month until you pay the balance of the down payment. Checking over the Blytheville Motor Co. account with you, I find that our account will average $400 a month. If you want to it will be satisfactory to credit the motor company account each month on this balance due until you have paid the down payment. I would want you to set these payments at $400 a month and should we fail to purchase that much from you of course we would expect you to pay the difference. We can easily buy that much each month from you as long as your prices are competitive. This sale would have to be on agreement that we can occupy the east half of the building until we build. We will pay you rent in the amount of $125 per month from the time this deal is closed until we give you possession of this side of the building.
‘ ‘ I have definitely made up my mind to sell this property and in keeping with my promise, I am offering it to you first. Eddie B. has two other parties interested in buying it and I will appreciate you advising me upon receipt of this letter if you are interested in closing the deal as above outlined. If you are interested, I would want to make a contract witli you at this time with a reasonable cash payment and then proceed to close the deal as soon as possible.
“Please let me hear from you by return mail.
“Tours very truly, Tom Little Realty Co. By Tom A. Little.”
Appellant states “that the principal question for consideration by this court to be (is) whether the letter of September 19, 1945, was intended by Mr. Little when it was written as a proposal for the sale of the property, capable of being made a contract by acceptance, or whether it was a mere invitation to negotiate the contract. ”
We agree with the trial court that the letter was a definite offer to sell the property to appellee upon the terms and conditions therein stated, such terms-being: (1) a consideration of $22,500; (2) down payment of $7,500, of which $1,500 was to be paid in cash, and monthly payments of $400 each until the balance of the down payment, $6,000, was paid; (3) for the balance of the purchase price, $15,000, appellee was to assume and agree to pay a loan to a named life insurance company which had been approved but not actually at the time closed, and the terms of the loan are stated; and (4) that appellant could continue to occupy the east half of the building “until we build,” at a monthly rental to be paid by him to appellee of $125 until appellee is given possession. Appellee was advised by this letter that he could buy the property “on the following proposition.” Also that appellant had “definitely made up my mind to sell this property” and “I am offering it to you first.” Also he wanted to be advised “if you (appellee) are interested in. closing the deal as above outlined. ’ ’
Appellee testified that, soon after.receiving this letter, he went to appellant’s office, tried unsuccessfully to get the price reduced, had an understanding that the heating S3^stem in the building did not go with it and then told appellant he “would take it, and we shook hands and talked on for a while'and I started to leave and he told me he would get the contract ready in a few days.” In other words appellee accepted the offer as made. On December 11, 1945, appellant wrote appellee another letter reading: ‘ ‘ Sometime ago I discussed with you selling you the building that you are now renting from me. Due to change in conditions it has been necessary for me to change my plans and I do not want to sell this property at this time.
‘ ‘ Should things change to where I do want to sell the property later,, you can be assured that I will give you the first opportunity to purchase it. ’ ’
Appellant contends for a reversal of the decree that said letter of September .19, 1945, “was intended as a mere invitation to negotiate a contract, and not as a proposal capable of being made into a contract by itself by mere acceptance.” But, as we have pointed out it was not a proposal to negotiate, but was an offer to sell on certain and definite terms therein set out, and that the offer was accepted by appellee, and it is not disputed that appellee was ready, willing and able to carry .out the contract. Appellant shortly after writing the letter of September 19, delivered an abstract of the title to said property to appellee’s attorney for examination and approval, which said attorney did, and testified that he saw appellant several times between that time and December and asked appellant on several occasions if the $15,000 loan had been completed and was told on December 1 that it had been closed that day.
It was held in Emerson v. Stevens Gro. Co., 95 Ark. 421, 130 S. W. 541, that “Where a contract is actually entered into, whether by correspondence or by word of •mouth, the agreement becomes effective at once, although it was expected that the terms of the contract would after-wards be reduced to writing and signed.” So, here, the letter of September 19, in stating in the last sentence that, “If you are interested, I would want to make a contract with you, ’ ’ contemplated that the parties might later make a formal contract and signed by each of them, embodying the same terms set out in said letter, or any others that they might agree upon. But failure to draw and execute such a formal contract would not relieve appellant from performing under his written offer which had been timely accepted by appellee. To the same effect see Friedman v. Schleuter, 105 Ark. 580, 151 S. W. 696; Sheen v. Ellis, 105 Ark. 513, 152 S. W. 153.
The decree is correct and is, accordingly, affirmed. | [
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Robins, J.
Appellant asks us to reverse judgment of the circuit court, conforming- to jury’s verdict in favor of appellees against appellant for $240, which was thrice the value of timber cut by appellant .on land of appellees.
Appellee, Ella Stevens, is the widow of James Stevens, deceased, and the other appellees are his children and heirs at law. Appellees, as such widow and heirs at law, became owners of the northeast quarter of the northwest quarter of section 26, township 14, south, range 20, west, in Nevada county, on the death of said James Stevens. Appellant owns the timber on the southeast quarter of the northwest quarter of said section, and this tract lies immediately south of the one owned by appellees.
The instant litigation presented a dispute as to the. location of the dividing- line between the two tracts, appellees insisting that the existing fence (except as to a small “bow” to the south on the east end of the tract) is the line, while appellant asserts that the fence across the entire tract is located 66 feet south of the true line.
The substance of the testimony on behalf of appellees was that the fence in question was built (on the location of an old fence) twenty-two years before the dispute arose, that appellees during all that time had been in the open and adverse possession of the land, claiming to own the land north of the fence, and that appellant was notified of such claim prior to the cutting of the timber. It is undisputed that appellant cut and removed from the disputed strip timber of the value of $80.
' Appellant introduced testimony of a surveyor tending to establish that the true line was 66 feet north of appellees’ fence.
The lower court gave this instruction at the request of appellees:
“If you find from a preponderance of the evidence that the timber in question was standing on land that had been fenced by the plaintiff for inore than seven years, and that said plaintiff for more than seven years had been in the open, notorious, peaceable, continuous, hostile and adverse possession of said land on which such timber was standing, and that they were not holding said strip of land by the permission of the owners of the adjoining lands, but were claiming it against Lester & Haltom and all the world as their own; and you further find from a preponderance of the evidence that the defendant cut said timber under such circumstances, vou will find for the plaintiff in the sum of $240.”
This instruction was erroneous because it peremptorily required thé jury, in event they found the evidence sustained appellees’ claim of ownership by limitation, to assess treble damages against appellant.
While the surveyor’s testimony showed that the Stevens’ fence was 66 feet south of the true boundary, the jury must have found that adverse possession by appellees of the portion of the disputed strip on which the timber was cut had continued long enough to vest title in them. We have frequently held that where' a fence is by mistake placed on a line other than the true boundary, adverse possession thereafter for the period of seven years, under a claim of ownership of all land enclosed by the fence, would confer title on the one in possession. Bayles v. Daugherty, 77 Ark. 201, 91 S. W. 304; St. Louis Southwestern Railway Company v. Mulhey, 100 Ark. 71, 139 S. W. 643, Ann. Cas. 1913C, 1339; Couch v. Adams, 121 Ark. 230, 180 S. W. 498; Etcherson v. Hamil, 131 Ark 87, 198 S. W. 520; Blackburn v. Coffee, 142 Ark. 426, 218 S. W. 836; Moir v. Bailey, 146 Ark. 347, 225 S. W. 618; Cates v. Garrett, 161 Ark. 665, 254 S. W. 835; Miller v. Fitzgerald, 169 Ark. 376, 275 S. W. 698; Anderson v. Burford, 209 Ark. 452, 190 S. W. 2d 961. Such, of course, is not the rule where the one in posses sion intended to claim title only to the true line. Wilson v. Hunter, 59 Ark 626, 28 S. W. 419, 43 Am. St. Rep. 63; Shirey v. Whitlow, 80 Ark. 444, 97 S. W. 444; O’Neal v. Ross, 100 Ark. 555, 140 S. W. 743; Butler v. Hines, 101 Ark. 409, 142 S. W. 509; Murdock v. Stillman, 72 Ark. 498, 82 S. W. 834.
Bnt this survey was sufficient to justify an honest, even though mistaken, belief by appellant that it owned the timber in dispute. Therefore, under our holding in the case of Sturgis v. Nunn, 203 Ark. 693, 158 S. W. 2d 673, appellant’s act in cutting timber that it had substantial reason to believe was its own was not such as to call for imposition of the penalty by way of treble damages.
Accordingly, the amount of the judgment of the lower court is reduced to $80, and, as so modified, it is affirmed; appellees to recover costs of the lower court and appellant to recover costs of this court. | [
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Smith, J.
We have on this appeal a very large record involving the title to a very small tract, of land. Many witnesses testified on behalf of both appellant and appellee, and there are such conflicts in the testimony that we make no attempt to reconcile it.
The case involves the title to 12.65 acres of land lying somewhat in the shape of a triangle between two branches running easterly and westerly across the NW% of the NE*4, section 31, T. 13, S., R. 21 W, in Nevada county, Arkansas, and intersecting before they leave the west side of the forty-acre tract. • One of the disputed questions of fact is whether there are two branches which traverse the land or only one. Unquestionably there is one branch, this having defined banks carrying running water. This -is referred to as the South Branch and we shall so designate it. The other is referred to by many witnesses as a “slash” which carries water in the wet or rainy sesason of the year; and is dry at other times. For purposes of distinction we shall refer to it as the North Branch. There are 7:35 acres of land in this 40-acre tract north of the North Branch.
There appears to be no dispute as to the ownership of the title of the respective grantors through whom the parties claim their titles, and we shall not deraign them. The plaintiffs are the widows and heirs of R. L. Jarvis who in 1899 obtained a deed covering other lands and “The Ní/2 of the NW%, NE% section 31, T. 13 S., R. 21 W., containing 15 acres more or less, the frl. N% of the NW^ of the NE14 is north of q certain branch.” We do not construe this deed as covering all the land in the 40-acre tract north of the certain branch, which branch is the South Branch, or running branch, bnt only that part of the N% of the NW% of the NEiA, which is north of that branch.
The defendant, W. R. Bailey, is the grandson of R. M. C. Bailey whose title he acquired by inheritance, and by purchase from the other heirs of R. M. C. Bailey. The title of R. M. C. Bailey, the ancestor, was acquired by a deed in 1896 covering “The fractional NW]4 of section 31, T. 13 S., R. 21 W., containing 25 acres.” It is thus seen that these two deeds together covered the entire forty-acre tract and the parties have, since the date of their respective deeds, paid taxes on the tracts of land described as containing, one fifteen acres, the other twenty-five acres.
Defendant Bailey had sold the timber on the disputed area to the Fowler Lumber Company, and the suit was brought to recover the value of the timber, the amount thereof being covered by a stipulation. There was a judgment against Bailey and the Lumber Company which had cut and removed the timber for the value thereof. The judgment for the value of the timber was in favor of the Caney Creek Lumber Company, which had intervened, the intervention being based upon a sale with warranty of title to the timber from the appellees, Jarvis heirs, to the Caney Creek Lumber Company, and judgment over was rendered against the defendant Bailey in favor of the Fowler Lumber Company upon his warranty of the title to the timber which he, Bailey, had sold to the Fowler Lumber Company, and the appellant Bailey, and the Fowler Lumber Company have appealed.
For the reversal of the decree rendering the judgment stated, and quieting the Jarvis title to the 15-acre tract, it is insisted that appellees, the Jarvis heirs, have shown no title sufficient to enable them to maintain the suit. But we think it sufficiently appears from the facts stated that appellees have the record title to the 15-acre tract, and appellants’ title to the 25-acre tract is not questioned or involved. Appellees therefore have the right to recover the value of so much of the timber as was cut from the 15-acre tract, and to have their title to that tract quieted, except that part thereof to which appellees have lost title by adverse possession, and we proceed to consider the question of this adverse possession.
Appellees concede that for a period of time beginning in 1917 the Baileys had possession of a portion of the 15-acre tract and cultivated it, and it is clearly shown that this possession- was continued for a period of more than 7 years, but we are furnished with no description of the exact area so occupied for a period of more than 7 years. Possession of some part of the 15-acre tract is admitted, but appellees claim that possession was permissive, and therefore could not be adverse to the land so occupied.
Without reviewing the extensive and highly conflicting testimony as to that fact, we announcé our conclusions to be that the possession was not permissive, but was hostile and adverse. It was undisputed that this possession had its inception in a personal difficulty.
On the other hand it is contended by appellant Bailey that he has title to a part of the 15:acre tract, not only by actual adverse possession, but also by a possession based upon two certain deeds which enlarged his possession to 33 acres. This contention is based upon the following facts. R. M. O. Bailey, who acquired the title to the 25-acre tract, as hereinbefore stated, was survived by a daughter and four sons, appellant, W. R. Bailey being one of the sons. In 1933, the daughter and one of the sons executed a deed to their undivided two-fifths interest to appellant W. R. Bailey, described as follows:
“Our entire interest, being an undivided two-fifths interest, in and to the following lands, to-wit: The southwest quarter of the northeast quarter of section 31: and all that part of the northwest quarter of the northeast quarter of said section 31 lying and being situated south of the dry spring branch running across the north part of said forty acres, containing 33 acres, more or less— All situated in township' 13 south, range 21 west, and containing in all 73 acres, more or less, it being agreed and understood that the fence near said branch is the line between the lands herein conveyed and the north part of said forty acres now owned by the R. L. Jarvis estate.
“The lands above described belonged to R. M. C. Bailey, our father, and it is our intention to convey all our interest in and to all that part of the W% NE14 of said section owned by him at the time of his death.
‘4 This deed is intended to include, and shall include, not only all interest which we now own in and to said land, but any and all interest which we may hereafter acquire, by inheritance or otherwise. ’ ’
A little later, and in the same year the other two sons of R. M. C. Bailey executed to their brother, the appellant, W. R. Bailey, a deed to their two-fiftlis interest, the description employed being identical with that copied above in the deed from appellant’s brother and sister. The insistence is that these deeds constituted color of. title, and were the instruments by 'which appellant acquired title in severalty, and that as he had possession of a part of the land described in the deeds, his color of title operated to extend his possession to all the land described in these deeds. The cases of Connerly v. Dickinson, 81 Ark. 258, 99 S. W. 82; Wells v. Rock Island Imp. Co., 110 Ark. 534, 162 S. W. 572; Hart v. Sternberg, 205 Ark. 929, 171 S. W. 2d 475, which are cited are to the effect that actual possession of a part of the land described in the deed gives the grantee possession constructively of all the land described in the deed. Also cited is the case of Morgan v. Kankey, 133 Ark. 599, 203 S. W. 844, which holds that the rule above stated applies, although the grantor in the deed had no record title.
We think the cases cited are not applicable here for several reasons, among others these: The Bailey heirs could not by deeds from one to another fix a boundary between their land and that of another person not a party to those conveyances. These deeds declare their purpose to be to convey all their interest in that part of the W% of the NEYt which their father owned at the time of his death, and all interest which they might thereafter acquire by inheritance or otherwise. Yet the deeds undertook to convey lands which the father of the grantors did not own at the time of his death. We think the deeds to appellant were simulated and conveyed no color of title, except as to the lands in which they owned an interest. They were made by persons who knew they had no title to a part of the land they were purporting to convey to a grantee who was equally aware of that fact. Appellant and the grantor in one of these deeds was asked to explain when and how his father’s holdings had been enlarged from 25 to 33 acres. Their answers were uncandid, evasive and unsatisfactory, one of the answers being that the deed to their father conveyed 25 acres more or less. The alleged color of title appears to have been, a mere fabrication designed to extend their possession to land not actually occupied, and the description of the land is too defective to constitute color of title.
The value and effect of a fabricated color of title is thoroughly covered in the case of State v. King, 77 W. Va. 37, 87 S. E. 170, which is reported and extensively annotated in L. B. A. 1918E, 1044. In that opinion it was said: “Color of title is not, in law, title at all. It is a void paper, having the semblance of a muniment of title, to which, for certain purposes, the law attributes certain qualities of title. Its chief office or purpose is to define the limits of the claim under it. Nevertheless, it must purport to pass title. In form, it must be a deed, a will, or some other paper or instrument by which title usually and ordinarily passes. Such qualities as are imputed to it by the law, for limited purposes, are purely fictitious and are accorded to it only to work out just results. Fictions are never used in procedure or law for any other purpose. (Citing cases). ”
It was there further said: “To permit it to become the shield and protection of admitted fabrication of papers having the form of muniments of title, such as forged deeds and wills and deeds made by men having no titles, at the instance of persons having knowledge of their lack of title; for the express puipose of founding claims thereon, would be a flagrant perversion of it to unworthy purposes and a departure from the judicial intent and design in the adoption thereof.”
Now the decree from which is this appeal rendered judgment for the value of the timber cut on appellees’ land and that part of the decree is affirmed, notwithstanding appellant’s adverse possession of a part of the fifteen-acre tract. It is not to be assumed, and is not contended, that any part of the commercial timber was cut and removed from land which had been cleared and occupied for a period of more than seven years. But the decree also quieted appellee’s title to the entire fifteen-acre tract. This we think was erroneous under our finding that a portion of that tract had been occupied without permission and adversely for more than seven years, but we are unable from the record before us to determine the area or the description thereof, and the decree must therefore be reversed in order that this area and the description thereof may be determined, and appellees’ title to the fifteen-acre tract will be upheld, except as to so much thereof as has been lost by adverse possession. | [
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Griffin Smith, Chief Justice.
V. C. Throckmorton, H. E. Adams, and C. M. Griffin are members of the uniform force of the Little Rock Fire Department and constitute the adjustment committee for the Department. In July 1947 they asked that G. L; Nalley as Chief be re strained from requiring tliem — presumptively upon penalty of discharge or discipline in the event of refusal — to work in excess of seventy-two hours during a week, except in case of emergency. The petitioners rely upon Act No. 240, approved March 18,1947. From a decree granting the relief prayed for the Chief has appealed.
Act 240 amends § 9853 of Pope’s Digest. The first paragraph of the Digest section is unchanged by the amendatory Act. The second paragraph of Act 240 is identical with the Digest, each reading: “The head or chief officer of the fire department shall so arrange the working hours of the employees of such fire department so that each employee shall work, as near as practical, an equal number of hours per month.” At this point the 1947 Act, after a semicolon, contains the following, not found in the former statute: “but not to exceed seventy-two hours per week.” The remainder of the paragraph and section is unchanged in substance. The law as amended is made to read as follows:
“The head or chief officer of the fire department shall so arrange the working hours of the employees of such fire department so that each employee shall work, as near as practical, an equal number of hours per month; but not to exceed seventy-two hours per weefc; provided that the head or chief officer of such fire department, may at his discretion, in case of epidemic [,] conflagration, or such emergency, require such employees for a greater period than herein provided, to continue on duty during such epidemic, conflagration [,] or like emergency.”
The emergency clause found that because firemen had been required to work ‘ ‘ an excessive number of hours each week” it was necessary to the public safety that the amendment become immediately effective.
We are dealing with an Act that added nine words to existing statutes, and then explained that because practices subversive to the public safety were being followed the measure should be put into effect “from and after its passage and approval.”
The action brought by plaintiffs has nothing to do with salaries or claims for overtime. The men work in twenty-four hour shifts or assignments, beginning at eight o’clock in the morning. For example, a shift or platoon beginning Monday would be on duty until Tuesday morning at eight, then off until Wednesday morning, off again Thursday, on Friday, off Saturday, and on Sunday. It will thus be seen that Monday and Monday night would constitute a twenty-four hour period, Wednesday and Wednesday night would involve a second period of like duration, and Friday and Friday night would bring the total number of hours to seventy-two. But, under the rule complained of, the platoon is again subject to duty Sunday morning. Result is that aggregate hours substantially exceed the statutory limitation.
Appellant’s first contention is that evidence does not sustain the contention that, if required to report for a 24-hour shift each alternate day, the men work more than 72 hours a week. It is insisted that a distinction should be drawn between actual work and the period of duty. At least eight hours of the 24 are spent sleeping, or in an attempt to do so; but, says counsel, work and sleep are antithetical; hence, if to an assignment during which members of a platoon have admittedly spent a designated period in sleep a demand for actual work for a time not in excess of that taken for sleep is added, the law has not been violated and the employe cannot complain.
Attention is directed to Rule 50. It provides that if a fireman when not on duty elects to sleep at the station, he must respond to an alarm just as though the call had been made during his duty period. This, it is argued, is evidence that sleeping time has been construed by the firemen as being on a different basis from that part of the 24-hour period when retirement rest is not involved. The construction, says appellant, finds support in wording of the Act directing the Chief to “so arrange the working hours of the employees ... so that each shall work, as near as practical, an equal number of hours per month.”
In appellant’s brief the words “working” and “work” used in that part of the statute from which the quotation is taken, are italicized, with the explanation that the emphasis has been supplied. Perhaps if in enacting the legislation the General Assembly had seen fit to particularize in respect of these words and had disclosed a purpose to have them stressed, strength would be given the argument that actual physical employment involving application to a designated duty was intended. This emphasis, however, was not indicated, and we are given no intimation that the lawmakers contemplated any purpose other than to limit to seventy-two hours the time a uniformed member of the force should be required to be on duty during a week, unless there is an emergency. Half of a weekly period of 168 hours is 84, or 12 hours more than the maximum to which, under the statute, work is restricted.
It is insisted that the limitation of 72 hours contained in Act 240, if construed as such and enforced, would necessitate the use of a third platoon, and this was not intended, being in conflict with the direction that “The uniformed force of the Fire Department shall be divided into two platoons.” But, if the express language of the amendment goes only to the proposition that work hours shall not exceed 72 in any week, we must presume there was an intent to have the Act construed in such manner as to give effect to the only change it made in the corresponding section of Pope’s Digest. If the result of applying the legislative will necessitates the doing of something else — a thing not affirmatively prohibited — we must assume there was a plan to accomplish the particular end the Act sought to achieve. The mechanics would be left to the City.
Appellant’s second objection to the decree is that under the Chancellor’s construction the Act ‘‘legislates upon a subject which is beyond the power and authority of the legislature to control or administer, . . . [in that it] seeks to control a non-governmental, i. e., a proprietary or private function of a municipal government, and such an Act would deprive the citizens ... of Little Rock of their property without due process of law” in violation of State and Federal constitutions.
In support of this contention it is shown that the City owns property utilized for fire fighting and fire prevention purposes, and that judicial construction of an Act which inevitably requires the employment of additional men is a deprivation of property without due process because the City is forced to spend additional money.
Act 240 applies with uniformity to all cities of the First Class. It does not direct the employment of a designated number of men, or say that they shall be paid a fixed compensation according to rank, period of service, or the responsibility imposed. The word ‘‘platoon” is not construed. The requirements of one station might be, and usually are, greater than those of another. The City determines all matters relating to its essential and incidental internal affairs, under authority granted by the General Assembly.
The Constitution, Art. 12, § 3, is a delegation to the Legislature of authority to provide by general law for the organization of cities and their classification. Hendricks v. Block, 80 Ark. 333, 97 S. W. 63. A municipality may not be authorized to pass a law contrary to the general laws of the State. See Bennett v. City of Hope, 204 Ark. 147, 161 S. W. 2d 168, where § 4 of Art. 12 of the Constitution is cited. The Constitution does not directly invest municipal corporations with power to maintain an agency such as we are dealing with here, and then by implication say that because personnel is employed by a city, or under civil service regulations, those affected are not subject to general laws enacted in the interest of public safety. Such a construction would endow the created with powers greater than its creator.
The fact that enforcement of a law of general application to all classified cities may, as a practical proposition, compel the employment of additional firemen does not render the legislative mandate void for want of due process, or for any other reason.
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BILL H. WALMSLEY, Judge.
| Appellant Taneka Robinson appeals from the Crittenden County Circuit Court’s revocation of her probation. Robinson argues that the trial court erred in admitting into evidence a probation officer’s report in violation of her right to confront and cross-examine witnesses. We affirm.
On May 5, 2006, Robinson pleaded guilty to aggravated assault. She received five years’ probation and, among other things, was ordered to pay a fine and costs, totaling $1,500. She was ordered to pay that sum at the rate of $50 per month beginning July 1, 2006. On June 2, 2009, the State filed a petition to revoke, alleging numerous violations of the terms and conditions of her probation. An arrest warrant was issued on June 3, 2009, but could not be served on Robinson until May 25, 2012.
On June 5, 2012, a hearing was held on the State’s petition to revoke. Virginia House Lwith the Crittenden County Sheriffs Department testified that Robinson had made no payments whatsoever toward her fine and costs. A ledger sheet was admitted into evidence without objection.
Mary Marshall, a probation officer, testified that Jim Russell was Robinson’s original probation officer and that he had prepared a violation report on May 14, 2009. Robinson objected to its introduction into evidence on the basis that the report was hearsay. The trial court ruled that the report was admissible pursuant to Ark. R. Evid. 803(8) as a report made by a public official setting forth his regularly reported activities and matters observed pursuant to duty. Robinson further objected on the basis that she was not able to confront and cross-examine Russell as to the contents of the report. The trial court noted Robinson’s objection but overruled it, again citing the exception to the rule against hearsay.
The violation report indicates that Robinson failed to pay the fine and costs as ordered, admitted to using and tested positive for controlled substances on numerous occasions, last reported to her probation officer on July 1, 2008, failed to notify the probation office of her new address, failed to attend GED classes, failed to complete drug counseling, and failed to pay probation fees.
Robinson admitted committing many of the violations listed in Russell’s report. Robinson testified that she was currently working and had held several jobs since getting “stabilized” in early 2010. She received no child support from either of the fathers of her two children, but she worked to support them and received food stamps. She added that family members helped her. She acknowledged that she owed $625 in probation fees and testified Isthat she had a money order for that amount with her in court to pay those fees. Robinson stated that she was aware at the time she was placed on probation that she must pay a fine and costs. She stated that she did not know why she had failed to make any payments. Robinson then promised the trial court that she could pay the balance of what she owed by September 2012 because she planned to apply her income-tax refund and weekly check toward it. Based on those assurances, the trial court deferred sentencing until September to give Robinson an opportunity to pay the balance, but the trial court found that Robinson nevertheless had violated her probation by failing to report and by using marijuana.
In September, the trial court noted that, while Robinson had not done as promised, she had made two substantial payments in July and August 2012. Because of these efforts, the trial court continued the hearing until March 2013 to give Robinson additional time to comply. The trial court then continued it to May 24, 2013. At the hearing, the judge stated,
You made certain claims to me about what you could do to pay fines and costs and all that. I mean, just two months, you said, I can pay it all by September, and you did not do that. I gave you another chance because you had made some effort to do it. I continued it until September. You have not done what you had promised to do, but you made an effort, so I continued it not just a couple of months, I continued it six months. Then, I do not know what happened on March 26th, but we rescheduled it for today. And so that would be eight months. In that eight month period not one thing.
Robinson explained that she was no longer working, was forced to move, owed $1,000 on an electricity bill, was seriously ill, and was caring for her sick child. Robinson added that it was “hard” because she was a single parent and did not have any help. The trial |4court sentenced Robinson to serve two years in prison.
In order to revoke probation, the trial court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of probation. Reynolds v. State, 2012 Ark. App. 705, 2012 WL 6200321. The State has the burden of proof but needs to prove only one violation. Id. We will not reverse the trial court’s decision to revoke unless it is clearly against a preponderance of the evidence. Id. When the determination of a preponderance of the evidence turns on questions of credibility and weight, we defer to the superior position of the trial court to decide these matters. Id.
On appeal, Robinson argues that she was denied the right to confront and cross-examine Russell as to the contents of his violation report. Robinson argues that the State’s only excuse for failing to produce Russell as a witness was that he was no longer employed as a probation officer. Robinson complains that the trial court did not make a specific ruling on whether the State had demonstrated good cause for Russell’s absence. Robinson maintains that, once the report was introduced into evidence, she was “forced to testify” and that her testimony should be disregarded.
Although the rules of evidence, including the hearsay rule, are not strictly applicable in revocation proceedings, the right to confront witnesses is. Jones v. State, 31 Ark.App. 23, 786 S.W.2d 851 (1990). Arkansas Code Annotated section 16-93-307(c)(1) (Supp.2013) provides that the defendant has the right to confront and cross-examine adverse witnesses unless the court specifically finds good cause for not allowing confrontation. The court may permit' the introduction of any relevant evidence of an alleged violation, including a letter, | [¡affidavit, and other documentary evidence, regardless of its admissibility under the rules governing the admission of evidence in a criminal trial. Ark.Code Ann. § 16-93-307(c)(2).
While Robinson raised her confrontation-clause argument below, she failed to develop that argument and to obtain a specific ruling on the issue. As such, her argument is not preserved for review. Rodriguez v. State, 372 Ark. 335, 276 S.W.3d 208 (2008). In any event, the trial court’s determination that Robinson violated the terms and conditions of her probation by failing to report and by using marijuana was supported by the evidence, including Robinson’s own testimony.
Moreover, even if the trial court erred in admitting the report, any error was harmless. Without considering the violations listed in the report prepared in May 2009, the trial court found that Robinson had, since that time, failed to pay the balance of her fine and costs as promised under oath and even after the trial court permitted her an additional eight months to fulfill her promise. The trial court was not required to believe Robinson’s excuses for not making a single payment over that span of time. The evidence showed that Robinson was capable of working; she chose to quit her job, despite her financial obligations; and she had testified earlier that she received support from family members. There was evidence to support a conclusion that Robinson made no effort to pay the remainder of what she owed and that her failure to do so was willful and inexcusable. Because the trial court determines credibility and there is a lower burden of proof in revocation proceedings, we cannot say that the trial | (¡court’s decision was clearly against a preponderance of the evidence. For the reasons discussed herein, we affirm the revocation of Robinson’s probation.
Affirmed.
HARRISON and GRUBER, JJ., agree.
. It is not clear from the record whether Robinson paid her probation fees.
. Denial of an accused’s right to confront witnesses may be harmless error. Brock v. State, 70 Ark.App. 107, 14 S.W.3d 908 (2000). | [
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ROBIN F. WYNNE, Judge.
11 Ashley Malvin appeals from his convictions for computer exploitation of a child; distributing, possessing, or viewing of matter depicting sexually explicit conduct involving a child; and sexual indecency with a child. He argues on appeal that the State failed to prove that he committed sexual indecency with a child because it failed to prove that he exposed his penis to the minor victim. We disagree and affirm.
Appellant was charged with computer exploitation of a child; distributing, possessing, or viewing of matter depicting sexually explicit conduct involving a child; and sexual indecency with a child. He waived his right to a jury trial. T.H., who was sixteen years old at the time of the trial, testified that appellant was a pastor at her church. According to T.H.’s testimony, her relationship with appellant turned sexual in 2011, when she was fourteen. T.H. stated that appellant sent her photos of his penis. Copies of the photographs appellant |2sent to T.H. were admitted into evidence. T.H. testified that appellant sent the pictures from his cell phone to her cell phone during text conversations.
After the State rested its case, appellant made a motion to dismiss the charges. With regard to the charge of sexual indecency with a minor, appellant argued that the State had not met its burden because the proof was that he exposed a picture of his penis to the victim as opposed to exposing his penis itself. The motion was denied. At the close of all the evidence, the motion was renewed and denied again. The trial court found appellant guilty on all three counts, and sentenced him to seventy-two months’ imprisonment on each count, with the sentences ordered to run concurrently. This appeal followed.
A motion to dismiss at a bench trial, like a motion for directed verdict at a jury trial, is considered a challenge to the sufficiency of the evidence. Rule v. State, 2014 Ark. App. 390, 438 S.W.3d 279. When the sufficiency of the evidence is challenged in a criminal conviction, we review the evidence in the light most favorable to the State and affirm if the verdict is supported by substantial evidence. Id. Substantial evidence is evidence that induces the mind to go beyond mere suspicion or conjecture, and that is of sufficient force and character to compel a conclusion one way or the other with reasonable certainty. Id.
Appellant argues on appeal that his conviction for sexual indecency with a child is not supported by substantial evidence because the State failed to prove that he exposed his penis to the minor victim. A person commits sexual indecency with a child if with the purpose to arouse or gratify a sexual desire of himself or herself or a sexual desire of any other person, the person purposely exposes his or her sex organs to a minor, and the actor is the minor’s | ^guardian, an employee in the minor’s school or school district, a temporary caretaker, or a person in a position of trust and authority over the minor. Ark.Code Ann. § 5-14-110(a)(3)(C) (Repl.2013).
Appellant contends in his brief, as he did at trial, that sending a picture of his penis to the victim does not satisfy the require ment in the statute that he “expose his sexual organs.” His argument requires us to determine the meaning of the phrase “exposes his or her sex organs” in section 5-14-110(a)(3)(C). This court reviews issues of statutory interpretation de novo, as it is for this court to decide the meaning of a statute. Brown v. State, 375 Ark. 499, 292 S.W.3d 288 (2009). We construe criminal statutes strictly, resolving any doubts in favor of the defendant. Id. We also adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. Id. We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, and if the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Id. Additionally, in construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Id.
“Expose” is defined as laying open to view. Webster’s Third New International Dictionary 802 (2002). Applying the plain meaning of the term “expose,” the State was required to establish that appellant laid open to view his sexual organs to T.H. to arouse or gratify his sexual desire, and that he was in a position of trust and authority over T.H. Appellant argues that he did not expose his penis to T.H.; rather, he exposed a picture of his penis, which he |,, maintains does not meet the requirements of the statute. We do not agree. Appellant intentionally laid his penis open to view by a minor who was a member of his church congregation for the purpose of arousing or gratifying his sexual desire. His penis is what he exposed to T.H.; a photograph was simply the manner he selected for her to view his exposed penis. What he exposed (his penis), combined with whom it was exposed to (a minor), why it was exposed (for the purpose of arousal or sexual gratification), and his position of trust and authority over the victim constitute the elements necessary for the commission of the offense. The manner in which T.H. viewed the exposure does not take appellant’s conduct outside of that prohibited by the statute. This is illustrated by the fact that when T.H. viewed the photograph as its intended recipient, what she saw was no different than what she would have seen had appellant pulled down his pants while standing in front of her. Appellant’s conduct in this case meets the requirements of the statute, and the trial court’s verdict is supported by substantial evidence.
Affirmed.
GLADWIN, C.J., and PITTMAN, J., agree. | [
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ROBERT J. GLADWIN, Chief Judge.
| Appellant Wade Collins appeals from the Pulaski County Circuit Court’s denial of his motions to suppress evidence filed in conjunction with his conditional plea on charges of possession of cocaine with purpose to deliver, possession of drug paraphernalia, possession of marijuana with purpose to deliver, and possession of firearms by a certain person, for which he was sentenced as a habitual offender to 216 months’ imprisonment on each charge to be served concurrently. He argues that the officers’ failure to provide Miranda warnings prior to his custodial interrogation requires the exclusion of all statements and evidence obtained during the search of his residence and storage units. We affirm.
On December 6, 2012, appellant arrived at his residence while it was being searched by several Little Rock Police Department officers pursuant to a search warrant. After appellant approached the officers to determine what they were doing, a patrol officer asked |2for his name. After giving his name, but before appellant could leave, an officer said, “Hold him.” Appellant remained on the porch, allegedly not knowing whether he was free to leave, but without asking whether he was required to stay. Patrol officers sat with appellant on his porch until he was questioned by Detective Mark Welborn.
Detective Welborn had been actively investigating appellant prior to December 6, 2012, and as a result, he learned that appellant had sold cocaine and utilized a storage unit related to the sale of this cocaine. Detective Welborn was part of the group of officers searching the residence when appellant arrived. He wanted to search the storage units as well and attempted to get appellant’s consent during the initial discussion. Detective Wel-born questioned appellant about the existence of a storage unit at the U-Haul facility, and appellant confirmed his rental of a storage unit. Detective Welborn asked to search the unit; appellant agreed, and Detective Welborn directed appellant to get into the back of a patrol car to ride to the storage facility. Appellant was not instructed on whether he was free to leave, and there is no indication that he was permitted to take his own car. It is undisputed that neither Detective Welborn nor any other officer gave appellant Miranda warnings at that time.
Upon arriving at the U-Haul facility, appellant signed a consent form for the search of unit 600. The unit was opened, and no contraband was found. Detective Welborn testified that he gave appellant Miranda warnings at this time; however, the record indicates that he failed to document these warnings in his report despite acknowledging both the relevance and his habit of doing so.
| ¡¡Detective Welborn then instructed an assisting officer to go to the front office and determine whether appellant had any other storage units. Officers learned of a second storage unit, number 556, and confronted appellant about its existence. Appellant confirmed its existence, but, according to him, he initially denied giving consent to search it. Detectives Mark Welborn and Stephen Montgomery, however, testified that appellant consented to the search of storage unit 556. The consent to search also included a written notation for unit 556; however, this notation was not written by Detective Welborn nor was it initialed or signed by appellant. Appellant eventually agreed to open the unit but, according to him, only after Detective Welborn said he would tear off the padlock of the unit if appellant did not open it. Appellant was not told that he could voluntarily leave the storage facility, and officers remained in close proximity to him throughout the search.
Detectives Welborn and Montgomery testified that appellant admitted to having marijuana and cocaine in storage unit 556 before it was opened. Upon the discovery of the drugs, appellant was handcuffed and taken to the police station. Detective Wel-born presented appellant with written Miranda warnings at that time. Appellant denied being given Miranda warnings at any time prior to his arrival at the station, and Detective Welborn’s position regarding the Miranda warnings was consistent with that of Detective Montgomery, who had assisted Detective Welborn’s and had remained within close proximity to appellant throughout the search at the U-Haul facility.
On review of a circuit court’s decision on a motion to suppress evidence obtained by a warrantless search, this court makes an independent determination based upon the totality |4of the circumstances, giving respectful consideration to the findings of the circuit court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). Consistent with this standard, this court defers to the superior position of the circuit court to determine the credibility of witnesses and to resolve evidentiary conflicts, but resolves legal questions through an independent determination on the totality of the circumstances. James v. State, 2012 Ark. App. 118, 390 S.W.3d 95. The circuit court is not required to believe the testimony of any witness, certainly not the self-serving testimony of the accused. Bell v. State, 2010 Ark. App. 813, 379 S.W.3d 748. Arkansas’s appellate courts have never wavered from the longstanding rule that it is the province of the circuit court to determine the credibility of witnesses. Welch v. State, 364 Ark. 324, 219 S.W.3d 156 (2005). The circuit court’s ruling will not be reversed unless it is clearly erroneous. Gander v. State, 95 Ark.App. 144, 234 S.W.3d 887 (2006). In addition, this court may affirm an order denying a suppression motion for a reason different from that relied upon by the court below. Kimery v. State, 63 Ark.App. 52, 973 S.W.2d 836 (1998).
Appellant argues that the officers’ failure to provide Miranda warnings to him prior to the custodial interrogation requires the exclusion of all statements and evidence obtained during the search of his residence and the U-Haul facility. The Fifth Amendment to the United States Constitution provides, in part, that “no person ... shall be compelled in any criminal case to be a witness against himself.” Accordingly, pursuant to the protections of the Fifth Amendment, “prein-terrogation warnings are required in the context of custodial ^interrogations given ‘the compulsion inherent in custodial surroundings.’ ” Yarborough v. Alvarado, 541 U.S. 652, 661, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) (quoting Miranda v. Arizona, 384 U.S. 436, 458, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). Miranda warnings, therefore, are necessary at the time of a custodial interrogation. Hall v. State, 361 Ark. 379, 206 S.W.3d 830 (2005). In the absence of such warnings, “the [State] may not use statements, whether exculpatory or inculpatory, stemming from the custodial interrogation..... ” Rhode Island v. Innis, 446 U.S. 291, 297, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); see also Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985) (holding that, once in custody, no interrogation is allowed absent the Miranda warnings and a knowing, voluntary waiver).
In interpreting the parameters of the term “custody,” the United States Supreme Court has stated that
the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.... [Stcmsbury explained that, “the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the ■person being questioned.” Courts must examine “all of the circumstances surrounding the interrogation” and determine “how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action.”]
Yarborough, 541 U.S. at 662-63, 124 S.Ct. 2140 (internal citations omitted); see also Hall, 361 Ark. at 389, 206 S.W.3d at 837. Additionally, in considering “interrogation,” the United States Supreme Court provides as follows:
We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.... A practice |fithat the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.
Innis, 446 U.S. at 301-02, 100 S.Ct. 1682.
A suspect’s voluntary or spontaneous statement, even though made in police custody, is admissible against him. Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003) (holding that it is irrelevant whether the statement, if in fact spontaneous, was made before or after Miranda warnings had been issued, or whether appellant was in custody). However, a statement made while a suspect is in custody is presumptively involuntary. Id. The State bears the burden of proving by a preponderance of the evidence that a custodial statement was given voluntarily and was knowingly and intelligently made. Id. Statements made by a suspect in response to custodial interrogation are inadmissible unless'the suspect is given Miranda warnings and intelligently waives those rights. Id.
In Shelton, supra, our supreme court reversed and remanded a conviction based on the circuit court’s failure to grant a motion to suppress certain statements made by the defendant during a custodial interrogation. In Shelton, an officer came to the defendant’s home and awoke him using a P.A. system. The defendant, a minor, eventually came out of the home and was placed in a police car. The defendant and the officer remained alone in the police car, and the officer told the defendant of the seriousness of the crime (murder) and asked if defendant knew anything about it or could help locate the suspects. The defendant then stated, “We did it,” and “We were there.” Id. at 327, 699 S.W.2d at 730. In evaluating the |7totality of the circumstances, our supreme court held that the defendant was in custody and interrogated; moreover, our supreme court held that his statements were not spontaneous. The Shelton court reversed the circuit court’s denial of the motion to suppress because the officer had failed to provide Miranda warnings prior to the statements. Id. at 333, 699 S.W.2d at 734.
Appellant claims that Detective Welborn likewise violated his constitutional rights by failing to provide Miranda warnings at the time of appellant’s custodial interrogation. Appellant urges that it was at the point of their initial conversation at his residence that Detective Welborn, who was armed with the belief that appellant possessed cocaine at a storage unit, began his interrogation. Detective Welborn questioned appellant about a storage unit he already believed to be relevant to his investigation, which appellant maintains Detective Welborn did to avoid the trouble of obtaining another warrant. Appellant claims that the interrogation continued when he was asked to ride to the U-Haul facility in the back of a patrol car. See Gorman v. State, 366 Ark. 82, 233 S.W.3d 622 (2006) (holding that interrogation in a police car is a significant factor in finding a custodial interrogation).
It is undisputed that neither Detective Welborn nor any other officer provided Miranda warnings either at appellant’s residence or while escorting appellant to the U-Haul facility in a patrol car. Appellant contends that those failures to provide Miranda warnings during the custodial interrogation at his residence and in the patrol car violated his constitutional right against self-incrimination and require the suppression of all statements and Usubsequent evidence obtained in the search of storage unit 656 resulting from the custodial interrogation.
Appellant also contends that the circuit court erred to the extent it found that he was Mirandized at any point prior to being handcuffed and transported to the police station. Appellant testified that he was not Mirandized at his residence or at the U-Haul facility and that Detective Montgomery confirmed appellant’s testimony concerning an absence of Miranda warnings at the U-Haul facility. The only contradictory evidence presented was Detective Welborn’s testimony that he provided Miranda warnings to appellant at the U-Haul facility, the veracity of which was undermined by his admission that he left this relevant and routinely included information out of his report.
We hold that under the specific facts of this case the circuit court did not clearly err by denying appellant’s motion to suppress. Appellant’s arguments rely solely on the allegation that he was in custody from the moment he arrived at his residence during the execution of the search warrant on his residence. He disregards, however, the extent of his voluntary interaction in answering the officers’ questions, providing additional information related to the storage units, accompanying them to the storage units, consenting to the searches, and assisting in opening the units.
Appellant’s statements in response to officers’ questions and the subsequent search of the storage units did not violate his constitutional rights because he did not expressly invoke the privilege against self-incrimination in response to officers’ questions and gave his consent to the search. Detective Welborn testified that he told appellant that he was not under arrest |9and that he was unaware that any officer might have said he should be held while at the residence. Although Detective Wel-born did not indicate that he told appellant he was free to leave, there is also nothing in the record supporting that appellant asked or indicated to the officers that he wanted to leave. This court has consistently held that it is the objective circumstances that this court reviews on appeal rather than the subjective views harbored by the parties. James, swpra.
We hold that, under these facts, the circuit court could have determined that a reasonable person in appellant’s circumstances would believe that he was not in custody. See Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Although custody may occur under circumstances in which the suspect is deprived of his freedom of movement and not only upon formal arrest, this court must consider the totality of the circumstances as a reasonable person would understand them to be. See James, supra.
We note that appellant was charged as a habitual offender; accordingly, the circuit court could reasonably infer that he had some previous knowledge about police procedures. According to Detective Welborn, appellant was not in custody until after the contraband had been found, and he was placed in handcuffs and formally arrested. Despite appellant’s testimony that an officer said to “hold him” when appellant arrived at his house, Detective Welborn testified that he was not aware that any officer had made that statement. Likewise, appellant voluntarily accompanied the officers to the storage facility without requesting alternative transportation. After considering the testimony concerning all of the attendant 110circumstances, the circuit court reasonably could have concluded that appellant was not in custody.
Because of the circuit court’s factual determination that appellant was not in custody, appellant was not entitled to Miranda warnings prior to his arrest. See Gardner, supra (interpreting that the argument that Miranda warnings are required whenever an investigation has focused on a person, notwithstanding a complete absence of the compulsive aspect of custodial interrogation, has been flatly rejected). To reiterate, this court defers to the superior position of the circuit court to determine credibility of the witnesses and resolve evidentiary conflicts and may reject the self-serving testimony of the accused. James, supra.
Detective Welborn testified that he later gave Miranda warnings to appellant and went over a consent-to-search form with him before conducting a search of his storage unit. The circuit court ruled without explanation that appellant’s motions to suppress were denied, and thus likely determined that appellant’s testimony was not credible. This court is not at liberty to disturb the circuit court’s credibility determinations on appeal. Gonder, supra. We hold that the circuit- court did not clearly err by finding the testimony of Detective Welborn about the circumstances to be more credible than that of appellant in ultimately denying his suppression motions.
Appellant could have told Detective Welborn that he did not want to answer any questions, but he failed to do so. It has long been settled that the privilege against self-incrimination “generally is not self-executing” and a witness who desires its protection “must claim it.” Salinas v. Texas, — U.S. —, 138 S.Ct. 2174, 2178, 186 L.Ed.2d 376 (2013). Despite appellant’s Inargument to the contrary, the express-invocation requirement applies even when an official has reason to suspect that the answer to his question would incriminate the witness. Id.
Furthermore, forfeiture of the privilege against self-incrimination need not be knowing. See Salinas, 133 S.Ct. at 2183. Appellant did not decline to answer any of the officers’ questions; therefore, he relinquished his right to claim the privilege. Additionally, there is nothing in the record to show that officers prevented appellant from invoking his right to the privi lege against self-incrimination. So long as police do not deprive a witness of the ability to voluntarily invoke the privilege, there is no Fifth Amendment violation. Salinas, 138 S.Ct. at 2184. Because appellant did not invoke the privilege, the circuit court did not err by concluding that appellant’s statements to police were voluntary.
Regarding our review of appellant’s consent to search the storage units, the State has the burden of proving by clear and positive testimony that consent to a search was freely and voluntarily given and that there was no actual or implied duress or coercion. McIntosh v. State, 296 Ark. 167, 758 S.W.2d 273 (1988); Ark. R.Crim. P. 11.1(b) (2012). Whether the consent was voluntary is a question of fact to be determined from all the circumstances. Welch, supra. The circuit court’s finding of voluntariness will not be set aside unless it is clearly against the preponderance of the evidence. Duncan v. State, 304 Ark. 311, 802 S.W.2d 917 (1991). And, while the circuit court may take into consideration whether a defendant knew he had the right to refuse consent in determining voluntariness, it is not a 11?conclusive factor. Id. In fact, this court has specifically noted that knowledge of the right to refuse consent to search is not a requirement to prove voluntariness of consent. Id.
We also find no merit in appellant’s argument that, due to the officers’ failure to give him Miranda warnings, the contraband seized from the storage unit should have been suppressed as “fruit of the poisonous tree.” In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the United States Supreme Court addressed this issue, holding that the “fruit of the poisonous tree” doctrine assumes the existence of a constitutional violation of the Fourth Amendment’s prohibition against unreasonable search or seizure, which is different from an allegation, such as appellant’s here, of the Fifth Amendment right against self-incrimination.
Appellant admitted to Detective Wel-born that he had a storage unit. That admission is not an incriminating statement because renting a storage unit is not a criminal offense. Detective Welborn asked appellant for consent to go to the’ storage facility and search the unit, and appellant consented. Detective Welborn requested that appellant ride to the storage facility in the officer’s vehicle. Appellant could have refused, or could have asked if there were other transportation alternatives, such as having a friend drive him. The record reflects that appellant neither objected to riding with the officer, nor requested an alternative. Rather, he voluntarily got into the officer’s vehicle. See generally Shields v. State, 348 Ark. 7, 70 S.W.3d 392 (2002) (whether a person is required to be informed of the freedom to leave is only one factor to be considered under the totality of the circumstances in a case | iswhere a person was handcuffed and transported to police station in police car). At the storage facility, appellant signed a consent-to-search form and opened the initial storage unit. There is testimony in the record before us that was deemed credible supporting that appellant consented both to going to the storage facility with the officers and to the search of his storage unit.
Subsequently, and in part because of a discrepancy in the unit numbers appellant gave Detective Welborn, Detective Wel-born sent an officer to the storage-facility office to determine if appellant had other units in the facility. Upon his return the officer stated, and appellant verified, that he also rented unit number 556. Although disputed by appellant, the officers’ testimony indicated that appellant also consented to the search of unit 556. Furthermore, appellant unlocked unit 556 and volunteered information to the officers, indicating that they would find drugs in a red cooler inside the unit. Based on appellant’s statements and his action in unlocking the unit, the circuit court reasonably could have concluded that appellant consented to the search and, further, could have found that appellant’s allegation, that the officer threatened to break the lock-if he did not open it, was not credible.
We hold that the circuit court’s denial of appellant’s motion to suppress was not clearly erroneous because (1) testimony could support officers’ theory that appellant was not under arrest during the investigation; (2) appellant voluntarily responded to officers’ questions and did not object to riding to the storage facility in the police car or seek alternative ^transportation; (3) appellant’s words and actions indicated that he consented to the search of his storage units. Accordingly, we affirm
Affirmed.
PITTMAN and WYNNE, JJ., agree.
. See also U.S. Const, amend. IV; Ark. Const. art. II, § 15.
. Under Ark. R.Crim. P. 11.1(c), the Arkansas Supreme Court has not extended knock-and-talk principles beyond residences. See Welch, supra. | [
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PHILLIP T. WHITEAKER, Judge.
| Appellant Alton Moody was found guilty of possession of methamphetamine with intent to deliver and two counts of possession of drug paraphernalia. At his bench trial, Moody orally moved to suppress evidence that had been seized from his vehicle. The circuit court denied the motion. Moody’s sole argument on appeal is that the circuit court erred in denying his suppression motion. We find no error and affirm.
As noted above, Moody’s appeal challenges the circuit court’s denial of his suppression motion. Our standard of review for a trial court’s decision to grant or deny a motion to suppress requires us to make an independent determination based on the totality of the circumstances, to review findings of historical facts for clear error, and to determine whether those facts give rise to reasonable suspicion or probable cause, while giving due weight to | ¡.inferences drawn by the trial court. Robinson v. State, 2014 Ark. 101, 431 S.W.3d 877; Holsombach v. State, 368 Ark. 415, 421, 246 S.W.3d 871, 876 (2007). We defer to the superiority of the circuit court to evaluate the credibility of witnesses who testify at a suppression hearing. Jackson v. State, 2013 Ark. 201, 427 S.W.3d 607. We reverse only if the circuit court’s ruling is clearly against the preponderance of the evidence. Ritter v. State, 2011 Ark. 427, 385 S.W.3d 740.
The facts relevant to the suppression issue were developed at the beginning of Moody’s bench trial. Arkansas State Police Trooper Stephen Briggs was inside the Valero convenience store on Colonel Glenn Road in Little Rock to get something to drink when he overheard a man on his cell phone say that he had lost $3200. The man also asked, “what was he supposed to do, go back and get his dope?” Briggs bought his drink and went back to his vehicle, and, based on what he had overheard, he decided to watch the man, who subsequently went outside and got into a white Cadillac DeVille.
At some point thereafter, a maroon Nissan pickup truck pulled up and parked on the passenger side of the Cadillac. The driver of the Nissan got out and met with the man in the Cadillac. The two men went to the trunk of the Cadillac and leaned down into the vehicle, and Briggs then saw the driver of the Nissan — later identified as Moody — place something in his back left pocket. Both men walked to the driver’s side of the Nissan. Trooper Briggs and Officer Matthew Blasingame, who was also on the scene, approached the two men. | ¡¡Blasingame saw, in plain view on the driver’s seat of the Nissan, a clear plastic baggie containing two more clear plastic baggies in which there was a white crystallized substance. Blasingame suspected the white substance was methamphetamine. After Blasingame made this observation, Briggs then made contact with both men, advised that he was law enforcement, and told them to get on the ground. Blasingame seized the white substance and turned it over to Briggs.
After the presentation of these historical facts, Moody asked the circuit court to suppress the evidence. Moody argued that, absent Briggs’s overhearing the phone call inside the convenience store, there was no evidence of any suspicious activity that would give rise to a reasonable suspicion that a felony was being committed. The circuit court denied his mo tion, and the case proceeded to trial. The State introduced evidence that there were numerous bags of methamphetamine in a pouch in Moody’s truck, along with “several items of paraphernalia,” including a digital scale, a spoon with residue, a pipe, and numerous small plastic baggies. The total weight of the methamphetamine was over 132 grams. The circuit court found Moody guilty of one count of possession of methamphetamine with intent to deliver and two counts of possession of drug paraphernalia.
On appeal, Moody argues that the circuit court erred in denying his motion to suppress because the investigating and arresting officers did not have reasonable suspicion that he was involved in the commission of a felony. He further asserts that the officers made a warrantless arrest without probable cause, and because there was no probable cause for his 14arrest, the resulting search was illegal. We disagree because we conclude that there was probable cause for Moody’s arrest.
A law enforcement officer may arrest a person without a warrant if the officer has probable cause to believe that the person has committed a felony. Smith v. State, 2011 Ark. App. 439, 2011 WL 4067400. Probable cause to arrest is defined as “a reasonable ground for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that a crime has been committed by the person suspected.” Stutte v. State, 2014 Ark. App. 139, at 4, 432 S.W.3d 661, 664; Hilton v. State, 80 Ark.App. 401, 405, 96 S.W.3d 757, 760 (2003). Probable cause to arrest does not require the quantum of proof necessary to support a conviction, and in assessing the existence of probable cause, the appellate court’s review is liberal rather than strict. Stutte, supra. We look to the facts within the arresting officer’s knowledge — not his stated reasoning — to determine whether those facts are sufficient to permit a person of reasonable caution to believe that an offense has been committed. Banks v. State, 2010 Ark. App. 383, 2010 WL 1790768. Moreover, probable cause to arrest without a warrant may be evaluated on the basis of the collective information of the police. Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988).
Here, Moody’s vehicle was parked in a public parking lot. Blasin-game lawfully approached the vehicle and observed the plastic baggies containing a white crystalline ^substance on the front seat of Moody’s truck, and he testified that he saw the methamphetamine before Briggs ordered Moody to the ground. While this testimony came during the trial, and after the hearing on the motion to suppress, this court may rely on trial testimony to affirm the circuit court’s suppression ruling. Charland v. State, 2011 Ark. App. 4, 380 S.W.3d 465. At the point that Blasingame observed methamphetamine in Moody’s vehicle, reasonable cause existed to believe that Moody had committed a felony. Accordingly, the warrantless arrest was justified, and the circuit court did not err in refusing to suppress the evidence seized as a result of the arrest.
Affirmed.
HIXSON and BROWN, JJ., agree.
. The driver of the Cadillac, Broderick Carr, was charged in the same information as Moody with one count of delivery of methamphetamine.
. Because reasonable suspicion is a less-demanding standard than probable cause, see Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed,2d 301 (1990); Davis v. State, 2013 Ark. App. 658, 430 S.W.3d 190, and we have concluded that the officers had probable cause to effectuate a warrantless arrest, we do not address Moody's argument that the officers lacked reasonable suspicion. | [
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RHONDA K. WOOD, Associate Justice
hEdmond McClinton was convicted of raping a mentally handicapped, sixteen-year-old girl. McClinton was sentenced as a habitual offender, and received a term of life imprisonment pursuant to Arkansas Code Annotated section 5-4-501. McClin-ton now appeals, arguing that he was denied a fair trial because the circuit court refused to grant , a mistrial based upon a comment made by a prospective juror during jury selection. We have jurisdiction pursuant- to Arkansas Supreme Court Rule l-2(a)(2) (2014). We find no error and affirm.
I. Facts
' As part of the jury-selection process,' the circuit judge asked the prospective jurors if any of them were acquainted with the witnesses, ■ attorneys, or the defendant. One of the jurors indicated that he had gone to elementary school with McClinton, after which, the following colloquy occurred:
THE COURT: All right. With regards to the defendant, whom you may have gone to elementary school with, is there anything in your mind about hjour having gone to school up to whatever grade you may have gone to with the defendant that you can remember and you will either hold it. against him or use it to help him? ,
PROSPECTIVE JUROR: I distinctly remember him, your Honor. Sixth grade, Coleman Elementary in 1990.
THE COURT: All right. Is there anything about that sixth grade you eoüld not leave outside the courtroom?
PROSPECTIVE JUROR: I have a preconceived notion of the way he behaved then. I don’t know how it would affect me in the trial.
At that point, the judge called the prospective juror forward, outside the hearing of the remaining jury pool, and further questioned him about the extent of his relationship with McClinton. The prospective juror explained that he remembered that McClinton “had a disciplinary problem” and “was a constant disruption.” McClintón’s attorney then moved for a mistrial, arguing that the response had tainted the jury pool with impermissible character evidence and created the impression that McClinton had victimized people in elementary school. The court denied the motion, and McClinton did not ask for a curative instruction or admonishment. Ultimately, the prospective juror was not selected to serve on the jury. McClinton •now appeals the court’s denial of his motion for a mistrial.
II, Standard of Review
A mistrial is an extreme and drastic remedy which will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing with the trial or when fundamental fairness of the trial has been manifestly affected. Moore v. State, 355 Ark. 657, 144 S.W.3d 260 (2004). Declaring a mistrial is proper only where the error is beyond repair and cannot be corrected by any curative relief. Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001), The judge presiding at trial is in a better position than anyone else to evaluate the impact of any alleged errors. Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976). Therefore, the circuit court has wide discretion in granting or denying a motion for mistrial, and the decision of the circuit court will not be reversed except for abuse of that discretion or manifest prejudice to the complaining party. Hall v. State, 314 Ark. 402, 862 S.W.2d 268 (1993).
III. Analysis
Among the factors to be considered in determining whether a circuit court abused its discretion in denying a motion for mistrial are whether the prejudicial response was deliberately induced and whether an admonition to the jury could have cured any resulting prejudice. Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002). In Jones, the prosecutor asked an officer what happened after the officer made contact with the defendant, to which the ófficér responded that he discovered the defendant was on parole. Id. at 337, 78 S.W.3d at 109; Jones’s attorney moved for a mistrial because the officer had disclosed that the defendant was a parolee. The circuit court denied the .motion, and Jones declined to have the jury instructed to disregard the statement out of concern that it would only draw more attention to the comment. We affirmed, reasoning that nothing about the prosecutor’s question indicated that he was attempting to elicit . Jones’s criminal history. Id. at 338, 78 S.W.3d at 109. The prosecutor had merely asked what happened after the officer contacted Jones, and a comment about the defendant’s parole status was not the answer that the question was intended to evoke. Id.
|4In this case, as in Jones, the judge’s question was not intended to provoke a prejudicial response. The judge simply asked the prospective juror if he would be unable to leave his previous experience with McClinton outside of the courtroom. Furthermore, the juror’s response was not prejudicial. The judge had previously asked if there was anything about the juror’s acquaintance with McClinton that he would either hold against or use to help McClinton. The juror’s response was equivocal. He stated that he had a preconceived notion of McClinton’s behavior, but that he did not know how that would affect him during trial. The juror never stated in front of the .jury pool whether this preconceived notion was good or bad or whether it predisposed him to. favor or oppose McClinton. Therefore, the other jurors were not privy to any more information other than that this man attended grade school with McClinton and that he remembered his behavior. It was only after the juror was called to the bench, outside the hearing of the other potential jurors, that he revealed the negative connotation attached to his memories of McClinton.-
We have previously upheld denials of mistrials where, based on chance remarks, it has been revealed that the defendant had been involved in other crimes, McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985), that the defendant had prior problems with the police, Hall, supra, that the defendant had a prior arrest record, Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984), and that the defendant had previously been in prison, Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982). In Novak v. State, we affirmed the denial of a motion for mistrial based on a juror’s response to questioning that was very similar to the questioning in this case, in which the juror indicated that he was acquainted | Kwith the defendant because the juror had arrested him several times, in the past.. 287 Ark. 271, 275-76, 698 S.W.2d 499, 502 (1985). The juror’s response in the present case was certainly not as prejudicial as the remarks made in the cases just cited. We simply cannot see how the prospective juror’s disclosure that he had attended school with McClinton and remembered his behavior rises to the level of prejudicial error so severe that fundamental fairness was compromised and justice could not be served by continuing with the trial.
Furthermore,- McClinton failed to request a curative instruction. We have held that remarks which amount to inadvertent references to previous bad conduct of the-defendant may be cured by an admonition from the trial- court ordering the jury to disregard the statement. Ball, 814 Ark. at 406, 862 S.W.2d at 270. This court will not say that' denial of a motion for mistrial is an abuse of discretion when an admonition to the jury could have cured the situation, but no such admonition was requested. Moore, 355 Ark. at 667, 144 S.W.3d at 266.
IV. Compliance with Supreme Court Rule i~3(i)
In compliance with Arkansas ■ Supreme Court Rule 4 — 3(i), the record has been examined for all rulings that were decided adversely to the appellant, and no error has been found.
Affirmed.
Danielson, J., concurs. | [
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ROBERT L. BROWN, Justice.
| jAppellant Tyrone Ellis appeals his conviction of first-degree murder and his sentence of life in prison on grounds of insufficient evidence and an improper inquiry by the prosecuting attorney into the nature of Ellis’s prior felonies. We find no reversible error, and we affirm.
The events leading up to the murder transpired on March 14, 2010, and occurred after Keith Thomas and Ellis argued outside Thomas’s home in Magnolia. According to witnesses, Ellis became upset when Thomas, his stepfather, refused to let him drive his white Chevy Blazer. A jury determined that Ellis shot Thomas in the chest and killed him. Ellis was also convicted on a second count, felon in possession of a firearm, in connection with the same incident. He was sentenced to a term of life imprisonment on the first-degree murder count and 360 months on the felon-in-possession count.
|2The testimony at trial consisted of the following. On March 14, 2010, Ellis and Thomas were seen riding together in Thomas’s car, a white Chevy Blazer, in Magnolia. Around 11:30 in the morning that day, Ellis and Thomas returned to Thomas’s home. One witness, Paul McBride, testified that Thomas stated Ellis was mad because Thomas would not let Ellis use the Blazer. About twenty or thirty minutes later, Ellis and Thomas left Thomas’s house a second time. When they returned, Ellis got out of the Blazer with a gun in his hand. Thomas went into his home and retrieved a gun and, according to the witness, said, “Somebody needs to go talk to that boy.”
At that point, McBride, brother-in-law to Thomas and uncle to Ellis, testified that he was outside working on his car on that day when he saw Ellis fire his pistol, a long-barreled handgun with a brown handle, at Thomas. McBride added that he heard Ellis tell Thomas “he was going to kill him.” In response to that, according to McBride, Thomas fired a shot into the air. At that point McBride called 911. When he returned, Thomas and Ellis were inside McBride’s home. McBride testified that Ellis told Thomas, “If you don’t let me go, I’ll kill you.” Thomas did let Ellis go, after Ellis fired a shot into the floor of the home.
McBride continued testifying that Ellis returned to McBride’s home and fired another shot at Thomas. Ellis was about fifty feet away at that point and did not hit Thomas. Ellis ran behind the home but returned and confronted Thomas again. This time, the two men were separated by about the width of a car. According to McBride, Ellis said, “I’m going to kill you,” and fired a third shot at Thomas. This shot hit Thomas in the chest. Thomas tried to run, but fell. McBride then testified that Ellis said “I don’t care about that nigger,” and lsbegan threatening another witness, Jonathan Ellis, by saying, “If you testify against me, I’m going to kill you.” McBride also testified that the gun Ellis used would misfire every time he tried to shoot it. McBride identified a picture of the gun at trial as the one Ellis used.
Jonathan Ellis testified that Thomas was his stepfather and Ellis was his brother. Like McBride, Jonathan testified that his brother often carried a pistol with a brown handle. He further identified the gun as a .22-caliber revolver pistol. Jonathan also stated that Tyrone Ellis fired twice at Thomas without hitting him and that Thomas fired once in the air. He corroborated McBride’s testimony that the final confrontation between the two men occurred outside when the two men were standing on either side of a parked car. Jonathan stated that Ellis walked up and fired once but the pistol snapped, or misfired, so he fired again. A third shot hit Thomas, who said to Jonathan, “He shot me,” before falling to the ground. Jonathan added that Ellis said “If I testified against him, he would kill me, too.” Jonathan acknowledged that during the final confrontation, Thomas had a gun but was not pointing it at Ellis. He added that after the shooting, Ellis ran off into the woods carrying the gun he had used to kill Thomas.
In addition to the testimony from McBride and Jonathan, Kevin McCray testified that he was at McBride’s home on the day Ellis shot Thomas. McCray stated that he knew both Thomas and Ellis prior to the incident. He recalled seeing the two men getting out of Thomas’s Blazer sometime after lunch. He testified that they were arguing and that he tried to calm Ellis down by talking to him while they were inside McBride’s home. McCray stated that Ellis had a .22-caliber revolver with a brown handle. He added that when he tried to Intake the gun from Ellis, Ellis snatched it back and fired into the floor of McBride’s home. According to McCray’s testimony, Ellis told him if he did not “get back he’d kill me too.” McCray also reported hearing the gun click several times before it would fire. McCray stated that when Ellis left McBride’s home, he was headed toward Thomas with the gun pointed at Thomas. After that, McCray testified that he ran from the home when he heard one or two shots. McCray did not return to the area until law enforcement arrived, at which point he saw Thomas lying on the ground and Ellis running behind McBride’s home. McCray identified a picture of the gun at trial as the gun that Ellis had in the house on the day of Thomas’s death. McCray finally testified that he heard Ellis say, “I’m going to kill that mother fucker,” before Thomas was shot.
Greg Hawley, a deputy sheriff with the Columbia County Sheriff’s Office, testified that he responded to a call on March 14, 2010, at the McBride home. When he arrived, there was a large group of people in the front yard, and McBride informed him that someone had been shot. Hawley stated that McBride told him that the one who “had done the shooting had ran around behind the house.” Hawley testified that he and his partner, Deputy Whitaker, began looking behind the house and that Whitaker later arrested Ellis who was found behind the house. Hawley added that he and his partner performed a pat down on Ellis but did not look inside his pockets before placing him in their car.
Michael Richardson, a jailer at the Columbia County Detention Facility, testified that he searched Ellis after he was brought in by the deputy sheriffs. Richardson testified that he | ¡¡found three or four empty .22-caliber cartridges in the pocket of Ellis’s blue jeans and that he turned those casings over to a detective at the facility.
Brent McMahen, a criminal investigator with the Columbia County Sheriffs Office, testified that he also responded to the McBride home on March 14, 2010. When he arrived, he was met by several deputies and was told that there had been a shooting. After determining that the victim had been transported to the hospital, McMa-hen began interviewing people at the scene. He also called for a search dog to begin searching for the weapon that was used. The next day, McMahen recovered a revolver with a brown handle from the woods behind Thomas’s home. McMahen identified a picture of the gun at trial as the gun he had recovered from the woods.
McMahen added that there were a number of smudges on the gun but no useable fingerprints were found. Next, he opened the cylinder of the gun and found a number of shells. The revolver in question had six chambers and would hold a maximum of six rounds. McMahen recovered four spent shell casings and one live round from the gun. One chamber in the revolver was empty. The spent shell casings were for a .22-caliber long rifle, while the live round was a Winchester cartridge. All the spent shell casings were branded CCI. McMahen further testified that the .22-caliber long-rifle shells would fit extremely loosely in each chamber, resulting in misfires. McMahen testified that the spent shell casings were the same type and kind as two of the three casings recovered from Ellis’s pocket by Richardson at the detention facility. The third casing that Richardson found was also a .22 caliber, but it was a Federal brand, not a CCI.
| f;McMahen testified that he did not try to get fingerprints off the casings during his investigation, and he also admitted that he could not match the gun recovered from the woods to the bullet that killed Thomas. Likewise, Rebecca Mullen, a firearms examiner for the Arkansas State Crime Laboratory, testified that she was unable to determine if the gun found by McMahen was the gun that fired the fatal bullet. Mullen was also unable to confirm if the empty casings recovered from Ellis’s jeans pocket were fired from the gun recovered by McMahen.
Adam Craig, a medical examiner with the Arkansas State Crime Laboratory, told the jury that Thomas died as a result of a single gunshot to his chest that pierced through his heart and diaphragm. Craig stated that he recovered a small caliber bullet from Thomas’s body. He further testified that, although he could not identify the exact caliber of the bullet recovered, a .22 caliber would be considered a small caliber. Craig determined that the gunshot wound was a noncontact wound.
In his defense, Ellis took the stand and testified that he did not shoot Thomas; that he did not have a firearm on March 14, 2010; and that he did not make any threats to his stepfather on that date. He also testified that the three empty shell casings removed from his pocket were actually found on the top of a trash can in the backyard of Thomas’s home and the jailer never recovered any shell casings from his pocket at the jail. His testimony was that Thomas was upset because he quit a job that Thomas had helped him get. He further testified that he knew Thomas carried a gun with him, but he did not think Thomas would hurt him. According to Ellis, they began arguing, and it quickly escalated until Thomas reached for his |7gun and Ellis ran behind Thomas’s house. Ellis told the jury that Thomas fired several shots at him, but he remained behind the house until he was arrested. He denied having any knowledge about how the gun recovered by McMahen ended up in the woods.
At the end of Ellis’s direct testimony, the prosecutor and Ellis’s counsel approached the bench. The prosecutor requested permission to inquire into Ellis’s prior felony convictions for aggravated assault and second-degree battery and further proposed to confine the questioning to the violent nature of the prior offenses and the fact that both were committed against family members. This examination, according to the prosecutor, would go to credibility.
Ellis’s counsel objected to this line of questioning about the prior felonies, because Ellis had already stipulated to his status as a felon. According to defense counsel, the prosecutor was trying to show that because Ellis was previously violent with family members, he was violent on the day in question with Thomas. When asked by the court if the prosecutor was arguing under Rule 404(b), the prosecutor responded that he could but “there are cases that allow this court to use its discretion, prejudicial versus probative.” After that discussion, the circuit court granted the prosecutor’s request.
On cross-examination, the prosecutor asked Ellis if he had “previously plead guilty to aggravated assault against a family member where a pistol was used.” Ellis responded, “Well, it wasn’t a pistol ... it was labeled a sawed-off shotgun, but it really was a single-barrel twelve gauge and at the time that this happened, I actually wrote my attorney and let him know that I did not pull a gun on my brother.” When pressed on the conviction, Ellis said that he |8“didn’t plead guilty to it,” but “signed a plea for five years probation.” Ellis did admit, however, that he pled guilty to battery in the second degree after getting into a fight with his uncle. When asked again about the shell casings, Ellis maintained that they were not his but that his brother, Jonathan, does a lot of hunting.
On appeal, Ellis first challenges the sufficiency of the evidence. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Williams v. State, 375 Ark. 182, 135-36, 289 S.W.3d 97, 100 (2008). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id.
As detailed in this opinion, several witnesses testified that they saw Ellis shoot Thomas in the chest after an argument. These witnesses knew Ellis and Thomas prior to the shooting and identified Ellis as the shooter in court. A few of the witnesses were able to describe and identify the gun recovered from the woods behind the crime scene as the same gun Ellis used to shoot Thomas. Furthermore, two of the shell casings recovered from Ellis’s pocket by Richardson were the same size and brand as the shells found inside the gun that the investigator recovered. The medical examiner also testified that the gunshot wound was consistent with a small-caliber gun, such as the .22-caliber gun that the witnesses identified. The medical examiner further testified that Thomas was shot from some distance, which corroborates the eyewitness accounts that Ellis shot Thomas while the two were standing on 19either side of a car. As an additional point, Ellis stipulated to his status as a felon and also testified concerning his prior felony convictions.
Ellis did testify that he did not shoot Thomas and did not even have a gun in his possession at the time of the murder. The jury, however, is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Turner v. State, 349 Ark. 715, 724, 80 S.W.3d 382, 388 (2002). The credibility of witnesses is an issue for the jury and not the court. Id. This court will disturb the jury’s determination only if the evidence did not meet the required standards, thereby leaving the jury to speculation and conjecture in reaching its verdict. Id. This court has held that the testimony of one eyewitness alone is sufficient to sustain a conviction. Page v. State, 2009 Ark. 112, at 6, 313 S.W.3d 7, 10.
In the instant case, the jury believed the testimony of the eyewitnesses and the testimony of these witnesses identifying Ellis as the shooter was not inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon. Id. at 6-7, 313 S.W.3d at 10. Viewing the evidence on appeal in the light most favorable to the State, as we are required to do, Williams, 375 Ark. at 135, 289 S.W.3d at 100, we hold that there is substantial evidence to support Ellis’s conviction for first-degree murder and felon in possession of a firearm.
Ellis’s second point on appeal is that the circuit court erred in permitting the prosecutor to inquire into the nature of his prior felony convictions. According to Ellis, the court erred because it failed to make a finding that the prior offenses were more probative 110than prejudicial under Arkansas Rule of Evidence 609. He claims that because he had stipulated that he was a felon, permitting the State to inquire into the nature of the violent felonies that involved family members was more prejudicial than probative.
This court reviews the admission of evidence by the circuit court at trial using an abuse-of-discretion standard. O’Neal v. State, 356 Ark. 674, 683, 158 S.W.3d 175, 181 (2004). The decision to admit or exclude evidence is within the sound discretion of the trial court, and we will not reverse a court’s decision regarding the admission of evidence absent a manifest abuse of discretion. Morris v. State, 358 Ark. 455, 458, 193 S.W.3d 243, 246 (2004) (citing Martin v. State, 354 Ark. 289, 119 S.W.3d 504 (2003)).
Rule 609 covers impeachment of witnesses and provides, in relevant part:
For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.
Ark. R. Evid. 609(a) (2010). The State does not dispute that Ellis’s prior convictions do not involve dishonesty or false statement, and Ellis does not dispute that the prior felony convictions at issue fall within the time constraints imposed by Rule 609. Moreover, Ellis does not contest that both convictions were punishable by imprisonment in excess of one year under Arkansas law. Instead, he focuses on “subsection (a)(1)” of Rule 609 and urges that the court failed to find that the convictions were more prejudicial than probative.
InDuring the trial, the court heard argument from both the State and Ellis’s counsel regarding the admissibility of Ellis’s prior convictions. The following colloquy occurred outside the hearing of the jury:
State: Your Honor, the defendant has now testified. [The defendant] stipulated that [he] has been convicted of a felony ... the defendant has been convicted of two felonies for which this court has sent him to prison. The first felony is Aggravated Assault. The second felony offense is Second Degree Battery.
We would like permission of the court to allow us to inquire at least as to the nature of the two felony convictions and that they are violent in nature, both involving family members. We would not go any further than that ... We think this is discretionary with the court. Court: And what does that go to?
State: Credibility.
Court: Credibility?
State-. His credibility.
Counsel: But, in any event, as I understand the purpose of that rule that allows impeachment for a conviction of a felony, it has to do with credibility. The rules say that just by virtue of being convicted, it’s got to be considered from a credibility standpoint, unless it’s one of the particular things such as something involving fraud or deceit or something like that or perjury.... So, as far as what I think the jury is entitled to know from a credibility standpoint is the fact that he has been convicted of a felony and it ends there.... In this case, what’s going to be argued as I understand it, is because somebody acted a certain way in the past, that should be used as a reason to find them guilty this time. That’s exactly what they are trying to avoid by those particular rules.
Court: Is this 404(b)?
State: The fact is, these are violent offenses. I suppose under 404(b) you could argue that in his case based on his testimony—
Counsel: I have read it already, but I just can’t remember the number.
State: There are cases that allow the court to use its discretion, prejudicial versus probative. In this case, we think it certainly attacks his credibility.... Court: All right. You may be permitted to do that.
Counsel: I guess I will officially object for the record.
|12This court has held that the circuit court has considerable discretion in determining whether the probative value of prior convictions outweighs their prejudicial effect under Rule 609, and that decision will not be reversed absent an abuse of discretion. Turner v. State, 325 Ark. 237, 242, 926 S.W.2d 843, 846 (1996). The admissibility of the prior convictions must be decided on a case-by-case basis. Id. When a defendant chooses to testify, this court has consistently permitted prior convictions to be used for impeachment purposes even where those convictions are similar to the charge or charges before the court. Id. Factors to consider in making the probative/prejudicial analysis include the impeachment value of the prior crime, the date of the conviction and the defendant’s subsequent history, the similarity between the prior conviction and the crime charged, the importance of the defendant’s testimony, and the centrality of the credibility issue. Schalski v. State, 322 Ark. 63, 66-67, 907 S.W.2d 693, 695 (1995) (emphasis added).
In Turner, the appellant was convicted of burglary and attempted rape based on the testimony of the fourteen-year-old victim and her mother. Id. at 239, 926 S.W.2d at 844. There was no physical evidence introduced to link the appellant to the crime, and he denied his participation in the crime altogether. Id. at 243, 926 S.W.2d at 846-47. On cross-examination by the State, the appellant admitted that he had prior convictions for burglary and felony attempt to commit sexual abuse in the first degree, but he argued that in those cases the trial court had misled him. Id. at 237, 926 S.W.2d at 845. Immediately following that admission, the court instructed the jury to use this evidence only for the purpose of judging credibility and not as evidence to determine his guilt.
|13On appeal, the appellant argued that the trial court erred in allowing the State to cross-examine him regarding his prior convictions. This court disagreed and found that because the appellant had testified, his credibility was a central issue in the case and, viewed in that light, his prior convictions were extremely probative. Id. at 243, 926 S.W.2d at 847. This court held, as a result, that the trial court did not abuse its discretion in permitting inquiry into the prior convictions. Furthermore, this court held that there is no justification for disallowing the use of crimes, even ones of a unique nature, for the purposes of attacking the credibility of a defendant who takes the stand. Turner, 325 Ark. at 243, 926 S.W.2d at 847.
In still another case, the appellant was charged with rape. See Benson v. State, 357 Ark. 43, 160 S.W.3d 341 (2004). Prior to trial, the appellant filed a motion in limine to exclude any mention of his prior felony convictions for rape, kidnapping, and aggravated robbery on the basis that those convictions were more prejudicial than probative. Id. at 45, 160 S.W.3d at 342. The trial court denied the motion and a jury subsequently convicted the appellant of rape and sentenced him to life imprisonment. Id. at 45, 160 S.W.3d at 342-43. On appeal, he challenged the trial court’s ruling on his motion in limine, arguing that his prior convictions were clearly more prejudicial than probative under Rule 609. Although this court affirmed the circuit court’s decision, what is most important for the purposes of the instant case is that this court noted that “[i]n denying [appellant’s motion in limine in the case sub judice, the trial court weighed the probative value of the appellant’s prior convictions against any possible prejudice and concluded that should he take the stand, his prior convictions could be used against him for impeachment purposes.” Id. at 48, 160 S.W.3d at 344 (emphasis added).
11 ¿Similar to the appellants in Turner and Benson, the appellant in Schalski asserted that the trial court’s ruling allowing the state to impeach his credibility during his trial for rape by introducing evidence of his previous conviction for false imprisonment was in error. Schalski, 322 Ark. at 65, 907 S.W.2d at 695. Rather than reviewing any specific findings by the circuit court, this court held that the appellant’s prior crime of false imprisonment was dissimilar in nature to the crime of rape. Id. at 67, 907 S.W.2d at 696. Moreover, because the only evidence was the testimony of the victim and of the appellant, this court determined that the appellant’s credibility was a critical issue during the trial. Id. Thus, this court determined that the ruling permitting inquiry into the prior conviction was not an abuse of discretion. Id.
In the instant case, the circuit court made its ruling after hearing arguments from both the prosecutor and defense counsel regarding the probative-versus-prejudicial nature of the prior convictions. Unlike the circuit court in Turner, the circuit court in Ellis’s case did not instruct the jury that Ellis’s prior convictions could only be considered for the purposes of determining credibility, and Ellis’s counsel did not request an instruction to that effect. Although the circuit court did not explicitly state that the prior crimes were more probative than prejudicial under Rule 609, it is clear from the record that the court determined that to be the case. The prosecutor described the test under the rule as “probative versus prejudicial,” and defense counsel told the court that determining credibility was the purpose for the rule. The court then allowed cross-examination based on the prior felonies. As long as it is clear from the record, as it is in this case, that the trial court determined that the probative value outweighed the potential for unfair prejudice, Rule 609 is satisfied.
11sOur circuit courts are afforded wide discretion in determining whether a prior conviction is more probative than prejudicial. Ellis’s prior convictions were for violent crimes and involved family members as the targets of his violence. The evidence in this case consisted primarily of the testimony of eyewitnesses and Ellis himself. In prior cases where the evidence consists of witness or victim testimony and the testimony of the accused, this court has steadfastly held that the accused’s credibility is critical and, therefore, prior convictions are highly probative. See Smith v. State, 2009 Ark. 453, 343 S.W.3d 319; Benson, 357 Ark. 43, 160 S.W.3d 341; Turner, 325 Ark. 237, 926 S.W.2d 843; Schalski, 322 Ark. 63, 907 S.W.2d 693.
The admissibility of prior crimes for impeachment purposes is determined on a case-by-case basis. See Turner, 325 Ark. at 242, 926 S.W.2d at 846. Inquiry into those crimes is not unlimited. See, e.g., Floyd v. State, 278 Ark. 342, 347, 645 S.W.2d 690, 693 (1983) (holding that when the accused takes the stand, the jury can be made aware of the number and nature of prior convictions within the restrictions of Rule 609, but that some impermissible details must remain undisclosed). In the instant case, however, the prosecutor’s cross-examination on the prior felonies was limited to determining the type of crime, whether a weapon was used, and Ellis’s relationship to the victim. Because the inquiry was limited, the evidence in this case clearly fell within the parameters of Rule 609. In light of our prior case law, we cannot say this was an abuse of discretion by the circuit court.
| lfiPursuant to Arkansas Supreme Court Rule 4-3(i), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no prejudicial error has been found.
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PER CURIAM.
|! Appellant Routy Abernathy filed in the trial court a pro se petition under Arkansas Rule of Criminal Procedure 37.1 (2011), in which he sought postconviction relief from his 2009 convictions on two counts of rape. Appellant lodged this appeal of an order denying the petition and raises four points of asserted error in the trial court’s failing to find ineffective assistance of counsel. We find no reversible error and affirm.
The offenses at issue in appellant’s trial involved two girls, ten and eleven years old, who were daughters of his wife’s sister. The girls testified to incidents of digital and penile penetration and penetration with a dildo by appellant that occurred while the girls were staying at appellant’s home in Greenwood. A third child, the daughter of a woman with whom appellant had had an affair while he and his family lived in Oklahoma, also testified that appellant had on one occasion inserted his finger into her anus. The previous incident that occurred in Oklahoma was not prosecuted.
On direct appeal, appellant challenged the admission of the testimony concerning the Oklahoma incident, and the Arkansas Court of Appeals affirmed. Abernathy v. State, 2009 Ark. 12App. 702, 2009 WL 3460705. Appellant filed a timely, verified, pro se petition under Rule 37.1 that raised a number of claims of ineffective assistance of counsel. The court appointed counsel to represent appellant in the proceedings and, following a hearing on the petition, denied the relief sought in a written order that set forth findings of fact and conclusions of law.
Appellant raises four points on appeal that each allege error in the trial court’s failure to find ineffective assistance of counsel. Those points are based upon the following assertions of error by trial counsel: (1) failing to investigate, consult with, or call a medical expert; (2) telling the jury in his opening statement that he would not allow appellant to take the stand if he did not believe that the State had proven its case beyond a reasonable doubt; (3) failing to object to the prosecution’s question to a defense witness about whether she believed the third victim from Oklahoma; (4) failing to file a motion to introduce evidence concerning a previous claim by one of the victims against her grandfather that was alleged to be false.
On the claim in the first point, the trial court found that counsel had consulted a nurse. The court further found that, in the Rule 37.1 proceeding, appellant had not presented an expert witness who would have testified, and, as a consequence, appellant had not demonstrated prejudice from a failure to call such a witness or further investigate the medical aspects of the case. On the claim in the second point, the trial court found that counsel made the comment at issue during opening statements as a tactical maneuver, that the attorneys later presented arguments as to the correct burden of proof, and that the jury was advised of the proper burden |sof proof in instructions. On the claim in the third point, the court found that counsel had admitted error in failing to object to the prosecutor’s question as alleged, but the court concluded that Rule 37.1 did not provide a means to review that error or serve to substitute for appeal. Concerning the claim in the last point, that counsel failed to make a motion to introduce evidence concerning the allegations appellant alleged were false, the trial court found that trial counsel had not made the motion after correctly concluding that the evidence would not have been admissible.
This court does not reverse a denial of postconviction relief unless the trial court’s findings are clearly erroneous. Payton v. State, 2011 Ark. 217, 2011 WL 1805340 (per curiam); Flowers v. State, 2010 Ark. 364, 370 S.W.3d 228 (per cu-riam); Dunlap v. State, 2010 Ark. 111, 2010 WL 746185 (per curiam). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Payton, 2011 Ark. 217, 2011 WL 1805340; Hawthorne v. State, 2010 Ark. 343, 2010 WL 3721972 (per curiam); Britt v. State, 2009 Ark. 569, 349 S.W.3d 290 (per cu-riam).
At issue are only claims of ineffective assistance of counsel. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. We assess the effectiveness of counsel under the two-prong standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Hale v. State, 2011 Ark. 476, 2011 WL 5437541 (per curiam).
Under the Strickland test, a petitioner raising a claim of ineffective assistance must first show that counsel made errors so serious that counsel was not functioning as the “counsel” |4guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Id. In addition, the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Id. A defendant making an ineffective-assistance-of-counsel claim must show that his counsel’s performance fell below an objective standard of reasonableness. Miller v. State, 2011 Ark. 114, 2011 WL 913206 (per curiam). In order to meet the second prong of the test, a claimant must show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Delamar v. State, 2011 Ark. 87, 2011 WL 693579 (per cu-riam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.
Appellant’s first point alleging error asserts ineffective assistance on the basis that counsel did not consult with or call a medical expert and failed to investigate adequately the aspects of the case concerning the lack of physical evidence. On appeal, appellant contends that there were important medical issues that “clearly called for medical expert testimony;” that counsel was ineffective if he failed to seek medical expert testimony where it was appropriate; that, where there was substantial contradiction in a given area of expertise, it may be vital for counsel to elicit expert testimony rebutting the state’s expert testimony; that counsel failed to become adequately versed in the subject matter; and that counsel did not seek expert testimony to establish that, had appellant done what the victims alleged, there would have been physical damage.
We need not determine whether the trial court may have correctly concluded that the first prong of the Strickland test was met by counsel’s consultation with a nurse. Both prongs of the 1 ¡¡test must be satisfied, and we agree that the trial court correctly concluded that appellant failed to demonstrate prejudice as to any error in failing to investigate the medical aspects of the case or the need for expert testimony.
The burden is entirely on the claimant to provide facts that affirmatively support his or her claims of prejudice; neither conclusory statements nor allegations without factual substantiation are sufficient to overcome the presumption, and such statements and allegations will not warrant granting postconviction relief. Payton, 2011 Ark. 217, 2011 WL 1805340. Appellant testified at the hearing on the Rule 37.1 petition that he had found information on the internet that would have contradicted testimony by the State’s witness, a nurse who performed sexual assault examinations, and a defense witness, a nurse with similar training and duties, concerning the commonness of normal examinations following a sexual assault on a child. Appellant did not provide evidence at the hearing in support of that allegation, and, despite appellant’s apparent position that prejudice was obvious, we cannot say that evidence to contradict the nurses was readily available or that appellant made a demonstration that it was.
If a petitioner claims ineffective assistance based on a failure to call a witness, the petitioner must name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Fernandez v. State, 2011 Ark. 418, 384 S.W.3d 520 (per curiam). In order to demonstrate prejudice, appellant was required to establish that there was a reasonable probability that, had counsel performed further investigation and presented a witness that would have been located as a result of that further investigation, the outcome of the trial would have been different. Id. Appellant provided no more than his 1 r,conclusory statements in that regard, and he did not provide information concerning what specific testimony would have been elicited from an expert witness had trial counsel investigated further. He did not identify any witness who would have been available to testify at trial that physical evidence was normal under the circumstances presented, as appellant contends, nor did he submit any summary concerning the specific testimony that such a witness would have provided. Without more, appellant’s allegations of prejudice did not support relief.
Appellant’s second claim concerns what is characterized as a comment that prejudiced the jury by indicating that trial counsel believed that the prosecution had made its case if appellant took the stand to testify. In opening statement, trial counsel stated that he had not decided whether to “let” appellant take the stand and that he had “a duty to do my job and not allow him to take the stand if I don’t believe the State has proven its case beyond a reasonable doubt at the time it rests it [sic] case.” Counsel testified at the hearing on the Rule 37.1 petition that he did not accurately portray his responsibilities to the jury concerning appellant’s decision to testify. His focus was deflecting any ire that might be directed toward his client’s possible failure to testify onto counsel, and his comments were not intended to indicate that the State had met its burden if his client did testify. The trial court concluded that the decision to include the remarks in trial counsel’s opening statement was tactical and that any resulting harm was offset by later appropriate argument and instruction.
Where a decision by counsel was a matter of trial tactics or strategy, and that decision is supported by reasonable professional judgment, then counsel’s decision is not a basis for relief under Rule 37.1. Sykes v. State, 2011 Ark. 412, 2011 WL 4635021 (per curiam). Counsel’s decision was tactical in |7nature, but whether a decision to mislead the jury is supported by reasonable professional judgment is not so clear. As the trial court noted, however, the court’s instructions to the jury served to clarify any confusion that may have resulted from those comments and adequately offset any prejudice that may have resulted. We cannot say that the trial court was clearly erroneous in finding that appellant failed to demonstrate prejudice from counsel’s remarks, regardless of whether those remarks were an error by counsel.
Concerning appellant’s third point on appeal and trial counsel’s failure to object to opinion testimony concerning the credibility of the witness who alleged previous sexual abuse by appellant, the trial court did err to the extent that it determined that review of the issue was outside the purview of Rule 37.1 proceedings. Rule 37.1 does not permit a direct attack on a judgment or permit a petition to function as a substitute for appeal. Mingbowpha v. State, 2011 Ark. 219, 2011 WL 1805339 (per curiam). Where the claim is based on counsel’s failure to object, however, the issue is not preserved for appeal, and the claim presents the type of error that should be addressed in a Rule 37.1 proceeding. See Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918. Some examination of the merits of the objection that counsel admittedly failed to raise was required by Strickland in order to determine whether the error in failing to object resulted in the requisite prejudice. See, e.g., Montgomery v. State, 2011 Ark. 462, 385 S.W.3d 189 (noting that an objection that was not necessarily without merit was to be considered on remand); Hayes v. State, 2011 Ark. 327, 383 S.W.3d 824 (per curiam) (noting that counsel is not ineffective for failing to make an argument that is meritless); Britt v. State, 2009 Ark. 569, 349 S.W.3d 290 (per curiam) (holding that the petitioner must show that there is a reasonable probability that the fact-finder’s decision Uwould have been different absent counsel’s error and that the petitioner was required to demonstrate that counsel could have presented a meritorious objection).
Appellant did not demonstrate that he was sufficiently prejudiced by any error to meet his burden of proof. Counsel testified that, although he should have objected to the nurse’s testimony that she had believed the Oklahoma victim’s allegations, the trial court instructed the jury concerning its obligation to assess the credibility of the witnesses. In addition, counsel testified that he believed that he had very effectively challenged the victim’s credibility during his closing argument. The trial record supports those statements.
A petitioner asserting ineffective assistance of counsel has the burden of proving that the prejudice resulting from an alleged error was real and had some demonstrable detrimental effect and not some abstract or theoretical effect. Kelley v. State, 2011 Ark. 504, 2011 WL 5995530. In this case, considering the totality of the evidence and the particular circumstances of this case, appellant did not demonstrate a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Appellant’s factual allegations concerning the opinion testi mony by the witness were not sufficient to show that there was a reasonable probability that the fact-finder’s decision would have been different if counsel had objected. The statement was prejudicial, but the degree of prejudice was not sufficient, considering the instructions and argument in this case, to undermine confidence in the outcome of the trial.
Concerning appellant’s final point on appeal, the trial court concluded that the evidence of the victim’s claims about sexual abuse by her grandfather would not have been admissible and that counsel was, as a result, not ineffective for failing to seek a ruling on introduction of the |flevidence. We cannot say that the trial court’s finding was clearly erroneous.
Under our rape-shield law, evidence of a victim’s prior sexual conduct is not admissible by the defendant to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose. Bond v. State, 374 Ark. 332, 288 S.W.3d 206 (2008). There is an exception, in that the rape-shield statute provides that evidence of a victim’s prior sexual conduct is admissible at trial where the court, at an in camera hearing, makes a written determination that such evidence is relevant to a fact in issue and that its probative value outweighs its inflammatory or prejudicial nature. See Woodall v. State, 2011 Ark. 22, 376 S.W.3d 408.
The circumstances here are similar to those in Bond, in that the credibility of the victims was at issue and the defense sought to introduce evidence of a prior claim of sexual abuse to suggest that one of the victims had brought similar false charges previously. Appellant asserts that the prejudice toward the victim here was slight because the evidence was not the sort to which the rape-shield statute was directed. We rejected a similar argument in Bond, 374 Ark. at 338, 288 S.W.3d at 211 (victim’s prior sexual conduct would necessarily come to light despite allegation that the instance was only evidence of the victim’s willingness to make false accusations).
|1ftAs to the probative value of the evidence, despite appellant’s contention that the victim in this case had made a false charge, the evidence presented at the Rule 37.1 hearing did not support such a claim. Appellant takes the apparent position that the claim was false, because no charges were brought on the victim’s claim and there appeared to be no physical evidence. Appellant’s reasoning is flawed because the conclusion does not necessarily flow from his premises. Appellant did not establish that the claim was false merely by establishing that there was no physical evidence or that there were no charges brought against the alleged abuser. The two premises taken together simply do not dictate the result he would reach. Because appellant did not demonstrate that he could show that the evidence had more than, at best, slight relevance, he did not demonstrate that the evidence would have been deemed admissible.
Appellant has failed to demonstrate reversible error by the trial court on any of the points on appeal. We accordingly affirm the denial of postconviction relief.
Affirmed.
. Appellant does not challenge a number of the rulings made below. All arguments made below but not raised on appeal are abandoned. Shipman v. State, 2010 Ark. 499, 2010 WL 5185781 (per curiam) (citing State v. Grisby, 370 Ark. 66, 257 S.W.3d 104 (2007)).
. As Bond illustrates, even a charge of sexual abuse that has been recanted may not be false. Allegations that the victim does not assert to be true fall outside the parameters of the statute. Ark. Code Ann. 16-42-101 (Repl. 1999). Appellant here did not contend that the victim had recanted her allegations, but, instead, asserted that the allegations were false because the claims were not prosecuted. Counsel, however, testified in the Rule 37.1 proceedings that appellant’s wife had indicated that she had also been molested as a child by the grandparent that the victim accused and that statement caused him concern about attempting to prove that the allegations were false. | [
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DONALD L. CORBIN, Justice.
| TAppelIant, Unimeks, LLC, appeals the order of the Pulaski County Circuit Court denying its motion to dismiss the complaint and set aside a default judgment awarding damages of $713,970.33, plus interest and costs, to Appellee Purolite for the alleged nonpayment of goods. The Arkansas Court of Appeals certified this case to us as one requiring the interpretation of Rule 4(b) of the Arkansas Rules of Civil Procedure (2011) and the clarification of what constitutes strict compliance with the requirement that a summons bear the signature of the clerk. Accordingly, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(b)(6) and (d) (2011). We affirm the circuit court’s order upholding the default judgment.
Appellee Purolite filed a complaint against Appellant Unimeks on March 19, 2007, alleging the nonpayment of goods totaling $713,970.33. A summons was issued that same date and, according to the affidavit of service, was served upon Uni-meks’s registered agent in Arkansas. Un-imeks did not answer the complaint. The circuit court entered a default | judgment on May 3, 2007, finding that Unimeks was served with the summons on March 26, 2007, that Unimeks had failed to answer and that Purolite was entitled to judgment against Unimeks for the amount alleged in the complaint, plus interest, fees, and costs.
For reasons that Unimeks contends are not relevant to this appeal, it did not learn of the litigation until long after the default judgment had been entered and Purolite attempted to execute on the judgment. Thus, on February 1, 2010, Unimeks filed a motion to set aside default judgment and dismiss the case. The next day, Unimeks amended its motion to correctly identify Purolite’s principal place of business. Uni-meks contended in its motion that the summons did not bear a valid signature of the clerk as required by Rule 4(b) and that the default judgment must therefore be set aside as void under Rule 55(c) of the Arkansas Rules of Civil Procedure (2011). Unimeks further contended that once the default judgment had been set aside, the case must be dismissed, pursuant to Rule 4(i) of the Arkansas Rules of Civil Procedure (2011), for failure to obtain service within 120 days of the filing of the complaint.
The summons at issue in this case contained a typewritten line near the end reading “SCOTT PRICE, PULASKI COUNTY CIRCUIT CLERK.” The type written words “SCOTT PRICE” had a handwritten slash through them and the words “Pat O’Brien” were handwritten in black ink immediately underneath. Below the handwritten words “Pat O’Brien” was a blank line for a signature with the words “DEPUTY CLERK” underneath. The seal of the Pulaski County Circuit Court appeared to the left of the signature line. The summons bore the date of March 19, 2007, which was written by hand in blue ink. Also ^handwritten in blue ink, were the case number, “CV07-S716,” and the assignment to the specific division of the circuit court, “2nd.”
In support of its motion, Unimeks attached the affidavit of Pat O’Brien. O’Brien stated therein that he was the clerk for the Pulaski County Circuit Court, that he had reviewed the summons at issue in this case, and that the handwritten name “Pat O’Brien” appearing on the summons was not his signature and not his regular handwriting. O’Brien further stated that while the employees in his office had limited authority to sign his name in certain situations, they would do so by signing “Pat O’Brien, by (their name).”
The circuit court held a hearing on Uni-meks’s motion on February 1, 2011. At the hearing, the parties entered as stipulated exhibits, three copies of the summons issued in this ease. The parties also stipulated that if O’Brien were to testify, he would do so consistent with his affidavit. After hearing argument of counsel, the circuit court ruled from the bench that the motion was denied because the summons came out of the clerk’s office giving “all the appearance that it was a proper document, proper summons, and the attorneys have to rely on that. And, if they didn’t, then we would have chaos in the system.” In a written order entered February 8, 2011, the circuit court stated as follows:
[T]his Court finds that the words “Pat O’Brien,” which appear on or around the signature line of the deputy clerk, represent the signature of the Pulaski County Circuit Clerk’s office despite any violation which may have occurred in the execution of said signature.
The Court further finds that accordingly, the Summons issued in the above styled cause and served on the defendant was in all respects valid, that service was achieved, the defendant failed to respond within the time required by law, and the Default Judgment was proper; that the defendant’s Motion to Set Aside the Default Judgment should be and is hereby denied.
| ¿This appeal is from the circuit court’s order refusing to set aside the default judgment. For reversal, Unimeks contends that the circuit court erred in finding that the summons was validly signed by the clerk based on the undisputed evidence in this case. Unimeks contends further that the circuit court likewise erred in refusing to set aside the default judgment and refusing to dismiss the complaint for failure to obtain timely service pursuant to Rule 4(i).
We review the present case de novo because Unimeks contends that the default judgment was void due to a defective summons. See Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (2004) (stating that it is a question of law involv ing no discretion with the trial court when the appellant claims that the default judgment is void, and we therefore review the granting or denial of such a motion to set aside a default judgment using a de novo standard rather than an abuse-of-discretion standard). In addition, our appellate review is de novo when an issue of construction of a statute or court rule is involved. Jonesboro Healthcare Ctr., LLC v. Eaton-Moery Envtl. Servs., Inc., 2011 Ark. 501, 385 S.W.3d 797. De novo review means that the entire case is open for review. ConAgra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 80 S.W.3d 725 (2000). We do not, however, reverse the circuit court’s findings of fact unless they are clearly erroneous. Unknown Heirs of Warbington v. First Cmty. Bank, 2011 Ark. 280, 383 S.W.3d 384. This means that an appellate court conducting a de novo review may make a complete review of the evidence and record to determine whether the circuit court clearly erred in either making a finding of fact or in failing to do so. Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009).
|fiThe requirements for a valid summons are stated in Rule 4(b) as follows:
(b) Form. The summons shall be styled in the name of the court and shall be dated and signed by the clerk; be under the seal of the court; contain the names of the parties; be directed to the defendant; state the name and address of the plaintiffs attorney, if any, otherwise the address of the plaintiff; and the time within which these rules require the defendant to appear, file a pleading, and defend and shall notify him that in case of his failure to do so, judgment by default may be entered against him for the relief demanded in the complaint.
Ark. R. Civ. P. 4(b). Some of the requirements of Rule 4(b), including the requirement of the clerk’s signature, are rooted in our state’s constitution. Article 7, section 49 of the Arkansas Constitution provides in pertinent part that “[a]ll writs and other judicial process, shall run in the name of the State of Arkansas, bear test and be signed by the clerks of the respective courts from which they issue.” Ark. Const, art. 7, § 49. “Without question, this court has made it patently clear that a summons must comply exactly and not substantially with the requirements of Rule 4(b).” Gatson v. Billings, 2011 Ark. 125, at 5, 2011 WL 1206500. “The language in article 7, section 49 is plain and unambiguous, and it must be given its obvious and common meaning.” Id. at 5.
On appeal, Unimeks contends that the circuit court’s finding that the summons bore a valid signature of the clerk is contrary to the undisputed evidence in this case as well as contrary to this court’s holdings that compliance with the requirements of Rule 4(b) must be strict and exact. See, e.g., id. Unimeks relies on the affidavit wherein O’Brien averred that the handwriting of his name on the summons was not his writing, not his signature, and not authorized according to his office procedure. Citing Carruth v. Design Interiors, Inc., 324 Ark. R373, 921 S.W.2d 944 (1996), Unimeks contends further that the requirement of the clerk’s signature is a necessary and indispensable part of a valid summons.
Unimeks acknowledges that this court has held that a “deputy clerk’s signature on the summons met the requirements of Rule 4(b).” Nucor Corp., 358 Ark. at 122, 186 S.W.3d at 729. Given O’Brien’s affidavit that his deputy clerks were only authorized to sign his name by indicating their own name afterwards, Unimeks argues that even if the handwritten words “Pat O’Brien” on the summons constituted a signature from a deputy clerk, it was not authorized in accordance with O’Brien’s office procedure and therefore does not strictly satisfy the requirement of Rule 4(b). Unimeks continues that because Pu-rolite has not provided any evidence that the summons satisfies the signature requirement of Rule 4(b), the summons is invalid.
Purolite responds that the summons here is valid because it bears the seal of the court and the handwritten name of the clerk. Purolite acknowledges this court’s holding in Carruth, 324 Ark. 373, 921 S.W.2d 944, that if there is no signature, the summons is not valid. However, Pu-rolite distinguishes Carruth by pointing out that there was a complete absence of a signature on the Carruth summons and that the summons at issue here does bear the handwritten name of the clerk. Purol-ite responds further that because the summons at issue here bore the seal of the clerk, according to Edens v. State, 258 Ark. 734, 528 S.W.2d 416 (1975), a presumption arose that the handwriting was a valid signature, and Unimeks did not rebut that presumption.
|7In Edens, this court had occasion to consider the validity of certain documents introduced to prove prior convictions of a criminal defendant for purposes of enhanced sentencing as a habitual offender. In so doing, this court cited with approval the following principles of law:
It has been held that one who, in doing an official act, signs himself as such is presumed to be a deputy clerk in the absence of anything to the contrary. But we need not go so far. The clerk of a circuit court is the keeper of its seal and authorized to use it in authentication of records. Ark. Stat. Ann. § 22-102, 104 (Repl.1962) [currently codified at Ark.Code Ann. § 16-10-110 (Repl. 2010) ]. The purpose of affixing a seal to an instrument is to attest the genuineness of the signature or official character of the officer signing it. When the person signing the name of the clerk of a court does so as a deputy clerk and affixes the court’s seal of which the clerk is custodian, it will be presumed that the signer is a deputy in the absence of evidence to the contrary.
Id. at 738-39, 528 S.W.2d at 419 (citations omitted).
Our review of the record in this case reveals that, despite its assertion to the contrary, Unimeks has not offered sufficient evidence to rebut the presumption of validity of the signature created by the seal of the court on the summons at issue here. To be clear, Unimeks did offer the undisputed affidavit of O’Brien that his name as it appeared on the summons was neither his signature nor his handwriting and that it was not written in accordance with his office procedure for the authorized use of his name by a deputy clerk. However, O’Brien’s affidavit was the only evidence offered by Unimeks on this point, and it simply does not refute the fact that the signature could have been written by someone in O’Brien’s office. At best, O’Brien’s affidavit establishes that his standard office procedure was not followed, but it does nothing to rebut the presumption of validity given the signature by the seal of the court that appears on the summons here at issue. Thus, we conclude that the seal gave a | ¡^presumption of validity to the signature that was not rebutted, and therefore strict compliance with the signature requirement of Rule 4(b) and article 7, section 49 was satisfied.
It is clear to us that, as the circuit court correctly found, the handwriting that appeared on the summons at issue in this case was a signature. It is furthermore clear to us that when the summons was returned from the court clerk’s office it bore the court seal and the date, as well as the case number and division assignment. Thus, as the circuit court correctly stated, the summons at issue here was returned from the court clerk’s office with all the appearances of a valid summons, and in order for our judicial system to function properly, attorneys must therefore be entitled to rely on the validity of such a summons so returned from the clerk. Even when considering O’Brien’s affidavit, we have no hesitation in concluding that there was no error in the circuit court’s finding that this summons was valid in all respects.
In addition to finding that the summons here was valid, the circuit court also found that service was achieved, that Unimeks failed to timely respond, that the default judgment was proper, and that the motion to set aside the default judgment and dismiss the complaint was denied. Unimeks’s remaining argument concerning the dismissal of the complaint is based on the premise that the summons issued here was not valid. As we have determined that the circuit court correctly found that the summons here was indeed valid, we have rejected the premise of the remaining argument and need not address it any further.
The order of the circuit court upholding the default judgment is affirmed. | [
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JOSEPHINE LINKER HART, Judge.
|, This is an appeal from a boundary dispute involving an alleged “spite” fence. Following a bench trial, the Garland County Circuit Court dismissed the claims brought by appellants Jeffrey and Rebecca Jenkins and quieted title to the property in appellees Dale E. & Betty Fogerty Revocable Trust (the trust); Dale Fogerty, individually and as trustee; and Betty Fogerty, individually and as trustee. On appeal, appellants argue that the circuit court erred (1) in dismissing their trespass claim and quieting title in the appellees because appellees’ survey ignored the legal standards for surveys; (2) in granting ap-pellees’ motion, at the close of appellants’ case, to dismiss appellants’ claim that ap-pellees’ newly constructed fence was a nuisance; (3) in ruling that appellants had voluntarily dismissed their claim that ap-pellees had violated the bill of assurance; and (4) in entering a decree that referenced the survey without |¡>attaching a copy of the survey to the decree. Appel-lees cross-appeal, arguing that the court erred in dismissing their cause of action for quiet title based on boundary by acquiescence and in not awarding appellees their attorney’s fees and costs. We hold that appellants made a prima facie case that the fence is a nuisance and reverse and remand that claim for further proceedings. We affirm on appellants’ remaining claims and on cross-appeal.
The parties own adjacent properties fronting Lake Hamilton in Garland County, sharing a common boundary line approximately 254 feet long. Appellants purchased their property in October 2008. Appellees purchased their property in March 2009. In July 2009, appellees planted a tree and built birdhouses on a portion of the property claimed by appellants. After appellants complained, appel-lees removed both the tree and the birdhouses. According to appellants, this complaint made appellees unhappy and led to the construction of the fence by appel-lees the following week.
On April 15, 2010, appellants sued for negligence in damaging their pump house, nuisance in the erection of the fence in an unsightly manner that obstructed appellants’ view of Lake Hamilton, trespass in that the fence was built on appellants’ property and that part of the roof covering appellees’ home extended across the property line, and violation of the bill of assurance. Appellees answered and counterclaimed seeking to quiet title to their property up to the fence as described in a plat prepared by Wade Spainhour after he had compiled a survey of their property. Alternatively, they pled that they were the owners of the property by virtue of having a boundary by acquiescence. They also sought damages for trespass and their attorney’s fees and costs.
Is At the close of appellants’ case, appel-lees moved to dismiss appellants’ complaint. The court granted the motion as to appellants’ claims for nuisance and violation of the bill of assurance, but denied the motion on appellants’ trespass claim. Appellants nonsuited their negligence claim and the case continued on appellants’ trespass claim and on appellees’ claim to quiet title. At the close of all the proof, the circuit court dismissed appellees’ claims for boundary by acquiescence and damages. The court took under advisement the trespass claim and appellees’ quiet-title claim.
In a letter opinion, the court established the boundary line. According to the court, the matter was a battle of surveyors. The court determined that appellees’ surveyor Wade Spainhour had greater experience than Shawn Blees, appellants’ surveyor. The court gave greater weight and credibility to Spainhour’s testimony and, consequently, quieted title in appellees consistent with the Spainhour survey. The court dismissed appellees’ claim for boundary by acquiescence. The court ruled that each party was to bear their own attorney’s fees and costs. The court’s written judgment was entered on December 1, 2010. This appeal and cross-appeal followed.
We begin with appellants’ argument that the circuit court erred in dismissing their nuisance claim. Our standard of review requires that we review the evidence in the light most favorable to the party against whom the dismissal was sought, giving the evidence its highest probative value and taking into account all reasonable inferences deducible from it. Follett v. Fitzsimmons, 103 Ark.App. 82, 286 S.W.3d 742 (2008).
We note that, contrary to appellees’ stated belief, Arkansas has addressed the is sue of [^whether a fence can be enjoined as a nuisance. In DeMers v. Graupner, 186 Ark. 214, 53 S.W.2d 8 (1932), the court reviewed two competing lines of cases. The older, common-law view provided that
an owner of land may erect on his own property any kind of structure he may desire, even though it might have the effect of causing great annoyance to the neighboring owners, and that the motive or intent of the person erecting the structure cannot be inquired into unless the structure can have no benefit or advantage, but is for the avowed or manifest purpose of damaging a neighbor; nor could an owner be prevented, even though the purpose is a malicious one, from erecting a structure which merely prevents the free use of light and air by the adjoining property owner.
186 Ark. at 216, 53 S.W.2d at 9. The second, more modern line of decisions is to the effect that an adjoining landowner may enjoin the erection or maintenance of a structure erected for the purpose of annoying him and making the use of his property less desirable. Id. The DeMers court concluded that, regardless of the animosity between the neighbors, the construction of the high solid fence was designed at least in part to protect a garden. 186 Ark. at 216-17, 53 S.W.2d at 9.
Here, the evidence presented by appellants, viewed in a light most favorable to them, showed the following: the fence was built some two feet off the ground and the boards extended to approximately nine feet off the ground. Appellees erected the fence shortly after appellants and appel-lees had a disagreement over the tree and birdhouses appellees placed on appellants’ property. Other testimony indicated that the fence blocked part of appellants’ view of the lake. Moreover, Jim Watkins, a real estate agent, testified that the fence was unattractive and lowered the value of both properties. Other testimony indicated that the fence was erected with nails protruding to appellants’ side of the fence, creating a safety hazard. From | fithis evidence, we hold that appellants made a prima facie case when they presented testimony from which it could be inferred that appellees acted maliciously in erecting the fence. This case is distinguishable from DeMers in that the circuit court in the present case granted the motion to dismiss instead of allowing the case to proceed to its conclusion. We reverse the circuit court’s dismissal of the nuisance claim and remand for further proceedings.
Appellants next argue that the circuit court erred in establishing the boundary line in accordance with the survey conducted by Wade Spainhour, claiming that Spainhour did not follow accepted surveying procedures in the preparation of his survey. They also assert that the survey prepared for them by surveyor Shawn Blees was more accurate than the survey prepared by Spainhour.
The location of a boundary line is a question of fact. We affirm a circuit court’s finding of the location of a boundary line unless the court’s finding is clearly erroneous. Robertson v. Lees, 87 Ark.App. 172, 189 S.W.3d 463 (2004). In reviewing a circuit court’s findings of fact, we give due deference to the circuit judge’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Id.
Both surveyors testified concerning their professional standards and each opined that they followed those standards. Both surveyors also testified at length to the particular methods they used in performing their respective surveys and to the monuments and markers they found and relied on in compiling their measurements. The circuit court specifically stated that it was giving more weight and credibility to the Spainhour survey be cause of Spainhour’s greater experience. The credibility of a surveyor is a question for the fact-finder. See Rice v. Welch Motor Co., 95 Ark.App. 100, 234 S.W.3d 327 (2006); Killian v. Hill, 32 Ark.App. 25, 795 S.W.2d 369 (1990); see also Ward v. Adams, 66 Ark.App. 208, 989 S.W.2d 550 (1999) (deferring to the trial court on the comparison and credibility of surveys). The court was presented with competing surveys prepared by the respective surveyors. Each surveyor’s testimony sought to establish the validity and correctness of his survey, and that his survey was superi- or to that of the other surveyor. Neither survey was compiled without the respective surveyor having made measurements based on the facts as perceived by him when viewed in the perspective of his professional judgment.
On appellate review, where there are two differing views of the evidence, we do not reverse the fact-finder’s determination unless clearly erroneous. Rymor Builders, Inc. v. Tanglewood Plumbing Co., 100 Ark.App. 141, 265 S.W.3d 151 (2007). Even though the two surveys established the boundary lines in different locations, albeit in close proximity, we cannot say that the circuit court was clearly erroneous in deciding the boundary based on the Spainhour survey.
For their next point, appellants argue that the circuit court erred in dismissing their cause of action for violation of the bill of assurance. We do not address this issue because it was not fully developed below. The abstract shows that appellant Jeffery Jenkins testified that he was more concerned with the court finding that he was in violation of the bill of assurance than appellees being in violation. In their brief to this court, appellants’ argument includes only the statement of Jeffery Jenkins that he was not withdrawing the bill-of-assurance claim and the circuit court’s ruling dismissing their claim. There was no explanation as to how 17appellees were violating the bill of assurance or the relief appellants were seeking on that claim. Because this issue was not fully developed below, it is not preserved for appellate review. Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004).
Finally, appellants argue that the circuit court erred in entering a decree quieting title in appellees that contained a legal description that referenced the plat and the Spainhour survey. In its order, the circuit court set out the description of appellees’ property as
Lot 9 Block 1 of Amended Plat Unit No. 1 of Lakeview Heights Section of Shore Acres, according to Bill of Assurance and Plat recorded in Book 473 at Page 595 and Amended in Book 481 at Page 624 of the Deed and Mortgage Records of Garland County, Arkansas; as more particularly described in a survey by Wade Spainhour, RPLS, dated July 12, 2009, a copy of which is annexed hereto as Exhibit A.
A circuit court’s decree must describe the boundary line between disputing land owners with sufficient specificity that it may be identified solely by reference to the decree. Petrus v. Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997). In Petrus, the appeal was dismissed because the decree contemplated a future survey to provide a description, and it was, therefore, not a final order.
To the extent that appellants argue that the circuit court erred simply because it did not physically attach a copy of the decree, we note that the circuit court’s judgment contained a legal description. To the extent that appellants are arguing that a metes-and-bounds description is required, we disagree. Descriptions by lots and blocks in subdivision plats are a recognized means of describing real property. See, e.g., Ark.Code Ann. § 14-17-208 (Supp.2011); City of Sherwood v. Cook, 315 Ark. 115, 865 S.W.2d 293 (1993). A description is sufficiently definite and certain if it is possible for a surveyor using the description to locate |sthe land and establish the boundaries. See McDonald v. Roberts, 177 Ark. 781, 9 S.W.2d 80 (1928); River Valley Land, Inc. v. Hudson, 2009 Ark. App. 600, 347 S.W.3d 40. The Spainhour survey that is part of the record sufficiently identified the parties’ respective properties so that each party was capable of knowing where their boundary lies. We affirm on this point.
On cross-appeal, appellees first argue that the circuit court erred in dismissing as moot their counterclaim seeking to establish a boundary by acquiescence. We need not address this point because we affirm the location of the boundary according to the Spainhour survey, and this point is moot.
Appellees’ second point on cross-appeal is that the circuit court erred in failing to award them attorney’s fees. A circuit court is not required to award attorney’s fees and, because of the circuit judge’s intimate acquaintance with the trial proceedings and the quality of service rendered by the prevailing party’s counsel, appellate courts usually recognize the superior perspective of the circuit judge in determining whether to award attorney’s fees. Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000); Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). The decision to award attorney’s fees and the amount to award are discretionary determinations that -will be reversed only if the appellant can demonstrate that the circuit court abused its discretion. Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998); Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993); Chrisco, 304 Ark. at 230, 800 S.W.2d at 719.
The general rule in Arkansas is that attorney’s fees are not awarded unless expressly provided for by statute or rule. Millwood-RAB Mktg., Inc. v. Blackburn, 95 Ark.App. 253, 236 S.W.3d 551 (2006). Arkansas Rule of Civil Procedure 54(e)(1) requires that claims for attorney’s fees be made by motion filed within fourteen days following entry of judgment. The rule also requires that the motion state the amount sought and specify the authority for such an award. However, appellees did not file a motion seeking attorney’s fees. Nor was there an affidavit or other information before the circuit court indicating the number of hours counsel spent on the case. Appellees failed to bring up a record sufficient to demonstrate that the circuit court was in error on this point, Young v. Young, 316 Ark. 456, 872 S.W.2d 856 (1994), and, therefore, we affirm on this point.
Affirmed in part, and reversed and remanded in part on direct appeal; affirmed on cross-appeal.
VAUGHT, C.J., WYNNE, and GLOVER, JJ„ agree.
GRUBER and BROWN, JJ., dissent in part. | [
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DAVID M. GLOVER, Judge.
| íAppellant Diana Lancaster worked as a bartender on an at-will basis for appellee Red Robin International, Inc. (a restaurant). After Red Robin transferred her from the position of bartender to server, she sued her employer, appellee Steve Reiger (Red Robin’s general manager), appellee Jason Riddle (Red Robin’s service manager), appellee Matthew Nati-vidad (a co-worker), and appellee Kayla Neitzel (a co-worker) for slander in the Benton County Circuit Court. The trial court granted summary judgment to all appellees. It also struck two of appellant’s pleadings and imposed sanctions under Arkansas Rule of Civil Procedure 11 against appellant and her attorney, Harry McDer-mott, in favor of Natividad and Neitzel, and ordered McDermott to pay appellees $1000 in attorney’s fees because of the way he handled a discovery dispute. Appellant argues that the trial court erred in granting summary judgment to all appellees. She also alleges that it abused its discretion in striking her amended complaint and second amended complaint; in awarding attorney’s fees to Natividad and Neitzel; and in ^ordering her attorney to pay ap-pellees $1000 in attorney’s fees. We cannot address the propriety of the circuit court’s sanctions against McDermott because appellant’s notice of appeal did not indicate that McDermott was also taking an appeal from the orders sanctioning him, and he did not file a notice of appeal in his own right. See Arkansas Dep’t of Human Servs, v. Shipman, 25 Ark.App. 247, 756 S.W.2d 930 (1988); Ark. R.App. P.-Civ. 3(e) (2011). Otherwise, we affirm on all issues.
Appellant sued Red Robin, Reiger, and Riddle for slander in January 2008. She alleged that Reiger told Riddle that appellant was “slipping beers to customers” while working as a bartender; that a few days later, Reiger informed her that she would work as a server while he investigated the matter; and that another employee told her that Reiger and Riddle were telling Red Robin’s staff that she was selling drugs at the restaurant, so that a good friend of theirs could be hired as bartender in her place. She denied slipping beers or selling drugs and alleged that as a result of their slander, her hours had been reduced, causing her to lose wages, insurance, and vacation pay, and that she was unable to obtain employment as a bartender elsewhere.
The discovery disputes began in April 2008, when appellant filed a motion to compel, arguing that appellees’ answers to her interrogatories and requests for production of documents were inadequate. Discovery did not proceed smoothly, and the record is replete with examples of the discord between McDermott and appellees’ attorneys. The court held a number of discovery hearings. On June 16, 2008, the court entered an order denying appellant’s motions to compel and awarding $1000 to appellees from McDermott because |she did not confer in writing with appellees’ attorneys before filing the motions. It noted that Red Robin had filed supplemental responses to the discovery requests that were the subject of the motions to compel and found those responses to be appropriate, but directed Red Robin to provide an unqualified verification of all discovery responses previously submitted. The next day, appellant filed an amended request for entry upon the premises to inspect and copy records and to film inside the restaurant. Red Robin objected.
In her deposition taken in May 2008, appellant acknowledged that Reiger had moved her from bartender to server because of the beer incident, not the drug allegations. She stated that she had incurred damages in lost wages, vacation time, and insurance eligibility because of her transfer to server, but admitted that she did not actually know the difference between what she had earned in those positions. Appellant took Kayla Neitzel’s deposition in June 2008. Neitzel testified that she had told Reiger that she had heard multiple employees talk about purchasing drugs from appellant. Appellant deposed Nick Pitzel, an employee of Red Robin, who testified that, upon questioning by Reiger, he had stated that he had heard from Natividad that appellant sold drugs. Appellant took the deposition of Natividad on June 3, 2008. Natividad testified that appellant had sold Xanax and hydrocodone to a certain employee on numerous occasions between October 2007 and January 2008. Soon after this deposition, Red Robin terminated appellant. On June 4, 2008, appellant filed an amended complaint naming Natividad as a defendant.
Red Robin moved to strike portions of appellant’s amended complaint, stating that appellant had deposed Natividad the day before she added him as a defendant; that his btestimony was damaging to appellant’s case; and that paragraphs 11 through 15 contained redundant, immaterial, impertinent, or scandalous matters. Natividad also moved to dismiss; in the alternative, he asked the court to strike appellant’s amended complaint for failure to state a claim. He further argued that any statements that he had made to his employer during the course of their investigation were privileged.
Appellant filed a second amended complaint against Red Robin, Reiger, Riddle, and Natividad in July 2008. Natividad moved to dismiss or, in the alternative, strike that complaint. In response, appellant made extremely derogatory accusations against Natividad. Appellant filed another motion to compel because Red Robin had refused to allow her to film the inside of the restaurant. Red Robin argued that it had produced or made available for inspection all documents responsive to appellant’s discovery requests; although six to seven boxes of documents had been available for weeks for appellant to inspect, she had not done so. It also stated that McDermott had entered the restaurant on one occasion without notice and had asked nonmanagement employees to allow him to inspect its employee work logs.
Red Robin moved for sanctions under Arkansas Rule of Civil Procedure 11, alleging that, on the day after appellant deposed Natividad, she amended her pleadings to add him as a named defendant, and that the allegations contained within several paragraphs of appellant’s amended complaint and her second amended complaint were included to harass the parties, intimidate prospective witnesses, or retaliate against a witness who had testified adversely to appellant’s interest.
| sIn her second deposition (taken in August 2008), appellant admitted that she had sued Natividad because of his statements about her in his deposition and blamed her termination on the statements. She said that she had a hard time finding another job but admitted that she was hired by Mimi’s Café three days later; that no one outside of Red Robin believed that she would sell drugs; and that she did not know whether any business, other than Red Robin, knew of any statement by Na-tividad about her and drug sales.
The circuit court entered an order striking appellant’s amended complaint and second amended complaint on August 18, 2008, and gave her ten days within which to replead. Neitzel moved to dismiss the third amended complaint, which had added her as a defendant, because. appellant’s only claim against her was based on the written statement, which was privileged, that she had provided to Red Robin during the investigation.
Appellant filed her fourth amended complaint against Reiger, Riddle, Red Robin, Natividad, and Neitzel. Natividad and Neitzel moved to dismiss. Red Robin, Reiger, and Riddle moved for summary judgment. Red Robin argued that appellant had produced no evidence that any allegedly defamatory statements had proximately caused her any damages and that any such statements were subject to a qualified privilege. In response, appellant filed another affidavit in which she was more specific about lost wages and benefits.
Natividad moved for Rule 11 sanctions, alleging that appellant would not have sued him if he had not given sworn testimony in his deposition, and citing testimony from appellant’s deposition, in which she admitted that she had sued him because of his testimony. He stated that, on two separate occasions, McDermott had told his attorney that if he were |fito change his testimony, appellant would dismiss him as a defendant; that his attorney had informed McDermott that he intended to move for Rule 11 sanctions if McDer-mott did not withdraw the complaint against Natividad; and that nevertheless, appellant filed second, third, and fourth amended complaints. Natividad supplemented his motion for sanctions, alleging that, during his deposition, McDermott had placed him in the position of having to refuse to answer certain questions or risk self-incrimination, even though he was not represented by counsel at that time, and that McDermott had refused to let him take a break to contact an attorney or even to use the restroom. He asked the court to dismiss the action against him and for attorney’s fees and costs. Natividad also moved for summary judgment. He filed a copy of appellant’s deposition, in which she admitted that she did not believe that he had anything to do with her being transferred from bartender to server.
On March 11, 2009, the circuit court entered an order granting summary judgment to Red Robin, Reiger, and Riddle because there were no genuine issues of material fact as to their affirmative defense of qualified privilege or as to damages. On April 9, 2009, it granted summary judgment to Natividad and Neitzel, and granted Natividad’s motion for sanctions. The court found that a qualified privilege applied to any statements made by Natividad and Neitzel to their employer and that there was a lack of proof of causation and damages. It stated:
As to the Motion for Rule 11 Sanctions, the Court finds that the entire circumstances surrounding the filing of this case against both of these defendants to be suspect. Due to the inflammatory and scurrilous nature of the filings against these defendants, along with the lack of a basis for the plaintiffs claims, the Court finds that Rule 11 Sanctions are appropriate.
|7The court awarded attorney’s fees of $4500 to Natividad and $2500 to Neitzel, to be paid by appellant and McDermott.
Appellant raises the following points on appeal: (1) that the circuit court erred in granting summary judgment to appellees; (2) that the circuit court abused its discretion in striking her amended complaint and second amended complaint and granting Natividad and Neitzel Rule 11 sanctions; and (3) that the circuit court abused its discretion in directing McDermott to pay appellees’ attorney $1000 for discovery abuse and in finding Red Robin’s responses to discovery to be appropriate. As discussed above, the issues concerning McDermott are not properly before us for review.
Summary judgment may be granted by a trial court only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, clearly show that there are no genuine issues of material fact to be litigated and the party is entitled to judgment as a matter of law. Lee v. Martindale, 103 Ark.App. 36, 286 S.W.3d 169 (2008). When the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing a genuine issue as to a material fact. Dodson v. Allstate Ins. Co., 365 Ark. 458, 231 S.W.3d 711 (2006). When a party cannot present proof on an essential element of a claim, the party moving for summary judgment is entitled to judgment as a matter of law. Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 911 S.W.2d 586 (1995). On appeal, we need only decide if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Lee, supra. In making this decision, we view the evidence in a 1 slight most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.
The following elements must be proven to support a claim of defamation, whether it be by the spoken word (slander) or the written word (libel): (1) the defamatory nature of the statement of fact; (2) that statement’s identification of or reference to the plaintiff; (3) publication of the statement by the defendant; (4) the defendant’s fault in the publication; (5) the statement’s falsity; and (6) damages. Dodson, supra. A viable action for defamation turns on whether the communication or publication tends or is reasonably calculated to cause harm to another’s reputation. Roeben v. BG Excelsior Ltd. P’ship, 2009 Ark. App. 646, 344 S.W.3d 93. A plaintiff in a defamation case must prove actual damage to his reputation, but the showing of harm is slight. Id. A plaintiff must prove that defamatory statements have been communicated to others and that the statements have detrimentally affected those relations. Id. The law does not require proof of actual out-of-pocket expenses. Id.
A qualified privilege is recognized in many cases where the publisher and the recipient have a common interest or duty, and the communication is of a kind reasonably calculated to protect or further it. Roeben, supra; see also Navorro-Monzo v. Hughes, 297 Ark. 444, 763 S.W.2d 635 (1989); Addington v. Walr-Mart Stores, Inc., 81 Ark.App. 441, 105 S.W.3d 369 (2003). It is a condition and qualification of the privilege that the utterance must be exercised in a reasonable manner and for a proper purpose. Roe- ben, supra. Therefore, if the person making the statement steps outside the bounds of the privilege or abuses the privilege, the qualified privilege is lost. Id. The immunity does not extend to a publication of irrelevant | ndefamatory statements that have no relation to the interest entitled to protection. Id. The qualified privilege is lost if the publication is not made for the purpose of furthering the common interest. Id. The privilege does not protect a defendant from publication to persons other than those whose hearing is reasonably believed to be necessary or useful for the furtherance of that interest. Dillard Dep’t Stores, Inc. v. Felton, 276 Ark. 304, 634 S.W.2d 135 (1982). The privilege is lost if abused by excessive publication, where a statement is made with malice, or where a statement is made with a lack of grounds for belief in its truthfulness. See Adding-ton, supra.
The circuit court was correct in ruling that a qualified privilege ápplied to Reiger’s and Riddle’s statements made to each other and to Red Robin employees, and to Natividad’s and Neitzel’s statements to them, in connection with their investigation. There was no evidence that they made the statements in an unreasonable manner or for an improper purpose. Clearly, Red Robin and its managers had a legitimate interest in determining whether appellant was giving away beer or selling drugs on the premises. Natividad’s alleged statement to another employee that he had heard that appellant was dealing drugs at work is of no consequence, because appellant offered no evidence of any damage he had caused her. Accordingly, we affirm the grant of summary judgment to appellees.
We also hold that the circuit court did not abuse its discretion in striking the amended and second amended complaints or in imposing sanctions against appellant. Arkansas Rule of Civil Procedure 12(f) (2011) provides that a trial court may order stricken from any | ^pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. A trial court’s decision regarding the striking of a pleading will not be reversed in the absence of an abuse of discretion. Israel v. Oskey, 92 Ark.App. 192, 212 S.W.3d 45 (2005). The primary purpose of Rule 11 sanctions is to deter future litigation abuse. Elder v. Mark Ford & Assocs., 103 Ark.App. 302, 288 S.W.3d 702 (2008). When a circuit court determines that a violation of Rule 11 has occurred because an attorney has signed pleadings in violation of the rule, the rule makes sanctions mandatory. Parker v. Perry, 355 Ark. 97, 131 S.W.3d 338 (2003). However, the circuit court has wide discretion in determining whether a violation of Rule 11 occurred and what an appropriate sanction should be. Id. An appropriate sanction may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee. Id. The imposition of sanctions pursuant to Rule 11 is a serious matter to be handled with circumspection, and the trial court’s decision is due substantial deference. Id. We review a trial court’s determination of whether a violation of Rule 11 occurred under an abuse-of-discretion standard. Id.
It is obvious that appellant sued Natividad and Neitzel because of the privileged statements they gave to Red Robin during its investigation or in their depositions that implicated her in selling drugs. She could point to no actual damage that they had caused her. In the complaints, as well as at the hearings, appellant’s attorney used extremely inflammatory language about Natividad that bore scant relation to the substance of her claim for slander. We cannot say that the circuit court abused its discretion and affirm on this issue.
_JjjThe circuit court also did not abuse its discretion in finding that appel-lees’ responses to discovery requests were appropriate. The goal of discovery is to permit a litigant to obtain whatever information he may need to prepare adequately for issues that may develop without imposing an onerous burden on his adversary. Parker v. So. Farm Bureau Cas. Ins. Co., 326 Ark. 1073, 935 S.W.2d 556 (1996). The trial court has wide discretion in matters pertaining to discovery and we will not reverse a trial court’s decision absent an abuse of discretion. Id.
The circuit court found that McDermott failed to comply with Arkansas Rule of Civil Procedure 37 by filing motions to compel without first conferring with appellees’ counsel. At the hearing on June 4, 2008, the circuit court gave McDermott the opportunity to explain every discovery problem that could not have been resolved with a good-faith effort. It is apparent that the problems could have been resolved by conferring in writing with appellees’ counsel; that McDermott failed to take advantage of opportunities presented to him to obtain the information; or that appellees had already provided him with the only information they had. In fact, McDermott admitted that Red Robin had not done anything wrong. As the circuit court noted, Arkansas Rule of Civil Procedure 26(e) (2011) provides that a party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. See Battles v. Morehead, 103 Ark.App. 283, 288 S.W.3d 693 (2008). There was never any doubt that the circuit court would hold appellees to this rule. In fact, the court even told |12McDermott at the November 4, 2008 hearing that if it became apparent during trial that pictures or a video of the restaurant was necessary, it would stop the trial and allow him to obtain them. Accordingly, we find no abuse of the circuit court’s discretion and affirm on this issue.
Affirmed.
ROBBINS and WYNNE, JJ., agree. | [
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LARRY VAUGHT, Chief Judge.
| lAppellant Amanda Johnson appeals the order of summary judgment entered by the Jefferson County Circuit Court in favor of appellees M.S. Development Company, LLC and Magic Springs Development Company, LLC, both f/k/a Magic Springs Development Co., LLC, and both d/b/a Magic Springs & Crystal Falls (Magic Springs). Johnson raises one argument on appeal — that the trial court erred in dismissing her complaint based on its finding that, as a matter of law, the doctrine of res ipsa loquitur was not applicable. We affirm.
On May 18, 2007, Johnson, along with her boyfriend Danny (now her husband) and her sister Sarah went to the water-park at Magic Springs. Soon after arriving, they decided to ride the High Sierra Slide Tower waterslide. It is an enclosed structure, and riders slide down it while sitting in inner tubes provided by Magic Springs. Johnson and |2Panny decided to ride together. Danny carried a double-rider inner tube to the top of the slide. Johnson sat in the front, while Danny sat in the back. When the attendant told them it was their turn to go, Johnson said that she and Danny grabbed the bars at the top of the waterslide to pull themselves forward and down into the slide. As they made their descent, they held onto the handles on the inner tube. According to Johnson’s deposition testimony, after the second turn, they traveled too high up the side of the slide and when they entered the next turn they flipped over and fell out of the inner tube. Johnson injured her face when it struck the bottom of the slide.
On May 7, 2009, Johnson filed a complaint against Magic Springs and later filed an amended complaint. In the latter, Johnson alleged that the waterslide was under the exclusive control of Magic Springs at the time of her injuries. She also alleged that Magic Springs was negligent (in operating an unreasonably dangerous waterslide that was defectively designed and in failing to adequately warn Johnson of the dangers of the waterslide) and that its negligence was the proximate cause of her injuries.
Magic Springs filed a motion for summary judgment contending that Johnson’s amended complaint should be dismissed because there was no evidence of negligence on the part of Magic Springs and no evidence that any negligence of Magic Springs was the proximate cause of Johnson’s injuries. Additionally, Magic Springs argued that it did not have exclusive control of the inner tube upon which Johnson was riding at the time of her injuries; therefore, to the extent that Johnson alleged the application of the doctrine of res ipsa loquitur, the doctrine did not apply. After a hearing, the trial court granted the motion for summary judgment, finding:
|sl. The fact that an accident occurred is not evidence of negligence.
2. [Magic Springs] did not have exclusive control of the instrumentality that [Johnson] alleged caused her injuries. Therefore, the doctrine of res ipsa loquitur [sic] is inapplicable under the circumstances of this case.
3. [Johnson] offered no other evidence that [her] injuries were proximately caused by the negligence of [Magic Springs]. Consequently, an essential element of [Johnson’s] claims is not supported by credible evidence, and her claims should be dismissed with prejudice.
Johnson filed a timely appeal from the order. Her sole argument on appeal is that the trial court erred in granting summary judgment to Magic Springs because there are questions of fact on the issue of whether res ipsa loquitur applied.
Our standard of review is well settled in cases involving the grant of summary judgment:
In reviewing summary judgment cases, this court need only decide if the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. The moving party always bears the burden of sustaining a motion for summary judgment. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof showing a material issue of fact. However, if a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the non-moving party presents the court with any countervailing evidence.
Myers v. Cooper Clinic, P.A., 2011 Ark. App. 435, at 9, 384 S.W.3d 622, 627.
|4The doctrine of res ipsa loquitur was developed to assist in the proof of negligence where the cause is connected with an instrumentality in the exclusive control of a defendant. Schubert v. Target Stores, Inc., 2010 Ark. 466, at 6, 369 S.W.3d 717, 720. It applies where the evidence of the true cause is available to the defendant but not to the plaintiff. Id., 369 S.W.3d at 720. The doctrine, when applicable, allows the jury to infer negligence from the plaintiffs evidence of circumstances surrounding the occurrence. Id., 369 S.W.3d at 720.
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.” (Citation omitted). 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.
Marx v. Huron Little Rock, 88 Ark.App. 284, 292, 198 S.W.3d 127, 133 (2004) (citing Coca-Cola Bottling Co. v. Hicks, 215 Ark. 803, 807, 223 S.W.2d 762, 764-65 (1949)).
To invoke the doctrine of res ipsa loquitur, a plaintiff must show that (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 which caused | sthe 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; and (4) there is an absence of evidence to the contrary. Schubert, at 6-7, 369 S.W.3d at 720-21. Our supreme court has stated, “To make certain that the injury has not been caused by somebody else, through some intervening negligence, it is ordinarily required that the instrumentality causing injury have been in defendant’s exclusive possession and control up to the time of the plaintiffs injury.” Barker v. Clark, 343 Ark. 8, 14, 33 S.W.3d 476, 480 (2000). See also AMI Civ. 609 (stating that exclusive control of the instrumentality by the defendant is a required element of res ipsa loquitur).
In the case at bar, the trial court found that the res ipsa loquitur doctrine did not apply. In reaching this conclusion, the court made only one finding: Magic Springs did not have exclusive control of the instrumentality that Johnson alleged caused her injuries. On appeal, Johnson argues that this finding was error because there is a question of fact as to whether the instrumentalities that caused her injuries were in the exclusive control of Magic Springs. She argues that Magic Springs controlled the design of the waterslide, its opaqueness, the amount and speed of water flowing through it, the size and material of the inner tubes, the handles on the inner tubes, the inflation pressure of the inner tubes, and the position in which riders sat in the inner tubes.
The evidence presented does not demonstrate that Magic Springs was in exclusive control of the inner tube at the time it flipped over. The deposition testimony of Johnson and Danny confirms that the inner tube, in the minutes leading up to the accident, was in Rtheir control. They selected the inner tube, carried it to the top of the waterslide, placed it in front of the slide they chose to ride, positioned themselves in it, pulled themselves while in the tube from the waiting pool into the slide, and rode the tube down the slide, gripping it by its handles. While Johnson argues that she and Danny did not have any control of the inner tube from the beginning of the slide until the time it flipped over, she and Danny testified in their depositions that, when they rode down the slide, they did not make any attempt to adjust their positions on the inner tube and they did not raise their bodies up from the tube. Instead, they leaned back as far as they could while holding onto the handles of the tube. This testimony establishes that Johnson and Danny had some level of control of the inner tube at the time of her injury. If she and Danny had some control over the tube, then Magic Springs could not have had exclusive control over it. We will not apply the doctrine of res ipsa loquitur when all other responsible causes, such as the conduct of the plaintiff or third person, are not sufficiently eliminated. Barker, 343 Ark. at 15, 33 S.W.3d at 481.
Johnson cites Marx and Fleming, arguing that the doctrine of res ipsa loquitur can apply despite evidence that a plaintiff controlled the instrumentality prior to the accident and evidence that the plaintiff had the ability to control the instrumentality. In Marx, we held that the doctrine of res ipsa loquitur applied where a hotel guest was injured when a toilet-seat lid became detached while she was sitting on it. There was evidence that the lid was defective, and there was no evidence of comparative fault. Marx, 88 Ark.App. at 288, 293, 198 S.W.3d at 130, 133. Acknowledging the fact that the guest had used the toilet |7the night before and morning of the accident, we held that “the toilet lid, in the ordinary course of things, would not have detached from the toilet assembly if [the hotel] had used proper care.” Id. at 293, 198 S.W.3d at 133.
In Fleming, a metal utility cabinet fell off a display onto a customer. The trial court directed a verdict in favor of Wal-Mart, finding res ipsa loquitur did not apply. This court reversed and remanded, holding that there was evidence that the cabinet itself was unstable and no evidence that any other customers mishandled or rearranged the display. Fleming, 268 Ark. at 565-66, 570, 595 S.W.2d at 244-45, 247. In addition to holding that the customer’s inspection of the cabinet did not operate to destroy Wal-Mart’s exclusive control, Id., 595 S.W.2d at 247, we further held that because there was an absence of customer abuse or some other unforeseeable or uncontrollable event that would explain why the cabinet fell without negligence on the part of Wal-Mart, it was only logical to conclude that the cabinet fell as the result of the negligence of Wal-Mart. Id. at 571, 595 S.W.2d at 247.
The instant case is distinguishable from Mar* and Fleming because, in those cases, there was no evidence that the injured parties or anyone else other than the defendants were in control of the instru-mentalities that caused the injuries at the time the injuries occurred. In contrast, we have held herein that Magic Springs was not in exclusive control of the instrumentality Johnson claims caused her injury. Further, in both Mar* and Fleming, it was expressly held that res ipsa loquitur applied because there was evidence that the accidents that caused the injuries would, in the ordinary course of things, not have |8occurred if those having control of the instrumentality used proper care. Generally, a hotel toilet lid does not slide off a toilet in the absence of negligence on the part of the hotel. Marx, 88 Ark.App. at 293, 198 S.W.3d at 133. Likewise, a utility cabinet does not typically fall off a retail display onto a customer in the absence of negligence on the part of the retailer. Fleming, 268 Ark. at 571, 595 S.W.2d at 247.
Assuming, arguendo, that Magic Springs had exclusive control of the instrumentality causing Johnson’s injury, the accident (although unfortunate) was not one that — in the ordinary course of things— would not have transpired but for the negligence of Magic Springs. To the contrary, it is very possible that Johnson, a person sitting with another person in an inner tube riding down a curvy waterslide, could have fallen off the tube in the complete absence of negligence on the part of Magic Springs. Furthermore, there was evidence in this case that Johnson saw twenty people ride down the High Sierra slide prior to her ride and that Johnson’s sister rode the same slide immediately after Johnson’s ride — all without incident.
In the instant case, Johnson failed to present proof of Magic Springs’s exclusive control of the inner tube, and she also failed to put forth evidence that would have allowed the jury to eliminate all causes of her accident other than Magic Springs’s negligence. Schubert, 2010 Ark. 466, at 7, 369 S.W.3d at 721 (citing Nichols v. Int’l Paper Co., 278 Ark. 226, 644 S.W.2d 583 (1983)). Accordingly, we hold that the trial court correctly found that the doctrine of res ipsa loquitur did not apply to Johnson’s case, and |9we affirm the trial court’s order of summary judgment dismissing her complaint with prejudice.
Affirmed.
HOOFMAN and BROWN, JJ., agree.
. Johnson’s appeal does not challenge the trial court's finding that Johnson offered no evidence that her injuries were proximately caused by the negligence of Magic Springs.
. All parties agree that Johnson was an invitee of Magic Springs. As such, Magic Springs owed her a duty to exercise ordinary care to maintain its premises in a reasonably safe condition. Fleming v. Wal-Mart, Inc., 268 Ark. 559, 563, 595 S.W.2d 241, 243 (Ark.App.1980). | [
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ROBIN F. WYNNE, Judge.
| Appellant Cleaborn Stewart appeals from his conviction for second-degree sexual assault, arguing that the circuit court abused its discretion by denying his motion in limine and his motion for a new trial. We affirm on both points.
Stewart was charged on June 7, 2010, with sexually assaulting his then twelve-year-old stepdaughter, J.T. According to a statement given to police, J.T. reported two specific incidents in which Stewart had touched her breasts, buttocks, and vagina. She reported that these incidents occurred in her home, where she lived with Stewart and her mother, sometime between March and May 2009 and that similar incidents had occurred about eight times. During the discovery process, the defense learned that the State intended to offer the testi mony of Stewart’s fourteen-year-old daughter, G.S., who had disclosed an incident at Stewart’s home in which Stewart asked her to lift her shirt so that he could see how big her | gbreasts were growing. The defense filed a motion in limine seeking to exclude G.S.’s testimony.
At the hearing on the motion in limine, the defense argued that G.S.’s proposed testimony consisted of improper character evidence in violation of Arkansas Rule of Evidence 404(b) and that any probative value the testimony might have was substantially outweighed by unfair prejudice. The State argued that the proposed testimony fell within the “pedophile exception” to Rule 404(b). The court denied Stewart’s motion based on the pedophile exception, noting that these incidents involved a daughter and a stepdaughter, that the incidents all occurred in Stewart’s home, and that both girls were approximately the same age when the incidents occurred.
At the jury trial held on January 13 and 14, 2011, the State presented the testimony of J.T., who described the sexual abuse in detail, including one incident in which G.S. walked in on Stewart touching J.T. G.S. testified that she lived with her mother but frequently visited Stewart on the weekends, along with her five siblings. On one such visit, G.S. testified that Stewart told the children to go into the back bedroom but took J.T. with him into his bedroom. G.S. stated that she went into Stewart’s bedroom to ask for batteries for her MP3 player when she saw Stewart and J.T. on the bed. Stewart was masturbating with one hand while his other hand was down J.T.’s pants.
G.S. went on to testify about Stewart asking her to lift her shirt. The defense renewed its objection to the testimony based on Rule 404(b), which the court denied. However, the court instructed the jury that the testimony was not to be considered to show that Stewart had Uacted similarly with respect to J.T. but that it was offered only as evidence of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. G.S. then described Stewart asking her to show him her breasts, so that he could see if they were growing. G.S. stated that she told him “no” and walked away.
The State also presented the testimony of E.S., Stewart’s sixteen-year-old son. E.S. stated that on several occasions during weekend visits at his father’s house, he observed Stewart taking J.T. off alone, saying he needed to talk to her. J.T. would be crying when she returned. E.S. testified that he never saw Stewart do this with any of the other children.
Stewart testified in his own defense and denied ever touching J.T. inappropriately. According to Stewart, he was the disciplinarian in the household, and J.T. did not like following his rules. He further testified that he and G.S. did not always get along and that they argued over G.S.’s choices in clothing. Stewart claimed that J.T., G.S., and E.S. were all lying.
The jury returned a verdict of guilty of second-degree sexual assault and recommended a sentence of twenty years with a $15,000 fine. The judgment and commitment order so stating was entered on January 18, 2011. An amended judgment and commitment order, clarifying the manner in which Stewart’s fine was to be paid, was entered on February 2, 2011.
On February 7, 2011, Stewart filed a motion for new trial, claiming that the State had suppressed impeachment evidence that would have allowed Stewart to discredit G.S.’s and |4E.S.’s testimony during the trial. Stewart stated in an affida vit to the court that, a few days after his trial ended, he was interviewed by an investigator with the Arkansas State Police, Crimes Against Children Division (CACD), who informed him that she had received a report alleging Stewart had physically abused G.S. and E.S. “sometime approximately six weeks prior” to the trial. Stewart claimed that he had not had any contact with either child since September 17, 2010, and thus, the allegations were “absolutely false.” He further claimed that the State knew of the allegations prior to the trial but failed to disclose them. Had he been aware of the allegations, Stewart argued, he would have been able to show the jury that they were false and thereby impeach G.S. and E.S.
At the hearing on the motion for new trial, Stewart testified that, because a no-contact order was in effect, he had not even seen G.S. or E.S. since September 17, 2010, and then only briefly under the supervision of their mother. However, he admitted to having a physical altercation with E.S. over a year before the trial, in which he picked E.S. up and “dropped him on his butt.” Stewart denied ever having any kind of physical altercation with G.S.
Tamara Jones, the CACD investigator, testified that she had received a report on December 1, 2010, alleging that Stewart had physically abused G.S. At that time, G.S. had been admitted to Vista Health, a mental-health treatment facility, and in the course of her treatment, G.S. had disclosed the abuse to an intake officer there. In her interview with Ms. Jones on December 2, 2010, G.S. stated that the physical abuse occurred “a couple of | r,months ago, the next to last time she saw him.” In the course of her investigation, Ms. Jones also interviewed E.S., who disclosed that Stewart had slammed him against the wall, resulting in a knot on E.S.’s head, and that the incident occurred about a year earlier. After hearing the testimony and arguments of counsel, the court found that the report alleging physical abuse was neither exculpatory nor impeaching evidence because the abuse was alleged to have occurred well before the no-contact order was entered and, therefore, the report was not clearly false. Furthermore, the court found that Stewart had failed to demonstrate a reasonable probability that disclosure of the report would have resulted in a different outcome at trial. Therefore, the motion for new trial was denied. Stewart filed a timely notice of appeal.
On appeal, Stewart challenges the denial of both the motion in limine and the motion for new trial. The admissibility of evidence is at the discretion of the trial court, and we will not disturb the trial court’s ruling without a showing of manifest abuse of discretion. Allen v. State, 374 Ark. 309, 316, 287 S.W.3d 579, 584 (2008). Likewise, the matter of granting or denying a new trial lies within the sound judicial discretion of the trial court, whose action will be reversed only upon a clear showing of abuse of that discretion or manifest prejudice to the defendant. Newberry v. State, 262 Ark. 334, 338, 557 S.W.2d 864, 867 (1977).
For his first point, Stewart argues that the trial court abused its discretion by permitting G.S. to testify regarding the incident in which Stewart asked her to show him her breasts. Generally, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show a propensity for similar acts. Ark. R. Evid. 404(b) (2010). Such |nevidence may be permissible, however, when it is offered for other purposes. Id. Evidence offered under this rule must be independently relevant to the main issue, so that it tends to prove some material point rather than merely proving that the defendant is a bad person. Allen, 374 Ark. at 316, 287 S.W.3d at 584. Additionally, evidence admitted pursuant to Rule 404(b) must not be unduly remote in time. Nelson v. State, 865 Ark. 814, 323, 229 S.W.3d 35, 42 (2006).
Our supreme court has recognized a “pedophile exception” to Rule 404(b) where evidence of similar acts with the same or other children may be helpful to show a proclivity for certain acts with a person or class of persons with whom the defendant has an intimate relationship. Allen, 374 Ark. at 316, 287 S.W.3d at 584-85. The rationale behind the exception is that such evidence helps prove the depraved sexual instinct of the accused. Id. at 316, 287 S.W.3d at 585. For the exception to apply there must be a sufficient degree of similarity between the proposed evidence and the sexual conduct at issue. Id. at 317, 287 S.W.3d at 585. Also, there must be an intimate relationship between the defendant and the victim of the prior act. Id. The “intimate relationship” requirement can be satisfied when a defendant lives in the same home as the victim or otherwise has access to the -victim. See Kelley v. State, 2009 Ark. 389, at 10, 327 S.W.3d 373, 379.
Here, G.S.’s testimony met the requirements of the “pedophile exception” to Rule 404(b). Stewart does not contest-nor would there be any merit in contesting— that the father — daughter relationship between Stewart and G.S. was “intimate” in terms of the exception. The only real dispute was whether the incident G.S. described was sufficiently |7similar to the sexual conduct between Stewart and J.T. J.T., who was then twelve years old, described the touching of her breasts, buttocks, and vagina, while G.S., who was then twelve or thirteen years old, described a request to show her breasts. Although the two accounts are not identical, both signify Stewart’s sexual interest in the bodies of young teen or pre-teen girls at a certain stage of development. We have consistently considered similarities in age and gender of victims to be demonstrative of a depraved sexual instinct, such that the pedophile exception is applicable even where the acts described were not identical. Butler v. State, 2010 Ark. 259, at 5, 2010 WL 2132266; Flanery v. State, 362 Ark. 311, 315, 208 S.W.3d 187, 190 (2005); Hernandez v. State, 331 Ark. 301, 308, 962 S.W.2d 756, 760 (1998). Therefore, these two acts were similar enough to place G.S.’s testimony within the requirements of the “pedophile exception.” The court properly denied Stewart’s motion in limine.
Stewart continues by arguing that G.S.’s testimony should have been excluded pursuant to Arkansas Rule of Evidence 403 because its probative value was substantially outweighed by the danger of unfair prejudice. He contends that the incident G.S. described was not independently relevant to the conduct charged regarding J.T. and, therefore, had little probative value. However, meeting the requirements of the “pedophile exception” is what gives the testimony independent relevance, in that the testimony shows a proclivity for certain sexual instincts. Therefore, the testimony was probative, and we find Stewart’s argument unpersuasive.
Stewart next argues that the trial court abused its discretion by failing to find that the State had wrongfully suppressed evidence that was favorable to Stewart. The wrongful | ¿withholding of evidence by the State constitutes a violation of a defendant’s right to due process as guaranteed by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). There are three elements of a Brady violation: (1) the evidence at issue must be favorable to the defendant, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. Sanders v. State, 874 Ark. 70, 72, 285 S.W.3d 630, 633 (2008). To merit relief, the defendant must demonstrate that there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the information been disclosed at trial. Id.
Stewart argues that the State’s failure to disclose the allegations of physical abuse constituted a Brady violation and warranted a new trial. The State concedes that it had knowledge of the allegations and did not disclose them to the defense. However, Stewart has not shown that the allegations would have enabled him to impeach G.S. or E.S. or that he was prejudiced by the nondisclosure. Stewart’s motion for new trial was based on the premise that the physical-abuse allegations were patently false because he had not had any contact with G.S. or E.S. in several months and, therefore, could not possibly have abused them. To the contrary, testimony at the posttrial hearing revealed that the alleged abuse occurred sometime prior to the last time Stewart saw the children. Thus, the allegations were not patently false and would not by themselves allow Stewart to impeach the children’s testimony. Because the evidence would not have allowed impeachment, Stewart cannot show a reasonable probability that he would have been acquitted had he known about the physical-abuse allegations. | ¡/Therefore, we hold that the trial court did not abuse its discretion when it denied Stewart’s new-trial motion.
Affirmed.
ROBBINS and GLOVER, JJ., agree.
. The motion alternatively sought reduction of Stewart’s sentence. The court denied that motion, and it has not been brought up on appeal. | [
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JIM HANNAH, Chief Justice.
] lAppellant Charles Wayne Green was convicted of four counts of rape and one count of terroristic threatening in the first degree and sentenced to a term of 56 years’ imprisonment in the Arkansas Department of Correction. On appeal, he contends that the circuit court abused its discretion in denying his motion for continuance, erred in refusing to instruct the jury on lesser-included offenses, and erred in refusing to order the victim’s counselor to disclose the diagnosis of the victim. We affirm.
In 2003, Appellant and his father, Billy Green, were charged with four counts of capital murder. In February 2004, Appellant was separately charged with four counts of raping D.G., a minor. Appellant entered into plea agreements in both cases and, pursuant to the agreements, testified for the State in the capital-murder case of his father. His father’s conviction was later reversed on appeal. See Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006). In anticipation of the retrial of Appellant’s father, the State sought to reinterview | {.Appellant, but he refused, so the State filed a motion to vacate Appellant’s judgment and commitment order and reinstate the original charges against him. The circuit court found that Appellant had breached his plea agreement and granted the State’s motion to vacate. This court affirmed the circuit court’s decision to vacate the sentence. See Green v. State, 2009 Ark. 113, 313 S.W.3d 521.
Following this court’s decision, the State filed an amended information on May 15, 2009, again charging Appellant with four counts of rape, but adding a charge of first-degree terroristic threatening and amending the offense dates. The offense dates were modified again by a second amended information filed on February 3, 2010. The State filed a third amended information on February 12, 2010, and revised the rape charges from rape of someone less than fourteen years old to rape of someone less than fourteen years old by forcible compulsion. Finally, on February 16, 2010, the day before trial, the State filed a fourth amended information in which the Arkansas Code section cited was changed from a general reference to section 5-14-103, as listed in the previous informations, to the specific statutory section of forcible compulsion found at section 5 — 14—103(a)(1). The State also removed all references to a person under the age of fourteen in the charge description, leaving references only to forcible compulsion.
Appellant filed a motion for continuance, contending that he needed more time to 1 sreevaluate his defense strategy. Citing Harmon v. State, 277 Ark. 265, 641 S.W.2d 21 (1982), overruled, on other grounds by White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986), Appellant argued that allowing the amendment without a continuance would constitute a due-process violation because he had no notice that he would have to defend against rape by forcible compulsion. He also argued that the last-minute amendment changed the nature of the crime charged in violation of Arkansas Code Annotated section 16-85-407(b) (Repl.2005). The circuit court denied Appellant’s motion for continuance.
On appeal, Appellant first contends that the circuit court abused its discretion in denying his motion for continuance. Appellant asserts that he should have been granted a continuance because he needed more time to prepare his defense in response to the State’s last-minute amendment of the information that changed the offense charged from statutory rape to rape by forcible compulsion.
The circuit court shall grant a continuance only upon a showing of good cause and only for as long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case. Ark. R.Crim. P. 27.3 (2011). The standard of review for alleged error resulting from the denial of a continuance is abuse of discretion. E.g., Roster v. State, 374 Ark. 74, 286 S.W.3d 152 (2008). Absent a showing of prejudice by the defendant, we will not reverse the decision of the circuit court. Id. When a motion to continue is based on a lack of time to prepare, we will consider the totality of the circumstances. Id.
The State is entitled to amend an information at any time prior to the case being 14submitted to the jury as long as the amendment does not change the nature or the degree of the offense charged or create unfair surprise. E.g., Phavixay v. State, 2009 Ark. 452, 352 S.W.3d 311; see also Ark.Code Ann. § 16-85-407(b). Appellant claims that the amendment was improper because it changed the nature of the charge. In support of this argument, Appellant cites Harmon, 277 Ark. 265, 641 S.W.2d 21. In Harmon, the information originally charged that the appellant committed capital-felony murder in the course of a kidnapping. Id. at 270, 641 S.W.2d at 24. After the jury was sworn, the circuit court allowed the State to amend its information to alternatively charge that the ap pellant committed capital-felony murder in the course of a robbery. Id., 641 S.W.2d at 24. This court reversed, concluding that the amendment was not permissible in the absence of any notice to the appellant that he was required to defend an essentially different charge. Id., 641 S.W.2d at 24.
The State counters that the instant case is distinguishable from Hannon and more in line with Hill v. State, 370 Ark. 102, 257 S.W.3d 534 (2007). In Hill, the appellant was originally charged with three counts of kidnapping in violation of Arkansas Code Annotated section 5 — 11—102(a) (4) (Repl. 1997), which provides that “[a] person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of ... [ijnflicting physical injury upon him.” Id. at 106, 257 S.W.3d at 537. After presenting its case, the State amended its information to include the allegations that the kidnappings were for the purpose of terrorizing another or facilitating the commission of a felony. Id., 257 S.W.3d at 537. These additional allegations conformed to Arkansas Code Annotated section 5-ll-102(a)(3) and (6). Id., 257 S.W.3d at 537. The |,appellant objected, but the trial court agreed that the State could properly amend its information. Id., 257 S.W.3d at 537-38.
On appeal, we rejected the appellant’s assertion that the amendment changed the nature of the charge. Id. at 107, 257 S.W.3d at 538. In both the original information and the amended information, the appellant in Hill was charged with kidnapping. Id., 257 S.W.3d at 538. We concluded that the amendment did not change the nature of the kidnapping charge; rather, it amended the manner in which the alleged kidnapping took place. Id., 257 S.W.3d at 538.
Similarly, in the instant case, Appellant was charged with rape in both the original information and the amended information. The amendment did not change the nature of the alleged rape; rather, it changed only the manner of the alleged commission of the crime of rape.
Appellant claims that he was prejudiced by the late amendment because it did not give him enough time to prepare his defense. Specifically, he asserts that he was prejudiced because he needed more time to determine whether he would testify in his own defense to refute the additional element of forcible compulsion. At trial, the victim, D.G., testified that Appellant forced himself on her and digitally, orally, vaginally, and anally raped her on at least four occasions when she was between the ages of seven and eight years. Other than denying that the rapes occurred and defending the charges by challenging D.G.’s credibility, Appellant could only claim that the acts were consensual. We find it highly unlikely that Appellant would have chosen to defend himself by testifying that the victim, a seven-year-old girl, 1 r,consented to engaging in sexual acts with him. Nevertheless, Appellant learned on February 16 that the information had been amended, and the trial began on the following day. Given the circumstances of this case, Appellant had ample time to decide whether to testify. We hold that the circuit court did not abuse its discretion in denying Appellant’s motion for continuance.
Appellant next contends that the circuit court erred in refusing to instruct the jury on second-degree terroristic threatening as a lesser-included offense of terroristic threatening in the first degree and first-degree sexual abuse as a lesser-included offense of rape. An instruction on a lesser-included offense is appropriate when it is supported by even the slightest evidence. E.g., Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510. Once an offense is determined to be a lesser-included offense, the circuit court is obligated to instruct the jury on that offense only if there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the lesser-included offense. Id. A circuit court’s ruling on whether to submit a jury instruction will not be reversed absent an abuse of discretion. Id.
In Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986), this court held that, when a defendant’s defense is that he or she is entirely innocent of any crime, then no rational basis exists to instruct the jury on a lesser-included offense because the only issue for the jury is whether the defendant is guilty as charged. Appellant urges this court to overrule Doby because he believes a rational basis existed in this case to support the lesser-included instructions. We need not revisit our holding in Doby because, even if that case were | overruled, there still remains no rational basis for the lesser-included instructions sought by Appellant in this case.
We begin with the terroristic-threatening charge. As pointed out by Appellant, terroristic threatening in the second-degree is a lesser-included offense of terroristic threatening in the first degree. As relevant here, a person commits the offense of terroristic threatening in the first degree if, with the purpose of terrorizing another person, he threatens to cause the death or serious physical injury or substantial property damage to another person. Ark.Code Ann. § 5-13-301(a)(1)(A) (Repl.1997). A person commits the offense of terroristic threatening in the second degree if, with the purpose of terrorizing another person, he threatens to cause physical injury or property damage to another person. Ark.Code Ann. § 5-13-301(b)(l). At trial, D.G. testified that, after Appellant raped her for the first time, he told her if she said anything about the rape, he would kill her. Appellant has failed to demonstrate that there was a rational basis for giving the lesser-included instruction.
Next, we consider the rape charges. A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Ark.Code Ann. § 5-14-103(a)(l). A person commits sexual abuse in the first degree if he engages in sexual contact with another person by forcible compulsion. Ark.Code Ann. § 5-14-108(a)(l) (Repl.1997). Appellant contends that a rational basis for the sexual-abuse instruction | sexisted because the jury could have reasonably believed that D.G. “embroidered or exaggerated her allegations.” He points to inconsistencies in what D.G. told investigators and what D.G. testified at trial and asserts that doubts as to D.G.’s credibility created a rational basis for the instruction.
Even assuming that sexual abuse in the first degree is a lesser-included offense of rape, Appellant has failed to demonstrate that there was a rational basis for giving the sexual-abuse instruction to the jury. D.G., the sole witness at trial, testified that, on one occasion, Appellant “stuck his penis into my vagina and started moving— back and forth.” She testified that, another time, Appellant “put his penis in my vagina and then he made me turn over on my hands and knees and he did it anally as well.” D.G. stated that, on a different occasion, Appellant inserted his fingers into her vagina. She further testified that Appellant “grabbed me by the back of my head and made me perform oral sex on him.”
The State brought out on direct examination that D.G.’s trial testimony differed from her original statements. D.G., who was twenty years old at trial, was thirteen years old when she spoke with investigators about the abuse that occurred when she was seven or eight. She testified that when the investigators asked her a question about oral sex, she told them that Appellant tried to make her do it, but she pushed her head away to prevent it from happening. She testified that the reason she did not tell the investigators about the oral sex was because she felt very ashamed. She also testified that she was so young at the time, she | ¡¡did not understand what oral sex meant. On cross-examination, she admitted that she did not tell the investigators that Appellant had rubbed her vagina with his fingers.
Victim credibility is always disputable, but that does not mean that a lesser-included offense lies in every case in which the victim testifies. In this case, any dispute with the credibility of D.G.’s testimony did not create a rational basis upon which to support a lesser-included-offense instruction. We hold that the circuit court did not abuse its discretion in refusing to instruct the jury on lesser-included offenses.
For his final point on appeal, Green contends that the circuit court erred in refusing to order D.G.’s counselor to disclose what, if any, diagnosis or conclusions she had made as to D.G.’s mental health. When D.G. was thirteen years old, her mother died in a car accident, and D.G. saw Monica Rone, a licensed professional counselor, for grief counseling. During counseling, D.G. revealed to Rone that Appellant had sexually abused her. Rone, a mandatory reporter under the Child Maltreatment Act, notified the authorities that D.G. had been abused, and an investigation ensued.
In a pretrial hearing, Appellant attempted to obtain Rone’s notes from the counseling sessions, to depose Rone, and to have her, either in open court or in camera, testify about her conclusions regarding D.G.’s mental health. Appellant sought information regarding whether Rone had diagnosed D.G. with anything that would reflect adversely on her ability to tell the truth, claiming that such a diagnosis would bear on D.G.’s competency to be a witness. Rone testified that she had made a diagnosis, but she had shredded D.G.’s counseling records because she was required by law to keep records for only five years. She |incould not recall exactly when the records were destroyed, but she estimated that they had been shredded sometime during the year prior to trial. She further testified that she did not remember many details about D.G.’s case. The State objected, challenging the relevance of the diagnosis. The circuit court agreed that the evidence was not relevant and also found that Rone was not qualified to make a diagnosis.
Appellant contends that the State violated Rule 17.1(a)(iv) of the Arkansas Rules of Criminal Procedure (2011) when it did not produce D.G.’s counseling records and that the circuit court erred in not requiring the disclosure. Rule 17.1(a)(iv) is inapplicable because it concerns the discovery of statements or reports of experts. The circuit court found that Rone was not an expert, and Appellant does not challenge that finding on appeal. In fact, when asked by the circuit court whether he considered Rone an expert, defense counsel replied, “I don’t know if she is.”
Appellant further contends that the circuit court’s denial of his discovery request constituted a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Appellant fails to expand on this assertion. This court has repeatedly held that it will not research or develop arguments for appellants. E.g., Jester v. State, 367 Ark. 249, 239 S.W.3d 484 (2006).
Similarly, Appellant does not develop his argument that the circuit court erred by not requiring a disclosure of the diagnosis under Rule 17.4(a) of the Arkansas Rules of Criminal Procedure (2011), which provides that the circuit court “in its discretion may require disclosure to defense counsel of other relevant material and information upon a showing of materiality to the preparation of the defense.” A mere citation to a court rule does not ^constitute argument for the purposes of appeal. In sum, we hold that the circuit court did not err in refusing to order Rone to disclose D.G.’s diagnosis.
Affirmed.
. The February 2004 information listed the dates of the offenses as 1995-1999. The May 15, 2009 information listed the dates of the offenses as 1996-97.
. In this information, the offense dates were listed as 1997-98.
. Sexual abuse in the first degree, Arkansas Code Annotated section 5-14-108 (Repl. 1997), a class C felony, was repealed and replaced with sexual assault in the second degree, Arkansas Code Annotated section 5-14-125 (Repl.2006), a class B felony. The elemental requirements of sexual abuse in the first degree and sexual assault in the second degree are substantively the same.
. The State does not respond to Appellant’s assertion that first-degree sexual abuse is a lesser-included offense of rape. | [
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RAYMOND R. ABRAMSON, Judge.
11 Sidney Phillippy brings this interlocutory appeal from an order of the Benton County Circuit Court refusing to compel arbitration of breach-of-contract claims that appellees ANB Financial Services, LLC, a/k/a Insurance Marketplace (appellants’ former employer), and GL Holdings, LLC, filed against him. He and appellant Tina Dickey also argue that the circuit court erred in refusing to dissolve a temporary restraining order prohibiting them from contacting IM’s former clients. GL Holdings has cross-appealed from the entry of directed verdict on several claims concerning bid-rigging in GL’s purchase of IM. We affirm on the direct appeal and reverse and remand on the cross-appeal.
Phillippy was an insurance agent for many years. He owned an insurance agency, later known as Insurance Marketplace (IM), that he sold to Arkansas National Bank (ANB) in |22002. Dickey was also a licensed agent who worked with Phillippy for almost two decades. The Federal Deposit Insurance Corporation (FDIC) took over ANB in 2008 and solicited bids for the sale of IM. The bidders for IM included GL Holdings and Steve Standridge. Phillippy wanted Standridge to win the bid; after it became apparent that he was not likely to do so, appellants accepted offers to work for him. While still at IM, appellants exchanged emails about their letting a bidder (not GL) know that they were leaving. Phillippy sent an email to a friend stating that he intended to “pirate as many accounts” as he could if he left to work for another agency. GL ultimately won the bid. Appellants continued to work for IM for about a week after that. Because of Phillippy, some of IM’s clients renewed their policies through Standridge’s agency.
On June 27, 2008, appellees filed a complaint alleging that appellants had wrongly enlisted their customers and misappropriated IM’s trade secrets, including its customer list and customer information. They brought claims for breach of contract; interference with contractual relations and business expectancy; theft of trade secrets ; conversion; violation of the Deceptive Trade Practices Act; and conspiracy, and asked for injunctive relief and damages. When Phillippy sold the agency to ANB, the parties entered into three agreements. They entered into an Agreement Plan of Merger, which covered the sale of the agency. It included a covenant-not-to-compete, wherein Phillippy agreed that, for three years from the later of the transaction’s closing date, the termination of Phillippy’s relationship with ANB | sunder the Employment Agreement, or “any successor agreement,” Phillippy would not engage in any business in competition within a sixty-mile radius of Ben-tonville. He also agreed, for the same time period, not to disclose the identity of, or information about, customers or to directly or indirectly solicit other employees of ANB to terminate their employment or disrupt ANB’s relationship with customers. The parties entered into a separate Covenant Not to Compete Agreement, which contained the same terms.
They also entered into an Employment Agreement, which provided that Phillippy would be an employee of ANB for a period of two years. The Employment Agreement contained a survival clause expressly agreeing that the terms and provisions set forth in sections 6, 7, and 9 of that agreement “shall survive the termination of this Agreement and shall be and remain valid, binding and enforceable upon all parties after such termination.” Section 6 provided in part: “In the event of ... the termination of this Agreement, so long as Phil-lippy does not Engage in Competition with ANB (as hereinafter defined) for a period of three (3) years from the date of such termination, ANB shall purchase from Phillippy or his heirs, as applicable, the Equitable Value” of the new insurance accounts sold and serviced by Phillippy, unless Phillippy were terminated for cause. Section 6.1 added:
As used in this Section 6, the term “Engage in Competition with ANB” means that Phillippy shall not directly or indirectly own, manage, operate, join, control, or participate in the ownership, management, operation, or control of, or be connected in any manner with, or assist others with any business which engages in competition with ANB within a sixty (60) mile radius of Bentonville, Arkansas.
Section 7 defined ANB’s “property” as follows:
^Except as provided in Section 6 of this Agreement, Phillippy agrees that all insurance business placed upon the books of ANB and all Confidential Customer Information (as defined herein) obtained by or through Phillippy’s efforts, either directly or indirectly, and whether handled by ANB or Phillippy, shall be and remain the sole and exclusive property and assets of ANB. Except as provided in Section 6 of this Agreement, Phillippy shall have no right to or interest in any such insurance business or Confidential Customer Information, or in the renewals of such business, or in any expiration information, records, contracts, or documents (“Business Information”) whether produced by Phillippy or ANB or any other producers of ANB. Phillippy agrees and acknowledges that the disclosure, removal or transfer of the Business Information or Confidential Customer Information would give an unfair business advantage to Phillippy and/or competitors of ANB and be grounds for immediate termination of Phillippy.
For purposes of this Agreement, “Confidential Customer Information” shall mean all nonpublic personally identifiable risk and financial information:
(a) a customer provides to Phillippy to obtain an insurance product or service;
(b) about a customer resulting from a transaction involving an insurance product or service; or
(c) Phillippy otherwise obtains about a customer in connection with providing an insurance product or service for that customer.
The Employment Agreement also contained an arbitration clause agreeing to arbitrate any dispute “arising out of or relating to this Agreement.” In August 2008, Phillippy filed a motion to compel arbitration of the contract claims. Appel-lees argued that the arbitration clause did not apply, because they had brought no claims under the Employment Agreement. They also asserted that, while continuing to work at IM on an at-will basis after the Employment Agreement expired, Phillippy did so under an unwritten “successor agreement,” as contemplated in the Agreement Plan of Merger, thereby keeping the noncompete | ^agreements in effect until three years from Phillippy’s last day of work at IM. Appellants, however, have contended that there was no successor agreement.
The trial court entered an ex parte temporary restraining order (TRO), which it extended after a hearing. Phillippy moved to dissolve the TRO in October 2008. The court held a hearing on that motion in December 2008. In February 2009, the trial court entered an order denying the motion to dissolve the TRO. In that order, the court found that the numerous measures that IM took to protect its customer list and information were sufficient to guard their secrecy. The court also found that there was a substantial likelihood that IM would prevail on the merits of its case at trial (that its customer names and information were trade secrets) and that IM’s business would suffer irreparable harm if the TRO did not remain in effect.
Appellees filed a second amended complaint adding claims for wrongful disruption of honest competition in the bidding process for the sale of IM. On the basis of the arbitration clause, Phillippy filed a motion in limine as to all contract-related claims in July 2009. Trial began in August 2009 before a jury and proceeded for several days. At the conclusion of appellees’ case-in-chief, Phillippy moved again to compel arbitration of the contract claims, which the trial court denied, noting its inclination to agree with appellees’ position that the Employment Agreement’s arbitration provision did not apply to the noncom-petition agreements. The trial court granted appellants’ motion for directed verdict on appellees’ bid-rigging claims. Appellants renewed their motion to dissolve the TRO, which the trial court | (¡denied. Phillippy stated that he wished to pursue his right to an immediate appeal of the denial of his motion to compel arbitration. Upon the parties’ agreement, the trial court continued the trial. On August 10, 2009, the circuit court entered an order stating that appellees’ claims for interference with contractual relations, conversion, deceptive trade practices, and conspiracy were dismissed without prejudice, and that the bid-rigging claims were dismissed in accordance with appellants’ motion for directed verdict.
On September 10, 2009, the trial court entered an order denying appellants’ motion to compel arbitration; granting appel-lees’ motion to continue the trial of other claims; denying appellants’ motion to dissolve the temporary restraining order; and granting appellants’ motion for directed verdict on appellees’ claims related to bid-rigging because the evidence of damages was too speculative. The court also entered a certificate under Arkansas Rule of Civil Procedure 54(b) to facilitate an interlocutory appeal of the directed verdict on the bid-rigging claims and the denial of the motion to dissolve the TRO. Appellants then pursued this appeal, and appel-lees filed a cross-appeal.
Appellants argue that the circuit court erred in refusing to dissolve the TRO. They do not dispute that appellees met their burden of proving irreparable harm, but contend that they |7failed to demonstrate a likelihood of success on the merits because appellees took no measures to protect their purported trade secrets after employment terminated. They also contend that appellants’ knowledge of the names of the clients with whom they previously worked is not protected by the Arkansas Trade Secrets Act. We need not decide this issue, however, because the time limit for the TRO has elapsed, making the issue moot. Se. Ark. Landfill, Inc. v. State, 313 Ark. 669, 858 S.W.2d 665 (1993). The TRO against Dickey expired on December 31, 2009. The TRO against Phillippy expired on December 31, 2010. Any decision by this court would have no practical legal effect upon an existing legal controversy. Gee v. Harris, 94 Ark.App. 32, 223 S.W.3d 88 (2006). We do not decide moot or academic issues. Villines v. N. Ark. Reg’l Med. Ctr., 2011 Ark. App. 506, 385 S.W.3d 360.
Appellants argue in their second point that the trial court erred in refusing to compel arbitration with respect to the breach-of-contract claims. They acknowledge that the Arkansas Uniform Arbitration Act expressly excludes employer-employee disputes. Ark.Code Ann. § 16-108-230 (Supp.2011). They contend that the Federal Arbitration Act (FAA) applies to this case because IM was engaged in interstate commerce, which Phillippy facilitated by writing policies from insurance underwriters all over the United States. Phillippy argues that the Employment Agreement has expired and that there was no successor agreement to continue the noncompetition agreements; however, if appellees insist on relying on the Employment Agreement for their breach-of-contract claims, he contends that he is entitled to rely on the protection offered by the arbitration provision in that agreement.
IsAn order denying a motion to compel arbitration is an immediately ap-pealhble order. Centennial Bank v. Tribuilt Constr. Group, LLC, 2011 Ark. 245, 388 S.W.3d 897; CEI Eng’g Assocs. v. Elder Constr. Co., 2009 Ark. App. 259, 306 S.W.3d 447; Ark. R.App. P.-Civ. 2(a)(12) (2011). We review a circuit court’s order denying a motion to compel arbitration de novo on the record. Advocat, Inc. v. Heide, 2010 Ark. App. 825, 378 S.W.3d 779. In a de novo review, we analyze the evi dence and the law without giving deference to the trial court’s rulings. CEI Eng’g Assocs., supra. When the underlying dispute involves interstate commerce, the FAA applies. Ruth R. Remmel Revocable Trust v. Regions Fin. Corp., 369 Ark. 392, 255 S.W.3d 453 (2007). State courts have concurrent jurisdiction with the federal courts to enforce rights granted by the FAA. Lehman Props., Ltd. P’ship v. BB & B Constr. Co., 81 Ark.App. 104, 98 S.W.3d 470 (2003). There is a strong national policy favoring the enforcement of arbitration agreements. Terminix Int’l Co. v. Trivitt, 104 Ark.App. 122, 289 S.W.3d 485 (2008). Arbitration is a matter of contract between parties. Id. In deciding 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. Id. The threshold question is whether there is a valid arbitration provision, which is a question of state law. Gruma Corp. v. Morrison, 2010 Ark. 151, 362 S.W.3d 898. The same rules of construction and interpretation apply to arbitration agreements as apply to contracts generally. Id.
The only arbitration clause was found in the Employment Agreement, which, as the ^parties stipulated, expired over three years before Phillippy left IM. Appellees make no claim based on the Employment Agreement; they base their breaeh-of-contraet claims only on the Merger Agreement and the Covenant Not to Compete Agreement, which unambiguously did not provide for arbitration. Accordingly, we find no contractual basis for arbitration and affirm on this issue.
On cross-appeal, GL argues that the trial court erred in directing a verdict on the bid-rigging claims. 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, we determine whether the jury’s verdict is supported by substantial evidence. See 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.
Although the order indicated that the trial court granted the directed verdict on the ground that GL’s evidence of damages was too speculative, the trial court indicated from the bench that it was also doing so on the basis of proximate cause. Proximate cause is that which, in a natural and continuous sequence, produces damage. Villines, supra. Proximate cause is generally a question of fact, id., unless the evidence is such that reasonable minds cannot differ. J.E. Merit Constructors, Inc. v. Cooper, 345 Ark. 136, 44 S.W.3d 336 (2001). GL contends that the trial court erred in ruling that, to prove causation, it had to produce evidence that one of the persons appellants told about their plan would have bid more for the business than GL. We agree; this approach would have applied to the FDIC, if it had been a plaintiff, but not GL. GL further argues that its evidence on the element of proximate cause was sufficient to avoid a directed verdict because it demonstrated that, if GL had known that appellants were telling some prospective bidders, but not GL, about their plan to leave IM and pirate its customer accounts after the sale, GL would not have bid on or purchased the business, which lost fifty percent of its expected revenue in the first year after the sale. GL points out that Phillippy stated in an e-mail that “[i]t would be a shame if he [a competing bidder] thought we were going to stay” and that appellants decided to tell the competing bidder so “he will know what is in front of him.” Thus, GL argues, the playing field in the bidding process was not level, and it bought an agency that immediately lost half of its value because of appellants’ actions. Gene Long, GL’s owner, testified that GL would not have bid at all on IM if it had known that appellants had improperly influenced the bidding process.
GL also asserts that it produced sufficient evidence of damages to get to the jury. While our courts have said that damages must not be left to speculation and conjecture, Dawson v. Temps Plus, Inc., 387 Ark. 247, 987 S.W.2d 722 (1999), it has also been held that damages may be approximated, Morton v. Park View Apartments, 315 Ark. 400, 868 S.W.2d 448 (1993); that a damage figure will be upheld if an amount approximating that figure can be ascertained |nfrom the evidence, see Taylor v. Green Memorial Baptist Church, 5 Ark.App. 101, 633 S.W.2d 48 (1982); and that a damage award need not correspond in amount to the proof adduced by either party. Dickson v. Delhi Seed Co., 26 Ark.App. 83, 760 S.W.2d 382 (1988). When, from the nature of the case, the amount of damages cannot be estimated with certainty, or only a part of them can be estimated, the question should go to the jury. Agracat v. AFS-NWA, LLC, 2010 Ark. App. 458, 379 S.W.3d 64.
Gene Long testified that he had calculated his bid by projecting the annual revenue that IM was reasonably expected to generate; he adjusted his bid from the projected revenue of $750,000 to $540,000, to account for the expected loss of customers that customarily occurs with purchases of insurance agencies. He testified that IM actually lost fifty percent of its revenue during the first year after the sale, which was an “unheard of’ rate of attrition, based on his experience with buying insurance agencies. Thus, he calculated GL’s damages at $270,000 — fifty percent of the purchase price.
We hold that GL presented sufficient evidence of proximate cause and damages to go to the jury. The trial court, therefore, erred in directing a verdict on these claims.
Affirmed on direct appeal; reversed and remanded on cross-appeal.
GLOVER and MARTIN, JJ., agree.
. Ark.Code Ann. §§ 4-75-601 through 607 (Repl.2001).
. The denial of the motion for arbitration was immediately appealable. Ark. R.App. P.-Civ. 2(a)(12) (2011). The denial of appellants' motion to dissolve the TRO was also immediately appealable. Ark. R.App. P.-Civ. 2(a)(6) (2011). The Rule 54(b) certificate, therefore, was only necessary to bring an interlocutory appeal of the entry of the directed verdict. | [
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CLIFF HOOFMAN, Judge.
|! Appellants City of Bryant and Richard Penn (“the City”) appeal from a jury verdict finding the City liable to the appellees, Edward and Quinn Collins, in the amount of $70,000. On appeal, the City argues that Penn did not have authority to enter into the alleged contract with the appellees and that the city council did not ratify the contract after the fact. We agree with the City and reverse the jury verdict against it.
Edward and Quinn Collins filed a complaint against the City of Bryant and Richard Penn, Director of Public Works, on July 10, 2009. The Collinses sought relief for the City’s failure to comply with the terms and conditions of an agreement between the parties for the location of a storm drainage easement upon the Collins-es’ property. In 2008, the City undertook emergency activities after extensive flooding in Bryant to alleviate future flooding. As part of these activities, the City excavated a ditch on the Collinses’ property. The pCollinses alleged that they signed and delivered a “storm drainage easement” submitted to them by the City on March 27, 2009, in preparation for the construction of a concrete drain to be installed in the ditch. The Collinses alleged that the City had failed to proceed further in constructing a permanent storm drain in the ditch, covering the drain, and restoring the property in a neat and presentable condition as soon as reasonably practicable. They alleged that the ditch was eroding and constituted a nuisance, an eyesore, and a health and safety hazard. They requested an injunction to require the City to complete the work, damages for the loss of use of their property and breach of the contract, and attorney’s fees and costs.
A jury trial was held on November 29 and 30, 2010. In addition to being the director of community development and public works, Richard Penn served as the city engineer. As city engineer, Penn was responsible for reviewing subdivision plats and proposals by developers with regard to the structures that would be built, such as drainage for the streets, water, and sewer. He was also responsible for obtaining easements and other documents for drainage projects. In 2006, the City hired FTN & Associates to study its storm water and flooding problems. The appellees’ property was identified as an area of concern in FTN’s report, released in 2007, regarding the potential for flooding due to rainfall. The report stated that this could be improved with measures such as widening ditches and making existing culverts larger.
On April 3, 2008, notable storms caused flooding to 47 homes in Bryant, including the appellees’ home. More storms in April and July caused flooding in the city. In April 2008, the city council convened and heard public requests to provide immediate help with the ^flooding issues. The council decided that this was an emergency situation and empowered Fire Chief Randy Cox “to take actions as necessary until there [was] a permanent fix.” Penn assisted Cox in this emergency situation, called Operation Flood Relief.
After flooding issues with a July storm, Cox testified that it was explained to him that the current piping on Augusta Cove, the appellees’ street, would need to be enlarged to increase its capacity. Cox asked Penn if a ditch beside the existing pipe on the appellees’ property would provide some immediate relief. Cox testified that a representative of FTN agreed that a ditch would provide some relief. The ditch was dug toward the end of July 2008. Soon after the ditch was dug, Cox contacted Penn to request a chain-link fence be erected around the ditch for safety purposes.
Edward Collins testified that after the July storms, Cox and Penn talked to him about having the ditch dug, and Cox explained that there were plans to bring in box culverts around September or October 2008. Collins testified that he and his wife agreed to the ditch based on the information that was provided about installing culverts and the fact that the ditch would be a temporary situation. Collins was not asked to sign any documents at the time the ditch was dug.
The City already had a permanent easement for the existing pipe on the appellees’ property, but the ditch was partially outside of this easement. After Cox’s appointment as incident commander expired around September 2008, the responsibility of organizing and supervising the projects fell back on Penn. Penn testified that the ditch was never intended to become a permanent fixture. Instead, the ditch was intended to take care of the flooding [¿problem until the permanent pipe suggested by FTN was installed, after which it would be covered over with soil and sodded on top.
In late 2008, Penn recommended to the city council that they authorize FTN to do detailed drawings of plans and get bids for the work for the storm-drainage-system modifications on Augusta Cove. The city council authorized FTN to proceed, and FTN delivered a task order describing what they proposed to do. The council accepted the task order and requested that FTN prepare the design drawings, specifications, bid documents, and easements. Penn testified that the council’s act of authorizing the design work to be done by FTN did not constitute acceptance of the project. At this point, the city council had only authorized work on the appellees’ property as an emergency action taken by Cox as incident commander; they had not authorized any design work to be constructed.
The council approved advertisement of the project, and bids were received. Penn testified that since an easement would have to be executed prior to starting any work after the council made the final approval of the project, he tried to expedite things by taking the easement prepared by FTN to the property owners. Penn took the easement to the appellees on March 27, 2009, and they signed it. He told the appellees that if they got it signed then, they may be able to get a sooner start date for the contractor if it was approved.
Collins, who was on the city council beginning in January 2009, testified that when Penn brought him the easement, he had never seen it before and it had never been discussed at a council meeting. He testified that he did not know whether the project had been funded when he signed the easement, and that as far as he knew, the city had not authorized Penn |5to acquire part of his property. Collins testified that when he signed the easement, Penn told him that the time frame for the work would be four to six weeks.
After acquiring the easement, Penn placed it in a file along with information regarding the low bidder and drawings to be presented to the council for approval at the April 2009 meeting. Collins testified that it was his understanding that Penn would present everything to the council for the “last bit of approval.” At this meeting, the council discussed the project, including where it was located, who benefited, the priority, and the cost; however, the council did not take any action to accept the low bid. Collins testified that a council member told him to fix his property himself and the City might reimburse him someday. Collins acknowledged that the council never approved the project after he signed the easement.
Collins testified that since the ditch had been dug, some water had reached the corner of his garage, but it had not flooded. He testified that the cost to repair the damage to his property would be roughly $106,000, which was the cost of the project submitted to the city council. Neighbors of the appellees testified about the hazards created by the ditch, including exposed gas and electric lines, increased mosquitoes and snakes, and an overgrowth of weeds. At some point, the City had attempted to secure the fence around the ditch because it was collapsing. Penn testified that the City had not done any additional work or disturbed the property since he took the easement to the appellees.
The City moved for directed verdict, arguing that there was no evidence that Penn and Cox had the authority to obligate the City to place culverts on the appellees’ property and ^obtain the easement. The City also argued that although the easement required that any disturbed property be restored as soon as reasonably practicable, the City had not disturbed the property since the easement was signed and there was insufficient evidence of damages. The court denied the motion. The motion was renewed after the close of all of the evidence, and it was denied again.
The jury returned a verdict in favor of the Collinses and assessed their damages against the City of Bryant in the amount of $70,000. The court entered the judgment against the City on December 17, 2010. The appellants filed a notice of appeal on January 14, 2011.
The City argues that there was no evidence that Penn had the authority to bind the City to a contract with the appel-lees or that the City ratified any unauthorized agreement with the appellees. A directed-verdict motion is a challenge to the sufficiency of the evidence, and when reviewing a denial of a motion for a directed verdict, this court determines whether the jury’s verdict is supported by substantial evidence. Wal-Mart Stores, Inc. v. Kilgore, 85 Ark.App. 231, 148 S.W.3d 754 (2004). Substantial evidence is defined as evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond mere suspicion or conjecture. Id.
The City argues that the requirements necessary for a city to enter into a contract regarding the purchase of real estate are specifically set out in Arkansas Code Annotated section 14-54-302(a)(2) and (c) (Supp.2011):
(a)(2) Municipal corporations are empowered and authorized to buy any real estate or personal property.
(c) The execution of all contracts and conveyances and lease contracts shall be 17performed by the mayor and city clerk or recorder, when authorized by a resolution in writing and approved by a majority vote of the city council present and participating.
The City argues that there was no evidence that these requirements were met; thus, any alleged contract was void due to illegality. The City cites Dotson v. City of Lowell, 375 Ark. 89, 289 S.W.3d 55 (2008), where the alleged contract was held to be illegal because it was never sanctioned by resolution of the city council, as required by the statute. The City cites Penn’s testimony that he brought the easement to the appellees before the city council approved the project and Collins’s testimony that the council never authorized Penn to acquire any part of the appellees’ property. The City argues that although Penn was authorized to obtain the design drawings, bid documents, and easements from FTN, he was not authorized to execute the easement with the appellees for a project that had not been approved.
The appellees argue that the circumstances under which the easement was obtained indicate that Cox and Penn were given actual authority by the city council to negotiate and execute the easement. They argue that the City had allowed Penn to obtain easements on multiple occasions without objection, as he had signed at least 14 easements for city projects since becoming city engineer and none had been revoked because he was not authorized to sign them. The City argues that the fact that Penn had signed at least 14 easements proves nothing because he could either have been authorized to obtain them when he did so or they could have been subsequently ratified by the council. The appellees also argue that the City’s actions in securing the fence surrounding the ditch and offering to clean out the ditch ^indicated an obligation the City had toward the ditch. The City argues that any obligation to maintain the ditch is not evidence that Penn had the authority to enter into an agreement with the appellees and obligate the City to put in drainage culverts on their property.
We find that the city council never authorized Penn to acquire an interest in the appellees’ property. The city council did approve the preparation of an easement document, along with other plans, in contemplation of acquiring an interest in the appellees’ property and performing drainage construction; however, upon receiving these documents, the city council did not authorize the easement to be signed and construction to begin. Furthermore, even if the easement was valid, the agreement does not require that the contemplated drainage pipes be constructed, but only grants the City the right to perform such construction. We hold that there was insufficient evidence that Penn had the authority to acquire an interest in the appellees’ property and obligate the City to perform drainage construction on this property.
The appellees also argue that the easement was a fulfillment of their prior agreement with Cox. They argue that in agreeing to allow the ditch to be dug, they relied upon Cox’s commitment that the ditch was a temporary measure and that a permanent culvert would be installed later. However, as the City notes, the Collinses did not allege in the trial court that Cox’s statements created an oral or implied contract -with the appellees; instead, the Col-linses alleged that the City breached the easement agreement.
The City also argues that apparent authority does not apply to a governmental entity; thus, even if Penn appeared to the appellees to have the apparent authority to bind the City |flto a contract, he could not do so. We agree that a sovereign is not bound by the unauthorized acts of its employees. City of Russellville v. Hodges, 330 Ark. 716, 957 S.W.2d 690 (1997).
Lastly, the City argues that there is no evidence that it ratified the easement agreement by any subsequent actions. In City of Fort Smith v. Bates, we held that “a contract illegally entered into or entered into without authority by agents or officers of a municipal corporation may be ratified and rendered binding upon the municipal corporation by affirmative action on its part, or some negative action, which of itself would amount to an approval of the contract.” 260 Ark. 777, 544 S.W.2d 525 (1976) (citing Day v. City of Malvern, 195 Ark. 804, 114 S.W.2d 459 (1938)). The City of Fort Smith had utilized the property that was the subject of the agreement and carried out most of the terms of the agreement before ever questioning its validity. The supreme court held that this action constituted ratification and that the city was estopped from denying the terms of the agreement. The appellees here argue that the City ratified the easement agreement by enjoying the benefits of the easement, specifically the benefit of “no flooding of property in the Augusta Cove area subsequent to the digging of the ditch.” The City, however, argues that there was only testimony that the appel-lees did not experience any more flooding due to the ditch; Collins did not testify that the entire Augusta Cove area benefited from the ditch in his yard. Furthermore, the City notes that the ditch had been dug nearly eight months prior to the signing of the easement; thus, any benefit the ditch bestowed on the City was not a result of the terms of the easement. We hold that the City did not ratify the easement after it was signed because the City never |inapproved the project or benefited from obtaining the easement.
We reverse the jury’s verdict finding the City liable to the appellees. Accordingly, we find it unnecessary to address the City’s argument that the trial court erred in rejecting its proffered jury instruction.
Reversed.
GLADWIN and ROBBINS, JJ., agree. | [
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PAUL E. DANIELSON, Justice.
| Appellant Wilma Bohot appeals an order of the Washington County Circuit Court granting summary judgment in favor of appellee State Farm Mutual Automobile Insurance Company. Bohot argues on appeal that the circuit court erred in granting summary judgment in favor of State Farm because she was entitled to be paid her no-fault medical-coverage benefits. State Farm avers that the circuit court properly found that an exclusion contained in Bohot’s policy with State Farm was valid and applicable to her injury. We agree with State Farm and affirm the order of the circuit court.
The facts of this case are not in dispute. On October 30, 2010, Bohot, while in the course and scope of her employment duties with Ozark Regional Transit, was involved in an automobile accident and was injured. Bohot sought medical attention as a result of her injuries and eventually accumulated $6,345.53 in bills, including $5,415 from Russ Physical | ¿Therapy.
At the time of the accident, Ozark Regional Transit had a state-certified workers’ compensation plan in effect that provided coverage to Bohot on the day of the accident. Bohot made a claim for workers’ compensation benefits for her injuries and some of the medical bills were paid by the workers’ compensation carrier. Also at the time of the accident, Bohot was insured by State Farm and her policy included $5,000 in “no-fault” medical coverage. However, the medical-payments coverage provided in that policy contained an exclusion that read:
THERE IS NO COVERAGE FOR AN INSURED:
a. IF ANY WORKERS COMPENSATION LAW OR ANY SIMILAR LAW APPLIES TO THAT INSURED’S BODILY INJURY.
Bohot attempted to submit medical bills to State Farm; however, she was informed that she was excluded from coverage under that policy because the above exclusion applied since workers’ compensation benefits were available to her.
On February 8, 2011, Bohot filed an action against State Farm, seeking recovery of benefits under the no-fault medical provision, and alleging that State Farm had violated Arkansas Code Annotated sections 28-89-202 and 208 by failing to pay the demand. State Farm denied coverage in its answer and, on April 22, 2010, filed a motion for summary judgment and a brief in support. In the motion, State Farm argued that no genuine issue of material fact existed that: (1) workers’ compensation was available to Bohot; (2) according to Arkansas law, specifically Aetna Insurance Co. v. Smith, 268 Ark. 849, 568 S.W.2d 11 (1978), Bohot’s automobile policy with State Farm contained a valid exclusion in the medical-) (¡payments provision; and (3) medical-payments coverage for Bohot was properly and legally excluded because workers’ compensation did apply-
Bohot then filed her own summary-judgment motion and motion for judgment on the pleadings, in addition to a surrebuttal reply to defendant’s motion for summary judgment. State Farm moved to strike the surrebuttal reply and filed an objection and response to Bohot’s motion for summary judgment and motion for judgment on the pleadings.
Bohot attached a letter to her supplemental reply to State Farm’s response. The letter from the Municipal League Workers’ Compensation Trust was dated June 28, 2011, and stated that workers’ compensation would not pay for charges from Russ Physical Therapy because no physical therapy was ordered by the city’s workers’ compensation doctor. State Farm also provided a letter from the same carrier which stated that it would pay for bills from Washington Regional Medical Center and a visit to Westside Family Care, but not for Russ Physical Therapy.
On July 13, 2011, the parties appeared for a hearing on the motions for summary judgment. After the hearing, the circuit court found that Bohot was in the scope of her employment at the time of the accident; that workers’ compensation was available to her and applied to her injuries from the accident; that Bohot made a claim for workers’ compensation benefits; and that at least some of Bohot’s medical bills were paid by the workers’ compensation carrier. The court went on to discuss the exclusion in the policy that had been relied upon by State Farm and found it to be valid and not in violation of public policy. The circuit court concluded that because workers’ compensation applied to Bohot’s injuries, her Linjuries were not covered by the medical-payments provision of the State Farm policy. Therefore, State Farm’s motion for summary judgment was granted, and Bohot’s motions for summary judgment and judgment on the pleadings were denied. The written order was entered on July 20, 2011.
Bohot had submitted a motion for reconsideration after the hearing, on July 14, 2011. Once the written order was entered, Bohot filed a second motion for reconsideration on July 27, 2011, incorporating the first and making additional arguments. Bohot’s motion for reconsideration was denied on August 4, 2011. This appeal followed.
Bohot argues that the legislature addressed what kinds of exclusions are al lowed under a no-fault insurance policy in Arkansas Code Annotated section 23-89-205 and that it did not include the availability of workers’ compensation benefits as an acceptable exclusion. Therefore, Bo-hot contends, this court’s decision in Aet-na, supra, is “bad law” that resulted in court-made legislation favoring the insurer over the insured. State Farm avers that this court already rejected a similar argument in Aetna, and that in the thirty plus years since that opinion, the legislature has not amended that law in any attempt to change the past interpretation. Therefore, State Farm argues, an exclusion of medical payments when workers’ compensation applies is permitted and was properly applied in this case.
The law is well settled that summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. See Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21. Once the moving party has established a prima facie entitlement to Issummary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. See id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentia-ry items presented by the moving party in support of the motion leave a material fact unanswered. See id. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. See id. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. See id.
Bohot concedes that no material facts are in dispute in the instant case. Therefore, the only issue is whether or not State Farm was entitled to judgment as a matter of law. It was.
Arkansas Code Annotated section 23-89-202 requires that minimum medical and hospital benefits be made available by automobile-liability insurers unless rejected in writing pursuant to section 23-89-203. Bohot had these benefits in her policy with State Farm. However, as previously noted, Bohot’s policy contained the following exclusion:
THERE IS NO COVERAGE FOR AN INSURED:
a. IF ANY WORKERS COMPENSATION LAW OR ANY SIMILAR LAW APPLIES TO THAT INSURED’S BODILY INJURY.
Arkansas Code Annotated section 23-89-208 only requires that such medical payments coverage be paid to those entitled to coverage after receipt of reasonable proof of entitlement. It is undisputed that, at the time of the accident, Bohot was in the course and scope of her employment and her injuries were covered by workers’ compensation. Because Bohot was covered by workers’ compensation, State Farm notified her that she was excluded from receiving medical-payments coverage for the injuries she sustained as a result of the accident | fion October 30, 2010.
While Bohot argues that such an exclusion is improper “court-made legislation,” we have previously rejected a similar argument. See Aetna, supra. Arkansas Code Annotated section 23-89-205 provides:
An insurer may exclude benefits to any insured, or to his or her personal representative, under a policy required by § 23-89-202, when the insured’s conduct contributed to the injury he or she sustained in any of the following ways:
(1) Causing injury to himself or herself intentionally; or
(2) Causing injury while in the commission of a felony or while seeking to elude lawful apprehension or arrest by a law enforcement official.
Ark.Code Ann. § 23-89-205 (Repl.2004).
While this section “specifically permits an insurer to eliminate risks attributable to intentional misconduct of the insured!!, w]e do not read into this section any legislative intention to prohibit other exclusions from coverage.” Aetna, 268 Ark. at 853, 568 S.W.2d at 13. This court continued:
Whatever may be said about exclusion of risks, there is no indication that it was the intent of the General Assembly to require that the “no fault” coverage be provided whether the insured has other coverage providing the same benefits, or not. Certainly, the section in question does not indicate such a legislative intent.
Id. at 853-54, 568 S.W.2d at 13.
Bohot attempts to distinguish our holding in Aetna from the instant case by pointing out a factual distinction. In Aet-na, the insured’s medical bills were paid in full by workers’ compensation. Here, workers’ compensation denied certain physical-therapy bills because no physical therapy was ordered by the city’s workers’ compensation doctor. However, the exclusion upheld in Aetna read:
17This coverage does not apply to bodily injury
(a) sustained by any person to the extent that benefits therefor are in whole or in part paid or payable under any workmen’s compensation law, employer’s disability law or any similar law.
(Emphasis added.) Therefore, the exclusion clearly applied in all scenarios where workers’ compensation benefits either had been paid in whole or in part or could be paid in whole or in part. In other words, the exclusion this court upheld in Aetna would have applied even had workers’ compensation not covered the medical bills in full, and there is no distinction between it and the exclusion at issue in the instant case.
In the event that Bohot could not convince this court to distinguish this case from Aetna, she asks us to overrule it. However, this court has held:
[I]t is necessary, as a matter of public policy, to uphold prior decisions unless great injury or injustice would result. The policy behind stare decisis is to lend predictability and stability to the law. In matters of practice, adherence by a court to its own decisions is necessary and proper for the regularity and uniformity of practice, and that litigants may know with certainty the rules by which they must be governed in the conducting of their cases. Precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable.
Couch v. Farmers Ins. Co., Inc., 375 Ark. 255, 263, 289 S.W.3d 909, 916 (2008) (citing State Auto Prop. & Cas. Ins. Co. v. Ark Dep’t of Envtl. Quality, 370 Ark. 251, 257, 258 S.W.3d 736, 741 (2007) (quoting Cochran v. Bentley, 369 Ark. 159, 174, 251 S.W.3d 253, 265 (2007))).
Bohot’s only argument to support overruling our precedent seems to be, “a finding that Aetna requires a ruling in favor of State Farm in this case results in a ‘great injustice’ to Ms. Bohot — she will not receive what she paid for and will be stuck with paying $5,415 to Russ Physical Therapy out of her own pocket.” This alone does not constitute something [^patently wrong and manifestly unjust.
For all these reasons, we affirm the order of the circuit court. | [
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COURTNEY HUDSON GOODSON, Justice.
| Appellant Stephanie Spivey Daniel brings this appeal from the divorce decree entered by the Circuit Court of Woodruff County, wherein the court granted appel-lee Darrell Spivey visitation rights to appellant’s daughter, who was born of a previous marriage. For reversal, appellant contends that the circuit court erred in ruling that appellee stood in loco parentis to the child. We agree and reverse.
The child at the heart of this appeal, S.B., was born on June 13, 2003, to appel lant and her former husband, Jeremy Bunch. When appellant and Bunch divorced in 2004, the decree placed custody of S.B. with appellant, while granting Bunch the right to reasonable visitation and ordering him to pay child support. Appellant began dating appellee in 2005. Initially, the two engaged in a long-distance relationship, as appellant lived in Monticello where she attended college, while appellee resided in Batesville. In 2006, appellant moved to the community of Peach Orchard, and in 2007, she purchased a home in McCrory. The parties |2lived together in that home, although appellee continued to maintain his separate residence in Batesville.
On January 17, 2009, appellant and ap-pellee married. However, twenty months later, appellant filed for divorce on August 17, 2010. In his answer and counterclaim for divorce, appellee requested visitation with S.B., alleging that he was entitled to this privilege because he had stood in loco parentis to the child for the past five years. The parties entered into a property-settlement agreement, leaving appel-lee’s request for visitation as the only contested issue.
The record of the hearing established that appellee’s job as a welder involved long hours and required travel that kept him away from home, sometimes for several weeks. However, there were also times that he remained off work for extended periods. In her testimony at the hearing, appellant acknowledged that appellee spent the majority of his time with her and S.B. when he was not working. Further, appellant admitted that S.B. loved appellee and that appellee also cared for S.B. She said that appellee accompanied her and the child on S.B.’s first days of kindergarten and first grade and that he attended a parent-teacher conference when S.B. was in the first grade. Appellant stated that appellee helped S.B. with homework when he was available. She testified that she had left the child overnight with appellee a few times when she was out of town. She said that appellee did not pay any medical, dental, or daycare bills on behalf of S.B. and that he did not provide her with medical insurance. Appellant testified that ap-pellee contributed $1,000 per month toward expenses but[athat this sum also was used to pay his health insurance and bills associated with his home in Batesville. She said that Bunch exercised visitation at least once a month and that she objected to appellee’s request for visitation because S.B. had a mother and a father and was already pulled between two households.
Bunch also testified in opposition to ap-pellee’s request for visitation. He said that S.B. called him “dad” or “daddy,” and he felt that allowing appellee structured visitation would be confusing to S.B. Bunch also testified that he paid child support of $93 per week and that he exercised visitation with S.B. as often as he could.
During his testimony, appellee offered a number of photographs of him and S.B. hunting, fishing, frog gigging, and attending a fair. He testified that he contributed $1,000 per month toward expenses, sometimes bought groceries, and paid “some child care.” He also testified that he once bought S.B. a pair of shoes at Walmart and that he had paid a doctor bill. Appel-lee also said that he picked up S.B. from daycare on occasion and that he had attended her pre-kindergarten graduation and an event called “dads for donuts.” He testified that S.B. had called him “daddy” before, but he said that she used the nickname “nickel pickle” that came about because she could not pronounce his name. Appellee stated that, when he was at home, it was his evening job to give S.B. a bath and to brush her teeth. He said that he and S.B. have a “loving, strong, rela tionship like a father and a daughter have.” He testified that he should have visitation with S.B. because “I’ve been the only father” and because S.B. trusts and depends on him.
|4Appellee also presented the testimony of witnesses who had observed the interaction between appellee and S.B. Each testified that appellee and the child shared an affectionate “father-daughter” type relationship. Joyce Powell, who operated the daycare center S.B. had attended, testified that appellee had picked up the child from daycare and that she was often paid from the parties’ joint checking account.
The circuit court issued its decision granting appellee visitation rights in a letter opinion. After reciting the historical facts, the court ruled as follows:
According to the testimony of the witnesses, excluding [Appellant], the relationship between [Appellee] and S.B. was that of father-child. Even though [Bunch] has exercised visitation with the child on weekends and for a short period in the summer, [Appellee] has lived, for the most part, with [Appellant] and S.B. since at least September 2006. According to the testimony of Dale Oldham, [Appellant’s] supervisor from September 2006 — April 2008, [Appellee] lived with [Appellant] and S.B. when he was off work. The testimony of the witnesses indicated [Appellee] and child hunted and fished together; [Appellee] disciplined S.B. when it was required and praised her when justified her [sic]. In dispute of this testimony, [Appellant] and her father testified, since the separation, the child has not indicated she has missed seeing [Appellee].
Both parties agree that this court has the discretion to award visitation to a step-parent who has stood in loco paren-tis to a child. The testimony of all witnesses, excluding [Appellant], who testified on this point indicated S.B. and [Appellee] had a father-child relationship prior to the separation of these parties.
In this instance, S.B. has a father who is involved in her life. Neither biological parent wants the relationship to continue. The court however must take into account the fact that the relationship is one that, at one point in time, was in fact fostered by [Appellant] and tolerated by Mr. Bunch. It is a relationship that has existed for five (5) of the seven (7) years of this child’s existence. Taking that into consideration, the question then becomes whether it is in the best interest of the child for this relationship to continue.
The court finds that the [Appellee] did stand in loco parentis to the child S.B. and that it is in the best interest of the child to continue to have a relationship [Bwith each other. [Appellee] will be allowed to visit one weekend per month; one week in the summer; and one overnight visit during each of the following breaks: Spring and Christmas. [Appel-lee] may also have telephone communication with the child each Tuesday at 6:00 p.m. [Appellant] shall make the child available for these conversations. The court’s usual parenting language shall be applicable in this situation and shall be included in the order to be prepared by Mr. Skinner. The order shall be forwarded to Mr. Myers for approval as to form, and to this Court for execution.
The decree of divorce included the circuit court’s ruling. This appeal followed.
For reversal of the circuit court’s decision, appellant contends that the court erred in ruling that appellee stood in loco parentis to the child. This court has tra ditionally reviewed matters that sound in equity de novo on the record with respect to fact questions and legal questions. Hollandsworth v. Knyzewslci, 353 Ark. 470, 109 S.W.3d 653 (2003). We will not reverse a finding made by the circuit court unless it is clearly erroneous. Stills v. Stills, 2010 Ark. 132, 361 S.W.3d 823. We have further stated that a circuit court’s finding is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been committed. Bethany v. Jones, 2011 Ark. 67, 378 S.W.3d 731. We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses. Hunt v. Perry, 357 Ark. 224, 162 S.W.3d 891 (2004). This deference to the circuit court is even greater in cases involving child custody or visitation, as a heavier burden is placed on the circuit court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005).
The Latin phrase, “in loco paren-tis,” literally translated, means “in the place of a parent.” Simms v. United States, 867 A.2d 200 (D.C.2005). This court has defined in loco parentis as “in place of a parent; instead of a parent; charged factitiously with a parent’s rights, duties, and responsibilities.” Standridge v. Standridge, 304 Ark. 364, 372, 803 S.W.2d 496, 500 (1991). A person who stands in loco parentis to a child puts himself or herself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to a legal adoption. Babb v. Matlock, 340 Ark. 263, 9 S.W.3d 508 (2000). This relationship involves more than a duty to aid and assist, and more than a feeling of kindness, affection, or generosity. Simms, supra.
One’s mere status as a stepparent does not support a finding of in loco parentis. Stair v. Phillips, 315 Ark. 429, 867 S.W.2d 453 (1993). “Something more must be shown to qualify as standing in loco parentis.” Id. at 535, 867 S.W.2d at 456. In loco parentis refers to a person who has fully put himself in the situation of a lawful parent by assuming all the obligations incident to the parental relationship and who actually discharges those obligations. Rutkowski v. Wasko, 286 A.D. 327, 143 N.Y.S.2d 1 (N.Y.App.Div.1955). A stepparent who furnishes necessities for a minor child of his or her spouse and who exercises some control over the child |7does not, by those acts alone, establish a parental relationship. Id. In making a determination as to whether a nonparent stands in loco paren-tis, courts consider the totality of the circumstances and do not lightly infer the intent of the person seeking to be consid ered as standing in loco parentis. Smith v. Smith, 922 So.2d 94 (Ala.2005). While the length of time a person spends with a child is not determinative, it is a significant factor in considering whether that person intended to assume parental obligations or has performed parental duties. Id.
This court has held that a circuit court may award visitation to a stepparent who stands in loco parentis to a minor child of a natural parent when it determines that preservation of the relationship is in the best interest of the child. Robinson v. Ford-Robinson, 362 Ark. 232, 208 S.W.3d 140 (2005). In Robinson, this court affirmed a grant of visitation to a stepmother who had raised a child as her own for seven years, beginning when the child was eighteen months old. The stepmother was the only mother the child had ever known; the child referred to her as “Mommy”; and the child did not learn until he entered the first grade that the stepmother was not his natural mother. Similarly, in Bethany, supra, we upheld an award of visitation with a three-year-old child to the same-sex partner of the natural mother. From the outset, the natural mother and the partner had agreed to co-parent the child; the child referred to the partner as a mother; the partner had served as the stay-at-home parent for the child; and the partner’s family was heavily involved in the child’s life. On these facts, we affirmed the circuit court’s decision that the partner stood in loco parentis to the child. In both Robinson and Bethany, the evidence demonstrated that the stepmother and partner had |Rassumed all of the rights, duties, and responsibilities of a parent.
By contrast, in Standridge, supra, we overturned a circuit court’s decision that a stepfather stood in loco parentis to his wife’s child. In that case, the stepfather had been married to the child’s mother for fifteen months. The evidence showed that the stepfather provided monetary support for the child; that he took the child hunting, fishing, and swimming; and that the child accompanied the stepfather to work most every day. In reversing, we accepted that these facts were established in the record but said that “our holding is that the court erred not in finding facts but in characterizing the relationship as one in loco parentis.” Standridge, 304 Ark. at 370, 803 S.W.2d at 499. This holding foreshadowed our subsequent pronouncement in Stair, supra, that something more than being a stepparent must be shown to establish an in loco parentis relationship.
As discussed, our case law reflects that the hallmark of the in loco parentis relationship is the assumption of the rights, duties, and responsibilities associated with being a parent. Thus, one’s mere status as a stepparent does not suffice. In ruling that appellee stood in loco parentis to the child, the circuit court considered the length of time appellee had been in the child’s life and the testimony describing the closeness of the relationship as being like that of a parent and child. The circuit court noted that appellee and the child participated in recreational activities, and the court also found that appellee disciplined the child when necessary and praised her when justified. Upon our de novo review, we also take into account appellee’s testimony that he occasionally tended to her needs, provided necessities, babysat, and attended school programs. While we will not overturn a circuit court’s factual determinations | ^unless they are clearly erroneous, we are free in a de novo review to reach a different result required by the law. Hetman v. Schwade, 2009 Ark. 302, 317 S.W.3d 559; Standridge, supra; Winn v. Chateau Cantrell Apartment Co., 304 Ark. 146, 801 S.W.2d 261 (1990). All things considered, we are convinced that these facts do not rise to the level that is necessary to establish an in loco parentis relationship. In our view, the sum of these facts demonstrates that appellee assumed the role of a caring stepparent, but they fall well short of establishing that appellee embraced the rights, duties, and responsibilities of a parent. Thus, we hold that the circuit court erred by characteriz ing the relationship as one of in loco paren-tis, and we reverse the award of visitation. Standridge, supra.
Reversed.
CORBIN, BROWN, and DANIELSON, JJ., dissent.
. The heading of appellant’s argument on appeal includes the statement that the circuit court’s decision is contrary to the child’s best interest. However, the body of her brief contains no argument regarding best interest. In the absence of any argument, we consider the point waived. See Brockwell v. State, 260 Ark. 807, 545 S.W.2d 60 (1976) (mere statement of point for appeal is insufficient argument for reversal; point waived if not argued); see also Dougan v. State, 330 Ark. 827, 957 S.W.2d 182 (1997) (mere mention of an alleged error in a subheading of one's brief, without any argument or citation to authority, will not be addressed).
. Appellant also argues on appeal that the circuit court’s decision denies her right to due process and infringes on her fundamental right to raise her child without state interference. However, appellant acknowledges that at trial she did not challenge the authority of the circuit court to award stepparent visitation on constitutional grounds. It is well settled that this court will not address an issue raised for the first time on appeal, even a constitutional argument. Bayer CropScience LP v. Schafer, 2011 Ark. 518, 385 S.W.3d 822. Moreover, even if these issues were preserved for appeal, we would decline to address them because it is our duty to refrain from addressing constitutional issues where, as here, the case can be disposed of without determining constitutional questions. See Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S.W.2d 487 (1968); see also Solis v. State, 371 Ark. 590, 269 S.W.3d 352 (2007) (holding that, if the case can be resolved without reaching constitutional arguments, it is our duty to do so); Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996) (holding that constitutional issues are not decided unless it is necessary to the decision). | [
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JIM HANNAH, Chief Justice.
| jTeresa L. Broussard appeals a decision of the Sebastian County Circuit Court entering summary judgment in favor of St. Edward Mercy Medical Center, Dr. Michael Coleman, Jr., and Dr. Stephen Sef-fense. Broussard asserts that the trial court erred in finding Arkansas Code Annotated section 16-114-206 (Repl.2006) constitutional. More specifically, Brous-sard argues that the requirement in section 16-114-206(a) that proof in medical-malpractice cases must be made by expert testimony by “medical care providers of the same specialty as the defendant” violates section 3 of amendment 80. We hold that the provisions in section 16-114-206(a), which provide that expert testimony may only be given by “medical care |2providers of the same specialty as the defendant,” violate the separation-of-powers doctrine, amendment 80, and the inherent authority of the courts to protect the integrity of proceedings and the rights of the litigants. Our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(a)(l) (2011).
On April 25, 2006, Dr. Seffense performed a parathyroidectomy on Broussard. After her surgery, Broussard developed what she believed to be a burn located near the surgical site. Broussard experienced swelling and pain at the site. She believed that part of the pain was related to the surgery and that part was due to the burn. Broussard was released from the hospital on May 1, 2006. At that time, according to Broussard, the swelling had partially gone down, but the redness in the tissue remained. Broussard described the tissue at the incision as tough and leathery, and she said that black and purplish lines soon appeared that increased in size over time. She went to the emergency room on May 7, 2006, due to pain from the burn, but she was admitted for hypocalce-mia and hyperkalemia, conditions related to renal failure. During this second hospitalization, Broussard was under the care of her nephrologist, Dr. Coleman, Jr. While in the hospital under Dr. Coleman, Jr.’s care, Broussard sought and obtained a consultation with a dermatologist regarding the burn. According to Broussard, she was told that the condition at her neck and upper chest would improve; and that the damaged skin would slough off and heal. She remained in the hospital at St. Edward on this occasion until May 15, 2006.
IsUltimately, a black eschar (dead and sloughing tissue) developed at her neck and chest. On May 18, 2006, Broussard was admitted to the Hillcrest Burn. Center in Tulsa, Oklahoma. There, she underwent removal of “pigskin” and received skin grafts.
Broussard sued St. Edward Mercy Health System, Inc., d/b/a St. Edward Mercy Medical Center Sisters of Mercy Health System, St. Louis, Inc., Dr. Sef-fense, Dr. Coleman, Jr., and the nurses and technicians- present in the operating room. While Broussard’s notice of appeal indicates that she is appealing summary judgment entered in favor of St. Edward, she has limited her arguments on appeal to the alleged liability of Dr. Seffense and Dr. Coleman, Jr. She has, therefore, abandoned all claims on appeal except those against Dr. Seffense and Dr. Coleman, Jr.
The circuit court decided the constitutionality of section 16-114-206(a) in the context of a motion for summary judgment. Generally, in reviewing the grant of a motion for summary judgment, the appellate court determines if summary judgment was appropriate based on whether the evidence presented in support of summary judgment leaves a material question of fact unanswered. DaimlerChrysler Servs. N. Am., LLC v. Weiss, 360 Ark. 188, 192-93, 200 S.W.3d 405, 407 (2004). However, this summary-judgment motion was decided based on the circuit court’s decision on the constitutionality of section 16-114-206(a). The question of the correct application and interpretation of an Arkansas statute is a question of law, which this court decides de novo. DaimlerChrysler, 360 Ark. at 193, 200 S.W.3d at 407.
The circuit court found section 16-114-206(a) constitutional in that it “establishes |4substantive law regarding the duty of a plaintiff to produce an expert witness with a requisite level of knowledge, skill, experience, training, or education and ... sets forth the procedure that governs when such a qualified witness may testify.” The circuit court further stated that “[a]n expert of the same specialty could state definitively what a general surgeon and nephrologist should have done with respect to the standard of care pursuant to such a state of facts such as are presented here.” Broussard asserts that the circuit court erred because section 16-114-206(a) sets a rule of procedure in violation of the separation-of-powers doctrine and section 3 of amendment 80.
Every statute enjoys a presumption of constitutionality. Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, at 4, 308 S.W.3d 135, 139. The party asserting that a statute is unconstitutional bears the burden of demonstrating that the statute violates the constitution. Id., 308 S.W.3d at 139. Any doubt is resolved in favor of constitutionality. Id., 308 S.W.3d at 139. Further, when possible, a statute will be construed so that it is constitutional. Id., 308 S.W.3d at 139. When construing a statute, we interpret the statute to give effect to the intent of the General Assembly. Id., 308 S.W.3d at 139. We determine legislative intent from the ordinary meaning of the language used where the language of the statute is plain and unambiguous. Id., 308 S.W.3d at 139. Words in the statute are given their ordinary and usually accepted meaning in common language. Id., 308 S.W.3d at 139.
Section 16-114-206(a) provides as follows:
(a) In any action for medical injury, when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge, the plaintiff shall have the burden of proving: Is(l) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant, the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he or she practices or in a similar locality;
(2) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant that the medical care provider failed to act in accordance with that standard; and
(3) By means of expert testimony provided only by a qualified medical expert that as a proximate result thereof the injured person suffered injuries that would not otherwise have occurred.
Arkansas Code Annotated § 16-114-206(a) (emphasis added). The parties agree that at least some issues in this case do not lie within the jury’s comprehension as a mat ter of common knowledge and that expert testimony is required to assist the trier of fact in understanding the evidence and determining facts in issue. Therefore, expert testimony is necessary in the trial of this case. See Ark. R. Evid. 702.
According to the circuit court, the phrase “a medical care provider of the same specialty as the defendant” is constitutional because it constitutes substantive law setting out the burden of proof. Substantive law “creates, defines, and regulates the rights, duties, and powers of parties.” Johnson, 2009 Ark. 241, at 8, 308 S.W.3d at 141 (quoting Summerville v. Thrower, 369 Ark. 231, 237, 253 S.W.3d 415, 419-20 (2007)). In contrast, procedural law prescribes “the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves.” Id., 308 S.W.3d at 141 (quoting Summerville, 369 Ark. at 237, 253 S.W.3d at 419-20). Procedural matters lie solely within the province of this court. Id., 308 S.W.3d at 141. The General Assembly lacks authority to create | (¡procedural rules, and this is true even where the procedure it creates does not conflict with already existing court procedure. Id., 308 S.W.3d at 141.
Section 16-114-206 purports to set out the burden of proof that must be met to prevail in a medical-malpractice action. A burden of proof defines and regulates the party’s right to recovery and, therefore, constitutes substantive law. See, e.g., United States v. Davis, 125 F.Supp. 696 (W.D.Ark.1954). Pursuant to section 16-114-206(a), where asserted medical negligence lies outside the jury’s comprehension as a matter of common knowledge, the plaintiffs burden of proof is to show by testimony of “a medical care provider of the same speciality as the defendant,” the standard of care for the same type of practice in the same or a similar locality, that the standard was breached, and that as a proximate cause of that breach the plaintiff was injured. However, the phrase at issue, “[b]y means of expert testimony provided only by a medical care provider of the same specialty as the defendant,” does not define rights or duties. It sets qualifications a witness must possess before he or she may testify in court. As a general rule, whether any witness will be allowed to testify is a matter left to the discretion of the trial court. See, e.g., Williams v. Ingram, 320 Ark. 615, 899 S.W.2d 454 (1995). The authority to decide who may testify and under what conditions is a procedural matter solely within the province of the courts pursuant to section 3 of amendment 80 and pursuant to the inherent authority of common-law courts. See Ark. Const., amend. 80, § 3 and City of Fayetteville v. Edmarh, 304 Ark. 179, 194, 801 S.W.2d 275, 283 (1990) (“The trial court controls the admissibility of evidence and the determination of applicable law and always has the inherent authority to secure the fair trial rights of litigants before it.”)
Where expert testimony is required, this court has already set out the procedure to be followed in Arkansas Rule of Evidence 702, which has been incorporated within the medical malpractice act in Arkansas Code Annotated section 16-114-207 (Repl.2006). Rule 702 provides as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qual ified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Further, Rule 702 “applies equally to all types of expert testimony.” See Coca-Cola, Bottling Co. v. Gill, 352 Ark. 240, 262, 100 S.W.3d 715, 729 (2003). The challenged language, “[b]y means of expert testimony provided only by a medical care provider of the same specialty as the defendant,” which adds requirements to Rule 702, attempts to dictate procedure and invades the province of the judiciary’s authority to set and control procedure. As such, it violates the separation-of-powers doctrine, amendment 80, and the inherent authority of the courts to protect the integrity of proceedings and the rights of the litigants. As the |soffending language added in 2003 is severable, the rest of the malpractice act, including the remainder of section 16 — 114—206(a)(1) and (2), is unaffected by this decision.
Finally, we address the circuit court’s conclusion that because the amended complaint only makes assertions of negligence against Dr. Seffense regarding events in the operating room, and because Broussard’s expert only provides opinion regarding treatment after surgery, there is a failure of proof justifying entry of summary judgment in Dr. Seffense’s favor. The object of summary-judgment proceedings is to determine if there are any issues to be tried. See Flentje v. First Nat. Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). Although Broussard alleges in her pleadings that Dr. Seffense is negligent for events occurring in the operating room, events in the operating room were not at issue in this case as developed during discovery. Based on discovery undertaken, the parties seem to have understood that Broussard was alleging negligence in treatment of the burn as opposed to events in the operating room, and the motion for summary judgment was tried largely on that basis. Broussard’s expert affidavit indicated alleged negligence of Dr. Sef-fense with respect to care after surgery. However, Broussard did not amended her pleadings to conform with this legal theory. With some limitations, under Arkansas Rule of Civil Procedure 15, a party may amend pleadings at any time. The question of whether Broussard may amend her pleadings has not been addressed. We remand to the circuit court for a determination of whether Broussard may amend her pleadings to conform to the allegations she is making.
We reverse and remand for this determination and for further proceedings consistent with this opinion.
. Because Broussard was unable to discover the cause of the injury or burn, she has not pursued alleged medical malpractice in causing the burn but has instead alleged and pursued a medical-malpractice action based on alleged negligence in treatment of the burn.
. Appellees cite Cathey v. Williams, 290 Ark. 189, 718 S.W.2d 98 (1986) for the proposition that this court has already held that section 16-114-206 (Ark. Stat. Ann. § 34-2614 (Supp.1985)) is substantive law. However, the challenged language was not part of the statute at that time.
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DONALD L. CORBIN, Justice.
| Appellant, Cameka Sullivan, appeals the judgment of the Saline County Circuit Court sentencing her to a cumulative sentence of 216 months’ imprisonment and convicting her of permitting the abuse of her minor child and hindering the apprehension or prosecution of her child’s abuser. She asserts six points of error in her trial, including that her trial was not speedy, that the evidence was insufficient to support her convictions, that the circuit court committed trial errors in admitting hearsay, irrelevant, and speculative testimony and in allowing the State to improperly bolster the credibility of a witness, and that she was erroneously required to register as a sex offender. The Arkansas Court of Appeals affirmed her convictions. Sullivan v. State, 2011 Ark. App. 576, 878 S.W.3d 921. Appellant petitioned this court for review, asserting among other grounds, that the decision of the court of appeals is in conflict with this court’s decision in Duncan v. Wright, 318 Ark. 153, 883 S.W.2d 834 (1994). Because we granted Appellant’s petition for re-view, our jurisdiction of it is pursuant |2to Arkansas Supreme Court Rule 1 — 2(e) (2011). When we grant review following a decision by the court of appeals, we consider the appeal as though it had been originally filed in this court. Glaze v. State, 2011 Ark. 464, 385 S.W.3d 203. Upon such review, we find no error in the circuit court’s judgment and affirm; the opinion of the court of appeals is vacated.
I. Speedy Trial
Because a finding that a defendant’s right to a speedy trial has been violated operates as a dismissal of charges with an absolute bar to prosecution, we first consider Appellant’s argument that she was not timely brought to trial. Appellant filed two pro se motions to dismiss her case on speedy-trial grounds, and her counsel filed a motion that supplemented the pro se motions. The State filed a written response, and the circuit court held a hearing on December 7, 2009. The circuit court ruled from the bench at the conclusion of the hearing that the State had met its burden of proof and still had approximately sixty days in which to try Appellant. On June 15, 2010, the circuit court entered a written order denying Appellant’s motion to dismiss “[flor the reasons stated at the conclusion of the hearing.” Appellant then filed a petition for writ of certiorari with this court, which we denied without prejudice by letter order dated June 21, 2010. Sullivan v. Phillips, CR 10-616. On appeal, Appellant argues that the circuit court erred in denying her motions to dismiss, and she specifically challenges two time periods the circuit court excluded from its speedy-trial calculation.
Pursuant to Rule 28.1 of the Arkansas Rules of Criminal Procedure (2011), the State is required to try a criminal defendant within twelve months, unless there are periods of delay |athat are excluded pursuant to Rule 28.3 of the Arkansas Rules of Criminal Procedure (2011). Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007). If a defendant is not brought to trial within the requisite time, Rule 30.1 of the Arkansas Rules of Criminal Procedure (2011) provides that the defendant is entitled to have the charges dismissed with an absolute bar to prosecution. Id. Once the defendant establishes that the trial is or will be held outside the applicable speedy-trial period, she has presented a prima facie case of a speedy-trial violation, and the State then has the burden of showing that the delay was the result of the defendant’s conduct or was otherwise justified. Id. On appeal, we conduct a de novo review to determine whether specific periods of time are excludable under our speedy-trial rules. Id.
Appellant was arrested on July 10, 2005, and charged the next day with first-degree battery and hindering apprehension. The State later amended the battery charge to permitting abuse of a minor. Appellant was tried and convicted of those two charges on June 22, 2010. Therefore, she has demonstrated that her trial occurred more than twelve months from her arrest, and the burden is on the State to show that the delay was the result of Appellant’s conduct or otherwise justified. For the reasons expressed in our following analysis, we conclude that the State has satisfied its burden of demonstrating that the delay was due to Appellant’s conduct.
Appellant’s case was first set for trial on April 6, 2006. The circuit court correctly ruled that this period of just less than nine months was charged against the State in calculating the speedy-trial period. The State therefore had approximately three months, or ninety days, in which to try Appellant.
| ¿Appellant concedes that the record reflects that her case was continued from the first trial date of April 6, 2006, until the subsequent trial date of November 22, 2006, and that this time period is properly excluded from the speedy-trial calculation. Appellant also concedes that her case was continued by agreement from the November 22, 2006 trial date until a new trial date of May 15, 2007. Appellant thus agrees that this time was properly excluded from her speedy-trial calculation.
Appellant also concedes that the circuit court’s docket reflects that her case was called for trial on December 11, 2007, but argues that there is nothing in the record to reflect that the period from May 15, 2007, to December 11, 2007, should be excluded from her speedy-trial calculation. Appellant’s argument with respect to this time period is without merit. At the hearing on her motion to dismiss, Paul K. “Pete” Lancaster, the attorney who represented Appellant during the contested time period, testified that both she and her child’s abuser, Victor Lyons, were to be tried as codefendants on May 15, 2007, but that he requested a continuance of Appellant’s trial because she was involved in an automobile accident on the way to the courthouse. This time period was thus properly excluded pursuant to Rule 28.3(c) as a continuance granted at the request of Appellant’s counsel. Lancaster’s request for a continuance was made in chambers during Lyons’s trial and was recorded by the court reporter. The transcript of that in camera request was admitted into evidence during the hearing on Appellant’s motion to dismiss, and it clearly reflects that Lancaster requested the | ^continuance and the tolling of the speedy-trial time due to Appellant’s accident and injury on the way to court.
On appeal, Appellant takes issue with the fact that the new trial date was not set contemporaneously with the request for the continuance. After initially expressing concern about this time period, the circuit court observed that the trial date was reset for December 11, 2007, by letter from the court’s case coordinator dated June 27, 2007. Thus, the circuit court ruled that the record of the discussion in chambers combined with the court’s June 27, 2007 letter comprised a sufficient record to support the tolling of the speedy-trial time for the period from May 15, 2007, to December 11, 2007.
We affirm this ruling as correct, as there is no requirement in Rule 28.3(c) that the new trial date be set contemporaneously with the granting of the continu- anee, and as the failure to do so here was likely because Appellant’s trial counsel requested and was granted the continuance in the midst of the ongoing trial of Appellant’s codefendant. Appellant’s current counsel conceded at the speedy-trial hearing that December 11, 2007, was the next available trial date. Rule 28.3(c) requires only that the continuance be granted to a date certain, and that was accomplished with the June 27, 2007 letter. Excluded periods without a written order or docket entry will be upheld when the record clearly demonstrates that the delays were attributable to the accused or legally justified and where the reasons were memorialized in the proceedings at the time of the occurrence. See Miles v. State, 348 Ark. 544, 75 S.W.3d 677 (2002).
| (¡Appellant next challenges the period of time from December 11, 2007, to April 8, 2008, and then to May 20, 2008, and argues that this is the most compelling reason her trial was not timely. Her challenge to this time period is wholly without merit, however, as the following facts demonstrate that this period of delay resulted either from Appellant’s conduct in resisting appearance at her trial or from other criminal proceedings concerning Appellant, both of which are excludable periods under Rule 28.3.
Appellant concedes that the docket reflects that she failed to appear for her trial on December 11, 2007, and that a bench warrant for her failure to appear was authorized and issued on December 13, 2007. She also concedes that in April 2008 she was stopped in North Little Rock, Arkansas, on a traffic violation, and then arrested on an outstanding warrant in Texas and extradited there. She further concedes that she was in the custody of the State of Texas from April 2008 to January 2009. Records introduced during the testimony of Larry McCallister, a deputy with the warrants division of the Saline County Sheriffs Department, indicate that Appellant had been arrested on April 8, 2008, and extradited to Texas on April 10, 2008. Those records also showed that Saline County was notified on April 21, 2008, that Appellant was in fact incarcerated in Texas. On May 21, 2008, Deputy McCallister then notified the Texas authorities of Appellant’s failure-to-appear warrant and placed a “hold” on Appellant. On May 29, 2008, the Texas authorities acknowledged receipt of the request to hold Appellant and gave an estimated release date for Appellant as January 2009. Appellant signed a waiver of extradition to Arkansas on December 3, 2008. According to the deputy, as soon as he was notified that Appellant had completed her Texas sentence, 17she was extradited back to Arkansas and appeared in Saline County Circuit Court on January 20, 2009.
Appellant concedes that the time from May 21, 2008, when the Arkansas authorities placed the hold on her in Texas, until she appeared back in court on January 20, 2009, is a properly excludable period. However, Appellant argues that once the failure-to-appear warrant was issued on December 13, 2007, in order' for the State to get the benefit of an excludable period to May 20, 2008, the State must demonstrate that it made an attempt to serve the failure-to-appear warrant on her without unnecessary delay as required by Duncan, 318 Ark. 153, 883 S.W.2d 834. Appellant argued in her petition for review that the court of appeals’s opinion conflicted with Duncan, and it is upon that basis that we granted review.
We reject Appellant’s argument with respect to Duncan, as it completely overlooks the pivotal factual distinction between the two warrants at issue. Duncan involved an arrest warrant for the initial criminal charge, while the present case involves a warrant for failure to appear at a trial that was set to occur within the speedy-trial time. The sole issue before this court in Duncan was whether the two-year period of delay between the date of information and date of arrest was excludable for good cause under Arkansas Rule of Criminal Procedure 28.3(h). Duncan had been charged in January 1992 with writing three hot checks in Garland County. A warrant for Duncan’s arrest on the hot-check charges was issued the same day the information was filed, but he was not arrested on the warrant for those charges until January 1994. The State’s response before the trial court was that Duncan’s change of address and use of an alias prevented a more expeditious arrest. Duncan countered that the State was re-quiredjgto use due diligence to find and arrest him, but failed to do so. There was no evidence the State made any attempt to serve the arrest warrant on Duncan, and this court granted Duncan a speedy-trial dismissal on that basis. It is of pivotal importance to realize, however, that the warrant at issue in Duncan that the State failed to timely serve was the initial arrest warrant on the main criminal charge of writing hot checks. Duncan did not involve an arrest warrant for failure to appear at a criminal trial, as does the present case. For that reason, Duncan is not even applicable to, much less controlling of, the present case. The circuit court in the present case therefore correctly ruled that the State’s actions in serving the warrant for Appellant’s failure to appear at her trial on December 11, 2007, had no effect on the calculation of her speedy-trial time for the charges of permitting abuse and hindering apprehension.
The fact remains that the State met its burden here by offering Appellant a trial date of December 11, 2007, which was well within the twelve-month speedy-trial period. Appellant failed to appear at that trial. It is true that a defendant is not required to bring herself to trial or to “bang on the courthouse door” to preserve her right to a speedy trial and that the burden is on the prosecutors and the courts to see that the trial is held in a timely fashion. Davis v. State, 375 Ark. 368, 372, 291 S.W.3d 164, 167 (2009) (quoting Jolly v. State, 358 Ark. 180, 193, 189 S.W.3d 40, 46 (2004)). However, it is also true that we have placed responsibility on a defendant to be available for trial; thus, time delays resulting from a defendant’s resisting appearance for trial are properly excluded under Rule 28.3. Doty v. Jefferson County Circuit Court, 350 Ark. 505, 88 S.W.3d 824 (2002); Osborn v. State, 340 Ark. 444, 447, 11 S.W.3d 528, 530 (2000) (stating that when a defendant fails to appear for trial, [9the duration of the defendant’s unavailability is clearly an ex-cludable period for speedy-trial purposes under Rule 28.3(e)); Smith v. State, 313 Ark. 93, 852 S.W.2d 109 (1993); Horn v. State, 294 Ark. 464, 743 S.W.2d 814 (1988).
We note that there was some argument at the hearing by Appellant’s counsel that the record did not demonstrate that Appellant had ever received notice of the December 11, 2007 trial date, since it was not set contemporaneously with the continuance granted at her previous trial with her codefendant on May 15, 2007. However, Lancaster testified that he mailed Appellant a letter notifying her of the December 11, 2007 trial date, and the letter was returned to him. Lancaster stated further that he seemed to recall Appellant giving him a change of address, and that although he talked to Appellant once or twice shortly following the May 15, 2007 continuance, he was not in contact with Appellant at all after that and did not know her whereabouts at the time of trial when she failed to appear. It is not disputed that Appellant knew of her May 15, 2007 trial date and that it was continued due to her automobile accident on the way to the courthouse. Thus, although there is some ques tion on the record before us whether she ever received notice of the date to which her trial was continued, December 11, 2007, the record is clear that she was aware that her trial would be rescheduled after her car wreck, that her attorney could not find her, and that she has offered no explanation as to why. We conclude the foregoing is sufficient to show that Appellant made no effort to satisfy her responsibility of making herself available for trial. In this way, Appellant’s case is similar to Thompson v. State, 264 Ark. 213, 570 S.W.2d 262 (1978), and is distinguished from Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985), where this court | )0held that the State had a duty to make a diligent, good-faith effort to bring an accused to trial, and the State failed to do so when it did not check the available court records or otherwise demonstrate any diligent attempt to locate the accused when she failed to appear for plea and arraignment. We therefore affirm the circuit court’s finding that Lancaster’s testimony bolstered the State’s contention that this time should be excluded due to Appellant’s absence after December 11, 2007, until her arrest on April 8, 2008.
Appellant also takes issue with the time period from April 8, 2008, when she was arrested in North Little Rock and extradited to Texas, to January 20, 2009, when she returned to Arkansas and appeared in court. First, Appellant argues that no detainer was lodged against Appellant until May 21, 2008, even though she was taken into custody by the Texas authorities on April 10, 2008. Thus, Appellant asserts that the period from April 8, 2008, to January 20, 2009, should not be excluded from her speedy-trial time. This argument is without merit as she was arrested on April 8, 2008, extradited to Texas on April 10, 2008, held in custody on other charges in Texas, and then returned to Arkansas and appeared in court on January 20, 2009. This period of time during which Appellant was held in custody on other charges is excludable pursuant to Rule 28.3(a) as a “period of delay resulting from other proceedings concerning the defendant.” Allen v. State, 294 Ark. 209, 212, 742 S.W.2d 886, 889 (1988).
At the January 20, 2009 appearance, Appellant’s trial was set for February 24, 2009.On February 19, 2009, however, Appellant sought and was granted yet another continuance. Thus, the circuit court correctly ruled that this one-month period from January 20, 2009, to February 19, 2009, was not to be excluded. That left approximately sixty days in which the State could timely try Appellant. From February 19, 2009, until the date of trial on June 22, 2010, Appellant was granted further continuances, and she does not challenge this time period.
In summary, of the time periods challenged by Appellant, the period from May 15, 2007, until December 11, 2007, was excluded at the request of Appellant due to her injuries from a car accident. The period from December 11, 2007, when she failed to appear for trial, to April 8, 2008, when she was arrested, was excluded as a result of Appellant’s conduct in failing to appear for her trial. The period from April 8, 2008, when she was arrested and extradited to Texas to serve a sentence there on other charges, to January 20, 2009, when she was returned to Arkansas and appeared in court, was properly excluded as a period of delay resulting from other proceedings concerning Appellant. For the aforementioned reasons, none of Appellant’s arguments that any of this time should be excluded has merit. Thus, the circuit court correctly concluded that Appellant’s right to a speedy trial was not violated, and we affirm that ruling.
II. Sufficiency of the Evidence
Appellant challenges the sufficiency of the evidence to support the jury verdicts convicting her of permitting the abuse of L.B., her then twenty-three-month-old daughter, and hindering apprehension or prosecution of L.B.’s abuser, Appellant’s boyfriend, Victor Lyons. The circuit court denied Appellant’s timely and specific motions for directed verdicts on both charges.
112An argument contesting the denial of a directed verdict is a challenge to the sufficiency of the evidence, and protection of Appellant’s double-jeopardy rights requires that we address such an argument prior to addressing other asserted trial errors. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Graham v. State, 365 Ark. 274, 229 S.W.3d 30 (2006). 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. When a defendant challenges the sufficiency of the evidence that led to a conviction, the evidence is viewed in the light most favorable to the State. Id. This court does not weigh the evidence presented at trial, as that is a matter for the fact-finder; nor do we assess the credibility of the witnesses. Ewell v. State, 375 Ark. 137, 289 S.W.3d 101 (2008). In assessing the weight of the evidence, a jury may consider and give weight to any false and improbable statements made by an accused in explaining suspicious circumstances. Watson v. State, 290 Ark. 484, 720 S.W.2d 310 (1986); Reams v. State, 45 Ark.App. 7, 870 S.W.2d 404 (1994).
We first address the conviction for permitting child abuse. Appellant was charged with violating Arkansas Code Annotated § 5-27-221 (Supp.2005), which in July 2005, when the crime was alleged to have occurred, provided in pertinent part:
(a)(1) A person commits the offense of permitting abuse of a minor if, being a parent ... he or she recklessly fails to take action to prevent the abuse of a minor.
(2) It is a defense to a prosecution for the offense of permitting abuse of a minor if the parent ... takes immediate steps to end the abuse of the minor, including prompt notification of medical or law enforcement authorities, upon first knowing or having good reason to know that abuse has occurred.
11S(3) Permitting abuse of a minor is a Class B felony if the abuse of the minor consisted of sexual intercourse or deviate sexual activity or caused serious physical injury or death to the minor.
Arkansas Code Annotated § 5-2-202(3) (Repl.2006) defines “recklessly” as follows:
(A) A person acts recklessly with respect to attendant circumstances or a result of his or her conduct when the person consciously disregards a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur.
(B) The risk must be of a nature and degree that disregard of the risk constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.
When previously considering these two statutes, this court has explained that “if abuse is occurring, and the defendant is aware of that abuse, she is criminally liable if she does nothing to prevent further abuse.” Graham, 365 Ark. at 278-79, 229 S.W.3d at 34 (footnote omitted).
Appellant argues, as she did below, that the State’s proof failed to create a factual question as to whether Appellant knew that L.B. was being abused and as to whether she failed to do anything about it. Appellant relies on the testimony of the State’s medical expert that the life-threatening physical injury to L.B.’s brain oc curred within twenty-four hours of her appearance at the emergency room, and possibly within three to four hours. Appellant argues further, as she did below, that she offered proof sufficient to meet the statutory defense of taking immediate action and notifying medical authorities when she took L.B. to Arkansas Children’s Hospital (ACH). The circuit court denied Appellant’s motion for directed verdict on the basis that the State had offered sufficient proof of injuries to L.B.’s hands and buttocks that occurred prior to the much more serious brain injury, and therefore the State had created | ua factual question for the jury. The jury’s verdict was that Appellant was guilty of permitting abuse of L.B. that caused serious physical injury.
Our review of the record reveals the following substantial evidence to support this verdict. Appellant brought L.B. to the emergency room at ACH at approximately 11:00 a.m. on July 8, 2005. She told the hospital personnel that L.B. had fallen from a bunk bed from a height of five feet, cried for a while, then seemed alert and fine, and subsequently became unresponsive.
Dr. Maria Esquivel, a pediatrician at ACH, was established as an expert in the field of child abuse. She stated that, as a member of the hospital’s team of doctors, nurses, and social workers for children at risk, she is called in as a specialist by other doctors at the hospital when they have a question concerning whether a child’s injury does not correspond to whatever history was provided.
Dr. Esquivel examined L.B. in the pediatric intensive-care unit after she had been there for two days. The history of the emergency-room records that Dr. Es-quivel reviewed indicated that L.B. came in unresponsive. The radiology records she reviewed indicated that L.B.’s brain was bleeding inside and was showing an increased intracranial pressure that was causing L.B.’s skull bones to spread. Dr. Esquivel testified that L.B.’s brain injury was life-threatening.
Dr. Esquivel stated that the history Appellant gave of L.B. being alert immediately after the injury was unusual with such a traumatic injury. Dr. Esquivel explained that a brain injury such as L.B.’s is usually seen in children who had stopped breathing after some traumatic injury | ,5and experienced a loss of oxygen to the brain, or in children who had been shaken severely thereby causing the child to stop breathing and pass out. Dr. Esquivel opined that if L.B. had incurred this injury from a fall, it would have had to have been a fall involving increased velocity such as from a second-story building, and not from a bunk bed some five or even six feet high.
Dr. Esquivel explained that L.B. had other indications that her brain injury was not accidental, including numerous hemorrhages in the eyes and different layers of the retina. The expert stated that when both the eyes and the brain show signs of hemorrhage, it is more likely that the child was shaken. Dr. Esquivel also opined that L.B.’s brain injury could have been caused by an adult who violently slung her head against a wall, but that a child could not have exerted enough force to cause this severe of an injury.
According to Dr. Esquivel’s testimony, when Appellant presented L.B. to ACH with this brain injury, L.B. also had signs of other injuries all over her body that were significant to her diagnosis that L.B. had suffered child abuse. Radiology records showed some congestion in the tissues of the mesentery, indicating that L.B. suffered some blunt trauma to her abdomen. L.B. also had an injury to her liver. Dr. Esquivel opined that these internal abdominal injuries would be consistent with a shaken baby or with a child whose head was struck against a wall. L.B. also had swelling and bruising around her ear, consistent with an adult swinging her head against a wall. Dr. Esquivel opined that the bruise to L.B.’s ear occurred near the same time as the brain injury. L.B. had numerous, unusual pinprick lesions surrounded by bruising on the sole of her left foot and on her back. The only explanation for 11fithese lesions that Dr. Esquivel could think of was that someone had poked L.B. with a safety pin or straight pin trying to arouse her and have her respond, if she had been unresponsive.
Dr. Esquivel testified to numerous other older injuries visible on L.B.’s body. L.B. had numerous scabbed lesions all over her body, including her forehead, in the middle of her chest and around her breasts, near her belly button, near her genital area, below her right knee, and on her back. L.B. also had a fresher lesion inside her left thigh that looked like a blister or just broken skin. L.B. had three dark scars on the outside of her right thigh. She also had light-colored scars on her buttocks indicating “that she had had some kind of injury there in the past, but when it healed, it left the light skin.” Dr. Esquivel opined that the scratches and lesions seen all over L.B.’s body were not typical toddler injuries.
An injury on the top of L.B.’s left hand was particularly impressive to Dr. Esquiv-el. She testified that L.B.’s left hand was very swollen and had two very deep craters with scab tissue surrounded by some lighter areas where the lesion had been larger and contracted as it healed. L.B.’s right hand had similar lesions but was not swollen. According to Dr. Esquivel, the injury to L.B.’s left hand was older than her brain injury and would have been painful for the child. Dr. Esquivel testified, over Appellant’s objection, that L.B.’s hand injury would have been immediately apparent to a care giver.
Marci Rhodes, a social worker at ACH who assists when there are concerns about a child’s maltreatment or abuse, testified that she spoke with Appellant and Lyons about L.B.’s injuries. Rhodes testified that Lyons’s demeanor was aggressive and argumentative, while Appellant’s demean- or was very quiet, with a lack of tears, emotion, expression, or 117involvement. Appellant told Rhodes that L.B. had fallen off a bunk bed, but had no explanation for Rhodes about the older injuries. Appellant told Rhodes that she and Lyons had been L.B.’s only care givers for the past month.
Detective Corporal Gary Robertson of the Saline County Sheriff’s Department testified that on July 10, 2005, he responded to a call of severe child abuse at ACH. Corporal Robertson stated that after obtaining information there, he found Lyons and Appellant at her home, along with her other two daughters. Corporal Robertson testified that he immediately took Lyons into custody and informed Appellant that the Arkansas Department of Human Services (DHS) would soon be coming to take the other children. According to Corporal Robertson, Appellant assisted with gathering some clothes and releasing the girls to DHS, and was not crying or upset. While in the home, Corporal Robertson observed a hallway with a couple of holes in it. He also observed a bedroom that was within eyesight of the hallway and furnished with bunk beds and a carpeted floor. He stated that the bedroom door had a two-inch gap between it and the floor. He opined that a set of hands could fit very easily under the door. Corporal Robertson testified that after DHS picked'up the children, he returned to the sheriffs office with Lyons and Appellant, where he took a statement from Appellant after reading her her Miranda rights.
In her statement, which was recorded and played to the jury, Appellant told police that she heard L.B. crying, so she went to her and checked to see if anything was wrong but did not find anything. She then asked her other two daughters what happened, and they responded that she fell off the bunk bed. Appellant also told police that soon thereafter L.B. |lsbecame unresponsive, so she and Lyons took her to the hospital. Also in her statement, Appellant told police that she and Lyons were the only ones who took care of her children, and she specifically denied ever leaving her children alone.
Appellant’s oldest daughter, Z.B., was six years old when L.B. sustained the serious head injury. She testified at trial that her mother left her alone to take care of her two younger sisters for a couple of days while Appellant and Lyons went to Texas. Z.B. also testified that Lyons kept her and her sisters while her mother was at work, and that he treated L.B. badly. Z.B. explained that Lyons pulled L.B.’s hands under the door causing them to bleed and L.B. to cry. She explained further that she saw Lyons put a fork down L.B.’s throat and push her off the balcony. With respect to L.B. getting her head hurt, Z.B. testified that she and her middle sister C.B. were in the bedroom when they saw Lyons in the hallway “[hjitting [L.B.] up against the door.” Z.B. testified that Appellant was not at home when that happened, but that she and her mother did go with L.B. to the hospital after L.B. hurt her head. Z.B. testified that Appellant asked her to say that the cause of L.B.’s head injury was a fall from the bunk bed, but that the truth was that Lyons had caused the injury. Z.B. testified that Lyons treated L.B. differently than he did her and her middle sister. When asked to explain how Lyons treated them differently, Z.B. responded, ‘We didn’t get our heads beat against the wall.”
As to Appellant’s knowledge of Lyons’s maltreatment of L.B., Z.B. testified that Appellant was present when Lyons put the fork down L.B.’s throat. Z.B. also testified that she |19had told her mother that Lyons had hurt L.B.’s hands and that Lyons had hurt L.B.’s head, and that both times Appellant’s response was, “No he didn’t.”
There is additional evidence we could recite, some of which we discuss while considering Appellant’s assertions of evi-dentiary errors, but we do not discuss that evidence here because the foregoing is more than sufficient to support Appellant’s conviction for permitting the abuse of her twenty-three-month-old daughter. The evidence shows that this was not an isolated incident, as Z.B. testified that she told her mother of earlier instances of abuse, and her mother’s only response was to deny the abuse. In addition, the medical evidence established that L.B. was covered with visible scars and older injuries that would have been apparent to a care giver. The jury could thus reasonably infer that Appellant consciously disregarded a substantial risk that the abuse existed, would continue to exist, and failed to take action to prevent the abuse. L.B. then sustained a life-threatening brain injury that resulted in permanent brain damage limiting her ability to walk, talk, eat, and sit upright. The jury could thus infer that Appellant’s actions in taking the previously abused and unresponsive child to the hospital did not satisfy the requirements of the statutory defense. When we consider Appellant’s improbable statement and explanation in this ease, along with the medical evidence as to the nature and number of injuries to the child, we are persuaded that, taken together, they are sufficient to constitute not only substantial but also overwhelming evidence of Appellant’s guilt. Accordingly, we cannot say the circuit court erred in denying Appellant’s motion for directed verdict of acquittal on the charge of permitting the abuse of her minor child.
JjjWith respect to the charge of hindering apprehension or prosecution, Appellant was charged with violating Arkansas Code Annotated § 5-54-105 (Repl. 1997), which in July 2005, stated in pertinent part:
(а) A person commits an offense under this section if, with purpose to hinder the apprehension, prosecution, conviction, or punishment of another for an offense, he:
(б) Volunteers false information to a law enforcement officer; or
(7) Purposefully lies or attempts to purposefully provide erroneous information, ... which he knows to be false to a certified law enforcement officer that would distract from the true course of the investigation or inhibit the logical or orderly progress of the investigation.
Appellant argues that there was no evidence that she harbored or concealed Lyons, or that she provided authorities with false information with the purpose of hindering investigation of Lyons. She relies on the fact that Lyons was arrested at her home without incident and without any interference from her. The circuit court rejected this argument on the basis that the jury could derive a person’s intent from that person’s conduct, and there was sufficient evidence of Appellant’s conduct here to submit the question to the jury.
Our review of the record reveals that there is substantial evidence to support Appellant’s conviction on this charge. Appellant consistently told medical personnel, as well as police officers, that L.B.’s injury was caused by falling from the top of the bunk beds. Appellant offered this account to police in her statement even after admitting to police that doctors had informed her that L.B. had been shaken and there was no other way L.B. could have sustained such a severe injury. Z.B. testified at trial that she told Appellant that Lyons had hurt L.B.’s l?1head; thus, the jury could have very reasonably inferred that Appellant gave this false explanation to police at a time when Appellant knew what had actually happened. There was thus substantial evidence from which a jury could have concluded that Appellant provided false information to police. And, that is all that is required under section 5-54 — 105(a)(6). In addition, however, there is Z.B.’s testimony that Appellant asked her to perpetuate that false information by asking her to tell everyone that L.B. had fallen from the bunk bed. As the circuit court ruled, the jury could have inferred from this testimony of Appellant’s conduct that she gave false information to police with the purpose of hindering the prosecution of L.B.’s abuser. Accordingly, we conclude that the circuit court did not err in denying Appellant’s motion for directed verdict of acquittal on the charge of hindering the apprehension of her child’s abuser.
III. Bolstered Testimony of Z.B.
As her third point for reversal, Appellant contends that the circuit court erred in permitting the State on redirect examination to improperly bolster the credibility of Z.B. by effectively allowing her to read the testimony she had given at the trial of Appellant’s codefendant, Victor Lyons. Appellant complains that by employing this procedure, whereby the prosecuting attorney read questions and answers from the transcript aloud and then asked Z.B. to confirm that it was accurate, the State was permitted to highlight prejudicial aspects of Z.B.’s former testimony, including that Appellant told Z.B. to lie and that Z.B. told Appellant about the previous injuries to LJB.’s hands.
| ?^Appellant objected below on the grounds that the State was improperly bolstering Z.B.’s credibility. On appeal, Appellant expands on her argument below with a citation to Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980), and the contention made for the first time on appeal that the State was improperly using Z.B.’s testimony as a prior consistent statement to rehabilitate Z.B., even though there had not been a charge of recent fabrication or improper influence as provided in Rule 801(d)(l)(ii) of the Arkansas Rules of Evidence (2011). It is well settled that a party is bound by the nature and scope of the objections and arguments made at trial and may not enlarge or change those grounds on appeal. See, e.g., Frye v. State, 2009 Ark. 110, 313 S.W.3d 10. We therefore do not address the component of Appellant’s argument concerning the hearsay concepts expressed in Rule 801(d)(l)(ii) and the Kitchen case.
In support of her argument that the State used the transcript to improperly bolster the witness, Appellant relies on the general rule that the credibility of a witness cannot be bolstered unless that witness has been impeached. Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). And even then, argues Appellant, the State may not bolster in the manner in which it did here.
The State responds that Appellant mis-characterizes the State’s use of Z.B.’s former testimony as a prior consistent statement. The State points out that it did not offer the former testimony into evidence at all but used it only demonstratively, after Z.B. had been impeached, to refresh her recollection of the circumstances of Lyons’s abuse of L.B. some five years earlier. Thus, the State contends that it properly used the transcript of Z.B.’s former testimony to refresh her recollection pursuant to Rule 612 of the Arkansas Rules of Evidence (2011).
| mOur review of the record in this case reveals that Z.B. was indeed impeached on cross-examination by Appellant’s counsel after she testified on direct that she could not remember whether she had told Appellant that Lyons hurt L.B.’s hands or that he was mean to L.B. During redirect, the State then used Z.B.’s former testimony to refresh her recollection of the events she testified to some five years earlier when she was approximately six years old. Appellant’s counsel used the transcript of Z.B.’s former testimony to impeach her, and the State used the same transcript to refresh her recollection.
A witness may occasionally consult a writing to refresh her memory, but it is her testimony and not the writing that is to be the evidence. Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994). However, a witness may not read a transcript into evidence, as that is beyond the bounds of refreshing recollection. Id. To allow a witness’s memory to be refreshed and the extent to which the witness may refer to writings to refresh his memory are all decisions within the sound discretion of the circuit court that are not reversed on appeal unless the circuit court has abused that discretion. See id.; see also Sweat v. State, 307 Ark. 406, 820 S.W.2d 459 (1991); and Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978). Here, we defer to the circuit court’s superior position to judge the extent to which the prosecuting attorney and witness were referring to the transcript rather than reading it into evidence. We cannot say the circuit court abused its discretion here as the eleven-year-old child witness had indeed been impeached and was testifying to matters she had testified .to some five years previously at the age of six years.
li>4IV. Testimony of Sonya Yenner
As her fourth point for reversal, Appellant contends that the circuit court erred in allowing Appellant’s neighbor Sonya Yenner to give testimony that was hearsay, irrelevant, and prejudicial. Appellant asserts that the State called Yen-ner to testify that Appellant was improperly supervising her children and that the testimony was offered to sully Appellant in the minds of the jurors.
Yenner testified over Appellant’s relevancy objection that she had been Appellant’s neighbor during the time of L.B.’s abuse and that on one occasion when Z.B. was in kindergarten, she saw Z.B. alone at the bus stop on a day that school was not in session. Yenner testified, over Appellant’s hearsay objection, that Z.B. told her that Appellant was inside their home sleeping. Yenner stated that she walked Z.B. home and knocked on the door for approximately fifteen minutes before Appellant answered the door. She further testified about an incident in which she had to get the neighborhood security to go to Appellant’s home because the children were there alone and playing outside in the cold rain in their underwear. Yenner stated that Appellant arrived home shortly after security went to her house and explained that she had been down the street trying to fix her boyfriend’s car.
With respect to Appellant’s hearsay argument, the State responds that, even assuming arguendo that the statement about Appellant being inside sleeping was inadmissible hearsay, the statement was not prejudicial. The State explains that the material testimony was that Appellant was not concerned about the welfare of her daughter, whom she sent to the bus stop alone on a day that school was not in session, and then did not answer the door for fifteen | ^minutes despite Yenner’s repeated knocking. According to the State, the fact that Appellant was sleeping was not material or significant. We agree, and thus conclude that the admission of this statement challenged as hearsay was not prejudicial.
With respect to Appellant’s relevancy objection, the State responds that the evidence at issue here — a neighbor’s accounts of Appellant leaving her young children unsupervised — was relevant because it tended to prove a material issue in the case. As previously discussed, the State had the burden of proving that Appellant “recklessly fail[ed] to take action to prevent the abuse of [her child].” Ark. Code Ann. § 5 — 27—221(a)(1). Thus, according to the State, the challenged evidence showing Appellant’s inattention to her children and her general disregard for their safety and well being makes her failure to take any action to prevent harm to her children more probable.
Rule 401 of the Arkansas Rules of Evidence (2011) defines “relevant evidence” as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Under Rule 403 of the Arkansas Rules of Evidence (2011), relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. The determination that evidence is relevant, and the weighing of whether the probative value of relevant evidence is substantially outweighed by the danger of unfair prejudice to the accused, are matters within the trial court’s sound discretion. See Wyles v. State, 357 Ark. 530, 182 S.W.3d 142 (2004); Gunter v. State, 313 Ark. 504, 857 S.W.2d 156 (1993).
| ?,fiWe agree with the State that the challenged evidence was probative of the material issue of Appellant’s failure to take action to prevent abuse to her children. Its probative value was enhanced significantly given Appellant’s own statement to police that she had never left her children unattended. It also corroborated Z.B.’s testimony that Appellant left her three children unattended for a couple of days while she and Lyons went to Texas. We therefore agree that the probative value of Yenner’s testimony was not substantially outweighed by the danger of unfair prejudice, and we cannot say the circuit court abused its discretion in allowing the challenged testimony.
V. Speculative and Irrelevant Testimony
For her fifth point for reversal, Appellant contends that the circuit court erred in allowing two witnesses, Dr. Es-quivel and Appellant’s mother, to give speculative and irrelevant testimony to the effect that it would have been immediately apparent to Appellant that L.B. had incurred injuries. Appellant argues that the State was attempting to convey that Appellant actually knew about the injuries but chose to do nothing about them and thus permitted the child to be abused. Appellant contends this was prejudicial error warranting a new trial. This argument is without merit.
Dr. Esquivel, the pediatrician at ACH, was established as an expert in the field of child abuse based on her extensive training as a physician, her past employment as medical director of a child-abuse program, and her current affiliation with ACH’s team for at-risk children. She stated that she had examined approximately 1,500 children who had been physically abused. Dr. Esquivel testified that an injury like the one on L.B.’s hand would have been immediately | ¡^apparent to the child’s care giver. Appellant objected to this testimony, arguing that lay people could draw their own conclusions about it. On appeal, Appellant cites Buford v. State, 368 Ark. 87, 248 S.W.3d 300 (2006), and contends that this testimony was not beyond the ability of the jurors to understand and draw its own conclusions, and therefore, it was not proper expert testimony.
The general test for admissibility of expert testimony is whether the testimony will aid the trier of fact in understanding the evidence or in determining a fact in issue. Ark. R. Evid. 702 (2011); Buford, 368 Ark. 87, 243 S.W.3d 300. An important consideration in determining whether the testimony will aid the trier of fact is whether the situation is beyond the ability of the trier of fact to understand and draw its own conclusions. Id.
We agree with the State that, as a medical expert in the field of child abuse, Dr. Esquivel was familiar with how L.B.’s hand injuries would have appeared at the time they were incurred and whether their appearance at that time would have been apparent to a care giver — something the jury could not have determined from the photographs taken of L.B. at ACH because they were taken after the injuries on her hand had begun to heal. Because the challenged expert testimony would thus aid the jury both in understanding the evidence and in determining a fact in issue as to whether Appellant was aware of L.B.’s abuse, the circuit court did not abuse its discretion in allowing the expert testimony.
Additionally, Appellant challenges as irrelevant the testimony of Lois Smith, Appellant’s mother, that if she had seen the injury on L.B.’s buttocks, she would have found out what happened. Appellant argues that what actions Smith would have taken were not relevant. 12⅜Appellant argues further that the jury should have been allowed to draw their own conclusions from the proof as to whether L.B.’s injuries were noticeable and what Appellant should have done about them.
We agree with the State that as Appellant’s mother and L.B.’s grandmother, Smith’s reaction to L.B.’s injuries was rel evant to the issues of whether Appellant knew or “had good reason to know that abuse” of L.B. had occurred, and whether Appellant “recklessly fail[ed] to take action to prevent [L.B.’s] abuse.” Ark.Code Ann. § 5-27-221(a). Smith’s testimony was cumulative of similar, unchallenged testimony from Appellant’s sister, who was also L.B.’s care giver on occasion. Both witnesses testified as to what each one individually would have done had they seen the injury on L.B.’s buttocks, but they did not comment or opine as to what they thought Appellant should have done. Smith’s testimony, therefore, did not invade the province of the jury to draw its own conclusions from the evidence with respect to Appellant, and we cannot say the circuit court abused its discretion in permitting Smith’s testimony in this regard.
VI. Sex-Offender Registration
As her sixth and final point on appeal, Appellant argues that the circuit court erred by amending the judgment and requiring her to register as a sex offender pursuant to the Arkansas Sex Offender Registration Act. Appellant bases her argument on the fact that the jury convicted her of permitting abuse of her daughter that caused serious physical injury, rather than any kind of sexual abuse or injury. Appellant acknowledges that she is raising this argument for the first time on appeal, but contends she may do so because she had no [^opportunity to object to the amendment of the judgment and because the requirement to register amounts to an illegal sentence.
The original judgment and commitment order was filed on June 28, 2010, and erroneously indicated that Appellant had not been adjudicated guilty of an offense requiring registration as a sex offender. See Ark.Code Ann. § 12-12-90S(12)(A)(i)(s) (Repl.2009) (stating that permitting abuse of a minor, without any distinction for sexual or physical injury, is one of the crimes expressly designated for sex-offender registration); see also Ark. Code Ann. § 5-27-221(b)(l) (Supp.2005) (defining “abuse” for purposes of permitting abuse of a minor as “sexual intercourse, deviate sexual activity, sexual contact, or causing physical injury, serious physical injury, or death”). Appellant filed her notice of appeal on July 28, 2010. The circuit court filed its amended judgment on September 2, 2010, to correctly indicate that Appellant had been adjudicated guilty of an offense requiring registration as a sex offender. See Ark.Code Ann. § 12 — 12—906(a)(l)(A)(i) (Repl.2009) (mandating that the sentencing court “shall enter on the judgment and commitment or judgment and disposition form that the offender is required to register as a sex offender”). The circuit court amended its judgment prior to the time the appeal transcript was lodged in this court.
We reject Appellant’s contention that she had no opportunity to object to the amended judgment. The record before us simply does not support that assertion. Appellant presents an issue requiring the interpretation and interplay of our criminal statutes on sex-offender registration and permitting abuse of a minor. No explanation is offered for Appellant’s failure to raise the statutory-interpretation issue to the circuit court by way of a postjudgment motion |snafter the amendment. This is a direct appeal following a criminal conviction, and as such our jurisdiction is appellate only, which means that we have jurisdiction to review a decision, order, or decree of an inferior court, but not to decide issues that were not decided first by the inferior court. Webb v. State, 2012 Ark. 64, 2012 WL 503885 (citing Gwin v. Daniels, 357 Ark. 623, 184 S.W.3d 28 (2004)). Because Appellant did not ask the circuit court to interpret the sex-of fender registry so as to distinguish between permitting child abuse with physical injury and permitting child abuse with sexual injury, there is nothing for this court to review on appeal. This court cannot and will not decide this issue of statutory interpretation for the first time on appeal. See id. The present case does not involve a circuit court’s sua sponte remand to district court and deprivation of Appellant’s statutory right to trial by jury in circuit court, and therefore Appellant’s reliance on Harrell v. City of Conway, 296 Ark. 247, 753 S.W.2d 542 (1988), is misplaced as applicable authority for addressing her statutory-interpretation argument for the first time on appeal.
We likewise reject Appellant’s assertion that we may address her argument for the first time on appeal because it involves an illegal sentence. It is well settled that an appellant may challenge an illegal sentence for the first time on appeal, even if she did not raise the argument below. Richie v. State, 2009 Ark. 602, 357 S.W.3d 909. However, this is not an illegal sentence, as this court has held that the registration and notification requirements of the Arkansas Sex Offender Registration Act are “essentially regulatory and therefore non-punitive in nature.” Reliar v. Fayetteville Police Dep’t, 339 Ark. 274, 287, 5 S.W.3d 402, 410 (1999). Sex-offender registration is “not a form of punishment,” id., and is therefore not a criminal sentence, be it illegal or otherwise.
Appellant was convicted of an offense that requires her registration as a sex offender. The record simply does not bear out her assertion that she had no opportunity to object to the amendment of the judgment. Moreover, the requirement to register as a sex offender is not a sentence, be it illegal or otherwise. Accordingly, Appellant’s statutory-interpretation argument is not preserved for our review on appeal.
For the aforementioned reasons, we find no merit to Appellant’s previous points for reversal and affirm the judgment of convictions.
BROWN, J., concurs.
. Lyons's trial proceeded. His conviction for first-degree battery was affirmed in an unpublished opinion by the court of appeals. Lyons v. State, CACR 07-946, 2008 WL 2192140 (Ark.App. May 28, 2008) (unpublished). | [
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DOUG MARTIN, Judge.
| Appellant Melanie Kelley appeals the decision of the Workers’ Compensation Commission finding that Kelley failed to prove that she was permanently and totally disabled and that she was entitled to additional wage-loss disability benefits. We find no error and affirm.
Kelley went to work for appellee Cooper Standard Automotive (“Cooper”) as a laboratory technician in 1995. By 1999, Kelley was working as Cooper’s new-job coordinator in its engineering department. On February 7, 1999, Kelley sustained com-pensable neck and back injuries when a 400-pound steel bar hit her on the top of her head. Kelley went back to work for Cooper after her injuries, but she was laid off in November 1999. Thereafter, she applied for and received twenty-six weeks of unemployment insurance benefits.
|2On August 27, 2001, Dr. Richard Jordan performed a cervical fusion on Kelley at C5-6. Benefits were paid on this claim, but the claim became the subject of hearings related to Kelley’s healing period, the compensability of her back injury, and her entitlement to additional surgery. On May 7, 2003, an Administrative Law Judge (ALJ) determined that Kelley’s healing period had not ended and found her back injury to be a compensable injury. At that time, the ALJ awarded Kelley temporary total disability (TTD) benefits from May 15, 2000, through a date yet to be determined.
A subsequent hearing was held before an ALJ on February 23, 2006. In an opinion issued on May 9, 2006, the ALJ found that Kelley had reached the end of her healing period on August 4, 2003, and that she was entitled to TTD benefits from May 14, 2000, through August 4, 2003. The ALJ also found that Kelley sustained a permanent impairment of 14% to her body as a whole as a result of her compen-sable injury and that she had suffered wage loss in the amount of 86% over and above her permanent-anatomical rating, for a total impairment of 100%.
An appeal followed the ALJ’s decision, and in an opinion filed on March 7, 2007, the Commission affirmed the ALJ’s finding that Kelley had reached maximum medical improvement on August 4, 2003, and that she had sustained a 14% permanent impairment to her body as a whole as a result of the February 1999 injury. The Commission disagreed with the ALJ, however, that Kelley was entitled to an 86% wage-loss disability, and it found that she was only entitled to wage loss in the amount of 28% over and above her permanent anatomical-impairment rating of 14% to the body as a whole, for a total impairment of 42%. In so doing, the Commission wrote as follows:
|,.¡While we recognize that Dr. Jordan has opined that [Kelley] is not capable of returning to work, we do not think any weight should be attached to this opinion given all of the evidence to the contrary. In addition to this, Dr. Jordan has not cited any physical condition or limitations that would prevent [Kelley] from returning to work at a sedentary level. [Kelley] admitted that she has not sought work after being laid off by [Cooper] in November of 1999. Moreover, there is no probative evidence before the Commission demonstrating that [Kelley] is precluded from returning to gainful employment as an industrial lab technician or other suitable work. [Kelley] now draws Social Security Disability benefits. The Full Commission finds that [Kelley’s] lack of motivation in pursuing work as a lab technician or other suitable work substantially impedes our assessment of [Kelley’s] loss of earning capacity. Therefore, based on [Kelley’s] age, education, work experience, anatomical impairment rating of 14% to the body as a whole, her lack of motivation to return to work as a lab technician or other suitable work, and considering she has no physical condition or limitations that would prevent her from working at a sedentary level, the Full Commission finds that [Kelley] has failed to prove by a preponderance of the evidence that she has suffered wage-loss disability in the amount of 86%, thereby rendering her permanently and totally disabled.
No appeal was taken from the March 7, 2007 decision.
Following the Commission’s decision, Kelley underwent another back surgery on March 21, 2007. This surgery became an issue before the ALJ at a hearing on January 8, 2008, at which time Cooper contested whether the surgery was reasonable, necessary, and related to the February 7, 1999 compensable injury. The ALJ found that the surgery was related to the injury, and that decision was affirmed and adopted by the Commission. This court, in turn, affirmed the Commission. Cooper Standard Automotive, Inc. v. Kelley, 2009 Ark.App. 552, 337 S.W.3d 542.
After this court’s 2009 opinion, Kelley sought additional benefits, claiming that she was permanently and totally disabled or, alternatively, that she was entitled to wage-loss | .¡disability benefits. Kelley also sought a determination that she was entitled to a finding of additional permanent partial anatomical impairment due to the March 21, 2007 surgery.
A hearing on these issues was held before the ALJ on April 13, 2010. Kelley testified that, although Dr. Jordan found that she had reached maximum medical improvement in March 2008, she would not say that she had gotten any better since the March 2007 surgery. Kelley complained that she had migraine headaches four or five days a week and was taking numerous pain killers: oxycodone four times a day; carisoprodol, a generic version of the muscle relaxant Soma, four times a day; amitriptyline to help her sleep; and two tablets of methadone three times a day. Kelley also testified that she received pain-management treatments, including nerve blocks from Dr. Cubbie in Little Rock.
Kelley stated that her parents operate a private school and daycare, and she said that her parents would “love for” her to work there if she were able. Kelley explained, however, that she was uiiable to work either at the daycare or at some other sedentary job because of both her pain and the pain medication she was taking. Although Kelley complained that she was generally unable to find any position that relieved her pain for any length of time, she admitted that she was capable of driving on occasion.
On cross-examination, Kelley conceded that she felt somewhat better after the March 2007 neck surgery, noting that the frequency of her headaches had decreased and stating that she could “say that it was worth having done.” Kelley also acknowledged that she had been |avery close to earning an engineering degree prior to the injury and that she had not checked to see whether there might be some “internet course work” that would allow her to complete her degree. Kelley further agreed that she had not applied for any jobs anywhere since 2006, although she said “[I]f I could, I would.”
Following the hearing, the ALJ issued an opinion on July 9, 2010. In that opinion, the ALJ found that Kelley was entitled to an additional anatomical impairment of 3% to the body as a whole, based on Dr. Jordan’s assessment. The ALJ disagreed, however, that Kelley was now permanently and totally disabled or entitled to wage-loss disability benefits. Noting that the Commission had previously determined that Kelley had a total impairment of 42%, the ALJ concluded that
the only significant change affecting [Kelley’s] entitlement to permanent and total disability or wage loss was [her] March 21, 2007 surgery. Even though [Kelley] did receive an extra 3% anatomical impairment, [Kelley] testified that her functional ability actually improved.
Q: And we do have the medical reports and things like that. I’m asking about Melanie Kelley, does Melanie Kelley feel better today than she did ten days before that operation?
A: I would say a seven-day-a-week headache went to a five-day-a-week headache, how’s that?
Q: Okay, so you’re better, some better?
A: As far as that goes.
Q: I know you’re not a hundred percent better, but it improved your condition somewhat, that operation, it was worth having?
A: Yes, it was worth having done, I can say that.
I find that [Kelley’s] condition has actually improved since the last adjudication regarding permanent and total disability benefits and/or wage loss. When taking all the factors into consideration when considering a claim for permanent and total disability benefits, I find that [Kelley] has failed to prove by a preponderance of the evidence that she is now permanently and totally disabled. For the same reasons outlined above, I also find that [Kelley] has failed to prove by a preponderance of the evidence that she is entitled to any additional wage loss disability benefits.
1 fiKelley appealed the ALJ’s decision, and the Commission entered a 2-1 order on February 3, 2011, affirming the ALJ. In so doing, the Commission noted that Kelley was only forty-two years old and had a high school diploma as well as some college education. The Commission also noted Kelley’s testimony that she was able to drive. The Commission found that Kelley failed to demonstrate that she had suffered a change in physical condition sufficient to increase her 28% wage-loss award. The Commission also found that the evidence did not show that Kelley’s claim to be reliant on medication was a bar to suitable employment. Noting that Kelley had not worked since 2000, the Commission concluded that “this intelligent 42-year-old claimant with some college education is still not interested in returning to work or motivated to seek any employment within her physical restrictions.” Accordingly, the Commission affirmed the ALJ’s finding that Kelley did not prove that she was permanently and totally disabled or that she was entitled to additional wage-loss disability. Kelley filed a timely notice of appeal from the Commission’s decision, and she now argues on appeal that the Commission’s decision was not supported by substantial evidence.
The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Sivixay v. Danaher Tool Group, 2009 Ark.App. 786, 359 S.W.3d 433. When a claimant has an impairment rating to the body as a whole, the Commission has the authority to increase the disability rating based upon wage-loss factors. Id. The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other factors affecting wage loss, such as the claimant’s age, education, and work experience. Id.; see Ark.Code Ann. § 11 — 9— 522(b)(1) (Repl.2002). Permanent total disability is the inability, because of com-pensable injury, to earn any 17meaningful wages in the same or other employment. See Ark.Code Ann. § 11 — 9—519(e)(1) (Repl. 2002).
The injured party bears the burden of proof in establishing entitlement to benefits under the Workers’ Compensation Act and must sustain that burden by a preponderance of the evidence. Dearman v. Deltic Timber Corp., 2010 Ark.App. 87, 377 S.W.3d 301. It is within the Commis sion’s province to reconcile conflicting evidence and to determine the true facts. Stone v. Dollar Gen. Stores, 91 Ark.App. 260, 209 S.W.3d 445 (2005). The Commis sion is not required to believe the testimony of the claimant or any other witness but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Neal v. Sparks Reg’l Med. Ctr., 104 Ark.App. 97, 289 S.W.3d 163 (2008). The evidence is viewed in the light most favorable to the Commission’s decision, and the decision will be affirmed when it is supported by substantial evidence. Ester v. Nat’l Home Ctrs., Inc., 335 Ark. 356, 981 S.W.2d 91 (1998). Substantial evidence exists if fair-minded persons could reach the same conclusion when considering the same facts. Id. Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires that we affirm if the Commission’s decision displays a substantial basis for the denial of relief. Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000).
According to Arkansas Code Annotated section ll-9-713(a)(2) (Repl. 2002), the Workers’ Compensation Commission may-review any compensation order, award, or decision upon the application of any party in interest, on the ground of a change in physical condition. Further, pursuant to Arkansas Code Annotated section 11-9-522(b)(1) (Replf?002),s the Commission has the authority to increase a claimant’s disability rating when a claimant has been assigned an anatomical-impairment rating to the body as a whole. See Barnett v. Douglas Tobacco, 2009 Ark.App. 193, 2009 WL 700783; Lee v. Alcoa Extrusion, Inc., 89 Ark.App. 228, 201 S.W.3d 449 (2005).
Kelley argues on appeal that the Commission’s findings that she had not demonstrated a change in condition and was not permanently and totally disabled were not supported by substantial evidence. She complains that the Commission improperly considered her testimony that she has had less pain since the 2007 surgery, and, while she concedes that complaints of pain cannot be considered in determining wage loss, she argues that “the use of narcotic pain medications can be considered in determining wage-loss disability.” In support of this contention, she cites Whitlatch v. Southland Land & Development, 84 Ark.App. 399, 141 S.W.3d 916 (2004). We find that case to be distin guishable, however. There, the claimant’s treating physicians specifically found that the claimant was disabled as a result of a combination of his physical impairments and his narcotic usage. Whitlatch, 84 Ark.App. at 403, 141 S.W.3d at 919. Despite that finding, the Commission determined that Whitlatch was not permanently and totally disabled. Id. at 405, 141 S.W.3d at 921.
On appeal, this court analyzed the wage-loss factors in section ll-9-522(b)(l) and considered the claimant’s need for pain medication along with his limited education, manual-labor employment skills, severe ongoing pain, the side effects of his prescription pain medication, and the testimony of his doctors and vocational experts, and the court found that ^reasonable minds could not reach the same decision as the Commission had reached. Id. at 406, 141 S.W.3d at 921.
In the present case, however, we conclude that reasonable minds could reach the same decision the Commission reached. In so doing, we find this case to be very similar to Martin v. Jensen Construction Co., 2010 Ark.App. 294, 374 S.W.3d 774. In Martin, this court affirmed the Commission’s findings that appellant Martin was not permanently and totally disabled and that he had failed to prove entitlement to additional wage-loss disability beyond that which had previously been awarded. Martin sustained a com-pensable injury to his neck in September 1999 and subsequently underwent two surgeries. His employer, Jensen Construction Co., controverted benefits after the second surgery, and in 2005, the Commission ultimately awarded Martin a 25% wage-loss disability beyond his 15% anatomical impairment and found that he had proven entitlement to additional medical treatment, including the two neck surgeries. The Commission, however, rejected Martin’s claims to have sustained a lumbar injury. Neither Martin nor Jensen appealed the Commission’s decision to this court. Martin, 2010 Ark.App. 294, at 1-2, 374 S.W.3d at 775-76.
Martin underwent another cervical-spine surgery in 2006 and claimed additional benefits, asserting that his physical condition had worsened since the 2005 Commission decision. An ALJ found that Martin failed to prove that he was permanently disabled or entitled to additional wage loss beyond the 2005 award, and the Commission affirmed. Id. at 2, 374 S.W.3d at 775-76.
In affirming the Commission, this court noted evidence before the Commission that Martin had undergone three surgeries as a result of a compensable neck injury, and after the | inthird surgery, Martin’s doctors reported that he had experienced significant improvements. Martin himself testified that the third surgery helped, but the pain intensified afterward and he was still taking pain medication. Martin also testified, however, that his neck felt better after the third surgery and conceded that he had told his doctor that he was very happy about the surgery. Id. at 4-5, 374 S.W.3d at 776-77. Martin complained of continuing low back pain, tiredness and weakness, and pain in other parts of his body. Id. One of Martin’s doctors, Dr. Buono, opined that the 2006 surgery was successful, but Martin was nonetheless permanently and totally impaired and unable to return to work because of neuropa-thy, chronic pain, and other ailments. Id. at 5-6, 374 S.W.3d at 776-77. Dr. Michaels, who performed an impairment rating in April 2007, also opined that Martin was permanently and totally disabled. Id. at 6, 374 S.W.3d at 777.
Despite these opinions, this court affirmed the Commission’s decision, noting that the Commission found that “the only change in physical condition” related to Martin’s compensable cervical injuries was the fact that his cervical problems had “dramatically improved ” following his third cervical surgery. Id. at 6-7, 374 S.W.3d at 777-78 (emphasis in original). This court concluded as follows:
We find that the Commission’s opinion displays a substantial basis for denying Martin’s claims for permanent total disability or additional wage-loss benefits. The question before us is not whether the evidence would have supported findings contrary to those of the Workers’ Compensation Commission; rather, the decision of the Commission must be affirmed if reasonable minds might have reached the same conclusion. Coffey v. Sanyo Mfg. Corp., 85 Ark.App. 342, 154 S.W.3d 274 (2004). We are unable to say that reasonable minds could not reach this result, and we therefore affirm.
Id. at 7, 374 S.W.3d at 778.
|^Similarly, in .the present case, although Kelley testified that she was still in pain after the March 2007 surgery, she acknowledged that her symptoms had improved since that time. Dr. Jordan’s correspondence with Kelley’s attorney noted that Kelley’s blurred vision had improved and stated that she had reached maximum medical improvement on March 21, 2008, and he refused to speculate whether Kelley’s impairment rating would increase. In her arguments on appeal, Kelley’s chief complaints are of her ongoing pain, but it is well settled that, when determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the Workers’ Compensation Commission, nor the courts may consider complaints of pain. Ark. Code Ann. § ll-9-102(16)(A)(ii)(a) (Repl. 2002). Because the evidence supports the Commission’s conclusion that Kelley’s condition had improved somewhat since her 2007 surgery, we hold that reasonable minds could reach the same decision the Commission reached, and we affirm.
Affirmed.
VAUGHT, C.J., and GLADWIN, J., agree.
. The parties have stipulated that this opinion is res judicata and law of the case.
. Cooper stipulated that Kelley was entitled to temporary total disability benefits from March 21, 2007 through March 21, 2008. The par ties also stipulated that Kelley’s healing period ended on March 21, 2008.
. The record reveals no such medical testimony or evidence in the present case. | [
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RAYMOND R. ABRAMSON, Judge.
| ,This case has previously been before us, in Watkins v. Southern Farm, Bureau Casualty Insurance Co., 2009 Ark.App. 693, 370 S.W.3d 848, wherein we set forth the procedural history in greater detail. Appellants, Southern Farm Bureau Casualty Insurance Company and Farm Bureau Mutual Insurance Company of Arkansas, Inc. (Farm Bureau), insured appellees, Cleo Watkins, Jr., and Brenda Watkins, in a homeowner’s policy and a general liability policy, each of which had liability limits of $100,000. Scotty Turner sued Mr. Watkins in tort and recovered a judgment against him, which they settled for $1,000,000. Farm Bureau rejected Mr. Watkins’s request for reimbursement of the Turner settlement and his defense costs and filed this action for a declaratory judgment establishing that it had no duty to defend or indemnify Mr. Watkins. Ap-pellees filed a counterclaim for attorney’s fees incurred in defending the Turner lawsuit, both policies’ liability limits, and tort damages. They also asked |2for penalties, interest, and attorney’s fees pursuant to Arkansas Code Annotated sections 23-79-208 and 23-79-209. The trial court granted summary judgment to Farm Bureau. On October 21, 2009, we affirmed as to the tort and indemnification counts but reversed as to the duty to defend, directing the trial court to award an appropriate attorney’s fee for Mr. Watkins’s defense of the Turner lawsuit.
On February 2, 2010, appellees moved for summary judgment, requesting $25,641.75, plus prejudgment interest and twelve-percent penalty, for attorney’s fees paid in the Turner suit; $24,184.12, for unpaid attorney’s fees incurred in that suit, plus prejudgment interest and twelve-percent penalty; and $80,176.50 in attorney’s fees incurred in this action. Appel-lees relied on Arkansas Code Annotated sections 23-79-208, 23-79-209, and 16-22-308 as authority for the awards.
Farm Bureau acknowledged its obligation for the attorney’s fees incurred in the Turner case but asserted that it did not owe a penalty, prejudgment interest, or attorney’s fees incurred in this action. At a hearing, the trial court ruled that section 23-79-209 applied. It entered an order noting that Farm Bureau had paid appellees $25,641.75 (the amount they had paid Mr. Watkins’s attorney); awarding appellees prejudgment interest of $4,185.20 on that amount; awarding appel-lees judgment for the $24,184.12 still owed to Mr. Watkins’s attorney but denying their request for prejudgment interest on that amount; ruling that section 23-79-208 did not apply; denying their request for a twelve-percent penalty; and awarding ap-pellees $80,176.50 for their attorney’s fees incurred in this action. Farm Bureau filed a notice of appeal, and appellees filed a notice of cross-appeal.
1 .¡Ordinarily, summary judgment may be granted by a trial court only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, clearly show that there are no genuine issues of material fact to be litigated and the party is entitled to judgment as a matter of law. Bisbee v. Decatur State Bank, 2010 Ark.App. 459, 376 S.W.3d 505. Where, as here, however, the circuit court’s decision was based upon its interpretation of a statute, which is a question of law, our review is de novo. Evans v. Hamby, 2011 Ark. 69, 378 S.W.3d 723; Johnson v. Dawson, 2010 Ark. 308, 365 S.W.3d 913. In this respect, we are not bound by the circuit court’s decision; however, in the absence of a showing that the circuit court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Id.
The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Potter v. City of Tontitown, 371 Ark. 200, 264 S.W.3d 473 (2007). We construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. Id. When the language of the statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Id. When a statute is ambiguous, however, we must interpret it according to the legislative intent, and its review becomes an examination of the whole act. Johnson, supra. We must reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Id.
The statutes central to this appeal are Arkansas Code Annotated sections 23-79-208 and 23-79-209 (Repl.2004 and Supp. 2009). Section 23-79-208 provides in relevant part:
|4Pamages and attorney’s fees on loss claims
(a)(1) In all cases in which loss occurs and the cargo, property, marine, casualty, fidelity, surety, cyclone, tornado, life, accident and health, medical, hospital, or surgical benefit insurance company and fraternal benefit society or farmers’ mutual aid association or company liable therefore shall fail to pay the losses within the time specified in the policy after demand is made, the person, firm, corporation, or association shall be hable to pay the holder of the policy or his or her assigns, in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorney’s fees for the prosecution and collection of the loss.
(d)(1) Recovery of less than the amount demanded by the person entitled to recover under the policy shall not defeat the right to the twelve percent (12%) damages and attorney’s fees provided for in this section if the amount recovered for the loss is within twenty percent (20%) of the amount demanded or which is sought in the suit.
Subsection (d)(2) (a 2007 amendment) sets a thirty-percent standard in all cases involving a homeowner’s policy.
Section 23-79-209 provides:
Allowance of attorney’s fees in suits to terminate, modify, or reinstate policy
(a) In all suits in which the judgment or decree of a court is against a life, property, accident and health, or liability insurance company, either in a suit by it to cancel or lapse a policy or to change or alter the terms or conditions thereof in any way that may have the effect of depriving the holder of the policy of any of his or her rights thereunder, or in a suit for a declaratory judgment under the policy, or in a suit by the holder of the policy to require the company to reinstate the policy, the company shall also be liable to pay the holder of the policy all reasonable attorney’s fees for the defense or prosecution of the suit, as the case may be.
(b) The fees shall be based on the face amount of the policy involved.
(c) The attorney’s fees shall be taxed by the court where the suit is heard on original action, by appeal or otherwise, and shall be taxed up as a part of the costs therein and collected as other costs are or may be by law collected.
IfiFarm Bureau argues that section 23-79-209 does not authorize an award of attorney’s fees to an insured who, in a declaratory-judgment action brought by an insurer, counterclaims for money damages and only partially prevails on that counterclaim. It contends that section 23-79-209 must be read in conjunction with section 28-79-208, and that together, they required the trial court to entirely deny ap-pellees’ request for fees. According to Farm Bureau, section 28-79-209 is a general statute, the construction of which must yield to the more specific statute, section 23-79-208. Farm Bureau argues that section 23-79-208 applies when an insured obtains a monetary recovery against an insurance company while section 23-79-209 only applies when the insured recovers other kinds of relief. None of the cases cited by Farm Bureau, however, support its argument.
In Newcourt Financial, Inc. v. Canal Insurance Co., 341 Ark. 181, 15 S.W.3d 328 (2000), the insurer filed a declaratory-judgment action against the insured and the loss-payee to determine whether coverage existed, and the loss-payee filed a counterclaim. In addressing the attor-ne/s-fee question, the supreme court explained the different purposes served by the two statutes:
These two provisions address attorney’s fees in different types of lawsuits, both of which happen to be present in this case. It must be borne in mind that this case involves both a claim for declaratory judgment by Canal [the insurer] and a counterclaim for payment of the insurance claim and attorney’s fees by Newcourt [the loss payee]. The declaratory-judgment action implicates section 23-79-209, whereas the counterclaim issues are governed by section 23-79-208.
341 Ark. at 186, 15 S.W.3d at 331.
[fiOur recent decision in Farm Bureau Casualty Insurance Co. v. Krouse, 2010 Ark.App. 493, at 2-3, 375 S.W.3d 763, 765-66, also supports the trial court’s decision:
Farm Bureau appeals the fee award to our court. That argument is divided into two basic assertions: (1) that it was error as a matter of law because Ark. Code Ann. § 23-79-209 did not apply; and (2) that this award demonstrated an abuse of discretion. First, we decide whether an attorney fee is permissible on these facts under section 23-79-209. Farm Bureau contends that the correct statute, if any, would be section 23-79-208 because that statute applies to casualty insurance like this, where an insured files suit to force an insurer to pay benefits. Krouse responds in line with the trial judge’s opinion that section 23-79-209, by its plain wording, applies to any declaratory action even if raised in a counterclaim by Farm Bureau.
Here, we have a suit containing two causes of action: one for payment of an insurance claim, governed by Ark.Code Ann. § 23-79-208, and one for a declaratory judgment, governed by Ark.Code Ann. § 23-79-209. See Newcourt Fin., Inc. v. Canal Ins. Co., 341 Ark. 181, 15 S.W.3d 328 (2000). The application of one does not necessarily preclude application of the other, if both causes of action are at issue.
Declaratory judgment is typically used to determine the obligations of the insurer under a policy of insurance. See Martin v. Equitable Life Assurance Society, 344 Ark. 177, 40 S.W.3d 733 (2001). All interested parties must be named in a declaratory-judgment case. Ark.Code Ann. § 16-111-106 (Repl. 2006). Farm Bureau asked the trial court to “declare” that no UIM coverage existed under Krouse’s automobile insurance policy for notice failures on her part; it sought to determine a right or immunity on its behalf. Krouse prevailed against Farm Bureau’s counterclaim for declaratory judgment attempting to void its obligations to pay UIM. This triggers section 23-79-209 by its plain language. See Newcourt Fin., Inc. v. Canal Ins. Co., supra, (award proper under this section in an automobile liability insurance case).
When Krouse prevailed on her claim seeking payments under the UIM provision of her automobile liability policy, this implicated section 23-79-208. The application of one statute does not preclude the application of the other in the same lawsuit if there is a claim for payment by an insured and a claim for declaratory judgment by the insurer. See Newcourt Fin., Inc. v. Canal Ins. Co., supra.
[7It is, therefore, apparent that section 23-79-208 is not more specific than section 23-79-209 and that the circuit court was correct in construing them as providing alternative, complementary provisions for the award of attorney’s fees in different situations. In our earlier decision, appellees received both declaratory and monetary relief; we held that Farm Bureau owed them a duty to defend and, therefore, reimbursement for Mr. Watkins’s defense costs. This was sufficient to require an award of fees under section 23-79-209. Accordingly, we affirm on direct appeal.
Appellees contend on cross-appeal that the trial court should have awarded a twelve-percent penalty under section 23-79-208 on their recovery of one hundred percent of the Turner defense costs. We agree. A trial court’s decision on whether to award attorney’s fees, a twelve-percent penalty, and interest due to an insurer’s failure to timely pay benefits will not be reversed on appeal unless the trial court’s decision is clearly erroneous. Nationwide Mut. Ins. Co. v. Cumbie, 92 Ark.App. 448, 215 S.W.3d 694 (2005). This is such a case.
An insurance company’s duties to defend and to indemnify are distinct, independent obligations:
An insurer’s duty to defend a lawsuit against its insured is both separate and distinct from the insurer’s duty to indemnify its insured for liability that is imposed against the insured after trial. In liability insurance policies generally, an insurer assumes both the duty to indemnify the insured, that is, to pay all covered claims and judgments against insured, and the duty to defend any lawsuit brought against insured that alleges and seeks damages for an event potentially covered by the policy, even if groundless, false or fraudulent.
The distinction between the duty to defend and the duty to indemnify is based upon the time when the duties are determined. The duty to defend arises prior to the | «completion of litigation, and therefore insurers are required to meet their defense obligation before the scope of the insured’s liability has been determined. In contrast, the duty to indemnify arises only once liability has been conclusively determined. In other words, because the duty to defend arises whenever an insurer ascertains facts that give rise to the possibility or the potential of liability to indemnify, the duty to defend must be assessed at the very outset of a case, unlike the duty to indemnify, which arises only when the insured’s underlying liability is established.
14 Couch on Insurance § 200.3 (3d ed.2011); see also Spears v. State Farm Fire & Cas. Ins., 291 Ark. 465, 725 S.W.2d 835 (1987).
We discussed these duties in our earlier opinion in this action:
Our supreme court has been clear that an insurance company’s duty to defend is broader than its duty to indemnify. Murphy Oil USA, Inc. v. Unigard Sec. Ins. Co., 347 Ark. 167, 61 S.W.3d 807 (2001). The duty to defend arises when there is a possibility that the injury or damage may fall within the policy coverage. Id. The general rule is that the allegations of the complaint determine the insurer’s duty to defend. Id. However, the supreme court has observed that there are occasions where an insurance company’s duty to defend cannot be determined solely from the allegations of the complaint. Commercial Union Ins. Co. of Am. v. Henshall, 262 Ark. 117, 553 S.W.2d 274 (1977). Situations involving claims of self defense in response to allegations of assault and battery fall within this category of cases, because plaintiffs cannot be expected to allege in the complaint that they were assaulted by the insured while the insured was protecting life or property. Smith v. St. Paul Guardian Ins. Co., 622 F.Supp. 867 (W.D.Ark.1985).
Watkins v. Southern Farm Bureau Cas. Ins. Co., 2009 Ark.App. 693, at 3, 370 S.W.3d 848, 851 . Although appellees did not recover the indemnification and tort damages they sought Inin their complaint, they recovered one hundred percent of the attorney’s fees they sought for Farm Bureau’s breach of the independent duty to defend in their February 2, 2010 motion for summary judgment. This request for judgment was a “new and lesser demand” sufficient to invoke section 23-79-208. See State Farm Auto. Ins. Co. v. Stamps, 2009 Ark. 621, at 3, 363 S.W.3d 1, 3. We therefore reverse on this point.
In their next point on cross-appeal, appellees argue that the trial court erred in refusing to award them prejudgment interest on the unpaid defense attorney’s fees ($24,184.12) because Mr. Watkins had incurred a loss in a readily ascertainable amount, as of a certain date. We agree. The test for an award of prejudgment interest is whether a method exists for fixing an exact value on the cause of action at the time of the occurrence of the event that gives rise to the cause of action; if such a method exists, prejudgment interest should be allowed, because one who has the use of another’s money should be justly required to pay interest from the time it lawfully should have been paid. Cumbie, supra; Home Mut. Fire Ins. Co. v. Jones, 63 Ark.App. 221, 231, 977 S.W.2d 12, 17 (1998). Even though Mr. Watkins had not yet paid his attorney this amount, he had become indebted to him in a sum certain as of a specific date. In defining the word “loss,” the insurance policies did not distinguish between paid and unpaid liabilities incurred by an insured. Mr. Watkins’s incurring of the debt to the attorney was a loss sufficient to require the award of prejudgment interest. Accordingly, we also reverse on this issue.
Affirmed on direct appeal; reversed on cross-appeal.
HART and GLADWIN, JJ., agree.
. The duty to defend arises even when the allegations against the insured are "groundless, false, or fraudulent.” Madden v. Continental Cas. Co., 53 Ark.App. 250, 254, 922 S.W.2d 731, 734 (1996). The test is whether the "mere possibility of coverage” exists. Murphy Oil USA, Inc. v. Unigard Sec. Ins. Co., 347 Ark. 167, 178, 61 S.W.3d 807, 814 (2001). In such cases, it is necessary to make a distinction between the obligation to pay benefits and the obligation to defend. See Equity Mut. Ins. Co. v. Southern Ice Co., 232 Ark. 41, 334 S.W.2d 688 (1960). | [
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COURTNEY HUDSON GOODSON, Justice.
| Appellant Independence County, Arkansas, appeals the order entered by the Johnson County Circuit Court denying its motion to compel arbitration of a contract dispute with appellee City of Clarksville, Arkansas. For reversal, appellant challenges the circuit court’s ruling that the arbitration agreement was unenforceable because appellee properly exercised its right to terminate the parties’ entire contract. Appellant also asserts that the circuit court erred by declaring the arbitra tion provisions of the contract void for lack of mutuality. We affirm.
The record discloses that in June 2005 the parties entered into an Amended and Restated White River Hydroelectric Project Power Purchase and Sale Agreement (PPA), wherein appellant agreed to supply, and appellee pledged to purchase, “all power made available by [appellant] according to the rates and conditions” set forth in a formula contained in an attachment to the contract. The electrical power was to be generated by a hydroelectric plant that appellant owned and that utilized a series of locks and dams located on the White 12River. Appellant financed the project by issuing tax-exempt bonds that were to be retired with the funds remitted by appellee for its purchase of electricity. As pertinent here, the PPA provided as follows:
4.1 This agreement shall become effective on that date which is the date of commercial operation of the Plant, as determined by the [appellant], which determination shall be final and conclusive, and shall automatically expire at the end of the FERC license term for Lock and Dam No. 3 (January 31, 2036), unless extended by agreement.
The [appellee] may terminate this Agreement if the Plant has not commenced commercial operation on or before 22 months (not including any delays caused by a force majeure event) after the date hereof, upon sixty days’ written notice to the [appellant].
The PPA also included provisions regarding arbitration. The agreement provided in part as follows:
4.3 Arbitration Mandatory. Except as ■ may be required by federal, state or local law, all claims, disputes and other matters in question arising out of, or relating to, this Agreement shall be submitted to arbitration. Arbitration may be initiated by either [appellant] or the [appellee] by making a written demand for arbitration upon the other party.
In addition, the PPA set forth a procedure for the selection of a panel of three arbitrators and stated that arbitration proceedings were to be conducted in compliance with the Arkansas Uniform Arbitration Act. The arbitration agreement within the PPA also contained the following limitations:
Limitation of Powers. The arbitration panel shall have no authority to add to, delete or alter any provisions of this Agreement but shall limit its interpretation to the express terms of this Agreement. Under no circumstances shall an ^arbitration panel be vested with authority or jurisdiction to determine or add monetary damages (by way of set-off, counterclaim, directly or otherwise) or any other legal relief against the [ap-pellee] or its officers, agents, or employees.
In August 2005, the parties executed an Acknowledgment and Consent Agreement. In relevant part, paragraph 9 of the Consent Agreement, entitled “Additional Provisions,” stated that
(d) the “date of commercial operation” for the Projects shall be the date on which the Projects are substantially complete and capable of producing 70,-527 MWH of electric energy per year (regardless of water flow)[.]
Appellant began supplying appellee eléc-tricity in September 2006. However, the project experienced operational and financial difficulties, and in 2008, the parties executed a Memorandum of Understanding that increased the rate appellee paid for the power supplied by appellant. The Memorandum of Understanding expired in April 2010.
On August 4, 2010, appellee’s mayor, Mayor Billy Helms, wrote a letter to appellant’s county judge, Judge Bill Hicks, advising that appellee was invoking the termination provision found in the second paragraph of section 4.1 of the PPA, effective November 1, 2010. On August. 19, 2010, appellant’s counsel responded to Mayor Helms’s letter. In this correspondence, counsel denied that appellee had grounds to terminate the PPA and demanded arbitration. In a letter dated September 2, 2010, appellee’s attorney replied that the dispute was not arbitrable and rejected the demand for arbitration.
On September 14, 2010, appellant filed a motion to compel arbitration in the Circuit Court of Johnson County, asking the court to order arbitration in accordance with the terms of the PPA. In response, appellee argued that the hydroelectric facilities were a “failed |4project” and that it had validly exercised its contractual right to terminate the PPA because the hydroelectric plant had not achieved commercial operation under the terms of the PPA and Consent Agreement. Appellee maintained that, because it had revoked the PPA in its entirety, the arbitration provisions were also extinguished, such that it no longer had an obligation to submit to arbitration. Appellee also asserted that the arbitration agreement contained within the PPA lacked mutuality of obligation in light of the arbitration panel’s lack of jurisdiction and authority to award monetary damages against it. Further, appellee asserted that appellant was not the real party in interest; that appellant had not received authorization to institute the action; and that the arbitration provisions of the PPA were ambiguous and should be construed against appellant as the drafter of the PPA.
The circuit court conducted hearings on October 28, 2010, and December 1, 2010. Over appellant’s objection, the circuit court permitted appellee to offer testimony in support of its claim that it was entitled to terminate the PPA because the plant did not commence commercial operation. On December 6, 2010, the circuit court entered an order denying the motion to compel arbitration, ruling that the arbitration agreement was not enforceable on two grounds. First, the court found that the plant failed to achieve commercial operation by not meeting the benchmark of annually producing 70,527 MWH of electricity. The circuit court thus concluded that appellee validly exercised its right to terminate the PPA and that, with the revocation of the entire agreement, appellee was released from the obligation to arbitrate. Second, the circuit court found that the arbitration agreement lacked mutuality of obligation because the arbitration panel did not have the authority or jurisdiction to award | ¡¡monetary damages or any other legal relief against appellee. Appellant brings this appeal from the circuit court’s order.
In its first two issues on appeal, appellant challenges that portion of the circuit court’s order in which the court ruled that appellee properly invoked its right under the PPA to terminate the contract, thereby extinguishing its duty to arbitrate disputes. Appellant contends that, under both Arkansas and federal law, the circuit court overstepped the bounds of its authority by determining the validity of the entire contract, as that was a matter for the arbitration panel to decide. As its third point, appellant argues that the circuit court erred in finding that the arbitration agreement lacked mutuality of obligation. We hold that the circuit court did not err in ruling that the arbitration agreement was unenforceable due to the absence of mutuality of obligation. Because the arbitration agreement is void on this basis, we need not discuss the circuit court’s alternative ruling that appellee’s valid exercise of its contractual right to terminate the PPA released appellee from the obligation of submitting to arbitration.
On the question of mutuality of obligation, appellant asserts that the arbitration provisions impose an obligation on both parties to submit contract disputes to arbitration and that neither party is attempting to shield itself from litigation while reserving its own ability to pursue relief through the court system. Appellant contends that, while the arbitration agreement may bar the imposition of monetary damages against appellee, other forms of remedies against appellee are available, such as specific performance and declaratory and injunctive relief. Appellant maintains that the limitation of a remedy does not render the 1 (¡parties’ obligations lacking in mutuality.
An order denying a motion to compel arbitration is an immediately ap-pealable order. Nat’l Cash, Inc. v. Loveless, 361 Ark. 112, 205 S.W.3d 127 (2005). We review the circuit court’s order denying a motion to compel de novo on the record. Id. This court has held that arbitration is simply a matter of contract between the parties and the question of whether a dispute should be submitted to arbitration is a matter of contract construction. BancorpSouth Bank v. Shields, 2011 Ark. 503, 385 S.W.3d 805. The same rules of construction and interpretation apply to arbitration agreements as apply to agreements generally, thus we will seek to give effect to the intent of the parties as evidenced by the arbitration agreement itself. E-Z Cash Advance, Inc. v. Harris, 347 Ark. 132, 60 S.W.3d 436 (2001). The construction and legal effect of an agreement to arbitrate are to be determined by this court as a matter of law. Id.
As we have observed, the essential elements of a contract are (1) competent parties; (2) subject matter; (3) legal consideration; (4) mutual agreement; and (5) mutual obligations. Foundation Telecomms., Inc. v. Moe Studio, Inc., 341 Ark. 231, 16 S.W.3d 531 (2000). This court has recognized that mutuality of contract means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; thus, neither party is bound unless both are bound. Asbury Automotive Used Car Ctr., L.L.C. v. Brosh, 364 Ark. 386, 220 S.W.3d 637 (2005). A contract, therefore, that leaves it entirely optional with one of the parties as to whether or not he will perform his promise would not be binding on the other. Tyson Foods, Inc. v. Archer, 356 Ark. 136, 147 S.W.3d |7681 (2004). Mutuality within the arbitration agreement itself is also required. The Money Place, LLC v. Barnes, 349 Ark. 411, 78 S.W.3d 714 (2002). There is no mutuality of obligation where one party uses an arbitration agreement to shield itself from litigation, while reserving to itself the ability to pursue relief through the court system. Cash in a Flash Check Advance of Ark., L.L.C. v. Spencer, 348 Ark. 459, 74 S.W.3d 600 (2002). Thus, under Arkansas law, mutuality requires that the terms of the agreement impose real liability upon both parties. Harris, supra. A lack of mutuality to arbitrate in an arbitration clause renders the clause invalid. Brosh, supra.
In the “check cashing” cases, this court has consistently held that, where one party retains to itself the right to seek judicial relief, while the other party is strictly limited to arbitration, there is no mutuality of obligation. Id. We have applied this rule in other contexts as well. For instance, in Archer, supra, we held that an arbitration agreement lacked the necessary mutuality of obligation where swine producers were limited to pursuing any grievance in an arbitration forum while Tyson retained the sole right to pursue legal and equitable remedies in a judicial forum. In Brosh, supra, we also found the absence of mutuality where Asbury had the right to pursue legal or equitable relief outside arbitration, while the other parties were strictly limited to arbitration.
In the present case, the PPA provides that “[ujnder no circumstances shall an arbitration panel be vested with authority or jurisdiction to determine or add monetary damages (by way of setoff, counterclaim, directly or otherwise) or any other legal relief against the [appellee] or its officers, agents or employees.” As previously noted, mutuality requires |8that the terms of the agreement impose real liability upon both parties. Brosh, supra. As written, this limitation of jurisdiction precludes the arbitration panel from enforcing appellee’s primary obligation under the PPA, which is to purchase the electrical power supplied by appellant. Thus, on its face, the provision treats the parties differently, and this disparate treatment results in a lack of mutuality. Consequently, we affirm the circuit court’s decision that the arbitration agreement suffers from the lack of mutuality and is unenforceable.
We acknowledge appellant’s citation to the court of appeals’s decision in Hamilton v. Ford, Motor Credit Co., 99 Ark.App. 124, 257 S.W.3d 566 (2007). In Hamilton, the court of appeals held that the parties’ arbitration agreement did not lack mutuality where both parties had the right to arbitrate certain issues and where both parties had the right to litigate certain other issues in a court of law. In the present case, however, only appellant reserved the right to seek recourse in a judicial forum, while appellee was not afforded that option. Therefore, appellant’s reliance on Hamilton is unavailing. Moreover, opinions of the court of appeals do not have any binding effect on this court. Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002).
We also note that appellee advances several alternative arguments in its brief to support the circuit court’s decision. We have no need to address these issues because we affirm based on the lack of mutuality. Advance Am. Servicing of Ark., Inc. v. McGinnis, 375 Ark. 24, 289 S.W.3d 37 (2008).
Affirmed.
. Hydroelectric projects are authorized through the Federal Energy Regulatory Commission. | [
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CLIFF HOOFMAN, Judge.
|!Appellant Elizabeth Suttles Putt appeals from the trial court’s decision awarding a change of custody of the parties’ two children to appellee Lance Suttles. On appeal, appellant argues that the trial court erred (1) in denying her request for DNA testing to determine the paternity of her eldest child, and (2) in awarding custody to appellee. We affirm.
The parties to this appeal were married in October 1998 and were divorced pursuant to a decree entered on February 1, 2010. A separation and property-settlement agreement was incorporated into the decree. This agreement provided that the parties would share joint custody of the parties’ two children, G.S.l (born 12/15/03) and G.S.2 (born 5/23/05), and that all child-related expenses would be split equally, with neither party to pay child support.
On August 27, 2010, appellee filed a petition to modify custody, alleging that there [¡jihad been a material and substantial change in circumstances since the entry of the divorce decree, due to appellant’s remarriage to her current husband, who had since pled guilty to domestic assault and battery charges against appellant. Appel-lee also alleged that the children had witnessed verbal altercations and abuse between appellant and her husband and that this environment was not appropriate for the children. Appellee asserted that he had a stable home and a stable job that would be conducive to raising the children and prayed that he receive custody and that appellant be required to pay child support.
Appellant filed a response to the petition, denying all of appellee’s allegations, and also filed a counterclaim. In her counterclaim, appellant alleged that there had been a material change of circumstances and that it would be in the children’s best interest for custody to be awarded to her, because she had remarried and was now a stay-at-home mom. She alleged that ap-pellee had caused problems between her and her husband and also that appellee was not financially responsible and owed her money for child-related expenses. Appellant further requested that the court order appellee to submit to DNA testing to determine the paternity of G.S.l. In appel-lee’s reply to the counterclaim, he denied the allegations and also asserted that appellant’s request for paternity testing was barred by waiver, res judicata, and collateral estoppel.
Hearings were held on the petition and counterclaim on October 20 and December 9, 2010. After preliminary argument by counsel, the trial court first addressed appellant’s request for paternity testing and stated that it did not have authority to grant DNA testing because the issue of paternity was barred by res judicata and also noted that disaffirmance of | ..¡paternity at that point would be contrary to public policy.
The first witness to testify at the hearing was appellee. He stated that under the parties’ joint-custody agreement, he had the children on alternating weekends and Thursdays, as well as every Wednesday night, and that he had always picked up the children from school on those days. However, appellee testified that since the children started back to school in the fall, he would arrive at school to pick up the children only to find out that appellant and her husband had already picked them up. Appellee would have to then arrange to meet them later to exchange the children. He further stated that he was unable to communicate directly with appellant regarding the children, because she had blocked his phone number from her cell phone. Appellee testified that he now had to contact her through her husband’s phone. He testified as to the unstable nature of appellant’s current marriage to John Putt and stated that, since she married him on February 16, 2010, appellant had separated from him and had even filed a petition for divorce and for a restraining order in March 2010, only to reunite with him in July. Appellee indicated that it was since July that he was unable to call appellant directly or to pick up his children from school. He stated that he was very distressed that he could not communicate with appellant or his children on a regular basis as he had before appellant reunited with Putt. Appellee testified as to verbal altercations that had occurred between him and Putt, where Putt had screamed insults and obscenities at both him and appellant in the children’s presence. He also testified that his children had sometimes returned with bruises and scratches after being with appellant and Putt and that appellant had told him that, on one occasion, Putt chased after one of the | ¿children in a store and grabbed him, causing a bruise. In addition, appellee stated that Putt had sent him inappropriate texts about his and appellant’s sexual relations. Appellee testified that his children call Putt “the bad man,” because appellant had referred to him as such.
According to appellee, he wished to have custody of his children because he did not want them to be in that environment due to his concern for their safety. He testified that he was employed as a police chief and that he still lived in the parties’ marital home. He further stated that he had a very good relationship with appellant’s family, in contrast with appellant since her remarriage, and that the children would be able to remain in contact with their grandparents and other family if they were in his custody. Appellee testified that his work schedule was flexible enough to allow him to care for the children and that he also would have support from family who live nearby. He admitted that he had experienced some financial problems recently but stated that he was resolving these issues and that he would be able to support his children if he were awarded custody.
In her testimony, appellant admitted that she and Putt had a relationship prior to her divorce from appellee. She also admitted that it had been a tumultuous relationship in the past and that she had even requested an order of protection against Putt, which was then dismissed when they were married in February 2010. Appellant testified that she had requested the order of protection after Putt locked her in the bathroom and physically restrained her from leaving his home, leaving bruises on her chest and arms. She admitted that she was afraid of Putt at the time of that incident but stated that appel-lee and her mother had convinced her to file the order. Appellant also admitted that she had filed for divorce 15from Putt in March 2010, approximately one month after they married, and that a restraining order was filed at that time. She further testified that she had requested that the police charge Putt with assault after an incident in June 2010, where he had blocked her path with his vehicle when her youngest son was present. However, appellant claimed that it was interference from appellee and her family that was to blame for her unstable relationship with Putt and stated that, since she had reunited with him in July 2010, they were undergoing counseling at their church and had a good relationship. She did admit that the police were called in September, when she ran to her neighbor’s home wearing only a towel after an argument with Putt, but stated that she and Putt had just needed to “cool off.” Appellant stated that she had limited her contact with ap-pellee and her family because she and Putt had agreed that this was better for their marriage. She testified that she should have custody of the children because she now had a stable home and marriage, she was able to be a stay-at-home mother if she chose, and she took the children to church and Sunday school regularly. She denied that her children were scared of Putt, claiming that they usually chose him to help with homework or to play with them, and stated that it was appellee who had told the children that Putt was a “bad man.”
Appellant’s parents testified on behalf of appellee and stated that he should have custody of the children. They also testified that their daughter and Putt had separated several times and that Putt had sent them threatening and inappropriate texts. According to appellant’s mother, she was concerned about the safety of her daughter and grandchildren, due to Putt’s repeated incidents of controlling and abusive behavior. She further testified that | fiher relationship with appellant was now strained, that they had very little contact since appellant resumed her relationship with Putt, and that she does not get to see her grandchildren very often unless it is through appellee. Appellant’s parents further testified that Putt had made an obscene gesture toward them outside the courtroom that day.
Appellee’s niece, Jodie Griffin, testified that when appellant and Putt were separated, appellant told her that she had instructed her children to run, yell, or draw attention to themselves if they saw Putt at school or out somewhere because she was concerned about their safety. Griffin further stated that appellant’s counselor had told her to get away from Putt because of his controlling, compulsive personality. Griffin testified that appellee is a wonderful father and that she has a close relationship with the children. However, she stated that she had not been allowed to see the children lately when appellant had custody.
Putt also testified and admitted that he had engaged in inappropriate behavior by sending lewd pictures and texts to appellee and appellant’s family. He explained that he only did so because he was hurt and angry at them for interfering with his relationship with appellant and that he was embarrassed by much of his behavior. He also admitted to pleading no contest to domestic assault and battery charges brought by appellant, but he denied any wrongdoing in connection with these incidents. Putt explained that he did not leave bruises on appellant by physically restraining her; rather, he was only trying to keep her from leaving and “her walkin’ into my hands put” the bruises on her. He testified that appellee was blocked from calling appellant’s phone in order to protect his family, and he compared this type of restriction to an anti-virus program for a computer or to parental controls on a 17 television. Putt also denied making any sort of crude gesture toward appellant’s family at the hearing.
Appellant’s church counselor, Mike Hart, also testified on her behalf, stating that she and Putt had improved their communication skills through counseling and that they were now providing a “good solid home” for the children. Hart further testified that he would not have any reservations about having his own children in that home environment.
After hearing all of the evidence, the trial court found that the joint-custody arrangement was not working and that primary custody should be awarded to one of the parties. The court found that Putt had “engaged in a deliberate pattern of parental alienation” against appellee, that he had enlisted appellant’s assistance in that campaign, and that Putt had made it clear that he was going to control how appellee could contact his children, which is “grossly inappropriate.” The court also found that appellant and Putt had attempted to damage appellee’s relationship with his children. The court further noted that appellant was now estranged from her own family, that her family spoke highly of appellee, and that appellee would do a better job of promoting family relationships with all parties. Thus, the trial court found that custody should be changed to appellee and that appellant should receive visitation and pay child support. An order to this effect was entered on January 7, 2011, and the trial court also noted in the decision that appellant’s request for paternity testing was denied. Appellant has timely appealed from this order.
Appellant argues in her first point on appeal that the trial court’s denial of her request for DNA testing to determine the paternity of her oldest child was erroneous. During her |stestimony at the hearing, she testified that she and appellee were separated for approximately one year during their marriage and that she became pregnant with G.S.l during that year. She asserts that the trial court’s reasons for the denial of the DNA testing, which were the doctrine of res judicata and public-policy considerations, should not apply in this case.
As appellant contends, there are two facets to the doctrine of res judicata: issue preclusion and claim preclusion. Hardy v. Hardy, 2011 Ark. 82, 380 S.W.3d 354. In cases such as this one, which involve the same subject matter and the same parties as in the previous suit, the claim-preclusion aspect of res judicata may be applied. Id. The five elements necessary to bar relitigation of a claim are as follows: (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action; and (5) both suits involve the same parties or their privies. Id.
Appellant argues that three of these elements are not met here because the issue of paternity was never raised or contested in the divorce case, as it was in Hardy, and because the divorce decree did not mention this issue. However, this argument ignores the fact that the claim-preclusion aspect of res judicata not only bars claims that were actually litigated in the first suit but also bars claims that could have been litigated. Lindsey v. Green, 2010 Ark. 118, 369 S.W.3d 1; Martin v. Pierce, 370 Ark. 53, 257 S.W.3d 82 (2007); State Office of Child Support Enforcement v. Williams, 338 Ark. 347, 995 S.W.2d 338 (1999); McGee v. McGee, 100 Ark.App. 1, 262 S.W.3d 622 (2007). As the trial court stated in denying appellant’s request, there is a long line of cases applying the doctrine of res judicata to bar relitigation |sof the issue of paternity when it was established under a divorce decree. See, e.g., Martin, supra; Williams, supra; McCormac v. McCormac, 304 Ark. 89, 799 S.W.2d 806 (1990); McGee, supra; Benac v. State, 34 Ark.App. 238, 808 S.W.2d 797 (1991).
In this case, appellant filed for divorce, and appellee did not contest it. The divorce decree approved and incorporated the parties’ separation and property-settlement agreement, which stated that “the parties have two (2) minor children,” listed their names and birth dates, which occurred during the marriage, and provided that the parties would have joint custody of the children. The agreement also set out custody and visitation schedules and provided that all expenses would be split equally between the parties. Further, the agreement stated that “the parties shall enjoy shared parenting as much as possible and share jointly the parental responsibilities and privileges arising from the care of the minor children.” Thus, the issue of paternity was decided in the divorce decree. See Martin v. Pierce, supra (holding that father failed to contest any issue during divorce proceedings and that paternity was established in divorce decree, which stated that children were born of the marriage); see also McCormac, supra (mother’s subsequent challenge to child’s paternity barred by res judicata where parties’ pleadings and property settlement stated that there was one child born of the marriage). Both parties were represented by counsel during the divorce proceedings, and appellant had a full and fair opportunity to raise the issue of paternity, as she was fully aware at that time of the facts giving rise to her later request for DNA testing. McGee, supra. The fact that the parties’ divorce occurred without an adversarial hearing is of no consequence, as res judicata is also applicable to settlement agreements approved by the court and to |inconsent judgments, such as in this case. Crooked Creek, III, Inc. v. City of Greenwood, 352 Ark. 465, 101 S.W.3d 829 (2003). Therefore, the trial court’s denial of appellant’s request for paternity testing on the basis of res judica-ta was not erroneous.
As the trial court noted in its ruling on this issue, there are also public-policy considerations behind the application of res judicata to issues involving paternity. Although Lord Mansfield’s Rule has been abolished and testimony is now allowed by a mother, father, and putative father concerning the paternity of a child, there remains a strong presumption as to the legitimacy of a child born during the marriage. R.N. v. J.M., 347 Ark. 203, 61 S.W.3d 149 (2001) (citing Leach v. Leach, 57 Ark.App. 155, 942 S.W.2d 286 (1997)). Therefore, under Ark.Code Ann. § 16-43-901, the trial court is given discretion in divorce cases on whether to order paterni ty testing and is instructed to consider the child’s best interest before ordering a test that could forever change a child’s life, “merely because the adults who caused such a tumultuous situation are curious to know the results of their infidelity.” R.N., 347 Ark. at 214, 61 S.W.3d at 155.
Appellant argues that policy considerations should favor DNA testing in this case so that the child’s true genetic makeup can be determined and asserts that this was the reason for the request, not to “strip appellee of his parental rights to the child.” However, appellant did not raise this argument in her counterclaim or at the hearing when the trial court ruled on her request, and her claim is therefore not preserved for our review. Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007). Even if this argument had been preserved, appellant’s asserted reason on appeal for requesting the paternity testing is suspect at best, as she first lnraised this issue in her response to appellee’s petition for custody, and she specifically requested that “paternity” of the child be determined. In any event, as the court in Martin, supra, recognized, an interest in a child’s genetics does not outweigh the financial and emotional welfare of the child and the preservation of an established parent-child relationship. The trial court was thus correct in denying appellant’s request, and we affirm on this point.
In her second point on appeal, appellant contends that the trial court erred in awarding custody to appellee. This court reviews child-custody cases de novo and will not reverse a circuit court’s findings unless they are clearly erroneous. Gibson v. Gibson, 2010 Ark. App. 741, 2010 WL 4327099. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Id. Because the question of whether the trial court’s findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child’s best interest. Id. In fact, there are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carry as great a weight as those involving minor children. Id.
Appellant argues that the trial court erred in admitting and relying on evidence that predated the parties’ divorce decree of February 1, 2010, in its award of custody to appellee. 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). 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. Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001). However, as appellant contends, our supreme court has recently held that this exception for facts unknown by the trial court at the time of the initial custody order does not apply to situations where the parties are fully aware of the circumstances and enter into an agreement that is approved by the court. Orantes v. Orantes, 2011 Ark. 159, 381 S.W.3d 758. Thus, appellant is correct that circumstances known by the parties when they enter into a custody agreement cannot be the basis for finding that a material change in circumstances has occurred. Id. Also, in order to avoid the relitigation of factual issues already decided, the trial court will typically restrict evidence to facts arising since the prior order. Id.
While appellant is correct that the modification of custody in this case had to be based on a change in circumstances occurring after the divorce decree was entered, there was sufficient postdecree evidence presented to support the trial court’s decision to change custody here. The parties had agreed on a joint-custody arrangement, which is disfavored in Arkansas. Word v. Remick, 75 Ark.App. 390, 58 S.W.3d 422 (2001). The mutual ability of the parties to cooperate in shared decisions concerning the welfare of the children is essential to support an award of joint custody, and where the parties have fallen into such discord as to render them unable to cooperate in this manner, this in itself can be sufficient evidence of a material change in circumstances to support a modification of custody. Id. The trial court in this case expressly found that the parties’ joint-custody arrangement did not work and that custody 1 TSshould be awarded to one of the parties. Thus, the trial court then correctly engaged in a determination of the children’s best interests to decide which party should receive custody. See Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002).
Although there was some evidence admitted by the trial court that predated the decree, no reversible error occurred here due to the admission of this evidence. The protective order obtained by appellant against Putt was filed prior to the divorce decree, but it was not dismissed until after the decree was entered. Also, the lewd picture and text messages that predated the decree were mostly cumulative of other, similar evidence that occurred postde-cree and were admitted without objection by appellant. The trial court did limit the admission of this pre-decree evidence, and as appellee asserts, much of it that was admitted was relevant to impeach the credibility of appellant and Putt. Further, appellant cannot demonstrate prejudice from the admission of this pre-decree evidence, as there was clearly evidence to support the trial court’s finding that a material change in circumstances had occurred since the decree such that joint custody was no longer an option. Appellee testified that he could not communicate with appellant or his children without going through Putt because his phone calls were being blocked, that he was no longer able to pick up the children from school, and that he was no longer kept informed of the children’s doctor’s visits. This postde-cree evidence showed that the parties were not able to cooperate in decisions regarding the children and that a joint-custody arrangement was no longer appropriate.
The evidence also supports the trial court’s award of custody to appellee. The court found that appellant and Putt had deliberately attempted to alienate the children from their |ufather, that Putt had exerted control over the children’s communication with their father, which the court found to be “grossly inappropriate,” and that appellee would do a better job of being inclusive and promoting family relationships with extended family. Therefore, the trial court’s decision to award custody to appellee was not clearly erroneous, and we affirm on this point as well.
Affirmed.
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KAREN R. BAKER, Justice.
| Appellant Ronald Wayne Magness appeals his conviction of escape in the second degree pursuant to Arkansas Code Anno tated section 5-54-lll(a)(2) (Supp.2009). The court of appeals certified this case as involving an issue of first impression and a substantial question of law concerning the validity, construction, or interpretation of an act of the Arkansas General Assembly. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(b)(1) and (6) (2011). For reversal, appellant asserts that the State failed to prove that he was “in custody,” which is a required element of the charged offense. We reverse and dismiss.
On March 31, 2010, a Drew County jury found appellant guilty of two nonviolent felony offenses. The circuit court entered an order the same date releasing appellant on a $25,000 bond pending bed space pursuant to Arkansas Code Annotated section 16-90-122 (Supp.2007), subject to the following conditions: (1) appellant must meet or contact the |2Prew County Sheriffs Department and his bondsman every Friday; (2) appellant must inform the Drew County Sheriffs Department of his address before release and not change it without the approval of his bondsman and the sheriff; (3) appellant could not leave the State of Arkansas without written permission of the Drew County Sheriff; and (4) appellant could not commit any new offenses. The order further stated that “Any noncompliance shall result in execution of the judgment.”
In April 2010, appellant left the State of Arkansas without written permission and failed to contact the sheriffs department and his bondsman in violation of the conditions of his release. An information was filed charging appellant with second-degree escape, a class B felony. A jury convicted appellant of escape in the second degree in violation of Arkansas Code Annotated section 5-54-lll(a)(2) (Supp.2009). He was sentenced as a habitual offender to thirty years’ imprisonment in the Arkansas Department of Correction (“DOC”).
The single issue presented in this appeal is whether appellant was in custody. Appellant moved for a directed verdict at the close of the State’s case and again at the close of all the evidence. Appellant argues that the circuit court erred in denying his motion for directed verdict because the State failed to prove that he was “in custody” as defined by Arkansas Code Annotated section 5-54-101 (Repl. 2005). The statute authorizing his release, section 16-90-122, refers to the “release of an offender in the sheriffs custody” and to the “offender’s return to custody” upon notice of available bed space in the DOC.
| <¾A motion for directed verdict is a challenge to the sufficiency of the evidence, and the test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Anderson v. State, 2011 Ark. 461, 385 S.W.3d 214. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id.
It is a question of first impression whether a convicted felon released on a bed-space bond is in constructive custody so as to make him criminally liable for second-degree escape when he violates a condition of his release. To answer this question, we must determine the meaning of the phrase “in custody” as it is used in sections 5-54-101 and 5-54-111, in harmony with an offender’s release from and return to custody as it is used in section 16-90-122.
We review issues involving statutory construction de novo, as it is for this court to decide the meaning of a statute. State v. Britt, 368 Ark. 273, 275-76, 244 S.W.3d 665, 667 (2006). When reviewing issues of statutory interpretation, the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Id. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Id. When a statute is clear, however, it is given its plain meaning, and this court [4will not search for legislative intent; that intent must be gathered from the plain meaning of the language used. Id. This court will not interpret a legislative act in a manner contrary to its express language unless it is clear that a drafting error or omission has circumvented legislative intent. Id. Further, penal statutes are to be strictly construed, and all doubts are to be resolved in favor of the defendant. Id. If possible, we construe statutes relating to the same subject matter together and in harmony. Bush v. State, 338 Ark. 772, 2 S.W.3d 761 (1999).
In the case of nonviolent, nonsexual offenses, the circuit court has the authority to permit the temporary release of a defendant from the sheriffs custody pending availability of bed space in the DOC. See Ark.Code Ann. § 16-90-122(a). The circuit court may authorize the release under the terms and conditions that the court determines necessary to protect the public and to ensure the defendant’s return to custody upon notice that bed space is available. See Ark.Code Ann. § 16-90-122(c)(1). The circuit court may require a cash or professional bond to be posted in an amount suitable to ensure the defendant’s return to custody. See Ark.Code Ann. § 16-90-122(c)(2). The phrases “return to custody” and “temporary release” are not defined in the Code.
Arkansas Code Annotated section 5-54-111 provides in pertinent part: “(a) A person commits the offense of second-degree escape if he or she: ... (2) Having been found guilty of a felony, escapes from custody.” Ark.Code Ann. § 5-54-lll(a)(2). The word “escape” is defined to mean “the unauthorized departure of a person from custody[.]” Ark.Code Ann. § 5-54-101(5). The Code defines “custody” as “actual or constructive restraint by a law enforcement officer pursuant to an arrest or a court order.” Ark.Code Ann. § 5-54-J¿01(3)(A).
This court has never before had occasion to consider the interplay of these statutes. In Bush v. State, supra, the court interpreted the phrase “in custody” as it is used in section 5-4-404. In Bush, the defendant had been released on bond while awaiting trial on criminal charges, and his release was conditioned on his enrollment in an electronic-monitoring program for 325 days. Bush, 338 Ark. at 775, 2 S.W.3d at 763. On appeal, the defendant asserted that the, trial court erred in refusing to credit his sentence with the 325-day period of time that he was in the electronic-monitoring program. Id. In construing the phrase, we observed that “in custody” has varied meanings depending upon the context in which it is used. Id. at 776, 2 S.W.3d at 763. We noted that for purposes of Miranda warnings, a person is in custody “when he or she is deprived of freedom of action by formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” Id. We contrasted this with the use of “in custody” in Rule 37 postconviction proceedings where a person is in custody “only when he or she is actually physically incarcerated.” Id. These examples demonstrated that the statutory language “in custody” as used in section 5-4-404 was ambiguous because it was dependent on the context; therefore, the court was required to look to the legislative intent to determine the meaning of the phrase in context. Id.
When the Bush court looked at the legislative intent, it noted that the punishment for leaving an electronically monitored area was set by the enactment of the separate offense of absconding, which differed from the existing offenses for escape. Id.; see also Ark.Code Ann. §§ 5-54-110 to -112. The court further distinguished the prior-to-commitment electronic- | (¡monitoring program, for which the court concluded the defendant was not in custody, from the postconviction home-detention program with electronic monitoring, for which the General Assembly provided that the DOC must award a defendant credit against his sentence for time spent in the program. Id.; see Ark.Code Ann. § 16-93-708 (Supp.1999).
The instant case is distinguishable because appellant was not awaiting trial. He had been convicted and was awaiting notice that space was available in the DOC. However, Bush is instructive because it recognized that other pretrial statutes have only two options for defendants awaiting trial: release on bail or remain in custody. Id. In reaching the conclusion that for purposes of section 5-4-404, the phrase “in custody” should exclude defendants released on bond, the court looked at the definition of “bail bond” as “a bond for a specified monetary amount ... as security for subsequent court appearance of the defendant upon his release from actual custody pending the appearance.” Id. at 778, 2 S.W.3d at 764 (quoting Ark.Code Ann. § 17-19-101 (Repl.1995)). We then noted that “[t]here is a conspicuous absence of any language suggesting a circumstance other than bond or actual custody, thereby manifesting a legislative intent that the phrase ‘in custody’ applies only to circumstances where the individual is not released on bond.” Id. at 778-79, 2 S.W.3d at 764. This rationale would apply equally to postconviction release pursuant to Arkansas Code Annotated section 16-90-122, where the legislature authorized the circuit court to require a cash or professional bond to “ensure the offender’s return to custody.” See Ark.Code Ann. § 16 — 90—122(c)(2); see, e.g., Suit v. State, 212 Ark. 584, 207 S.W.2d 315 (1947) (holding that pronouncing a sentence terminated the sureties’ liability on a pretrial bail bond, taking a | defendant out of the custody of the bail and placing him in the custody of the law, and observing that a new postsentence bond could have been taken to secure the defendant’s return to custody of the law-enforcement officers); Hester v. State, 145 Ark. 347, 224 S.W. 618 (1920) (noting that a bond effectuates a release of a defendant from custody during the pendency of an appeal).
The State asserts that appellant was in “constructive restraint” and thus was in custody for purpose of the escape statute. The State argues that the conditions that the circuit court imposed on appellant constituted constructive restraint by the Drew County Sheriff. We have not defined “constructive restraint” in the context of the escape statutes. However, from the plain meaning of the statute, the legislature’s intent was to “authorize the temporary release of an offender in the sheriffs custody” upon such terms and conditions that the circuit judge may deem necessary “to ensure the offender’s return to custody” including requiring a professional bond. Ark.Code Ann. § 16-90-122. The statute clearly contemplates a temporary release of the offender, which may be subject to obtaining a bond, and a subsequent return to custody. As in Bush, there is a “conspicuous absence” of any language in the statute “suggesting a circumstance other than bond or actual custody[.]” Bush, 388 Ark. at 778-79, 2 S.W.3d at 764.
Here, the evidence at trial showed that appellant was released from custody, subject to several conditions, including procuring a bond to secure his return to custody. The State presented testimony from the Drew County Chief Deputy Circuit Clerk, Sandy Erlanson, that appellant was convicted of a felony and sentenced to a term of imprisonment in the |8POC. Erlanson also stated that the judgment directs the county sheriff to transport appellant to the DOC. Drew County Sheriff Mark Gober testified that bed-space releases are common, sometimes for several months, in Drew County. Gober also testified that appellant had to meet certain conditions, was not free to come and go as he pleased, and was released from jail and not in his custody. The Drew County Circuit Court’s order was admitted into evidence, and it set forth the conditions of appellant’s release. Gober testified that he has the authority to bring a defendant who violates any condition of an order back to jail. Linda Booker testified that her company issued the bond allowing appellant’s release. She stated that it is not uncommon to stay on the bond after someone is convicted of a felony, such as when there is a delay between the date of conviction and the date they are delivered to the penitentiary pending bed space. Booker said that a bond is not a form of custody, but a form of control over the defendant. Lori Ab-bondola-Peters testified that she was appellant’s girlfriend and that she fled the State of Arkansas with him to avoid his prison sentence. Drew County Sheriffs Deputy Ben Michel testified that he drove to Aurora, Colorado, to pick up appellant and Abbondola-Peters from the jail and drove them back to Drew County.
Based on the foregoing evidence, appellant was clearly released under section 16-90-122, and the condition ensuring his return to custody when bed space was available was procuring a professional bond. Appellant was released on bond and not in custody of the law-enforcement officers. Thus, although he violated the conditions of the order allowing his release, he did not escape from custody; and the circuit court erred in denying his motion for directed verdict.
Reversed and dismissed.
. The information also charged appellant with failure to register, a class C felony. The State nolle pressed the failure-to-register charge prior to trial. | [
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ROBERT L. BROWN, Justice.
|,The instant appeal involves an action filed by appellants Theresa Paulino and Eddie Paulino, husband and wife, against appellees QHG of Springdale, Inc., d/b/a Northwest Medical Center and Northwest Arkansas Hospitals, LLC, d/b/a Northwest Medical Center (collectively, NMC) for negligent credentialing and negligent retention. The circuit court granted summary judgment in favor of NMC. We affirm.
The facts are these. On November 17, 2006, Dr. Cyril Raben performed a cervical diskectomy and fusion surgery on Mrs. Paulino’s spine. A follow-up scan showed failure of the fusion in the C6-7 region and that two screws used to hold medical hardware in place were backing out or shifting out of place. After looking at these scans, Dr. Raben recommended that Mrs. Pauli-no schedule a second surgery to remove the medical hardware 12and replace it with newer hardware. According to the Pauli-nos, the purpose of the second surgery was to replace the medical hardware, remove bone spurs, and attempt to fuse the region where the earlier fusion had failed.
The second surgery occurred on December 17, 2007. After the surgery, Mrs. Paulino complained of extreme pain in her neck and shoulders and told the nurses that she could not feel anything below her chest. A CT scan was performed on Mrs. Paulino’s cervical spine, and the radiologist found that part of the medical hardware replaced by Dr. Raben was extending into the spine’s central canal and was likely contributing to the impingement of Mrs. Paulino’s spinal cord. The radiologist also found that a bone was extended into the epidural space approximately five to seven millimeters. After reviewing the CT scan, Dr. Raben performed a third surgery on Mrs. Paulino. The third surgery was also performed on December 17, 2007. After that surgery, Mrs. Paulino could barely move her arms, had pain in her neck, and could not feel her legs. At the time the appeal was filed, Mrs. Paulino remained unable to walk.
The Paulinos filed their first complaint against Dr. Raben and his employer, Arkansas Spine and Orthopedic Association, LLC (NWA Spine Clinic) and alleged that Dr. Raben was negligent and that his employer was vicariously liable for that negligence. The Paulinos amended their complaint a total of five times. In the second amended complaint, they asserted new claims against three new defendants: QHG of Springdale d/b/a Northwest Medical Center; Melanie Richard, R.N.; and American Intraoperative Monitoring, LLC (AIM). The Paulinos maintained their claims for medical negligence against Dr. Raben and |3NWA Spine Clinic but added claims for medical negligence against Richard, the monitoring nurse, and AIM. According to the second amended complaint, Richard negligently failed to communicate the loss of lower-extremity response to Dr. Raben. The complaint further alleged that AIM was “an employer of Richard and was vicariously liable for her negligence.” The Paulinos also asserted a claim for negligent credentialing against NMC and a claim against AIM for the negligent hiring, supervision, and training of Richard.
Dr. Raben and NWA Spine Clinic were dismissed from the litigation after reaching a settlement with the Paulinos.- Richard and AIM were likewise dismissed after reaching a settlement. After these parties were dismissed, the Paulinos filed a third amended complaint. In this complaint the parties making up NMC were named as the defendants. The Paulinos alleged that NMC negligently credentialed Dr. Raben. In support of this claim, the Paulinos asserted that NMC first credentialed and granted privileges to Dr. Raben to perform orthopedic surgery in 1998, although the complaint alleged that he was never credentialed to perform cervical corpecto-mies. Since that time, NMC had re-credentialed Dr. Raben every two years. The complaint further alleged that NMC knew that Dr. Raben was performing cervical corpectomies and that NMC knew he was not competent to perform such surgeries. The Paulinos contended that NMC’s credentialing policies and its complacency in allowing Dr. Raben to perform surgeries for which he was not credentialed or competent to perform led to their damages.
In their third amended complaint, the Paulinos pled several causes of action based in negligence against NMC relating to NMC’s oversight of Dr. Raben and Richard. The |4Paulinos added a plea for declaratory judgment and damages and sought to revoke Dr. Raben’s privileges at NMC.
They subsequently filed two more amended complaints. The final complaint in this case, the fifth amended complaint, asserted claims against NMC, John Doe 1, John Doe 2, and/or John Doe 8. The causes of action asserted were negligence, corporate negligence, negligent credentialing, negligent selection, negligent retention, lack of informed consent, and outrage. All of the negligence counts related to NMC’s negligently permitting Dr. Ra-ben to perform surgery on Mrs. Paulino and negligently permitting Richard to monitor that surgery. The Paulinos also requested punitive damages.
On July 8, 2010, NMC moved for summary judgment and contended that no cause of action exists against NMC under the Arkansas Medical Malpractice Act or in Arkansas’s common law for negligent credentialing or corporate negligence with respect to independent contractors. NMC added in its motion that, were the circuit court to recognize a cause of action for negligent credentialing, NMC would still be entitled to summary judgment based on the immunity granted to it under the Arkansas Peer Review Statute and the federal Healthcare Quality Improvement Act (HQIA) that protects hospitals in connection with credentialing and privileging. NMC further asserted that a third alternative basis for summary judgment was that the Paulinos could not meet their burden of proof because they could not prove two essential elements of a negligence action, which are | sstandard of care and causation. NMC contended that it was entitled to summary judgment on the Paulinos’ claim of outrage and for punitive damages because the facts alleged by the Paulinos did not rise to the level required. NMC, similarly, moved for summary judgment on the causes of action relating to Richard, arguing that she was the employee of an independent contractor, AIM, and not an independent contractor herself. Thus, NMC contended that it could not be held liable for negligent hiring, supervision, or retention of Richard.
The Paulinos responded and asserted that negligent credentialing was recognized under Arkansas’s Medical Malpractice Act, because it was a “medical injury.” They further contended that negligent credentialing was a “long-recognized theory of recovery for direct negligence” against a hospital for violation of a duty owed to its patients that should be recognized in Arkansas. They added that Arkansas’s Peer Review Statute did not immunize NMC’s governing board for credentialing decisions, because it only protects hospital medical staff who are members of the peer review committee. Furthermore, they claimed that the federal HQIA did not immunize credentialing decisions, because it carved out an exception for state-law malpractice claims based on a provider’s negligent treatment or care. They maintained that they could prove causation, because the proximate cause of Mrs. Pauli-no’s injuries was NMC’s decision to credential Dr. Raben. As a final point, they asserted that, although Richard was an employee of AIM, she was also an independent contractor and that NMC was liable for negligence in employing her.
16The circuit court granted summary judgment to NMC on all of the Paulinos’ claims. Specifically, the circuit court found that, as a matter of law, the Medical Malpractice Act did not confer a cause of action for negligent credentialing. The circuit court also found that it was the job of a hospital’s peer review committee to determine whether doctors have complied with the standard of care and questioned how a jury could make an intelligent decision about a hospital’s credentialing decisions when Arkansas’s Peer Review Statute provides a hospital with a “privilege” for those decisions. Accordingly, the court concluded that a cause of action for negligent credentialing does not exist in Arkansas. In addition, the court determined that NMC was immunized under the HQIA and that no exceptions applied, because negligent credentialing is not part of a negligent treatment or care claim. See 42 U.S.C. § 11115(d). The circuit court ultimately agreed with NMC that the Pau-linos could not show causation, because Mrs. Paulino — not NMC — selected Dr. Ra-ben to perform the surgery and Dr. Raben had selected the hospital for the surgery. The circuit court next found that the facts alleged were insufficient to support a cause of action for outrage or punitive damages, and it dismissed all claims concerning Richard, because NMC was not her employer.
The Paulinos urge on appeal that the circuit court erred in finding that Arkansas does not recognize a cause of action for negligent credentialing under the Medical Malpractice Act or at common law. The Paulinos urge, in the alternative, that Arkansas should recognize a new tort for negligent credentialing, using the analysis set out in Larson v. Wasemiller, 738 N.W.2d 300 (Minn.2007). They assert, in addition, that the circuit court erred in 17interpreting the HQIA to provide immunity to NMC, that the circuit court interpreted the causation element of their claim incorrectly, and that they properly stated a claim for outrage and punitive damages. They also challenge the dismissal of all claims concerning NMC’s use of Richard, arguing that Richard was an independent contractor of NMC.
The issue of whether a cause of action for negligent credentialing is a new tort or one that falls within the ambit of the Medical Malpractice Act is an issue of law. A circuit court’s conclusions of law are not given deference on appeal. Hill v. Kelly, 368 Ark. 200, 207, 243 S.W.3d 886, 890-91 (2006). The circuit court in its order for summary judgment concluded that Arkansas’s Medical Malpractice Act does not confer a cause of action for negligent credentialing. The circuit court did not give its reasoning for that conclusion in its order. Nevertheless, we agree.
By its terms, the Medical Malpractice Act applies to all causes of action for “medical injury.” Ark.Code Ann. § 16-114-202 (Repl.2006); see also Pastchol v. St. Paul Fire & Marine Ins. Co., 326 Ark. 140, 144, 929 S.W.2d 713, 714 (1996). Under the Act, an action for medical injury means “any action against a medical care provider, whether based in tort, contract, or otherwise, to recover damages on account of medical injury.” Ark.Code Ann. § 16-114-201(1) (Repl.2006). A medical care provider includes a hospital. Ark. Code Ann. § 16-114-201(2). A “medical injury” is defined as
any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such services; or from rendition of such services without informed consent or in breach of warranty or in violation of contract; or from failure to diagnose; or from premature abandonment of a patient or of a course of treatment; or from failure to properly maintain equipment or appliances |snecessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services.
Ark.Code Ann. § 16-114-201(3).
This court has discussed the parameters of “medical injury” in several of our cases. In Bailey v. Rose Care Center, for example, an eighty-nine-year-old nursing-home resident was killed when he left the nursing home unnoticed in his wheelchair and was subsequently struck by a pickup truck. 307 Ark. 14, 15-16, 817 S.W.2d 412 (1991). The circuit court gave Arkansas Model Jury Instruction 1501 to the jury, regarding “medical injuries.” Id. at 18, 817 S.W.2d at 414. We held that this was error, because there was no “medical injury.” Accordingly, instructing the jury on AMI Civ. 1501 was prejudicial and likely misleading, because the instruction included the wrong standard of care. Id. at 19, 817 S.W.2d at 415.
In the same vein, in McQuay v. Guntharp, we held that a physician’s act of fondling a female patient during a medical exam did not constitute a “medical injury” because the act was outside the doctor’s treatment and provision of services. 336 Ark. 534, 541, 986 S.W.2d 850, 853 (1999). Revealing confidential information also does not constitute a “medical injury.” Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994) (hold ing that a breach of patient-doctor confidentiality is an action in negligence, not malpractice). This court has also held that there was no “medical injury” where a patient alleged that a clinic negligently allowed a romantic affair to continue between its receptionist and her husband. Howard v. Ozark Guidance Ctr., 326 Ark. 224, 225, 930 S.W.2d 341 (1996) (holding that the statute of limitations applicable to negligence actions applied, not the limitations provision for medical-malpractice actions).
|sOn the other hand, in Sexton v. St. Paul Fire & Marine Ins. Co., this court found that the use of a restraint vest on a patient constituted a professional service. 275 Ark. 361, 631 S.W.2d 270 (1982). In Sexton, a mentally confused eighty-one-year-old man was admitted to the Nevada County Hospital. Id. at 362, 631 S.W.2d at 271. He fell several times while he was in the hospital, and the nurses found him trying to climb out of bed on several occasions. Id., 631 S.W.2d at 271. As a result, his doctor authorized use of a restraint vest “as needed for safety” but allowed the nurses to make the final decision regarding use. Id., 631 S.W.2d at 271. No vest was ever placed on the patient during his stay. Id., 631 S.W.2d at 271. He fell again, fracturing his hip and shoulder. Id., 631 S.W.2d at 271. When he died several months later, his estate sued the hospital, alleging that it was negligent for failing to place him in a vest. Id., 631 S.W.2d at 271. Because only a doctor could authorize the use of a restraint vest, this court held that it required the expert judgment of a healthcare provider and constituted a professional service. Id. at 363, 631 S.W.2d at 272. Although this court held that the patient had suffered a “medical injury,” and so the estate could file a lawsuit against the hospital under the Medical Malpractice Act, we affirmed the directed verdict in favor of the hospital, because the estate failed to present evidence of the degree of skill used by other hospitals in the same or similar locality as required. Id. at 362-63, 631 S.W.2d at 271. There was no discussion about the employment relationship between the hospital and the doctor authorizing use of the restraint vest.
From these decisions, we can determine that in order to constitute a “medical injury” under the Medical Malpractice Act, the injury must be the result of (1) a professional service, )10(2) a doctor’s treatment or order, or (3) a matter of medical science. Howard, 326 Ark. at 228, 930 S.W.2d at 343. Although the injury to Mrs. Paulino was the result of a doctor’s treatment, this court has consistently rejected claims that an injury constituted a “medical injury” when the injury did not originate with a doctor’s order. Compare Bailey, 307 Ark. 14, 817 S.W.2d 412, and Wyatt, 315 Ark. 547, 868 S.W.2d 505, with Sexton, 275 Ark. 361, 631 S.W.2d 270.
In the case at hand, the decision to credential Dr. Raben was not, at its genesis, a decision to pursue a method of treatment, care, or course of medical action relating to a specific patient. Because of this, we hold that the circuit court did not err in determining that the Medical Malpractice Act does not confer a cause of action for negligent credentialing as a “medical injury” due to the fact that credentialing decisions do not involve a professional service, doctor’s treatment or order, or a matter of medical science related to specific patient care.
The fact that we conclude that the Medical Malpractice Act does not confer a cause of action for negligent credentialing, however, does not end the inquiry. The question remains whether Arkansas should recognize negligent credentialing as a new brand of negligence under its common law. In Bailey, this court held that no “medical injury” was involved in the case of the escaping patient, and, therefore, the heightened standard of care enunciated in the Medical Malpractice Act did not apply. Instead, this court observed that the proper standard of care was an ordinary-negligence standard. Bailey, 307 Ark. at 19, 817 S.W.2d at 414-15. Likewise, in Howard, this court found that breach of confidentiality was | n negligence, but not medical malpractice, and so the statute of limitations for ordinary-negligence actions applied. Howard, 326 Ark. at 228, 930 S.W.2d at 343. In McQuay, this court found that there was no “medical injury” involved with the improper fondling of a patient but that the complaint had stated a cause of action for outrage. McQuay, 336 Ark. at 537, 986 S.W.2d at 851. These cases graphically illustrate that where a complaint states a cause of action for either ordinary negligence or another tort, the failure to state a claim for “medical injury” under the Medical Malpractice Act may not be fatal.
In the instant case, part of the basis for NMC’s motion for summary judgment was that negligent credentialing was not a cognizable claim under either the Medical Malpractice Act or at common law. Reviewing the pleadings, it is clear to this court that the Paulinos have alleged a cause of action for negligence under the rubric of negligent credentialing, in addition to one for “medical injury” under the Medical Malpractice Act, as the basis for their claim against NMC. Negligent credentialing does not fall squarely within the parameters of those negligence torts currently recognized in Arkansas such as negligent hiring, negligent retention, negligent supervision, or negligent hiring of an independent contractor. The issue, therefore, becomes whether this court should extend its current negligence jurisprudence and recognize a direct cause of action against NMC specifically related to negligent credentialing and the harm done to Mrs. Pau-lino.
This court historically treads cautiously when deciding whether to recognize a new tort. We have said that we are especially averse to creating a new tort that would only lead to duplicative litigation and encourage inefficient relitigation of issues better handled within |12the context of the core cause of action. Goff v. Harold Ives Trucking Co., Inc., 342 Ark. 143, 151, 27 S.W.3d 387, 391 (2000) (citing Trevino v. Ortega, 969 S.W.2d 950 (Tex.1998)). We have also said recently that we will decline to recognize a new cause of action if there are other sufficient avenues, short of creating a new cause of action, that serve to remedy the situation for a plaintiff. Dowty v. Riggs, 2010 Ark. 465, 385 S.W.3d 117 (citing Rees v. Smith, 2009 Ark. 169, 301 S.W.3d 467).
The Paulinos urge that negligent credentialing is akin to the tort of negligent supervision of employees, which is recognized in Arkansas. See Regions Bank & Trust v. Stone County Skilled Nursing Facility, Inc., 345 Ark. 555, 567, 49 S.W.3d 107, 115 (2001). In order to recover under a theory of negligent supervision, a plaintiff must show that an employer knew or, through the exercise of ordinary care, should have known that its employee’s conduct would subject third parties to an unreasonable risk of harm. See Regions Bank & Trust, 345 Ark. at 568, 49 S.W.3d at 115 (citing Sparks Reg’l Med. Ctr. v. Smith, 63 Ark.App. 131, 976 S.W.2d 396 (1998) (rejecting a claim for negligent supervision of an employee where the employee was a newly hired and untrained nurse’s aide who sexually assaulted an immobile, semicomatose female patient, because there was no notice that the employee posed such a danger and the act was not foreseeable)).
Likewise, the Paulinos assert that negligent credentialing is a natural extension of the tort of negligent hiring of an independent contractor, another tort recognized in Arkansas. See Stoltze v. Ark. Valley Elec. Co-op. Corp., 354 Ark. 601, 607, 127 S.W.3d 466, 470 (2003) (“[A]n employer may be held liable for the conduct of a careless, reckless, or incompetent | ^independent contractor when the employer was negligent in hiring the contractor.”); Gordon v. Matson, 246 Ark. 533, 536, 439 S.W.2d 627, 629 (1969) (recognizing that an employer may be responsible for the negligence of an independent contractor, if the employer has undertaken to perform certain duties or activities and negligently fails to perform them thereafter or perform them in a negligent manner).
In addition to negligent supervision of an employee by an employer, and negligent hiring of an independent contractor, the Paulinos rely on cases recognizing a cause of action for negligent hiring or retention of an employee. From our caselaw, it appears that in order to state a claim for negligent hiring, the plaintiff must show (1) that an inadequate background check was done or there was the complete absence of a background check; (2) that a proper background check would have revealed that the employee was not qualified for the position for which he or she was hired; and (3) that if the claim is based on a criminal act by the employee, there was a direct causal connection between an inadequate background check and the criminal act for which the plaintiff is attempting to hold the employer liable. See Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997); see also Sainé v. Comcast Cablevision of Ark, Inc., 354 Ark. 492, 501, 126 S.W.3d 339, 345 (2003). Under each of these theories of recovery, the employer’s liability rests upon proof that the employer knew or, through the exercise of ordinary care, should have known that the employee’s conduct would subject third parties to an unreasonable risk of harm. Sainé, 354 Ark. at 497, 126 S.W.3d at 342.
| uThese causes of action in negligence brought directly against an employer for breach of the duty of ordinary care owed to third parties seem categorically different from a hospital’s decision to credential a physician. For one thing, the credentialing decision, at least in the instant case, went through the process of peer review under the Arkansas Peer Review Statute. See Ark.Code Ann. §§ 20-9-501 to -503 (Repl.2005). Thus, a statutory system is in place for the initial and ongoing review of competency as part of the credentialing process to assure that health services are being performed in accordance with the appropriate standard of care. Ark.Code Ann. § 20-9-501(2)(A). In general, ordinary decisions by an employer to hire an employee or independent contractor are not subject to any similar statutory safeguards. Nor do we agree with the Paulinos that Arkansas’s Peer Review Statute contemplates a direct cause of action against NMC due to the fact that NMC is not entitled to immunity as part of the peer review committees under the statute relating to discovery and introduction of documents and testimony into evidence. See Ark.Code Ann. § 20-9-503(a)(1). Rather, we find that no direct cause of action is contemplated by the immunity provisions.
The Paulinos rely primarily on Larson v. Wasemiller to provide a framework this court should use to analyze whether negligent credentialing should be recognized as a tort in Arkansas. See Larson, 738 N.W.2d 300 (Minn.2007). The issue in Larson was whether |1sMinnesota should recognize a cause of action for negligent credentialing. Id. at 303. In deciding whether to recognize a common law tort, the Minnesota Supreme Court used a four-part analysis, the first part being whether the tort of negligent credentialing was inherent in, or the natural extension of, a well-established common-law right. Id. at 304. Because we answer this question in the negative, we need proceed no further with the Larson analysis. We hold, in short, that we do not find it necessary to create a new tort in order to provide a party with another remedy against a hospital premised on physician credentialing. See Goff, 342 Ark. 143, 150, 27 S.W.3d 387, 391. We affirm the circuit court on this point. Because we decline to recognize a cause of action for negligent credentialing, we need not address NMC’s claim of immunity under the Arkansas Peer Review Statute or the federal HQIA.
Moreover, NMC would not be liable for the tort of an employee of an independent contractor like Richard. See, e.g., Stoltze, 354 Ark. at 607, 127 S.W.3d at 470 (“The general rule is that an employer is not responsible for the negligence of his or her independent contractor.”). The Paulinos acknowledged in their complaint that Richard was an employee of AIM. Accordingly, we reject their contention that she should be considered the independent contractor instead of AIM.
With regard to the tort of outrage, we agree with the circuit court that the facts alleged, and particularly the absence of a causative link between NMC and the injury to Mrs. Paulino based on negligent credentialing, did not rise to the level of outrage. See Crockett v. Essex, 341 Ark. 558, 563, 19 S.W.3d 585, 589 (2000) (finding that this court gives a narrow ]ir,view to the tort of outrage, and requires clear-cut proof to establish the elements in outrage cases).
In addition, since we find no direct negligence on the part of NMC due to its credentialing, it would be contrary to that decision to find that outrage did occur, when outrage requires a higher burden of proof than mere negligence. See Crockett, 341 Ark. 558, 19 S.W.3d 585. Finally, without an award of compensatory damages, there is no basis for punitive relief. Bell v. McManus, 294 Ark. 275, 277, 742 S.W.2d 559, 560, opinion supplemented on denial of reh’g, 294 Ark. 275, 745 S.W.2d 140 (1988) (“In the absence of an award for damages for the underlying cause of action, punitive damages are improper.”).
For all of these reasons, the order of summary judgment is affirmed.
Affirmed.
GOODSON, J., not participating.
. NMC sought to remove the case from state court to federal court on December 18, 2009. The Paulinos opposed removal and moved to remand, which the federal court granted on February 10, 2010.
. We are precluded from addressing the Pau-linos’ contention that Arkansas Code Annotated section 17-95-107 provides access to credentialing information by patients who bring negligent-credentialing claims because this contention was not made below. It is well settled that we will not address arguments raised for the first time on appeal. Jordan v. Diamond Equip. & Supply Co., 362 Ark. 142, 154, 207 S.W.3d 525, 534 (2005). | [
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RITA W. GRUBER, Judge.
| ,This workers’ compensation appeal is brought by Terence Watts, a former automotive service technician, who sustained a compensable injury to his left knee on March 6, 2008, when he fell off a ladder while putting tires into a rack at Sears. Acting pro se, he appeals the decision of the Arkansas Workers’ Compensation Commission regarding additional benefits for his injury. He contends that the Commission erred in determining that he failed to prove injuries sustained to his right shoulder and back, entitlement to medical treatment for right-shoulder and back injuries, and entitlement to additional temporary total disability benefits. In his final point, he contends that the Commission erred in determining that Sears and its insurer were entitled to credit toward payment of permanent partial-disability benefits based upon their overpayment of temporary disability benefits.
Un cases such as this, where the Commission denies benefits because a claimant failed to meet his or her burden of proof, the appellate court will affirm if the Commission’s decision displays a substantial basis for the denial of relief. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000); Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000). If reasonable minds could have reached the result shown by the Commission’s decision, we must affirm. Sys. Contracting Corp. v. Reeves, 85 Ark. App. 286, 151 S.W.3d 18 (2004).
At an October 7, 2009 hearing before an administrative law judge, Sears controverted Mr. Watts’s claim for additional benefits related to his knee injury and contended that his right-shoulder claims and back problems were not causally related to his accident at work. The law judge ruled that Mr. Watts failed to prove he sustained compensable injuries other than to the knee as a result of the March 6, 2008 incident, and that all medical and temporary indemnity benefits had been paid. Her opinion included the following:
I find that the conclusions and recommendations by Dr. Clark and Dr. Rooney are consistent with initial history of the work incident as provided by the claimant and the other medical records in this case. I also find that the observations and opinions of Dr. Chakales related to the claimant’s right shoulder and back problems are based on the subjective history provided by the claimant and are contradicted by the other medical records and prior inconsistent statements of the claimant in both the initial accident report and emergency room records contemporaneous with his treatment.
She also found that Mr. Watts did not seek medical attention for his right shoulder or back subsequent to the Sears incident until four months later, in July 2008, despite receiving |3medical care for his left-knee complaints, and that he had indicated at the emergency room that his shoulder problems resulted from “an incident that occurred at home without specific injury a few days prior to his visit to the emergency room.” The Commission affirmed and adopted the opinion of the law judge, thus making the opinion its own.
Evidence at the hearing included medical records; testimony by Mr. Watts and Charles John Kozak, general manager of Sears in Pine Bluff; and a printout of indemnity benefits that had already been paid. Medical records preceding Mr. Watts’s work-related accident revealed that he sought treatment for injuries to his right shoulder as a result of a fight in July 1996; in May 1997 for injuries to his right wrist; and in November 1997 for injuries to his right wrist and right shoulder after another motor vehicle accident.
On March 6, 2008, the date Mr. Watts fell from the ladder, he was seen at Healthcare Plus. Dr. Waseem A. Shah noted that Mr. Watts said his left knee twisted in the accident and his pain level was an 8 out of 10. Dr. Shah observed edema in the knee and reported tenderness upon palpation, and an x-ray confirmed there was moderate effusion. In a note of March 10, 2008, Dr. Shah referred Mr. Watts for orthopedic care and reported that “a significant amount of pain remained in his right [sic] knee.”
An office note by Dr. Charles A1 Clark, the orthopedist who evaluated Mr. Watts on March 11, 2008, recites the patient’s complaint of knee pain from his fall and the doctor’s observation of mild effusion in the knee. Dr. Clark reported, “He will not allow me to examine the knee today. I think he is a little bit over-demonstrative when it comes to complaints of pain.” Dr. Clark on March 18 stated that Mr. Watts was unable to return to |4work and was on total temporary disability pending MRI results, which subsequently revealed damage to the left knee. Dr. Clark performed arthroscopic surgery on April 4, 2008, and released Mr. Watts to modified duty on May 7, 2008, noting a need for aggressive daily rehabilitation. Office notes the same day reflect Mr. Watts’s complaint of pain at the surgery site, as well as “vague and weird symptoms” and stomach heaviness from taking his GI tract medications. Dr. Clark wrote that the knee had some swelling, mostly due to scarring, but that Mr. Watts needed to use the knee more aggressively and get more aggressive with physical therapy. Dr. Clark stated:
Terence does not want to go back to work, but having looked at the note from his Workers’ Compensation coverage, they have sedentary duty available for him. I think it would be in his best interest to do this. He will have significant limitations on him in that he does not want to bear weight on his L leg at all. I am not sure what the etiology of this problem is[.]
Dr. Clark supported Mr. Watts’s request for a second opinion but stated that the biggest problem was the lack of aggressive therapy.
The first record of shoulder problems appears in an emergency-room report of July 1, 2008, which relates Mr. Watts’s statement that his right shoulder was bothering him after a home accident several hours earlier. The report shows the reason for visiting the emergency room: “Pain right shoulder. Cannot lift right arm above his head. Had surg on left knee April 4.”
In an office visit of July 7, 2008, after the change of physicians was granted, Dr. Harold Chakales noted Mr. Watts’s complaints of pain and diagnosed a severe right-shoulder injury. Dr. Chakales requested an MRI of the right shoulder and a new MRI of the left knee, and | ¿opined that Mr. Watts had been permanently and totally disabled since his March 6, 2008 injury and was unable to work. After reviewing previous medical records and a left-knee MRI performed on July 14, 2008, and seeing Mr. Watts in August 2008 for severe right-shoulder and left-knee pain, Dr. Chakales reported that the knee had significant injury, atrophy, and instability. He disagreed with Dr. Clark’s recommendation for intensive physical therapy, stated that further surgical repair might be needed, recommended an MRI of the shoulder, and opined that Mr. Watts was temporarily totally disabled and unable to work. In notes of a follow-up visit on September 3, 2008, Dr. Chakales wrote that Mr. Watts needed extensive physical therapy and rehabilitation of the left knee and reevaluation regarding further surgery, and that an MRI was needed for his major problem, right-shoulder pain. Dr. Chakales again opined that Mr. Watts was disabled and unable to work. In notes of an October 1, 2008 visit, Dr. Chakales essentially repeated this information and recited that the patient attributed his shoulder injury to the original accident.
After conducting an independent medical evaluation on December 12, 2008, Dr. Thomas Rooney concluded, “I don’t think his complaints of shoulder disability and pain, and his complaints of back trouble are related to the injury in question.” Dr. Rooney reported residual impairment to the left knee in the form of limited motion, muscle atrophy, and instability, which he opined would be permanent. He stated that Mr. Watts should be able to return to limited-duty work with restrictions and that the healing period would end at one year, in April 2009.
Dr. Chakales examined Mr. Watts again in November 2008. He disagreed with Dr. Rooney’s evaluation, maintaining in a January 26, 2009 letter that the left-knee problems | fiwere severe, the knee was nonfunctional, and Mr. Watts was “totally functionally disabled” and unable to work. The off-work slip of that date states that Watts is “temporarily totally disabled.” Dr. Chakales recommended a complete work-up of the left knee and right shoulder and a functional capacity evaluation.
After a clinic visit on February 2, 2009, Dr. Rooney assigned Mr. Watts a permanent impairment of thirty-three percent to the lower extremity. In a final visit of March 9, 2009, Dr. Chakales saw Mr. Watts for shoulder and left-knee pain. Dr. Chakales again recommended intensive physical rehabilitation for the knee and intensive therapy for the right shoulder. He also stated that Mr. Watts remained temporarily disabled and, although his knee had become more stable, needed at least six weeks of physical therapy of the knee for maximum healing.
Mr. Watts testified that Dr. Shah saw him for pain and swelling in the leg the day of his fall, and that he kept telling the doctor that his “whole body was hurting.” He testified that on March 11, 2008, he told Dr. Clark that his left knee hurt, he had a previous back injury, and his back was hurting. He testified that he told Drs. Clark and Chakales about his right shoulder, that he also told Dr. Chakales about his leg and back, and that there were no problems with his shoulder before his fall from the ladder at Sears. He said that it was hard for him to do the light-duty work provided by Sears, such as writing, because of needing his medication and because pain from his right shoulder affected his right-handedness. When questioned on cross-examination, he stated several times that he could not recall specific incidents and complaints found in his past medical records.
17Charles Kozak testified that Sears repeatedly attempted to return Mr. Watts to work in a job consistent with the sedentary restrictions given by Dr. Clark. Mr. Ko-zak recounted that the in-house accident report of March 6, 2008, indicated only the left-knee injury and no other complaints. He stated that Mr. Watts worked “some” at sedentary jobs, for which Sears had provided transportation. Mr. Kozak noted that Mr. Watts had been sent home or had left early after complaining of increased pain or drowsiness from medication. Mr. Kozak verified from company records that Mr. Watts had been terminated after he was released to return to work and was determined to have reached maximum medical improvement.
Right Shoulder and Back
In his first point on appeal, Mr. Watts challenges the Commission’s finding that he failed to prove that he sustained injuries to his right shoulder and back in his fall at work. In his second point, he contends that he is entitled to medical treatment for his right shoulder and back. Any entitlement to medical treatment depends on proof that theses injuries were caused by the incident at work. Therefore, we address the points together.
Mr. Watts asserts that a causal relationship was established between his fall from the ladder and his subsequent physical injury. He complains that the Commission relied solely on the findings or Drs. Clark and Rooney, improperly placing great weight on their medical reports and records while arbitrarily disregarding information provided by Dr. Chakales, the attending primary-care physician. He notes conflicting references to “right” and “left” knee in Healthcare’s initial records about his accident, states that he told his doctors about his body hurting “all over” within the time allowed for filing additional compensation, and asserts that his claim for additional compensation was not barred by the statute of limitations.
| «The appellate court defers to the Commission on issues involving the weight of the evidence and the credibility of the witnesses, Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001), and the Commission’s findings will be upheld unless no substantial evidence supports them. Pyle v. Woodfield, Inc., 2009 Ark. App. 251, 306 S.W.3d 455. Substantial evidence exists only if reasonable minds could have reached the same conclusion without resort to speculation or conjecture. White Consol. Indus. v. Galloway, 74 Ark.App. 13, 45 S.W.3d 396 (2001). The Commission may not arbitrarily disregard a physician’s opinion, but it is within the province of the Commission to reconcile conflicting medical evidence. Foxx v. American Transp., 54 Ark.App. 115, 924 S.W.2d 814 (1996). If reasonable minds could have reached the result shown by the Commission’s decision, we will affirm. Sys. Contracting Corp., supra.
In Kivett v. Redmond Co., 234 Ark. 855, 355 S.W.2d 172 (1962), a workers’ compensation claim for a lower-back injury was filed over two-and-a-half years after a fall resulted in a compensable injury to the claimant’s coccyx. The claimant was treated for the injury, released with no permanent disability two months later, then underwent unrelated gall-bladder surgery nearly fifteen months later. Six months after the gall-bladder surgery, she returned with complaints of soreness in her coccyx and returned to the doctor who had cared for her after the fall. He removed bones of the coccyx; two months later he again discharged her as cured with no finding of disability. The doctor’s records did not suggest injury other than to the coccyx at the time of the initial fall, nor did his subsequent records refer to back trouble or imply that he believed she had lower-back pain. After she filed her claim, she was |9sent to Dr. Jones, an orthopedic specialist. The Commission noted the orthopedist’s written opinion that “based on the patient’s history it must be accepted that the injury in question is related to the patient’s low back discomfort.” Our supreme court affirmed the denial of the claim, stating
Dr. Jones’s opinion was “based on the patient’s history,” and the commission ... indicated its belief that this medical opinion was entitled to no greater weight than the history that the physician had elicited from his patient.
The question is ultimately a simple one of credibility, a matter lying within the exclusive province of the commission .... That testimony is not corroborated by other workers.... It is impliedly contradicted by every written medical record that was made during the two and a half years preceding the assertion of this claim. Unless Dr. Jones’s single sentence can be so construed, there is in the record no medical opinion purporting to say that a fall such as Mrs. Kivett experienced ... would tend to cause pains in her lower back then or later on. In a case of this kind it is not for us to say that the commission was required to accept the claimant’s testimony and on that basis to make an award of compensation. We are bound by the commission’s findings upon the disputed question of fact.
Kivett, 234 Ark. at 857, 355 S.W.2d at 173-74.
In the case now before us, the recommendations and opinion of a primary doctor were based on the patient’s subjective complaints, which the Commission found were not brought at the time of the accident. The Commission acknowledged Dr. Chakales’s opinion but gave it little weight, noting that it was based on the history Mr. Watts provided some four months after the accident. It was within the province of the Commission to do so.
We will not address Mr. Watts’s argument concerning the statute of limitations because the Commission, rather than rule on that issue, addressed only whether the accident caused injuries in addition to Mr. Watts’s leg injury. Contradictions within Mr. Watts’s testimony, contradictions between his testimony and the medical records, and Healthcare’s contradictory | tnreferences to right leg and left leg were matters for the Commission to resolve. The resolution of these issues in the Commission’s decision constitutes a substantial basis for denying Mr. Watts’s claim that his shoulder and back problems were related to his fall at Sears and that he was entitled to related medical treatment.
Temporary Total Disability
Mr. Watts contends in his third point that he remains temporarily and totally disabled because Dr. Chakales stated that his healing period had . not ended, leaving him off work indefinitely. Mr. Watts asserts that he still needed treatment for his leg, shoulder, and back, as recommended by Dr. Chakales.
The healing period is defined by statute as “that period for healing of an injury resulting from an accident,” Ark. Code Ann. § 11-9-102(12) (Supp.2011), and whether it has ended is a factual determination to be made by the Commission. King v. Peopleworks, 97 Ark.App. 105, 244 S.W.3d 729 (2006). Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Ark. State Highway Dep’t v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). If an injured employee refuses employment suitable to his or her capacity offered to or procured for him or her, he or she shall not be entitled to any compensation during the continuance of the refusal, unless the refusal is justifiable. Ark.Code Ann. § 11-9-526 (Repl.2002).
The Commission found that Dr. Clark released Watts to return to sedentary work as of May 7, 2008, that Sears made available sedentary work within his restrictions, but that he failed to avail himself of these work opportunities due to his unwillingness to return. The In Commission therefore concluded that he was entitled to temporary total disability benefits only from March 6, 2008, until May 8, 2008.
Dr. Clark’s release to work states that Sears provided jobs within Mr. Watts’s sedentary restrictions and that it would be in his best interest to work despite not wanting to. In addition to providing the work, Sears provided transportation. Both Mr. Watts and his manager testified that he left this work with various complaints of inability to perform. This evidence constitutes substantial evidence to support the Commission’s finding that Mr. Watts failed to avail himself of the opportunity to work and that he was not entitled to temporary disability after May 8, 2008.
Credit for Overpayment
In his last point on appeal, Mr. Watts disputes the Commission’s determination that Sears and its insurer were entitled to credit toward payment of permanent partial-disability benefits based upon their overpayment of temporary disability benefits. The Commission found that Mr. Watts was entitled to permanent partial disability benefits based on the thirty-three percent impairment rating assigned by Dr. Rooney, and that Sears was entitled to a credit toward payment of the rating based on overpayment of temporary disability benefits from May 8, 2008, until February 2, 2009.
The indemnity ledger introduced into evidence reflects that temporary disability benefits were paid from March 2008 until early February 2009. However, as discussed in the third point of appeal, Mr. Watts’s entitlement to temporary total disability ceased on May 8, 2008. The Commission thus correctly awarded credit to Sears for payments made after that date.
|i2Affirmed.
ROBBINS and ABRAMSON, JJ., agree.
. Appellants who proceed pro se are responsible for following rules of appellate procedure and are held to the same standards as attorneys. Jones v. Smith-Blair, Inc., 2011 Ark. App. 148, 2011 WL 693339. We strongly encourage Mr. Watts to review Rule 4-2 of the Rules of the Arkansas Supreme Court and Court of Appeals. Appellees’ supplemental abstract and supplemental addendum correct significant deficiencies in the brief filed by Mr. Watts, enabling us to address the merits of the appeal rather than order rebriefing as we otherwise would do. | [
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LARRY D. VAUGHT, Chief Judge.
1 ]At issue in this appeal is the interpretation of Arkansas Workers’ Compensation Rule 30, which establishes the schedules of maximum allowable fees for medical services rendered to injured employees. The dispute concerns a medical bill (that exceeds $4 million dollars) submitted for reimbursement by appellee Arkansas Children’s Hospital (Children’s) to appellant CNA Insurance Company (CNA). The parties disagree about when Rule 30’s 150% multiplier for reimbursement for extraordinary services applies to the Inpatient Hospital Fee Schedule. Children’s interpretation of Rule 30 results in full reimbursement of its bill, while CNA’s interpretation results in the reduction of Children’s bill in excess of $880,000. The Arkansas Workers’ Compensation Commission found in favor of Children’s, ordering CNA to reimburse Children’s the full amount of its medical bill. On appeal, CNA argues that the Commission’s interpretation of Rule 30 is contrary to the General Assembly’s stated intent of containing workers’ compensation medical costs and should be reversed. We disagree and affirm.
|2The issue before us is one of statutory and rule interpretation. We review issues of statutory and rule construction de novo, as it is for us to decide what a statute means. Stromwall v. Van Hoose, 371 Ark. 267, 272, 265 S.W.3d 93, 98 (2007); Lewis v. Auto Parts & Tire Co., 104 Ark.App. 230, 232-33, 290 S.W.3d 37, 39 (2008). Arkansas Code Annotated section 11-9-704(c)(3) (Repl.2002) requires that we construe workers’-compensation statutes strictly. Strict construction requires that nothing be taken as intended that is not clearly expressed, and its doctrine is to use the plain meaning of the language employed. Lewis, 104 Ark.App. at 233, 290 S.W.3d at 40. The basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the legislature. Id., 290 S.W.3d at 40. When a statute is clear, however, it is given its plain meaning, and the appellate court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Id., 290 S.W.3d at 40. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Id., 290 S.W.3d at 40. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id., 290 S.W.3d at 40. The statute should be construed so that no word is left void, superfluous, or insignificant; and meaning and effect must be given to every word in the statute if possible. Id., 290 S.W.3d at 40.
There are few disputed facts in this case. On November 13, 2007, the claimant Michael Driggers was seriously injured when he fell into saltwater that was 200 hundred degrees Fahrenheit. He was admitted to Children’s, the only certified burn-treatment facility in Arkansas. He survived, but he suffered severe burns to sixty percent of his body and had multiple system |sfailures during his 200 hundred-day stay that began on November 13, 2007, and ended on May 31, 2008. Children’s final bill for Driggers’s care was $4,112,753.10. Driggers’s claim was accepted as compensable by CNA, but it only paid medical expenses totaling $3,226,503.34 (leaving an unpaid balance of $886,249.76), claiming that was all it was required to pay under Rule 30.
Workers’ Compensation Rule 30 is titled the “Medical Cost Containment Program.” It was promulgated pursuant to Arkansas Code Annotated section 11-9-517. While broad in its scope, relevant to this case Rule 30 establishes schedules of maximum fees a health facility or health-care provider can charge for reasonable and necessary medical treatment for employees who are injured arising out of and in the course of their employment, and it establishes the procedures by which a health-care provider shall be paid. Rule 30(I)(A)(l)(b), (c).
In addition to Rule 30, the Commission promulgated the applicable fee schedule in this case — the Inpatient Hospital Fee Schedule (IHFS). Within the IHFS, there are two steps or “methods” for calculating medical-care-provider reimbursements. The first is the per diem method (PDM) of payment, which in most workers’ compensation cases is the total amount of | reimbursement a medical-care provider or facility would receive. The parties agree that the PDM is the first calculation to be made and that the allowable charge under the PDM is $267,600.
The second step for calculating reimbursement within the IHFS is the stop-loss method (SLM) of payment. The SLM is defined as “an independent reimbursement factor established to ensure fair and reasonable compensation to the hospital for unusually costly services rendered during treatment to an injured worker.” Inpatient Hospital Fee Schedule (II)(C). The parties also agree that the SLM applies to the instant case.
The controversy herein arises from a provision of Rule 30, separate from the IHFS, that governs reimbursement to medical providers “when extraordinary services resulting from severe head injuries, major burns, and severe neurologic injuries or any injury requiring an extended period of intensive care are required.” Rule 30(I)(I)(3). In such cases, “a greater fee may be allowed up to 150% of the fee schedule.” Id. The parties do not dispute that Children’s rendered extraordinary services to Driggers and that the 150% multiplier applies. The issue is whether the 150% multiplier is applied before or after the SLM calculation is made, which requires a determination of whether the SLM is part of the IHFS or independent thereof.
j aThe position of Children’s is that within the IHFS there are two required calculations (the PDM and SLM) and that the 150% multiplier is to be applied to the aggregate figure that results from adding the PDM and SLM. Under this interpretation of Rule 30, CNA would be required to pay the full amount of Children’s medical bill. CNA argues that Children’s inter pretation ^violates the stated legislative intent of Rule 30 — to contain medical costs. CNA further argues that the SLM is a method of payment distinct from the IHFS and that the 150% multiplier should not be applied to the aggregate of the PDM and SLM, but only to the PDM. Once that calculation has been made, the SLM is calculated. According to CNA, Children’s is entitled to reimbursement of $3,226,503.84, which it argues greatly increases Children’s standard reimbursement but also contains medical costs per the Arkansas General Assembly’s intent.
At the administrative level, Children’s sought an opinion from the Commission’s Administrator of the Medical Cost Containment Division (MCCD), who issued an administrative review order in favor of Children’s and found that CNA was liable to Children’s for the full amount of its bill. CNA appealed the administrative review order to the administrative law judge (ALJ). Following a hearing, the ALJ issued an opinion in favor of Children’s finding that the IHFS should be determined by calculating both the PDM and the SLM, and then applying the 150% multiplier for extraordinary services to the sum of the PDM and SLM. The ALJ further found that there was nothing in the plain reading of Rule 30 that supported CNA’s argument that the 150% multiplier should be applied to the PDM before the PDM and SLM were added. Finally, the ALJ dismissed CNA’s public-policy argument, finding that the drafters contemplated situations where a health-care provider or facility would receive full reimbursement of its bill instead of the maximum amount allowed under Rule 30.
|7CNA appealed the ALJ’s decision to the Commission, which in a unanimous decision, affirmed and adopted the opinion of the ALJ adding,
[W]e acknowledge [CNA’s] argument that in certain claims with extraordinary services the present application of Rule [30] and the [Inpatient] Hospital Fee Schedule may not comport with the stated intent of A.C.A. § 11-9-517 to control the cost of medical and hospital services and supplies and may require public comments and amending in the future. Nevertheless for those reasons aptly set forth in the Administrative Law Judge’s opinion we find that Medical Cost Containment Division’s interpretation and application of the [Inpatient] Hospital Fee Schedule and Rule [30] is correct. The Stop-Loss [Method], while independent of the [PDM] calculation, is part of the [Inpatient] Hospital Fee Schedule and must be applied prior to the 150% enhancement for extraordinary services as permitted by Rule 30. The Medical Cost Containment Division’s opinion is not contrary to the Medical Fee Schedule or Rule [30].
As it did below, CNA argues on appeal that it is the stated intent of Rule 30 to contain workers’ compensation medical costs. Because the Commission’s interpretation of Rule 30 in this case requires CNA to pay the full amount of Children’s bill, CNA argues that it does not contain costs, it violates the legislative intent of the rule, and therefore is erroneous and must be reversed. We disagree.
The plain language of Rule 30 does not support CNA’s theory that the 150% multiplier should be applied to the PDM before the SLM is added, midway through the IHFS calculation. A plain reading of Rule 30’s IHFS establishes that it includes two methods of payment — the PDM and the SLM, which are two steps that are added together to arrive at the “fee schedule,” i.e., the IHFS. The examples provided in the rule confirm this position. Further, in the |sseparate provision of Rule 30 that allows for the 150% multiplier, it plainly states that “a greater fee may be allowed up to 150% of the fee schedule.” (Emphasis added.) We hold that in this case, the total reimbursement allowed under the fee schedule (IHFS) is determined by first performing the PDM calculation and then the SLM calculation. Those figures are added together for the total reimbursement allowed under the IHFS. The 150% multiplier is applied to the total IHFS allowance.
We note CNA’s concession that the Commission’s, and now our, interpretation of Rule 30 is “textually plausible.” It argues, however, that it is “thoroughly implausible when the legislative intent is considered.” We agree with CNA that the legislative intent behind Rule 30 is to contain workers’-compensation medical costs. However, neither the Act nor its rules and regulations provide that every workers’compensation medical cost must be contained. On the contrary, Rule 30 was written with two exceptions where medical-care providers are to receive more than the standard workers’-compensation-reimbursement amounts. Inpatient Hospital Fee Schedule (III)(C) (providing for the SLM of payment for inpatient hospital stays for unusually costly services rendered to an injured worker); Rule 30(I)(I)(3) (providing for a greater fee up to 150% of the fee schedule). Also, the drafters of Rule 30 contemplated circumstances where medical providers would be paid the full amount of their bills as evidenced by language in the rule that a health-care provider shall be paid the lesser of the provider’s usual charge, the maximum fee established under this rule, or the MCO/PPO contracted price. Rule 30(I)(A)(l)(c) and Rule 30(I)(I)(1).
While there is no question that the stated purpose of Rule 30 is to contain workers’-compensation medical costs, the plain language of the rule does not require that every medical |9bill for an inpatient hospital admission must be reduced. This workers’-compensation case, involving over $4 million dollars in medical expenses, is clearly a rare circumstance. Under our de novo review, we uphold the Commission’s interpretation of Rule 30 because it is supported by the plain language of the rule and does not violate public policy. Accordingly, we affirm the Commission’s finding that Children’s is entitled to full reimbursement for the extraordinary medical services it rendered to Driggers.
Affirmed.
GLADWIN and MARTIN, JJ., agree.
.Specifically, section 11-9-517 provides that the Workers’ Compensation Commission is authorized to establish rules and regulations, including schedules of maximum allowable fees for specified medical services rendered with respect to compensable injuries, for the purpose of controlling the cost of medical and hospital services and supplies. Ark.Code Ann. § 11-9-517 (Supp.2001).
. The parties agree that the IHFS applies in this case.
. The PDM is calculated by multiplying the injured employee's hospital-admission length of stay by the standard per diem amount (which is based on the size of the hospital). In this case, it is undisputed that Children’s per diem amount is $1338. Thus, the PDM is $1338 x 200 = $267,600.
. To be eligible for SLM reimbursement, the total allowed charges for a hospital admission must exceed the hospital maximum payment by $10,000. Inpatient Hospital Fee Schedule (II)(C)(l)(a). Once the allowed charges reach the stop-loss threshold, reimbursement under the SLM for all additional charges shall be made based on a stop-loss payment factor of 80%. Inpatient Hospital Fee Schedule (II)(C)(l)(c). For the total allowable charges under the IHFS, the SLM is added to the maximum allowed payment (PDM). Inpatient Hospital Fee Schedule (II)(C)(l)(d).
. To illustrate:
However, Rule 30 provides that ”[r]eim-bursement for health care services shall be the lesser of (a) the provider's usual charge, or (b) the maximum fee calculated according to the AWCC Official Fee Schedule ..., or (c) the MCO/PPO contracted price, where applicable." Rule 30(I)(A)(l)(c) and Rule 30(I)(I)(1). Because 150% of the IHFS is more than Children's total billed services of $4,112,753.10, Children’s is due the lesser amount, which is the full amount of its bill.
. CNA does not illustrate its calculations. Despite our efforts, we have been unable to break down CNA's figures using the methodology it argues on appeal.
. CNA requested that the MCCD administrator reconsider the administrative order, and on September 25, 2009, the administrator issued its denial of the request for reconsideration.
. CNA argues that, because Rule 30 defines the "stop-loss payment” as an "independent method of payment for an unusually costly or lengthy stay,” the SLM is not part of the IHFS. The plain language of the IHFS clearly establishes that the SLM is a method of payment included in the IHFS. Within the IHFS, the SLM is a method of payment that is separate from, but added to, the PDM. CNA’s constrained interpretation of Rule 30 requires us to not only take out the plain language about the SLM found in the IHFS, but also insert language into the IHFS about the 150% multiplier, neither of which we can do.
. Children’s does not typically receive full reimbursement on its workers’-compensation bills. The evidence established that less than one percent of Children's total charges are generated from the treatment of workers’compensation bum patients and that typically Children's is reimbursed approximately sixty-five percent of those bills. | [
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ROBERT J. GLADWIN, Judge.
_JjOn August 13, 2010, a Marion County jury convicted appellant Charles Halliday of sexual assault in the first degree and sexual indecency with a child, for which he was sentenced to twelve years’ and three years’ imprisonment, respectively, to be served consecutively in the Arkansas Department of Correction. On appeal, he challenges the sufficiency of the evidence supporting his two convictions. He also claims that the circuit court erred by submitting a jury instruction on sexual indecency with a child because it was not a lesser-included offense of sexual assault in the first degree. We affirm.
I. Sufficiency of the Evidence
A. Standard of Review
A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Estrada v. State, 2011 Ark. 3, 376 S.W.3d 395. The test for such motions is whether lathe verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, appellate courts review the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id.
A sexual-assault victim’s testimony may constitute substantial evidence to sustain a conviction for sexual assault. Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008). The victim’s testimony need not be corroborated, and the victim’s testimony alone, describing the sexual contact, is enough for a conviction. See Colburn v. State, 2010 Ark. App. 587, 2010 WL 3582441. The credibility of witnesses is a matter for the jury’s consideration. Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007). Where the testimony is conflicting, we do not pass upon the credibility of the witnesses and have no right to disregard the testimony of any witness after the jury has given it full credence, where it cannot be said with assurance that it was inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon. Davenport v. State, 373 Ark. 71, 281 S.W.3d 268 (2008). Furthermore, the jury need not believe the defendant’s own self-serving testimony, and it is free to believe all or part of a victim’s testimony as it sees fit. See Chavez v. State, 2010 Ark. App. 161, 2010 WL 546445.
B. Sexual Assault in the First Degree
To be guilty of sexual assault in the first degree under Arkansas Code Annotated section 5-14-124 (Repl.2006), appellant must have engaged in sexual relations with a person Uunder eighteen years of age, and appellant must have been a temporary caretaker, or in a position of trust or au thority over the victim. Appellant does not dispute that there is sufficient evidence to support that he engaged in sexual relations with a person under eighteen years of age; however, he does dispute that he was a person in a position of trust or authority over, or a temporary caretaker of, the victim.
1. Position of Trust or Authority Over The Victim
Arkansas courts have had opportunities to define the phrase “position of trust or authority over the victim” and have consistently declined to do so, instead finding that case-specific facts are included in the definition. See May v. State, 94 Ark. App. 202, 228 S.W.3d 517 (2006); Murphy v. State, 83 Ark. App. 72, 117 S.W.3d 627 (2003). Appellant argues that there was never any testimony that he was under any obligation or responsibility with regard to the victim or that any authority was conferred upon him. Similarly, with regard to “position of authority,” appellant claims that there was no testimony that he had any right or ability to control or command the victim. To the contrary, testimony by rodeo-arena owner Mr. Rand was that appellant did not have any authority over the victim. Without such evidence, appellant maintains that the jury merely speculated that he had power or control because of his age in relation to the victim. He claims that to allow the jury to infer control based on age is to render section 5-14-124(a)(l)-(3) unnecessary because the victim is necessarily young.
We disagree. The victim testified that she met appellant at around the age of twelve when she decided that she wanted to ride horses. She stated that he was “a figure that [she] |4would look up to ... [she] trusted him,” and that appellant was like a teacher to her. She explained that in the beginning of their relationship, appellant taught her to rodeo and trail ride but then the relationship became more of a boyfriend-girlfriend type of relationship. The victim testified that appellant initiated the sexual part of the relationship. She testified that on December 30, 2008, when she was fourteen years old, and after a day of horse training, appellant drove her to the living quarters of his business. When they arrived, she and appellant had sexual intercourse but were interrupted by appellant’s wife. The victim testified that immediately thereafter, appellant stated that he was ruined and that his wife was going to put him in prison.
Evidence indicated that later that night, the victim met and spoke with Investigator Vacco at Baxter Regional Medical Center. The victim told Investigator Vacco that she did not have sex with appellant; however, she later indicated that she had lied to protect appellant because she cared for him and did not want to see anything bad to happen to him. Testimony indicated that after this incident, the victim continued to have contact with appellant and had sex with him again sometime near the end of January or beginning of February 2009.
The victim’s father specifically testified that appellant was helping his daughter with riding and learning about the rodeo. He explained that he knew his daughter was spending time with appellant, but that he trusted appellant as the adult watching his daughter.
Appellant testified that he would pick the victim up and take her home from the horse training and that she “ran around with [him] all the time[,] went hunting with [him] and [his] |sfriends.” He acknowledged that if he took the victim to the rodeo he was responsible for taking her home.
With regard to the phrase “position of trust or authority over the victim,” this court has specifically stated:
Where a relationship raises a strong inference of trust and supervision, and where the appellant’s function in the relationship could be characterized as a minimum to be that of a chaperone, th[at] meets the statutory threshold.
May, 94 Ark. App. at 206, 228 S.W.3d at 521. In the instant case, we hold that, at a minimum, appellant was a chaperone and, thus, in a position of trust or authority over the victim. Because the jury need not have believed his own self-serving testimony, it was within the jury’s province to determine appellant’s guilt based on his position of trust or authority over the victim. See May, supra.
2. Temporary Caretaker of the Victim
“Temporary caretaker” was defined by the Arkansas Supreme Court in Bowker v. State, 368 Ark. 345, 214 S.W.3d 243 (2005). The supreme court stated that “temporary” is defined as “lasting for a time only; existing or continuing for a limited (usually short) time; transitory.” Id. at 353, 214 S.W.3d at 248. The court defined “caretaker” as “a person, usually not a parent, who exercises custodial responsibility for a child or for an elderly or disabled person.” Id.
Appellant submits that there is no evidence that he was exercising “custodial responsibility” for the victim. He claims that he did not act as a parent would to the victim, and there was no evidence that he was expected to be a parent to the victim. He exhibited | (¡no control or governance over the victim, and he urges that the evidence should not be sufficient merely because he is an older individual spending time with a younger person.
To the extent appellant makes a separate claim regarding his status as a temporary caretaker for the victim, we hold that his claim, again, fails for the same above-noted reasons. The victim was a fourteen-year-old girl who could not transport herself to and from the rodeo and rodeo training. She was still dependent on adult care and supervision, and her parents entrusted appellant with that care and supervision. See Murphy, supra. The relationship was at a minimum that of a babysitter or chaperone, which suffices to establish appellant as a temporary caretaker or a person in a position of trust or authority over the victim. See Cluck v. State, 2009 Ark. App. 381, 2009 WL 1362863. Accordingly, we affirm on this point.
C. Sexual Indecency with a Child
In order to be guilty of sexual indecency with a child under Arkansas Code Annotated section 5-14-110(a) (Supp.2007), appellant must be eighteen years of age or older and have solicited a person who is less than fifteen years of age or who is represented to be less than fifteen years of age in either sexual intercourse, deviate sexual activity, or sexual contact. Appellant does not dispute that there is sufficient evidence that he is over eighteen years of age and that the victim was under fifteen years of age. However, he contends that there is no evidence from which a jury could determine that between January 1, 2009, and February 13, 2009, he solicited the victim to engage in sexual intercourse, deviate sexual activity, or sexual activity.
The victim testified that, except for the first time, she initiated sex with appellant. It is indisputable that the first time the two had sex was prior to January 1, 2009, because count one is alleged to have happened on December 30, 2008. Appellant submits that the jury was free to disbelieve her, and absent her testimony there is no testimony as to who initiated the sexual encounter for which appellant was convicted of sexual indecency with a child. Appellant argues that the mere fact that the two engaged in a sexual encounter is not sufficient because the statute clearly requires that appellant must have solicited the victim to engage in sexual relations.
Arkansas courts have looked to the definition of solicitation with respect to sexual-indecency cases and have determined that the verb “solicit” means, among other things, to entreat or importune, to endeavor to obtain by asking, or to seek eagerly or actively. See Haralson v. State, 2010 Ark. App. 215, 2010 WL 724312. The statute does not require that the State establish that appellant initiated the specific act of sexual intercourse or contact, as appellant contends. This court may examine appellant’s words and actions over a period of time in order to find substantial evidence that he actively sought the victim’s participation in sexual activity. Id. Here, among other things, testimony indicated that appellant initiated the first episode of sexual intercourse; he provided the victim with transportation to his home and other locations; the victim claimed to be in love with and to care about appellant; and appellant made the circumstances such that sexual intercourse could take place. Based on the | «foregoing, we hold that substantial evidence supports the circuit court’s finding that appellant solicited the victim, which accordingly supports affirming appellant’s conviction.
II. Submission of Jury Instruction on Sexual Indecency with a Child
A. Standard of Review
This court has held that, in order to be timely, objections to jury instructions must be made either before or at the time the instruction is given, and the failure to do so constitutes a waiver of that argument on appeal, Campbell v. State, 2010 Ark. App. 356, 2010 WL 1710015, and, consequently, cannot be the basis for an exception to that rule under Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). See Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002).
B. Discussion
Appellant was charged by felony information with sexual assault in the first degree. The circuit court also submitted to the jury a verdict form on sexual indecency with a child under section 5-14-110(a) (Repl.2009), despite the fact that appellant was never charged with this offense and it is not a lesser-included charge.
Arkansas Code Annotated section 5-1-110(b) (Repl.2009) sets forth the test for determining when an offense is included in another offense. An offense is a lesser-included offense if it
(1) Is established by proof of the same or less than all of the elements required to establish the commission of the offense charged;
(2) Consists of an attempt to commit the offense charged or to commit an offense otherwise included within the offense charged; or
(3) 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 the offense’s commission.
[Here, appellant argues that the offense of sexual indecency with a child differs markedly from the offense of sexual assault in the first degree and is not a lesser-included offense. First, sexual indecency with a child requires solicitation, which is not required for sexual assault in the first degree. Additionally, sexual assault in the first degree requires that the sexual conduct occur but not that the defendant solicit the conduct. Sexual indecency with a child requires proof that the victim was less than fifteen years old, whereas sexual assault in the first degree only requires that the victim was less than eighteen years old.
It is unclear who submitted this jury instruction; however, appellant acknowledges that there was no objection. He asks the court to apply the Wicks exception for addressing issues not objected to at trial. See Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003). Appellate courts will address errors not objected to in the following scenarios:
(1) when the trial court fails to bring the jury’s attention to a matter essential to its consideration of the death penalty itself; (2) when the defense counsel has no knowledge of the error and hence no opportunity to object; (3) when the error is so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury correctly; and (4) Ark. R. Evid. 103(d) provides that the appellate court is not precluded from taking notice of errors affecting substantial rights, although they were not brought to the attention to the trial court.
Id. at 395, 108 S.W.3d at 599. Appellant requests that this court address the issue of the improperly instructed jury under reasons three and four. He contends that the improper instruction was flagrant and prejudiced him, resulting in a conviction where there otherwise would not have been one. Additionally, this court may take notice of this error under Arkansas Rule of Evidence 103(d) (2010) because the error affects substantial |10rights — specifically that he was convicted and sentenced on a crime he was neither charged with nor was a lesser-included of an offense charged.
The Wicks exception is a narrow one and applies when the error is so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury correctly. Rackley v. State, 371 Ark. 438, 267 S.W.3d 578 (2007). The third Wicks exception has only been applied to cases in which a defendant’s fundamental right to a trial by a jury is at issue, see Springs v. State, 368 Ark. 256, 244 S.W.3d 683 (2006), which was not at issue in the case at bar. Although appellant claims that the error was so flagrant that the circuit court should have on its own motion instructed the jury correctly, we note that the circuit court gave the jury instructions that it, and the parties, deemed to be correct. Appellant has failed to indicate the manner in which the error was so flagrant and prejudicial to have triggered a duty on behalf of the circuit court when the instruction was proffered and agreed upon by the parties.
Despite appellant’s claim that the fourth Wicks exception, which addresses a violation of substantial rights based on the admission or exclusion of evidence, is applicable, we disagree. The fourth Wicks exception has its roots in Arkansas Rule of Evidence 103(d), which provides that “[n]othing in this rule precludes taking notice of errors affecting substantial rights, although they were not brought to the attention of the court.” Our supreme court has warned against relying on this exception, stating that it “is negative, not imposing an affirmative duty, and at most applies only to a ruling which admits or excludes evidence.” Buckley, 349 Ark. at 65-66, 76 S.W.3d at 833 (quoting Wicks, 270 Ark. at 786, 606 S.W.2d at 370) The giving of an allegedly erroneous jury instruction is not a ruling on the admission or exclusion of evidence in relation to the fourth Wicks exception, and we hold that appellant’s arguments regarding the allegedly erroneous jury instruction are not preserved for our review.
Affirmed.
WYNNE and GRUBER, JJ., agree.
. Appellant’s sufficiency challenge to sexual indecency with a child is his last point, but the court must consider it before the jury-instruction issue. See Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). | [
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CLIFF HOOFMAN, Judge.
_JjThis is an appeal involving the Teacher Fair Dismissal Act of 1983. See Ark.Code Ann. §§ 6-17-1501 to 6-17-1510 (Repl. 2007 & Supp.2011). Appellant Fan Timpani appealed her dismissal by appellee Lakeside School District to the Garland County Circuit Court. After the circuit court affirmed her dismissal, she brought this appeal. We affirm.
Appellant, who was an employee of the school district for more than twenty years, taught sixth grade at its middle school. In November 2007, appellant used “bonus points” to order two twenty-seven-inch televisions, a DVD player, and a microwave oven from the Scholastic Book Club. The book club awarded bonus points based on several factors, including the dollar amount spent on each order, for which appellant used school funds, money from students and other teachers, and her personal money. The account through which appellant placed these orders and redeemed the bonus points was held in her name. |2The middle school’s principal, Jamie Preston, learned of this order on December 4, 2007, when the DVD player was delivered to the school. Ms. Preston called the school district’s administrative office to ask the superintendent, Shawn Cook, for advice about how to handle the matter. Superintendent Cook told Ms. Preston to ask appellant what the instructional purpose was for the items she had ordered. Appellant informed Ms. Preston that they were for her personal use because she had obtained them with her personal bonus points. When Ms. Preston explained that, because the bonus points were acquired with money from students and the school district, appellant could not keep the items for her personal use, appellant restated her belief that the bonus points belonged to her, for her own personal use, and refused to cancel the order. Ms. Preston then told appellant that Superintendent Cook had advised her that the bonus points were not for appellant’s personal use. According to Ms. Preston, appellant replied, “He is full of crap.” Appellant also told Mrs. Timmons, another teacher who was nearby during this exchange, that “this school sucks.”
Ms. Preston gave the following statement about the incident to Superintendent Cook:
On the morning of December 4, 2007, I was made aware of a DVD player that had been delivered to Mrs. Fan Timpani on December 8, 2007 as well as a confirmation of a fax for two 27 inch television sets, the DVD player, and a microwave. These items were purchased with bonus points from Scholastic book orders. A copy of the fax is attached.
At that point, I called Mr. Scoggins, assistant superintendent at Lakeside School District and asked him to advise me on how to handle this situation. Shortly, Mr. Cook, Superintendent of Lakeside School District, called and questioned me about this situation. He then told me to ask the teacher what the instructional purpose or the purpose for the students at Lakeside Schools was.
Mr. Pierce, Assistant Principal at L.M.S. and I then took the DVD player to the teacher’s hallway. There was a student in her room and a parent in her neighbor’s [-¡room. When I approached Mrs. Timpani, she said, “Oh. You brought my stuff down.” At this point, I asked her the questions Mr. Cook had directed me to ask. Mrs. Timpani stated that she did not intend to use the items at school; they were her personal items that she had bought with her personal bonus points. I tried to explain to her that the bonus points were acquired by ordering books with money from students, district money, and possibly state money (if she used her money from Literacy Lab to purchase books and acquire bonus points).
I told Mrs. Timpani she could cancel the order. She said no. I told her she could return it to Scholastic, she said she “was unable to box them up and return them due to her arm....” I told her she could inventory the DVD and use it in her classroom. However, Mrs. Timpani kept stating that the bonus points were hers — personally and that nobody had ever told her she couldn’t use her points any way she chose.
Upon seeing that the conversation was not being settled, I stated to the teacher that Mr. Cook had already said that the bonus points were not hers personally and that the items ordered could not be used for her personally. To this, Mrs. Timpani stated “He is full of crap.” I told Mrs. Timpani that I would be glad to “call Mr. Cook and let him know that she believed his directive to be ‘full of crap.’ ” The conversation ended with her asking another teacher, Mrs. Timmons, if she had ever been told about this. Mrs. Timmons stated, “I don’t know. I don’t do book orders.” At that, Mrs. Timpani walked into Mrs. Timmons’ room and told me to “forget it and keep the stuff.”
Mrs. Timmons also provided a statement to Superintendent Cook, in which she stated:
On the day in question, I was in my classroom, room 418, at my computer when I heard voices in the hall. I recognized Mrs. Timpani’s voice but it did not register who she was talking to. The tone of voice wasn’t yelling, it was just that it was taking place directly outside of my door.
Upon entering the hallway, Mrs. Timpani was to my right and Mrs. Preston was to my left, holding a box. It was obvious that they were having a difference of opinion, but I didn’t know what the subject matter was. Mrs. Preston was saying to Mrs. Timpani, ‘You can’t do that.” “It’s illegal.” “It isn’t your money to spend.” And other phrases of that nature. Mrs. Timpani was responding that she didn’t know, she had never been told that, etc. She then turned to me and asked if I remembered ever being told that we couldn’t use bonus points from book orders to buy things for ourselves and I replied that I wouldn’t remember if we had because I don’t do book orders.
|4Mrs. Preston told Mrs. Timpani that Mr. Cook told her specifically that is [sic] was illegal and the things would have to be sent back. Mrs. Timpani then replied, “Well, he’s full of crap.” “I’m not packing anything up and sending it anywhere with one arm.” Near the end of the conversation, Mrs. Timpani turned toward me (I was between her and the other hallway) and said, “This school sucks.”
In January 2008, appellant and her counsel met with Ms. Preston and the superintendent in his office so that appellant could give her side of the story. Although appellant admitted having placed the order, she disputed Ms. Preston’s version of what had happened and indicated that Ms. Preston had not told the truth. When Superintendent Cook told appellant that she should thank Ms. Preston for trying to help appellant with this, she said: “Thank you, Jamie,” in what Ms. Preston and the superintendent believed was a sarcastic and disrespectful manner.
Several days later, Superintendent Cook sent the following letter advising appellant that he was going to recommend that the school board terminate her employment:
You are hereby notified that you are suspended with pay, effective immediately, and that I intend to recommend that your contract with the Lakeside School District be terminated. The reasons for this recommendation are as follows:
1.You ordered two twenty-seven inch screen televisions, DVD player, and a microwave oven using resources obtained from school district money for personal gain. You told me you planned on giving them to your children for presents.
2. When Mrs. Preston told you that the items you ordered could not be for your personal use and were to be used for instruction, you then argued with her. When Mrs. Preston again told you that you could not use these funds for personal items, you replied to her, saying, “Mr. Cook is full of crap!” When you were walking away from Mrs. Preston, you said “This school sucks!” Your comments to Mrs. Preston were made in a loud voice and in the presence of others.
3. You misrepresented what was said the day in which the above occurred. You Ifitold the principal she was not telling the truth. You said you never said the Superintendent was full of crap and you never said this school sucks! You told Ms. Preston you thought you could trust her to tell the truth. You made these statements in my presence during the investigation. After interviewing witnesses I am confident you committed perjury during the investigation.
4. In a meeting in my office on January 11, 2008, Ms. Preston and I gave you considerable opportunities to be forthright and forthcoming about the purchase of merchandise through Scholastic Books. Instead, you were rude, argumentative and, once again, disrespectful toward Ms. Preston and me. For example, when I told you that Ms. Preston was trying to help you and that you should thank her for what she was trying to do for you in this circumstance, you told her “Thank You!” in a very loud and sarcastic manner. Based on your behavior in the meeting ... I concluded that you are not interested in working with Ms. Preston and that you still believe that ordering merchandise for personal use from book purchases made with District funds and student funds is not improper.
Appellant asked for a hearing before the school board. At the hearing on March 17, 2008, Superintendent Cook, Ms. Preston, appellant, and appellant’s husband, Pat Timpani, testified. Superintendent Cook stated that, at the interview with appellant, he had hoped she would offer a reasonable explanation for her behavior, but she did not give one. He said that he did not consider bonus points to be for the teachers’ personal use because they were derived from student funds, teachers’ money, and instructional money provided by the school district. He stated that to his knowledge, no teacher had ever been authorized to use bonus points for his or her own personal use. He also said that appellant was very disrespectful, sarcastic, and untruthful during the interview and that appellant accused Ms. Preston of lying about the incident. He stated that Mrs. Timmons’s statement had supported Ms. Preston’s; he explained that, although he would not have recommended termination solely because of appellant’s remarks that “he was full of crap” and that “the school sucked,” he thought it was | ^inappropriate for her to make those remarks aloud in a school building, during school hours, when children were present. He also said that appellant had misrepresented the incident when she told him during the interview that she had never made those statements; that she did not know where “all this was coming from”; and that Ms. Preston was lying. He stated that he had investigated the matter and determined that appellant was untruthful, even though he had given her considerable opportunity to be forthright. He added that, if appellant had been forthright and had given him a reasonable explanation, he would have considered not terminating her; instead, she was “rude, argumentative and untruthful.”
Superintendent Cook testified that he believed that appellant had violated Section 3.19 of the school’s Personnel Policy Manual, which provided that “[s]upplies and materials purchased with school funds, or for which the teacher is reimbursed with school funds, are school property, and should remain on school property.” He also stated that she had violated Section 3.41, which prohibited the teachers from using their professional relationship with students for private advantage. He added that he believed that she had also violated Arkansas Code Annotated sections 6-21-410 and 6-24-112 (Repl.2007). Section 6-24-112 prohibits district employees from accepting a gratuity in connection with a public educational entity’s transaction. Section 6-21-410 makes it illegal for a teacher to have any interest in the profits, proceeds, or sale of any instructional materials unless she is the author. He explained that when he used the word “perjury” in his notice to appellant, he did not mean to accuse her of a crime but simply meant that she had made untrue statements. Superintendent Cook stated that when he met with appellant, he made her aware of the laws and policies on which he 17relied, except for one, which he later added.
Ms. Preston testified that she believed that appellant’s behavior was unethical and that, since the incident, she had spoken with her staff about the use of bonus points; their general reaction was one of “shock — like, ‘Of course, we knew that.’ I have not determined that anyone else used bonus points for personal gain.” She explained that she knew that, toward the end of her conversation with appellant on December 4, appellant was upset. - She added, “I knew that in the past it was very easy for something like that to upset her and cause her to become confrontational even though it shouldn’t.” She said that when appellant said “Thank you” to her in Superintendent Cook’s office, she did so in a loud and sarcastic manner. She also stated that, in that meeting with the superintendent, appellant told him that Ms. Preston’s statements were untrue; denied having said that he was “full of crap” or that “the school sucked”; and described her prior statements as “she didn’t care what Mr. Cook said.” Ms. Preston believed that appellant was untruthful.
Appellant testified that she had believed that the bonus points were for her personal use and that they reflected the amount of her own personal expenditures with the book club over the years. She presented bank records demonstrating that she had spent $1,343.18 of her own money with the book club. She explained that, in the past, she had also purchased two cameras (one for her daughter) with her bonus points, which she did not add to the school’s inventory. She did not believe that she had done anything unethical because she had never received any written instructions stating that it was against the rules to use the bonus points for herself. She admitted that she had not asked for permission to do so. At first, she said that |sshe did not remember whether she had said that Superintendent Cook was “full of crap” or that “Lakeside sucks,” but later admitted that she “probably did” make those statements because Ms. Preston had her “that upset.” She added, “Ms. Preston knows how to push my buttons.” She denied being disrespectful at the meeting in Superintendent Cook’s office. She admitted, however, that when he suggested that she should thank Ms. Preston, she did so; she added, “I said it sarcastically, but not loud. I didn’t see any point to be thanking someone when I am being told I am going to lose my job and that I was breaking the law and cheating.”
Pat Timpani testified that he had been a teacher at Lakeside Middle School for fourteen years, and during that time, had received no guidance about the use of the bonus points. He stated that he was present at the December 2007 meeting with Ms. Preston about book-club orders; after the meeting, he spoke with seven teachers, two or three of whom indicated that they had also used bonus points for themselves. He also stated that he was sitting outside the office during appellant’s meeting with the superintendent and Ms. Preston and heard appellant call Ms. Preston “a liar.”
After the hearing, the school board unanimously found that the four reasons on which Superintendent Cook had based his recommendation that appellant be terminated were true. Appellant appealed the school board’s decision to circuit court, pursuant to the Arkansas Teacher Fair Dismissal Act. Ark.Code Ann. § 6-17-1510 (Repl.2007).
The Garland County Circuit Court held a hearing on October 30, 2010, where appellant explained her accusation that Ms. Preston was untruthful:
Ini was referring to when Mr. Cook ■ asked Ms. Preston if she had any eyewitnesses and she said that the vice-principal was standing right behind her and heard the whole thing. I said he was not there. I would have been looking face-to-face with him if he was there. I said he came to the door of my teacher mate but he went on and never came back.... I was not saying Ms. Preston was lying because she said I told her that the superintendent was full of crap. I don’t remember saying that at the conference, and I just don’t recall saying it.
However, she admitted that she might have said “something,” because she was “upset about the accusations that were made toward me and I just don’t remember.”
Appellant’s husband also testified at this hearing. He stated that Cathy Sutton and Sandy Parker were two of the other teachers with whom he had talked about the bonus points after the staff meeting with Ms. Preston. Sandra Parker testified that she had retired from Lakeside School District in the spring of 2008; that she had used the book club program; that the school had no written policy about it; that she understood it was appropriate for teachers to use their bonus points any way they wished; and that she had used her bonus points for books for her classroom and for other things, such as desk calendars, for herself. Catherine Sutton testified that it was her understanding that the teachers owned the bonus points. She stated that she had occasionally ordered items for her personal use, such as a toaster oven and three small refrigerators; she used two of the small refrigerators at school and took the toaster oven and one refrigerator home. She added: “I was told by administration at Lakeside School District to take one of the refrigerators I ordered home because we had an energy audit.”
In closing, appellant’s counsel argued that the school board’s counsel, Paul Blume, had incorrectly advised the school board at the hearing when he informed the board that there was |in“no such thing as probation. The school board does not have the ability to place probation upon an employee.” Appellant’s counsel noted that Arkansas Code Annotated section 6-17-1510(b) states that, upon completion of the hearing, the board shall either uphold the recommendation of the superintendent to terminate, or reject or modify the superintendent’s recommendation, or continue the contract under “such restrictions, limitations, or assurances” as the board deems to be in the school district’s best interest. He argued that Mr. Blume’s advice about there being no such thing as probation misrepresented all of the options available to the board; therefore, they could not properly exercise their discretion. Otherwise, he stated, the board “might have decided it was a bad day for Ms. Timpani but she was a good teacher and we should just put some restrictions on her.” Appellant’s counsel also argued that she was not adequately notified of the reasons that the superintendent was recommending termination because she was not given copies of the sections of the policy manual or the statutes on which the superintendent relied.
The trial court sent a letter to counsel ruling that the board did not abuse its discretion in terminating appellant’s contract. Appellant’s counsel requested specific findings of fact and conclusions of law. In its subsequent order, the circuit court found that appellant had failed to demonstrate that the school board had abused its discretion in effecting her dismissal; that the basis for her dismissal constituted “just and reasonable cause,” as required by Arkansas Code Annotated section 6-17-1507(a) (Repl.2007); and that her termination must be upheld. Appellant then pursued this appeal.
Our standard of review in matters involving the Teacher Fair Dismissal Act is limited |nto whether the circuit court’s decision was clearly erroneous. Russell v. Watson Chapel Sch. Dist., 2009 Ark. 79, 313 S.W.3d 1; Fayetteville Pub. Schs. v. Dial, 2010 Ark. App. 296, 2010 WL 1379801. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court from the entire evidence is left with a firm conviction that an error has been committed. Id. Facts in dispute and determinations of credibility are within the province of the fact-finder. Russell, supra.
The Teacher Fair Dismissal Act provides that a teacher’s termination by a school district shall be void unless the school district substantially complies with the provisions of the Act. Arkansas Code Annotated section 6-17-1503 (Repl.2007) provides:
(a) The General Assembly finds:
(1) That the current standard, which requires cause that is not arbitrary, capricious, or discriminatory, for the nonrenewal, termination, or suspension of a teacher should be raised to a standard of just and reasonable cause; and
(2) That the current standard for compliance with this subchapter and a school district’s personnel policies of strict compliance should be lowered to substantial compliance.
(b) This subchapter is not a teacher tenure law in that it does not confer lifetime appointment of teachers.
(c) A nonrenewal, termination, suspension, or other disciplinary action by a school district shall be void unless the school district substantially complies with all provisions of this subchapter and the school district’s applicable personnel policies.
Arkansas Code Annotated section 6-17-1507 (Repl.2007) provides:
112(a) A teacher may be terminated only during the term of any contract when there is a reduction in force created by districtwide reduction in certified staff or for incompetent performance, conduct which materially interferes with the continued performance of the teacher’s duties, repeated or material neglect of duty, or other just and reasonable cause.
(b) The superintendent shall notify the teacher of the termination recommendation.
(c)(1) The notice shall include a statement of the grounds for the recommendation of termination, setting forth the grounds in separately numbered paragraphs so that a reasonable teacher can prepare a defense.
(2) The notice shall be delivered in person to the teacher or sent by registered or certified mail to the teacher at the teacher’s residence address as reflected in the teacher’s personnel file.
Under the Teacher Fair Dismissal Act, the exclusive remedy for a teacher with three successive years of service in the school district, who is aggrieved by a decision made by the board, is an appeal to the circuit court in the county in which the school district is located. Additional testimony and evidence can be introduced to show facts and circumstances showing that the termination or nonrenewal was lawful or unlawful. Arkansas Code Annotated section 6 — 17—1510(b) (Repl.2007) provides:
(b) Any licensed teacher who has been employed continuously by the school district three (3) or more years or who may have achieved nonprobationary status pursuant to § 6-17-1502 may only be terminated or the board of directors may refuse to renew the contract of the teacher when there is a reduction in force created by districtwide reduction in certified staff, for incompetent performance, conduct which materially interferes with the continued performance of the teacher’s duties, repeated or material neglect of duty, or other just and reasonable cause. Upon completion of the hearing, the board of directors, within ten (10) days after the holding of the hearing, shall:
(1) Uphold the recommendation of the superintendent to terminate or not renew the teacher’s contract;
Iia(2) Reject or modify the superintendent’s recommendation to terminate or not renew the teacher’s contract; or
(3) Vote to continue the contract of the teacher under such restrictions, limitations, or assurances as the board of directors may deem to be in the best interest of the school district. The decision shall be reached by the board of directors within ten (10) days from the date of the hearing, and a copy shall be furnished in writing to the teacher involved, either by personally delivering it to the teacher or by addressing it to the teacher’s last known address by registered or certified mail.
Appellant argues that the school district failed to substantially comply with the notice provision set forth in section 6-17-1507 and, therefore, did not allow her, “a reasonable teacher, the opportunity to prepare a defense,” because Superintendent Cook did not specifically advise her of every section of the personnel policy and statute he thought she had violated. We disagree.
Arkansas Code Annotated section 16-17-201 (a) (Repl.2007) provides that “[e]ach school district in the state shall have a set of written personnel policies, including the teacher salary schedule.” Arkansas Code Annotated section 6-17-204(a) (Repl.2007) provides that the personnel policies in effect at the time a teacher’s contract is entered into or renewed shall be considered to be incorporated as terms of the contract and shall be binding upon both parties. See Stone v. Mayflower Sch. Dist., 319 Ark. 771, 894 S.W.2d 881 (1995). Traditional contract principles apply to teachers’ employment contracts. Barnett v. Mountain View Sch. Dist., 2010 Ark. App. 333, 374 S.W.3d 851. Although personnel policies do not have the force of law, as a matter of contract law and fair dealing, a teacher may reasonably expect the district to comply substantially with its own declared policies. Helena-West Helena Sch. Dist. #2 v. Randall, 32 Ark.App. 50, 796 S.W.2d 586 (1990).
luIt is true that Superintendent Cook stated that he orally advised appellant at the meeting in his office of most, but not all, of the rules he believed she had broken and that the written notice did not specifically list them. Nevertheless, the notice more than sufficiently complied with section 6-17-1507(c)(l)’s requirement that it “include a statement of the grounds for the recommendation of termination, setting forth the grounds in separately numbered paragraphs so that a reasonable teacher can prepare a defense.” Superintendent Cook set forth the factual basis for each of the four grounds in such clear detail that any “reasonable teacher” would have no trouble preparing a defense. In fact, the defense that appellant offered at the school board hearing, and augmented at the hearing before the circuit court, left no doubt that she clearly understood all of the charges leveled at her, because she attempted to deny, explain, or rationalize every statement that the superintendent made in the notice. What actually happened at the hearing should also be considered in determining the sufficiency of notice to a teacher. See Watson Chapel Sch. Dist. v. Russell, 367 Ark. 443, 241 S.W.3d 242 (2006). Accordingly, we affirm on this point.
Appellant also argues that her termination was unlawful and without just and reasonable cause because the school district had no written personnel policies specifically addressing the use of the bonus points. She asserts that the personnel policies and statutes on which Superintendent Cook relied did not apply to this situation and that the bonus points belonged to her because she had accrued a sufficient amount of them by spending her own money to order items. Again, we disagree.
1 1S Appellant’s argument that the school district was required to include a written policy about such a minor topic as the bonus points in its personnel manual is not persuasive. It is not feasible to include a rule for every issue that might present itself during a teacher’s term of employment. Appellee presented evidence that the other teachers understood that school policy prohibited the use of bonus points (which they could spend like real money with the book club) for the teachers’ personal use. Also, the statutes were published. In any event, appellant was terminated for more than one reason; the superintendent also determined that she had argued with the principal when instructed about the bonus-points policy; used loud, intemperate language to the principal in the presence of others; was untruthful about what had happened; accused the principal of lying; and was rude, disrespectful, and argumentative in the meeting with him and the principal. Appellant ultimately admitted that she had used bad language when Ms. Preston first confronted her and that she had been sarcastic in the meeting with the superintendent. The school board found these reasons for termination were true, and the circuit court affirmed. Given our deference to the fact-finder on matters of credibility, we cannot say that the circuit court clearly erred in ruling that appellant’s termination was for just and reasonable cause. Thus, we affirm on this point.
Appellant further argues that her termination was unlawful because the school board was “contradictorily advised” about its options by its counsel. She contends that the board’s counsel may have confused the members of the board about their ability to modify the superintendent’s recommendation that she be terminated. The school board’s counsel’s advice was as follows:
LAs you’ll see there are three choices. You may accept the recommendation, which means Ms. Timpani is terminated effective immediately. You may reject the recommendation, which means that she is entitled to return to work tomorrow. Or you may modify the recommendation. Modification would be anything less than an immediate termination.
I’m not going to suggest what that might be, but I will tell you this, there’s no such thing as probation. The School Board does not have the ability to place probation upon an employee.
If an employee commits an act which could justify dismissal and the School Board votes for some reason to place that employee on probation, if that employee commits the same or a similar act that could justify dismissal, you would have to start from the beginning, and we’d go through all of this all over again. So probation is not something that’s available to you. But modification could be anything less than immediate termination.
We also see no error here. Appellee’s counsel was correct in pointing out that “probation” is not specifically provided as an option in section 6-17-1510(b). He also made it clear that, if the school board did not wish to dismiss appellant, it could do something less than that, which would amount to a modification of the principal’s recommendation. In any event, appellant has demonstrated no prejudice, because there is nothing in the record to suggest that the board wanted to do anything less than dismiss appellant.
Affirmed.
PITTMAN and ABRAMSON, JJ., agree.
.In Act 1739 of 2001, the General Assembly amended the standard from strict compliance to substantial compliance, which was the standard prior to Act 625 of 1989.
. This statute was amended in 2011.
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DOUG MARTIN, Judge.
| T Appellant Earnest McGaughey appeals from the August 27, 2010 order terminating his parental rights to his daughter, M.M. We affirm.
M.M. was born on December 21, 2009. On December 28, 2009, appellee Arkansas Department of Human Services (DHS) was alerted to M.M., a “Garrett’s Law baby,” because the child was born with marijuana in her bloodstream. M.M.’s mother, Golden McGaughey, also tested positive for marijuana at the time of M.M.’s birth. DHS caseworkers went to the McGaughey residence, where they found that the home “had only a couch and a chair, reeked of urine, had very little heat in the rear of the house, and had no hot water.” The “baby’s room” was an empty room filled with black trash bags, and Golden told the | caseworkers that she did not have a crib, diapers, clothes, or any other necessities for the baby.
As a result, DHS filed an ex parte petition for emergency custody and dependency-neglect on December 31, 2009. The Carroll County Circuit Court entered an order for emergency custody on January 6, 2010, noting that there was probable cause to believe that the child was dependent-neglected and that it was contrary to the child’s welfare to remain with the present custodian. The court’s order set a probable-cause hearing for January 11, 2010.
Following the probable-cause hearing, the circuit court entered an order on January 28, 2010, finding that DHS’s first contact arose during an emergency and further finding that there was probable cause that the emergency conditions that necessitated removal of the juvenile from the custody of Golden and Earnest McGau-ghey continued. At the conclusion of the order, the court set an adjudication hearing for March 18, 2010. After the March 18 hearing, the court entered an order in which it adjudicated M.M. dependent-neglected, stated that the goal of the ease was reunification, and directed Golden and Earnest to follow the provisions of the case plan.
Following a June 2, 2010 review hearing, however, the circuit court changed the goal of the case to termination of parental rights. Noting that Earnest had been jailed for domestic abuse at the time of the hearing, the court found that return of M.M. to her parents’ custody was not in the child’s welfare and that she should continue in the custody of DHS. At the conclusion of the order (which was a pre-printed form with various boxes checked off), the Iscourt noted that it continued to retain jurisdiction of the matter and set it for a “fast-track” termination, with a termination hearing to be held on August 5, 2010.
DHS filed its petition for termination of parental rights on June 28, 2010. In its petition, DHS alleged that Earnest had been noncompliant with the case plan and had failed to remedy the conditions that brought the child into care, had abandoned the child, and had not maintained stable housing. Citing Arkansas Code Annotated section 9-27-814(b)(3)(B)(iv) (Repl.2009), DHS alleged that Earnest had abandoned M.M. by demonstrating a willful lack of contact, provision of support, and failure to present himself to DHS or to the court to assert any parental right he might have. In addition, DHS alleged that Earnest had willfully failed to provide any material support, willfully failed to maintain contact with his child, and failed to participate in the case plan.
DHS further contended that other factors and issues had arisen subsequent to the filing of the original dependency-neglect petition that demonstrated that return of M.M. to her parents’ custody was contrary to her welfare. Specifically, DHS asserted that Earnest had been offered appropriate reunification services; had not presented himself to the Department to participate in those services, and his whereabouts were unknown; had not participated in the case plan; and had not remedied the conditions that necessitated removing M.M. from his care. Finally, DHS alleged that the aggravated circumstances of abandonment existed under Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(b,) (⅞)(A) and (B)(i).
[ 4A termination hearing was held on August 5, 2010. Sandra Craig, a family services worker for DHS, testified that she had been the foster-care worker on the case since M.M. came into DHS’s custody in December 2009. Craig said that, while Earnest and the whole family participated during the first stages of the case, she had not had a good address for Earnest for the past six months and he had not contacted her during that time. Craig noted that Earnest and Golden had separated and that he was no longer living at his previous address, but she asserted that there had been nothing preventing Earnest from participating in the case plan.
When asked about M.M., Craig testified that the girl was living with an adoptive family and was definitely adoptable. Craig opined that there was danger in returning M.M. to Earnest’s care due to Earnest’s schizophrenia. Craig also said that Earnest had numerous legal problems, the extent of which she did not know. Craig said that Earnest had not participated in any counseling, parenting services, or any other services offered by DHS, and she was unaware of his living situation. She further commented that Earnest had provided no financial or material support to M.M. and that it was DHS’s recommendation that Earnest’s parental rights should be terminated.
On cross-examination, Craig stated that she asked Golden about Earnest’s whereabouts, and Golden replied that she had lost contact with Earnest after they separated |Band did not know where he was. Craig testified that Earnest had not attended any counseling that was offered to him, but she acknowledged that she was unaware that he had transportation problems.
Upon questioning by M.M.’s attorney ad litem, Craig testified that Earnest had not attended parenting classes; completed a substance-abuse assessment; maintained safe, stable, and appropriate housing; or attended regularly scheduled visitations. Craig said that Earnest had known “this whole time” that M.M. was in DHS’s custody but had not contacted DHS to arrange a visit, paid any child support, provided DHS with any address changes, or complied with random drug testing. In addition, Craig said that she was not aware that Earnest had maintained his medications that had been prescribed for his schizophrenia. Craig reiterated that Earnest had known that his child was in DHS’s custody, and even though he had a card with DHS’s address on it, she did not know if he ever came to the office to inquire about M.M., even though he had been there previously to apply for other services such as food stamps and Medicaid. Craig stated that she believed Earnest had visited M.M. perhaps two times, but during visitation, he had difficulty staying awake.
At that point, DHS rested and submitted to the court that it had demonstrated that Earnest had abandoned M.M., had not complied with or participated in the case plan, and had not provided any sort of care or support for M.M. Earnest then testified on his own behalf. Earnest asserted that he did not wish to have his parental rights terminated. He acknowledged that he had not followed the case plan but said that, when he and Golden broke up, “everything stopped.” He explained that he was without a phone and in any event Rcould not look any phone numbers up in the phone book because he could not read. Earnest denied that M.M. would be in any danger if he were permitted to take care of the child, even though he conceded that he was currently incarcerated for shoplifting. Earnest pointed out that he had previously raised six children on his own, despite his diagnosed mental illness, and he wished to have M.M. placed in his custody.
On cross-examination, Earnest testified that, after he and Golden separated, he went into the hospital and got back on his medication, but when he got out of the hospital, Golden had already moved out of their trailer and gotten a restraining order against him. Earnest moved to another trailer park, but he did not provide his new address to DHS, which was because he did not know where the office was located. He denied ever receiving a business card from Craig. Earnest said that he asked “somebody” where the Department was, but when he finally got DHS’s phone number, he was incarcerated. He conceded, however, that he had not attempted to contact DHS at all in the last five or six months.
During questioning by M.M.’s attorney ad litem, Earnest could not remember M.M.’s birthday and admitted that, at one point during a visitation, he could not remember the child’s name. He agreed that he had not seen M.M. in at least four or five months, and while he could have found someone who could have called DHS for him, he did not. When asked if he knew about M.M.’s developmental problems and how he would get her to her therapy, if he were granted custody, Earnest replied, “Isn’t that what DHS is for?”
At the conclusion of the testimony, DHS again asked the court to grant its petition to terminate Earnest’s parental rights. When asked for a response, Earnest’s attorney stated, |7“Your Honor, except for asking the court to take notice of Mr. McGaughey’s very great parental interest and love for his daughter, I would waive argument.”
The court found that DHS had met its burden of proof that M.M. was adoptable. The court further found that M.M. would be subject to potential harm that would directly affect her health and safety if returned to the care and custody of Earnest, and that Earnest was incapable of physically or financially providing for the needs of the child. The court noted Earnest’s testimony admitting to drug use and acknowledging his schizophrenia; moreover, the court pointed out that Earnest was currently incarcerated and had revocation proceedings pending. The court concluded that Earnest had “the inability or the incapacity to remedy or rehabilitate the conditions that resulted in the removal of the child.” Accordingly, the court granted DHS’s petition to terminate Earnest’s parental rights. Upon the ad li-tem’s request, the court then made a specific finding of aggravated circumstances.
The court entered its written order terminating Earnest’s parental rights on August 27, 2010. The court specifically found that there were sufficient grounds to terminate Earnest’s rights in that “other factors and issues arose subsequent to the filing of the original petition” pursuant to Arkansas Code Annotated section 9-27-341 (b)(3)(B)(vii)f¾), in that Earnest had been offered appropriate reunification services but had not presented himself to DHS to participate in the services; had not participated in the case plan; had not remedied the conditions that necessitated removing M.M. from his care; and had numerous physical and mental difficulties that demonstrated Earnest’s unfitness to parent M.M. In addition, the court found that an aggravated circumstance existed under section 9-27-341(b)(e)(B)(ix)(aj(%)(AJ |sand (B)(i), in that Earnest had abandoned the child, such that there was little likelihood that services to Earnest would result in successful reunification.
Earnest filed a timely notice of appeal on September 17, 2010, stating that he was appealing the order terminating his parental rights. On appeal, he raises two points, asserting that (1) the trial court failed to correctly apply the termination statutes; and (2) the court’s finding that DHS made reasonable efforts to provide family services is clearly erroneous.
A heavy burden is placed upon a party seeking to terminate the parental relationship, and the facts warranting termination must be proven by clear and convincing evidence. Friend v. Ark. Dep’t of Human Servs., 2009 Ark. App. 606, 344 S.W.3d 670; Strickland v. Ark. Dep’t of Human Servs., 103 Ark. App. 193, 287 S.W.3d 633 (2008). The question this court must answer is whether the trial court clearly erred in finding that there was clear and convincing evidence of facts warranting the termination of parental rights. Hall v. Ark. Dep’t of Human Servs., 101 Ark. App. 417, 278 S.W.3d 609 (2008). 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. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722. Pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(A) (Repl. 2008), an order terminating parental rights must be based on a finding that termination is in the child’s best interest, which includes consideration of the likelihood that the juvenile will be adopted and the potential harm caused by returning custody of the child to the parents. In addition, the proof must establish at least one of several statutory grounds. Ark.Code Ann. § 9-27-341(b)(3)(B). |nThis court gives a high degree of deference to the trial court, as it is in a far superior position to observe the parties before it and judge the credibility of the witnesses. Dowdy, supra.
Earnest’s first point on appeal pertains to the decision of the circuit court to terminate Earnest’s parental rights on a “fast-track” basis. Earnest notes that, at the time a case plan was filed in this matter on March 12, 2010, the permanency plan was “reunification with a concurrent plan of adoption.” On June 2, 2010, however, the court entered a review order that changed the goal of the case to termination and placed a check-mark in the box next to “fast-track/no reunification.” Earnest complains that DHS never filed a “no reunification services” motion pursuant to Arkansas Code Annotated section 9-27-365 (Repl.2009), and the court “entered an order of no reunification in the context of a review hearing, without any motion requesting same, not at an adjudication hearing.” Earnest also argues that the court failed to enter a written order containing appropriate findings of facts and conclusions of law on the “no reunification issue,” again in violation of the statute, and also failed to hold a permanency-planning hearing or issue a permanency-planning order as required by the statute.
We are unable to reach the merits of Earnest’s arguments. Because he failed to raise any of these issues below. As noted above, at the conclusion of the termination hearing, Earnest’s attorney specifically waived any argument. Accordingly, the circuit court was not presented with an opportunity to consider or rule on any of the arguments. It is well settled that the appellate courts will not address an issue that is raised for the first time on appeal. Lamontagne v. Ark. Dep’t of Human Servs., 2010 Ark. 190, 366 S.W.3d 351; Kelley v. Ark. Dep’t of Human Servs., 2011 Ark. App. 481, 2011 WL 2577561.
In his second point on appeal, Earnest argues that the trial court erred in finding that DHS made reasonable efforts to reunite the family. He complains that Sandra Craig, the DHS caseworker, never attempted to contact him and made no attempt to provide him with services, and he asks this court to reverse with directions that DHS make a bona fide effort to provide services to him. Again, however, we do not reach the merits of his argument.
When an appellant fails to attack the trial court’s independent, alternative basis for its ruling, we will not reverse. Martin v. Ark. Dep’t of Human Servs., 2011 Ark. App. 423, 384 S.W.3d 580; Thomsen v. Ark. Dep’t of Human Servs., 2009 Ark. App. 687, 370 S.W.3d 842. Earnest does not address or challenge the trial court’s finding, pursuant to Ark.Code Ann. § 9-27-341(b)(3)(B)(vii)faj, that other factors and issues sufficient to warrant the termination of Earnest’s parental rights arose subsequent to the filing of the original petition for termination. Proof of only one statutory ground is sufficient to terminate parental rights. Tenny v. Ark. Dep’t of Human Servs., 2011 Ark. App. 360, 383 S.W.3d 876; Hughes v. Ark. Dep’t of Human Servs., 2010 Ark. App. 526, 2010 WL 2522197. Because Earnest has failed to challenge the trial court’s finding that an independent, alternative statutory ground existed, we conclude that there is no basis for reversing on this issue.
Affirmed.
WYNNE and HOOFMAN, JJ., agree.
. Golden McGaughey signed a Consent to Termination of Parental Rights and Waiver of Notice on June 2, 2010; she is not a party to this appeal.
. "Abandonment" is defined in pertinent part in Arkansas Code Annotated section 9-27-303(2)(A) (Repl.2009), as [fjailure of the parent to provide reasonable support and to maintain regular contact with a juvenile through statement or contact when the failure is accompanied by an intention on the part of the parent to permit the condition to continue for an indefinite period in the future and support or maintain regular contact with a juvenile without just cause. | [
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JOHN B. ROBBINS, Judge.
_[jThis is the second appeal involving these parties and a dispute pertaining to a real estate contract. The appellants are Phil and Crystal Brackelsberg, and the appellees are Marc and Billie Heflin. The parties executed a real estate contract, the Heflins breached the contract, and litigation followed. The only issue in this appeal is whether the Brackelsbergs or the Heflins ultimately prevailed in the litigation. The trial court found that the Hef-lins were the prevailing party in this case, and based on that finding it awarded the Heflins $21,626.50 in attorney’s fees and $1774.36 in costs. On appeal, the Brack-elsbergs argue that the trial court erred in finding the Heflins to be the prevailing party. The Brackelsbergs contend that they prevailed in the litigation and that the trial court abused its discretion in awarding attorney’s fees and costs to the Hef-lins, and in failing to award attorney’s fees and costs to the Brackelsbergs.
|gWe agree that the trial court erred in finding that the Heflins were the prevailing party. However, under the particular facts of this case we conclude that neither party prevailed for purposes of assessing attorney’s fees and costs. Therefore, we reverse and dismiss the trial court’s order that awarded attorney’s fees and costs to the Heflins.
In August 2005, the Brackelsbergs agreed to sell their house to the Heflins for $450,000.00. The Heflins backed out of the contract because the home appraised for only $420,000.00 and their bank would not loan them more than that amount on the property. The Brackelsbergs did not return the Heflins’ $5000.00 earnest money, and they eventually sold their house to another buyer for $422,500.00.
More than a year after their deal fell apart, the Heflins sued the Brackelsbergs for the earnest money. In addition to requesting a $5000.00 judgment against the Brackelsbergs, the Heflins’ amended complaint argued in the alternative:
That in any event, the actions of the Defendants in selling the house and repudiating the contract, without returning the earnest money deposit to the Plaintiffs and seeking actual damages, constituted an election of remedies to accept liquidated damages in the form of the earnest money, precluding seeking actual damages, leaving as the only issue the matter of the earnest money.
The Brackelsbergs filed an answer and counterclaim, wherein they alleged that the Heflins breached the contract by failing to exercise good faith in attempting to secure financing. As a result of the Hef-lins’ breach of contract, the Brackelsbergs asked for dismissal of the Heflins’ action and damages of at least $60,105.74. In an amended counterclaim the Brackelsbergs claimed damages of at least $72,621.57, and also asserted:
Defendants have completed initial discovery and determined that the earnest money paid under the contract should not be held as liquidated damages but instead be | areturned to Plaintiffs. Defendants have tendered the sum of $5,000.00 to Plaintiffs, knowingly foreclosed their right to liquidated damages under the contract, and elected their remedy of actual damages.
Although the Brackelsbergs tried to refund the earnest money to the Heflins, they refused to accept it. The Brackels- bergs also filed an interpleader petition asking to deposit the money with the clerk, but the trial court denied that petition.
The parties filed cross-motions for summary judgment. On April 20, 2009, the trial court entered an order granting the Braekelsbergs’ motion for summary judgment and dismissing the Heflins’ case with prejudice. The trial court found that the undisputed facts showed that the Heflins failed to complete a loan application, a required term of the real estate contract, and that this was a material breach. The trial court awarded the Braekelsbergs $22,500.00 in damages resulting from the breach of the contract, which represented the difference between the amount the Heflins had agreed to pay and the later sales price (less the retained earnest money). The trial court also awarded attorney’s fees to the Braekelsbergs under Ark. Code Ann. § 16-22-808 (Repl.1999), which provides that the prevailing party in a breach-of-contract action may be entitled to a reasonable attorney’s fee. However, the trial court refused to award any pre or postjudgment interest.
The Heflins appealed and the Brackels-bergs cross-appealed from the order of summary, judgment. In Heflin v. Brackelsberg, 2010 Ark. App. 261, 874 S.W.3d 755 (Heflin I), we affirmed in part, reversed and remanded in part, and vacated the attorney’s fee award. In Heflin I, we affirmed the trial court’s finding that the Heflins breached the contract because they failed to make a complete loan application within five days of the Brackels-bergs’ |4acceptance as required by the contract. That obligation was not contingent on the Braekelsbergs’ home appraising for a particular amount and was not contingent on the loan being tied exclusively to the property as in a typical mortgage. We noted that had the Heflins filled out a loan application, their loan officer would have learned that the Heflins had a $750,000.00 unsecured line of credit with the bank, a substantial yearly income, and a net worth of several million dollars.
However, although we concluded in Hef-lin I that the trial court correctly granted the Braekelsbergs’ judgment as a matter of law on breach, we reversed and remanded for a trial on damages. The contract gave the Braekelsbergs a choice by providing, “If Buyer fails to fulfill his obligations under this Real Estate Contract ... the Earnest Money may, at the sole and exclusive option of the Seller, be retained by the Seller as liquidated damages. Alternatively, Seller may return the Earnest Money and assert all legal or equitable rights which may exist as a result of Buyer breaching this Real Estate Contract.” The Heflins contended in the first appeal that the Braekelsbergs elected liquidated damages by sitting on the $5000.00 earnest money for more than a year, and that the trial court erred in awarding actual damages of $22,500.00 more. We held that reasonable minds could reach different conclusions about whether the Brackels-bergs’ handling of the earnest money — not returning it when the deal collapsed and keeping it for more than a year thereafter — established an election to keep the $5000.00 as liquidated damages and move on. Because summary judgment was not proper on the issue of damages, we reversed and remanded for a trial on that issue.
|fiFinally, in Heflin I, we vacated the attorney’s fee award to the Braekelsbergs. In reaching this result, we reasoned:
The prevailing party in a breach of contract action may be entitled to a reasonable attorney’s fee. Ark.Code Ann. § 16-22-308 (Repl.1999). “[T]he prevailing party is determined by who comes out ‘on top’ at the end of the case.” Marcum v. Wengert, 344 Ark. 153, 162, 40 S.W.3d 230, 236 (2001). Whether the Braekelsbergs or the Hef- lins will come out on top is a decision for the end of this case. We therefore vacate the attorney’s-fee award. The circuit court should exercise its informed discretion about whether to award fees, and if so, in what amount, when all is said and done in this case. 344 Ark. at 160, 40 S.W.3d at 234-35.
Id. at 8-9, 374 S.W.3d at 759.
Pursuant to our remand, a jury trial was held on December 16, 2010, to decide the issue of damages. The jury rendered a verdict finding that the Brackelsbergs had elected the remedy of retaining the earnest money of $5000.00 as liquidated damages. Based on that verdict, the trial court entered an order on January 6, 2011, that adjudged that the Brackelsbergs elected the remedy of retention of the earnest money, and the trial court dismissed the action on the merits.
After the trial court entered its judgment both parties filed petitions for attorney’s fees and costs. Both parties claimed entitlement to attorney’s fees as the prevailing party in a breach-of-contract action pursuant to Ark.Code Ann. § 16-22-308, as well as costs as the prevailing party under Ark. R. Civ. P. 54(d)(2). Initially the trial court denied both parties’ motions, entering an order on February 8, 2011, that made each party responsible for their own attorney’s fees and costs.
After that order was entered, the Braek-elsbergs filed a motion for reconsideration of the attorney’s fees issue. In their motion, the Brackelsbergs directed the trial court to the |fifollowing provision in the parties’ real estate contract:
28. ATTORNEY’S FEES: Should Buyer or Seller initiate any type of administrative proceeding, arbitration, mediation or litigation against the other (or against an agent for the initiating party or agent for the non-initiating party), it is agreed by Buyer and Seller (aforementioned agents being third-party beneficiaries of the Paragraph 28) that all prevailing parties shall be entitled to an award of their respective attorney’s fees and costs incurred in defense of such initiated action against the non-prevailing party.
The Brackelsbergs argued that because they were the prevailing party in the litigation they were entitled to attorney’s fees against the non-prevailing party, the Hef-lins, pursuant to the above provision.
On March 11, 2011, the trial court entered an “order on defendant’s motion for reconsideration.” That order awarded attorney’s fees and costs to the Heflins. The order recites, in pertinent part:
10. The Court finds that the contract entered into by the parties requires that the prevailing party’s attorney’s fees be paid by the non-prevailing party. Furthermore, the Court has the authority under Ark.Code Ann. § 16-22-308 to use its discretion to award attorney’s fees to a prevailing party in a breach of contract ease.
11. This Court finds that the Plaintiffs were ultimately the prevailing party in this case. Much of the litigation in this case occurred after the Plaintiffs were found in breach of the contract. While this case initially began as a claim by the Plaintiffs for the return of their $5,000 in earnest money, the Defendants filed a counterclaim seeking over $60,000 in damages, and the Plaintiffs alternatively requested that the Defendants were only entitled to the $5,000 in earnest money. The jury was charged with deciding whether actual damages ($27,-500) or liquidated damages ($5,000) were an appropriate remedy for the Defendants. In other words, the best verdict the Plaintiffs could receive was a finding that the Defendants were entitled to the $5,000 in earnest money while the best verdict that the Defendants could have received would have been to award them their actual damages in the amount of $27,500. Ultimately, the decision of the jury rendered a judgment in the Plaintiffs’ favor and found that the Defendants were only entitled to $5,000 in earnest money. Per the Gill case, the prevailing party is the party that receives judgment in their favor which in this case was the Plaintiffs.
12. The Plaintiffs’ counsel provided affidavits that the Plaintiffs incurred attorney’s fees in the amount of $21,626.50 and costs in the amount of $1,774.36.
|713. Pursuant to the parties’ contract and Ark. Code Ann. § 16-22-308, the Plaintiffs are entitled to $21,626.50 in attorney’s fees and $1,774.36 in costs.
The Brackelsbergs now appeal from the March 11, 2011, order awarding the Hef-lins attorney’s fees and costs. The Brack-elsbergs maintain that they, and not the Heflins, were the “prevailing party” for purposes of awarding attorney’s fees pursuant to Ark.Code Ann. § 16-22-308 as well as the terms of the parties’ real estate contract. The Brackelsbergs further assert that because they were the prevailing party they should have been awarded their costs under Rule 54(d). We agree that the trial court abused its discretion in finding the Heflins to be the prevailing party and thus erred in awarding the Heflins attorney’s fees and costs.
In Gill v. Transcriptions, Inc., 319 Ark. 485, 892 S.W.2d 258 (1995), the supreme court discussed the issue of “prevailing party” for purposes of awarding attorney’s fees and quoted ERG Mortgage Group, Inc. v. Luper, 32 Ark.App. 19, 795 S.W.2d 362 (1990), adopting the court of appeals’ reasoning on the issue. The Gill court stated:
In Luper, the Court of Appeals held that the plaintiff was the prevailing party under the statute, although six of the seven counts in his complaint were dismissed at the close of his case-in-chief. The court quoted with approval from a Missouri case:
[t]here can be but one prevailing party in an action at law for the recovery of a money judgment. It transpires frequently that in the verdict each party wins on some of the issues and as to such issues he prevails, but the party in whose favor the verdict compels a judgment is the prevailing party. Each side may score but the one with the most points at the end of the contest is the winner, and ... is entitled to recover his costs.
32 Ark.App. at 19, 795 S.W.2d at 364, 365, quoting Ozias v. Haley [141 Mo.App. 637], 125 S.W. 556, 557 (Mo.App. 1910).
Gill, 319 Ark. at 489-90, 892 S.W.2d at 261. To be the prevailing party, the litigant must be granted some relief on the merits of his claim. BKD, LLP v. Yates, 367 Ark. 391, 240 S.W.3d 588 (2006). However, our supreme court has held that an unsuccessful counterclaim does not necessarily preclude that party from being the “prevailing party.” See Perry v. Baptist Health, 368 Ark. 114, 243 S.W.3d 310 (2006). Under Arkansas law, the prevailing party is determined by analyzing each cause of action and its subsequent outcome. Id. We must look to the case as a whole to determine who was the prevailing party. See id. In Heflin I, supra, we said that the prevailing party is determined by who comes out “on top” at the end of the case. The trial court’s decision of which party was the prevailing party and its decision awarding attorney’s fees is reviewed for an abuse of discretion. See Gill, supra.
In the case at bar, the trial court erred in deciding who was the “prevailing party” by limiting its analysis to the outcome of the jury trial on damages. The trial court reasoned that because the Heflins received the best verdict they could get — that the Brackelsbergs were only entitled to $5000.00 in earnest money — at the jury trial, the Heflins prevailed in the case. This was wrong. The trial court should have instead looked at the case as a whole.
Looking at the case as a whole, this litigation was initiated when the Heflins filed a complaint to recover the $5000.00 in earnest money. The Heflins ultimately lost on that claim pursuant to a summary-judgment order, affirmed in part by this court, which determined that the Heflins breached the real estate contract as a matter of law. The Brackelsbergs’ counterclaim sought actual damages far in excess of the earnest money as a result of the Heflins’ breach, but this counterclaim was ultimately dismissed based on the jury’s finding on remand that the Brackelsbergs elected to retain the earnest money as liquidated damages under the terms of the contract. The fact that a party does not recover Rail the damages it sought is not determinative of whether that party prevailed at trial. Marcum v. Wengert, 344 Ark. 153, 40 S.W.3d 230 (2001).
Under the particular circumstances presented in this case, we hold that neither party was the “prevailing party” for purposes of awarding attorney’s fees under Ark.Code Ann. § 16-22-308 or the terms of the parties’ real estate contract. The same holds true for the issue of costs under Rule 54(d)(2). The Heflins did not prevail on their complaint because they were unsuccessful in recovering the earnest money. The Brackelsbergs did not prevail on their counterclaim because, against their express prayer for actual damages from the Heflins, they were not awarded a money judgment. In other words, both parties sought a money judgment against the other, but neither prevailed in that effort. After all was said and done in this case, the sum result was exactly the same as if no action and counterclaim had been brought at all. Because neither party scored more points than the other or came out “on top” at the end of the case, an award of attorney’s fees or costs to either party would amount to an abuse of discretion. Pursuant to our holding, we reverse and dismiss the trial court’s award of attorney’s fees and costs to the Heflins, thereby leaving each party to bear their own fees and costs expended in this litigation.
Reversed and dismissed.
WYNNE and GLOVER, JJ„ agree. | [
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CLIFF HOOFMAN, Judge.
| lAppellant Jessie Lee Miller’s suspended imposition of sentence (SIS) was revoked after the trial court found that he had violated the conditions of his SIS by committing the offenses of vehicular fleeing, fleeing on foot, and possession of cocaine with intent to deliver. Miller was sentenced by the trial court to ten years’ imprisonment, followed by a five-year SIS. On appeal, Miller argues (1) that the trial court lacked jurisdiction to revoke his suspended sentence, (2) that his revocation hearing was held outside the sixty-day period required by Ark.Code Ann. § 5-4-310(b)(2), (3) that he did not receive the statutorily required written notice of the time and place for the hearing, (4) that the petition to revoke should have been dismissed for prosecutorial misconduct, and (5) that the revocation was not supported by the preponderance of the evidence. We affirm on all points.
On June 26, 2006, Miller pled guilty to the offense of delivery of cocaine and was sentenced to ten-years’ incarceration, followed by five-years’ SIS. He also signed a document | ^outlining the written terms and conditions governing his behavior during the period of his suspension. These conditions included the requirement that he not commit any new offense punishable by imprisonment and that he submit his person, place of residence, or vehicle to search and seizure at any time requested by a law enforcement officer, with or without a search warrant. On May 1, 2009, Miller was arrested and charged with possession of a controlled substance with intent to deliver, fleeing in a vehicle, and fleeing on foot. A petition to revoke was filed by the State on June 17, 2009, alleging that Miller violated the conditions of his SIS by committing these new offenses. A hearing on the petition was held on May 12, 2010, and the trial court took judicial notice of the written conditions of Miller’s SIS and made it a part of the record in the case.
At the revocation hearing, Officer Grant Barnett, a narcotics investigator, testified that he had received information in the past that Miller was involved in selling narcotics. Barnett was aware that Miller was on parole at the time but not that he was also currently under a SIS. On May 1, 2009, Barnett stated that he received a tip that Miller was in his red Mercury vehicle on a certain street in Osceola, selling narcotics. According to Barnett, he and his partner drove in an unmarked car to that location and saw the red Mercury vehicle parked on the street named by the informant, although Miller was not in the vehicle at that time. Barnett set up surveillance nearby, along with other police units, then received further information that Miller was back in his vehicle and driving west down the street. Barnett stated that he followed Miller’s vehicle for several blocks and that two marked police cars then got behind Miller and turned on their emergency lights and sirens, attempting to stop the | ..¡vehicle. Barnett testified that Miller sped up and began fleeing from the officers, then pulled his vehicle over and parked it on the left-hand side of the road, facing oncoming traffic. Barnett stated that Miller got out of his vehicle and started running. Barnett chased Miller on foot through several backyards, yelling for him to stop, until Miller finally slipped in mud and was apprehended. Barnett testified that he found a large sum of money and a clear plastic baggie containing off-white rocks in Miller’s left front pants pocket and that more money was found in Miller’s right pocket. Barnett stated that the money found on Miller totaled $1090 and that he field-tested the substance in the baggie, which showed a positive result for cocaine. Miller was arrested, and the evidence was sent to be tested. Lauren O’Pry, a chemist with the Arkansas State Crime Laboratory, testified that she tested the substance and that it was found to be 2.89 grams of cocaine.
Melvin Johnson testified for the defense. He stated that he knew Miller and that he saw him the afternoon of May 1, 2009. According to Johnson, he witnessed Officer Barnett come up to Miller and shove him down onto the ground. Johnson testified that Barnett then pulled a bag out of his own back pocket and was also digging in Miller’s pockets. When Miller asked Barnett what he was doing in his pockets, Johnson stated that Barnett hit Miller in the eye and told him to “shut up.” Johnson testified that he never saw Barnett remove a baggie from Miller’s pocket. Johnson further testified that he had notified the FBI of what he had witnessed and that he was not being promised anything to testify. In rebuttal, Marquetta Thompson, Johnson’s probation officer, testified that he had not been honest with her in the past and that he had also tried to convince her to smoke marijuana, stating that he |4did it frequently. Thompson stated that Johnson had also failed five drug tests that she had given him.
At the conclusion of the hearing, the trial court found that the State had met its burden of proving by a preponderance of the evidence that Miller had violated the conditions of his SIS by fleeing in a vehicle and on foot and by possessing a large quantity of cocaine. In making this determination, the trial court specifically stated that it believed the testimony of Officer Barnett and noted that Johnson never testified that he actually witnessed Barnett plant anything on Miller. The trial court sentenced Miller, as a habitual offender, to ten-years’ imprisonment, followed by a five-year SIS. Miller now appeals from the revocation.
Miller first argues that the trial court lacked jurisdiction to revoke his SIS under Ark.Code Ann. § 5-4-309 (Repl. 2006) because certain provisions in the statute were not followed. The applicable portions of section 5-4-309 state:
(a)(1) At any time before the expiration of a period of suspension or probation, a court may summon a defendant to appear before it or may issue a warrant for the defendant’s arrest.
(2)The warrant may be executed by any law enforcement officer.
(b) At any time before the expiration of a period of suspension or probation, any law enforcement officer may arrest a defendant without a warrant if the law enforcement officer has reasonable cause to believe that the defendant has failed to comply with a condition of his or her suspension or probation.
(c) A defendant arrested for violation of suspension or probation shall be taken immediately before the court that suspended imposition of sentence, or if the defendant was placed on probation, before the court supervising the probation.
(d) If a court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his or her suspension or probation, the court may revoke the suspension or probation at any time prior to the expiration | sof the period of suspension or probation.
(e) A court may revoke a suspension or probation subsequent to the expiration of the period of suspension or probation if before expiration of the period:
(1) The defendant is arrested for violation of suspension or probation;
(2) A warrant is issued for the defendant’s arrest for violation of suspension or probation;
(3) A petition to revoke the defendant’s suspension or probation has been filed if a warrant is issued for the defendant’s arrest within thirty (30) days of the date of filing the petition; or
(4)The defendant has been:
(A) Issued a citation in lieu of arrest under Rule 5 of the Arkansas Rules of Criminal Procedure for violation of suspension or probation; or
(B) Served a summons under Rule 6 of the Arkansas Rules of Criminal Procedure for violation of suspension or probation.
Miller argues that because he was not arrested for a violation of his suspension, a warrant was not issued for his arrest for a violation of suspension, nor was a summons issued ordering him to appear before the trial court for a violation of suspension, the State failed to comply with the dictates of section 5-4-309(a) and (e). Miller further contends that the trial court’s jurisdiction to revoke his SIS was contingent upon compliance with this statute and that, because he was never properly brought before the court, the trial court lacked jurisdiction to entertain the revocation petition.
As the State correctly notes, section 5-4-309(e) has no application to this case. This subsection only pertains to revocations that occur outside the period of suspension or probation and mandates that certain procedures be followed to obtain jurisdiction outside of the applicable time period. See, e.g., Carter v. State, 350 Ark. 229, 85 S.W.3d 914 (2002). Here, the June 2009 petition to revoke Miller’s SIS was filed well within the five-year period of suspension, which could have expired in June 2011 at the earliest possible time, and there is no allegation by Miller to the contrary. In addition, although Miller argues that the State | (¡failed to strictly comply with section 5-4-309(a) as well, he cites no authority for the proposition that this alleged failure prevented the trial court from exercising jurisdiction over his revocation. In fact, this same argument was previously rejected in Reynolds v. State, 282 Ark. 98, 666 S.W.2d 396 (1984), wherein our supreme court held that the fact that the statute was not strictly complied with, in that the defendant was never arrested for a violation of his suspension and a summons was never issued, did not deprive the trial court of jurisdiction to hear the petition to revoke or void the trial court’s action. See also Barnes v. State, 294 Ark. 369, 371, 742 S.W.2d 925, 926 (1988) (finding that the language in the statute does not require that one accused of a violation of probation or suspension be summoned or arrested, but says only that he may be summoned or arrested) (emphasis added). Thus, we affirm on this point.
Miller also argues that under Ark. Code Ann. § 5-4-310(b)(2) (Repl.1996), a revocation hearing must be held within sixty days of the defendant’s arrest. Because the petition to revoke his suspension was filed on June 17, 2009, and the revocation hearing was not held until May 2010, Miller contends that there was no compliance with the statute and that his fundamental right to a speedy disposition of the matter was violated. However, as the State argues, the sixty-day limitation found in section 5-4-310 has been interpreted as mandatory only where the defendant is arrested for the violation of the conditions of his suspension or probation. Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995); Parks v. State, 303 Ark. 208, 795 S.W.2d 49 (1990). The purpose of the sixty-day limitation is to limit the amount of time that the defendant is detained in jail awaiting the revocation hearing and is not in the nature of a speedy-trial provision; where the defendant is incarcerated on other |7charges or is not incarcerated at all, the limitation loses its meaning and is inapplicable. Parks, supra. In this case, Miller was arrested and detained on new offenses, not on the revocation of his SIS; therefore, the sixty-day limitation did not apply. We also note that it was partly due to several requests for continuances by Miller that the revocation hearing was not held until May 2010. In addition, at both the hearing in September and the revocation hearing in May, Miller asked the court to hold the revocation hearing in abeyance pending the trial on his new criminal charges. Therefore, Miller can demonstrate no prejudice from the delay. See Barnes v. State, supra. We affirm on this point as well.
In his next point on appeal, Miller argues that the State did not comply with Ark.Code Ann. § 5 — 4—310(b)(3), which requires that the defendant “be given prior written notice” of the “[t]ime and place of the revocation hearing[,]” the “[pjurpose of the revocation hearing[,]” and the “[cjondition of suspension or probation the defendant is alleged to have violated.” Because the record does not show that he was summoned to appear and the revocation petition did not contain the time and place of the revocation hearing, Miller contends that there was no compliance with the statute and that “the trial court should have refrained from exercising jurisdiction.” He argues that, at a pretrial hearing in the underlying criminal case on August 14, 2009, he was surprised and prejudiced when the State requested that the revocation hearing be called on the docket. Miller asserts that the trial court entertained the State’s request and placed the revocation case on the docket for September 14, 2009, without notice and an opportunity to prepare, violating his due-process rights.
Miller is correct that the time and place of the revocation hearing was not set out in |sthe petition to revoke. There is no transcript of the August 14 hearing in the record; however, from statements by counsel at the September 14 hearing, it is apparent that at the August hearing, Miller was present and was then notified by the trial court that the revocation hearing would be scheduled for September 14. This date is also noted in the docket sheet for the revocation case. At the September hearing, Miller objected to having the revocation hearing at that time, and the trial court granted Miller’s request for a continuance and set the hearing for October 7. The hearing was again reset on several occasions, until it was finally held on May 7, 2010. Miller was present at this hearing and does not argue that he was unaware of the date for this hearing. Contrary to Miller’s assertions that there must be strict compliance with the written-notice requirement in the statute to satisfy due-process concerns, we have held that the defendant’s actual notice of the time and place for the revocation hearing is sufficient. Barnes v. State, supra; Reynolds v. State, supra; Bonham v. State, 73 Ark. App. 320, 43 S.W.3d 753 (2001). Although Miller also mentions in his argument the requirement that the defendant be apprised of the purpose or reason for the revocation hearing in writing, the revocation petition filed by the State does in fact set out his arrest for the new offenses on May 1, 2009, and requests that his suspension be revoked on this basis. It is clear by the numerous motions filed by Miller throughout the case, such as several motions to dismiss, that he was fully aware of the issues to be addressed at the revocation hearing. Thus, there is no reversible error here, and we affirm on this point.
Prior to the revocation hearing, Miller filed a motion for discovery, a motion for a bill of particulars, and a motion to reveal the confidential informant, seeking information on all 19of the persons used by the State during its investigation and his subsequent arrest. The State argued in response that there was no additional information in its file on this subject that had not previously been provided to Miller and that it did not have to name the individual who provided information about Miller’s activities on May 1, 2009, because the person was actually a “cooperating individual,” who merely supplied information and was not actually involved in the arrest or alleged offense. The trial court ruled that the State did not have to disclose the name of this individual.
Miller argues on appeal that the failure to disclose this information amounted to a discovery violation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that this denial also denied him the right to confront the witness and to impeach his credibility. Miller further argues that this refusal to provide him with the information, coupled with the State’s failure to follow the rules set out in the revocation statutes, amounted to prosecutorial misconduct.
In Brady, the Supreme Court held that suppression by the prosecution of evidence that is requested by and favorable to the accused violates due process where the evidence is material to guilt or punishment, regardless of the good or bad faith of the prosecution. Andrews v. State, 344 Ark. 606, 42 S.W.3d 484 (2001). Our supreme court noted in Andrews that there are three elements of a Brady violation: the evidence must be favorable to the accused, it must have been suppressed by the State, and prejudice must have ensued. Id. at 619, 42 S.W.3d at 493.
As the State argues, the identity of the individual who provided the tip to police about Miller’s location on the day of his arrest is not material to his guilt or punishment for the hnviolation of the condi tions of his SIS, and therefore, Miller can show no prejudice from its suppression. Even in a criminal proceeding, Ark. R.Crim. P. 17.5 states that disclosure of an informant’s identity is not required “where his identity is a prosecution secret and a failure to disclose will not infringe upon the constitutional rights of the defendant.” Cases interpreting this rule have held that when an informant is also a witness or participant to the criminal incident, the identity of the informant should be disclosed. Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994); Shackleford v. State, 261 Ark. 721, 551 S.W.2d 205 (1977). However, disclosure is not required where the elements of the State’s case can be proven without the informant’s testimony or participation, such as where the defendant is charged only with possession and the informant merely supplied information leading up to the search. Shackleford, supra.
In the present case, Miller was arrested for fleeing from police and for being in possession of contraband that was found in his pocket, not for behavior specifically witnessed or participated in by the informant. Thus, Miller fails to show how the outcome of the hearing would have been different had the name of the informant been revealed. Miller also fails to show how this information would have assisted him in impeaching prosecution witnesses. Although Miller contends that the informant’s tip was the only justification for him to be stopped by police and that the evidence resulting from this warrantless search should have been suppressed, one of the express conditions of his suspension was that he submit to searches by law enforcement at any time. We also note that the exclusionary rule does not generally apply to revocation hearings and that, in any event, Miller did not request a | n suppression hearing at the trial court level. Sherman v. State, 2009 Ark. 275, 308 S.W.3d 614.
Because the trial court properly ruled that the State was not required to disclose the identity of the informant in this case, there is no merit to Miller’s argument that there was prosecutorial misconduct on this basis. As discussed above, nor is there any merit to Miller’s contention that the State failed to follow statutory procedures for revocation or that this failure further contributed to any misconduct on the part of the prosecution. Therefore, we also affirm this point on appeal.
In his fifth and final point, Miller argues that the revocation of his SIS is not supported by a preponderance of the evidence. In order to revoke a defendant’s suspended sentence, the burden is on the State to prove a violation of a condition of suspension by a preponderance of the evidence. Berry v. State, 2010 Ark. App. 217, 2010 WL 724318. On appeal, the trial court’s findings will be upheld unless they are clearly against the preponderance of the evidence. Id. Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a revocation. Id. Also, because a determination of the preponderance of the evidence turns heavily on questions of credibility and weight to be given to the testimony, we defer to the trial court’s superior position in this regard. Id.
Miller argues that the State failed to meet its burden of proof because the signed conditions of his suspension were never properly introduced into evidence at the hearing. However, the trial court took judicial notice of these "written conditions at the start of the hearing and made it a part of the record in the case. Miller did not object to this action by the trial court at that time, and therefore, he cannot raise an argument as to this particular [tissue on appeal. Flinn v. State, 2011 Ark. App. 115, 2011 WL 548519. As the State points out, when Miller did object, it was not on the basis of the trial court having taken judicial notice of the signed conditions, but was instead directed to the trial court’s having read from portions of the conditions during the sentencing phase. When the trial court noted in response to this objection that it had taken judicial notice of the conditions, Miller made no further objection on this basis, and his argument is thus not preserved for our review.
The trial court’s finding that Miller violated the conditions of his SIS was not clearly erroneous. The testimony by Officer Barnett alone, which the trial court found to be credible, showed that Miller fled from the police in his vehicle and on foot and that a subsequent search revealed contraband in Miller’s pocket. This clearly violates the condition of Miller’s suspension that he not commit any new offense punishable by imprisonment. Thus, we affirm on all points.
Affirmed.
VAUGHT, C.J., and BROWN, J., agree.
. The version of the statute in effect at the time that Miller was convicted and received his SIS. | [
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RITA W. GRUBER, Judge,
hTim. Fox appeals from an order awarding primary physical custody of the parties’ minor son, J.F., to the child’s mother, Julie Glassing, and failing to award him visitation with Ms. Glassing’s son, S.G. Dr. Fox contends that the circuit court erred by awarding physical custody to Ms. Glassing because it was not in J.F.’s best interest. He argues that the circuit court erred in refusing to set his visitation with S.G. because Dr. Fox stood in loco parentis to S.G. and it was in S.G.’s best interest. We affirm the court’s custody determination with regard to J.F., but with regard to the court’s denial of visitation with S.G., we remand for further proceedings consistent with this opinion.
Ms. Glassing and Dr. Fox lived together in Colorado when J.F. was born on September 8, 2003. S.G., Ms. Glassing’s son, three and one-half years old when J.F. was born, also lived with the parties. In November 2006, Dr. Fox took a veterinarian job in |¡Arkansas, and he and J.F. moved to Arkadelphia. Ms. Glassing and S.G. followed several months later. The parties, who never married, separated in January 2008, and Ms. Glassing filed a petition seeking to establish the paternity of Dr. Fox and to require him to pay child support.
Dr. Fox admitted paternity and requested custody of J.F. In March 2008, after a brief attempt at reconciliation, Dr. Fox moved back to Colorado. The court entered an order on May 14, 2008, establishing paternity and ordering Dr. Fox to pay child support. Although the children remained with Ms. Glassing in Arkadelphia, Dr. Fox continued to pursue custody of J.F. and requested visitation with S.G. on the basis of his in loco parentis relationship. After a hearing in August 2010, the court entered an order awarding primary physical custody of J.F. to Ms. Glassing, with liberal visitation to Dr. Fox, and denying Dr. Fox court-ordered visitation with S.G. The court left the decision of visitation with S.G. to Ms. Glassing’s discretion but encouraged her to allow it. Dr. Fox filed a motion for reconsideration, which the court denied. Dr. Fox brought this appeal.
I. Custody of J.F.
For his first point on appeal, Dr. Fox contends that the trial court erred in awarding primary physical custody of J.F. to Ms. Glassing because it is not in J.F.’s best interest to live with her. Specifically, he points to evidence that Ms. Glassing has a substance-abuse problem, which claims endangers J.F. he
| ^Evidence presented at trial established that Ms. Glassing was convicted of DWI in 2006 while living in Colorado and thereafter completed a month-long inpatient rehabilitation. Dr. Fox also produced evidence that Ms. Glassing made purchases from a liquor store in Arkansas during 2007, 2008, and 2009. Additional testimony revealed that National Park Medical Center in Hot Springs fired Ms. Glassing from her nursing position in 2007 after the hospital discovered missing narcotics in her possession and a subsequent drug test was positive for opiates, morphine, and propoxyphene.
Ms. Glassing did not deny her past substance abuse, but she testified that, while she has a drink “two, three times a year,” she no longer had a drinking or substance-abuse problem. J.F.’s soccer coach, Ms. Glassing’s neighbor, and Ms. Glassing’s employer all testified that they had seen no evidence of alcoholism or substance abuse. Louise Buck, Ms. Glassing’s neighbor, testified that she had known Ms. Glassing and her children for over two years, that she saw Ms. Glassing or was in her home almost daily, and that she had never seen Ms. Glassing drink alcohol. She testified that the boys were clean, well-behaved, and very close to their mom. Ample testimony provided that J.F. was thriving in school and that Ms. Glassing was very involved in J.F.’s school and extra-curricular activities, including swimming, t-ball, and soccer.
We give a trial court great deference in its determination of what is in a child’s best interest for custody purposes. See, e.g., Hamilton v. Barrett, 337 Ark. 460, 465-66, 989 S.W.2d 520, 523 (1999). We will not reverse the trial court’s findings unless they are clearly erroneous, Ford v. Ford, 347 Ark. 485, 491, 65 S.W.3d 432, 436 (2002), and we give due deference to the superior position of the trial court to view and judge the credibility of the witnesses. Hamilton, 337 Ark. at 465, 989 S.W.2d at 523.
In this case, the circuit court recognized that Ms. Glassing had a past substance-abuse problem but found that the weight of the evidence indicated that she had managed to control it since the parties’ separation in 2008. The court found that she had provided for her children’s needs; that the children were, by all accounts, respectful and well-behaved, clean, well-dressed, and healthy; that the children performed exceptionally well in school with their mother’s encouragement and support; and that Ms. Glassing had done a good job of caring for her children. The trial court noted the detrimental effect of separating the half-siblings. Although the court also noted that Dr. Fox was intelligent, capable, and fit, it found it was in J.F.’s best interest to remain with his mother and half-brother, S.G. After reviewing the evidence, and in light of the deference we afford to the trial court in matters of credibility, we cannot say that the court clearly erred in awarding primary physical custody to Ms. Glassing.
II. Visitation with S.G.
For his second point on appeal, Dr. Fox contends that the circuit court erred in refusing to award visitation with S.G. to him. The evidence on this issue is not in material dispute. While Dr. Fox was neither S.G.’s biological father nor his stepfather, he lived with S.G., J.F., and Ms. Glassing for five years, from the time S.G. was almost four until he was eight. S.G. has never met his biological father, and both parties testified that S.G. referred to Dr. Fox as dad. When Dr. Fox was permitted visitation pending the hearing, he saw both S.G. and J.F. Ms. Glassing required that any visitation be by court order. Ms. Glassing | .^testified that she did not object to Dr. Fox’s continuing to have visitation with both boys.
In spite of this testimony, the court denied Dr. Fox’s request for court-ordered visitation and left to Ms. Glassing’s discretion whether to allow visits between S.G. and Dr. Fox. The court stated that it believed that both parents loved J.F. and S.G. The court also noted that the parties agreed that S.G. referred to Dr. Fox as his father, that Dr. Fox treated S.G. very well, and that he continued to have meaningful visitation with S.G. “as a father figure.” The court placed blame on both parties for their “bitter and uncooperative relationship.” The court then concluded that “Fox is not biologically related to [S.G.] and the mother is not an unfit parent. Fox will not be required to provide any child support for [S.G.] and visitation between [S.G.] and Fox is encouraged but will ultimately be done at Glassing’s discretion.”
We turn to the law governing an award of visitation to a person who is not the child’s legal parent. In Robinson v. Ford-Robinson, 362 Ark. 232, 208 S.W.3d 140 (2005), the supreme court made it clear that a court may award visitation to a stepparent who stands in loco parentis to a child over the natural parent’s objection if the court determines that it is in the best interest of the child. The court also stated that the natural-parent presumption, which governs in stepparent-custody cases, was not applicable in cases awarding visitation only. Robinson, 362 Ark. at 239, 208 S.W.3d at 143. In other words, the natural parent does not have to be unfit in order for the trial court to award visitation if the court finds that the party stands in loco parentis to the child and that it is in the child’s best interest to award visitation. In Bethany v. Jones, 2011 Ark. 67, 378 S.W.3d 731, the supreme court held that Ifithe person may qualify as the child’s in loco parentis parent even where the party is not married to the biological parent. The court reasoned that the doctrine of in loco parentis focuses on the relationship between the child and the person asserting that they stand in loco parentis and not on the relationship between the two adults. Bethany, 2011 Ark. 67, at 10, 378 S.W.3d at 737.
In this case, the proof demonstrated that the relationship between Dr. Fox and S.G. was that of father and son. The court’s order does not recite the words “in loco parentis,” but the court acknowledged the proof of his status, which was not in dispute. See Guest v. San Pedro, 70 Ark. App. 389, 19 S.W.3d 62 (2000). It appears that the trial court decided the visitation issue on the mistaken belief that it could not lawfully award visitation with S.G. because Dr. Fox was not S.G.’s biological father and Ms. Glassing was not an unfit mother. We remand for the court to decide this issue consistent with the law as clarified herein.
Affirmed in part; remanded in part.
PITTMAN, GLADWIN, ROBBINS, ABRAMSON, MARTIN, HOOFMAN, agree.
WYNNE, J., dissents.
. The custody and visitation petitions were separate proceedings that were consolidated in May 2009. | [
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COURTNEY HUDSON HENRY, Judge.
pin this appeal from a foreclosure decree, the Circuit Court of Pulaski County awarded judgment on a promissory note in the amount of $635,444.87 with accumulated interest from the date of default to the day of trial. For reversal, appellant Kennedy Funding, Inc., a junior lienholder, argues that the note executed in favor of appellees Virgil Shelton, Beverly Shelton, and John Shelton, the superior lienhold-ers, was usurious on its face and that the circuit court erred in ruling otherwise. Kennedy Funding also contends that the circuit court erred in awarding the Shel-tons interest upon interest. We find no merit in these arguments and affirm.
In 1992, Shelton sold Will and Rita Ack-lin certain real property in Pulaski County on which Shelton operated the Rest in Peace Cemetery. Shelton provided owner financing, and |2the Acklins executed a promissory note and mortgage in favor of Shelton. The note does not specify the principal amount of the purchase price. Instead, the parties structured the note to contain four methods of payment. Paragraph (a) of the note provided for a payment of $50,000 to be paid on November 2, 1992. Paragraph (b) required the sum of $100,000 to be paid in semi-annual payments beginning May 15,1993, at an interest rate of eight percent. Paragraph (c) obligated the Acklins to make quarterly payments of an unspecified amount that was to be equal to the income generated by the perpetual care trust fund. Additionally, paragraph (d) of the note provided for monthly payments totaling $4,825.20 to be made beginning December 1, 1992, and continuing for a period of twenty years. The final paragraph of the note addressed the ramifications of default. The last sentence of this paragraph states that, where an annual rate of interest had not been specified in the above terms, the terms “were calculated” on the rate of eight percent per annum.
In 1999, the Acklins encountered financial difficulties, which led them to borrow money from Kennedy Funding and to execute a promissory note and mortgages on several parcels of real property, including the Rest in Peace Cemetery, in favor of Kennedy Funding. In connection with that transaction, Virgil Shelton executed an “Estoppel Certificate” stating that, as of January 14, 1999, the outstanding principal and interest balance of the loan from IsShelton to the Acklins was not more than $675,000; that the Acklins were not in default; that Shelton’s mortgage and note had not been modified, amended, or supplemented; and that the mortgage was Shelton’s only security for the loan.
On October 6, 2000, Kennedy Funding initiated foreclosure proceedings against the Acklins, serving the Acklins, Shelton, and various ■ other defendants who held mortgages on the real property made the subject of the foreclosure action. The circuit court entered a foreclosure decree on January 17, 2001, awarding judgment against the Acklins and various entities owned by them, and judgment in rem against four parcels of land, including the cemetery property, in favor of Kennedy Funding. The Rest in Peace Cemetery went into receivership prior to October 2001.
The trial court scheduled a judicial sale of the property for March 28, 2006. On March 21, 2006, Shelton filed a motion to stay the foreclosure sale or, in the alternative, to amend the foreclosure order, contending that the foreclosure decree was ambiguous as to whether his -interest in the property would be foreclosed by a sale. The circuit court entered an order staying the sale pending a hearing.
On May 22, 2006, the circuit court entered an order finding that Shelton’s interest was superior to that of Kennedy Funding and that Kennedy Funding had a second lien on the cemetery property subject to the Shelton’s superior mortgage interest. This court later affirmed that determination. Kennedy Funding, Ine. v. Shelton, 100 Ark.App. 84, 264 S.W.3d 555 (2007).
14After the circuit court issued its decision that resulted in the earlier appeal, Shelton filed the present complaint in foreclosure, later amended, on July 17, 2006. Kennedy Funding answered, denying the material allegations of the complaint and asserting the defense of usury.
The case proceeded to a bench trial on July 29, 2008. The parties stipulated that Shelton held a first mortgage on the property and that the maximum interest rate allowable at the time of the transaction in 1992 was eight percent. The parties informed the court that they disagreed as to the principal amount owed to Shelton. Counsel for Kennedy Funding also alerted the court of its contention that the income stream contained in paragraph (c) of the note constituted interest that would render the note usurious. Counsel stated that no proof would be offered on this point, however, alleging that the note spoke for itself.
Virgil Shelton testified that he founded the Rest in Peace Cemetery in 1967 and operated it for twenty-five years before selling it to the Acklins. He described the four different payments that the Acklins were to make under the note. He said that the Acklins long ago paid the $150,000 referenced in paragraphs (a) and (b) of the note and that the Acklins had made the remaining payments under paragraphs (c) and (d) until they defaulted in July 2001. In establishing the amount that he claimed was due on the note, Shelton gave testimony and also introduced into evidence an exhibit outlining his calculations. Shelton began with the figure of $675,000, the amount stated in the Estoppel Certificate when Kennedy Funding made its loan to the Acklins in 1999. Shelton then gave the Acklins credit for $38,555.13 in payments that they made from 1999 to 2001, when they defaulted. He thus claimed that the Acklins owed $636,444.87 on the note. To this amount, Shelton added | ¡¡eight-percent interest from the time of default to the date of trial. Also in his testimony, Shelton introduced as an exhibit an amortization schedule of the payments owed on $675,000. Based on this schedule, he said that the monthly payment under paragraphs (c) and (d) amounted to $5,665.20. As included in his calculations, Shelton stated that the monthly income from the perpetual care trust fund was $840, based on an average of thirty payments made by the Acklins pursuant to paragraph (c) of the note. On cross-examination, Shelton admitted that the note itself did not specify a sum certain in principal to be paid over the life of the note.
At the conclusion of the hearing, the circuit court questioned the attorneys as to whether prejudgment interest was to be compounded or based on simple interest. The court decided that the latter was in order and instructed Shelton’s counsel to prepare a decree based on the principal figure Shelton provided in his testimony, plus simple interest. The court also rejected Kennedy Funding’s argument that the note was usurious. The circuit court entered its decree on August 21, 2008. In the decree, the court found that, as of July 17, 2001, the Acklins owed $635,444.87 in unpaid principal plus accrued interest of $357,167.03 through July 29, 2008. The circuit court declared that the judgment was superior to all other liens and claims, including those of Kennedy Funding. The court ordered the property sold if the judgment was not satisfied within ten days from the entry of the decree.
| (¡Kennedy Funding timely filed a motion for new trial, asserting that Shelton failed to carry his burden of proving the amount due. Kennedy Funding also filed a motion to amend the judgment, asserting that the payments based on the income derived from the perpetual care trust fund amounted to illegal interest, rendering the note usurious. The court denied the motion for new trial and motion to amend the judgment by separate orders entered on October 1, 2008. This appeal followed.
In its first point, Kennedy Funding argues that the note secured by Shelton’s first mortgage was usurious. Based on the language contained in the last sentence of the note, it contends that the stream of income payments contained in paragraph (c) of the note “were calculated” at the maximum rate of interest and that the additional profit participation included in the paragraph resulted in a rate of return that exceeds the Arkansas usury limit.
Usury occurs when a lender charges more than the legally permissible maximum rate of interest, defined by Article 19, section 13 of the Arkansas Constitution, as amended by Amendment 60. Smith v. Eisen, 97 Ark.App. 130, 245 S.W.3d 160 (2006). For an agreement to be usurious, it must be so at the inception of the transaction. See Evans v. Harry Robinson Pontiac-Buick, Inc., 336 Ark. 155, 983 S.W.2d 946 (1999). The party asserting usury has the burden of proof, and the proof must be sustained by clear and convincing evidence. Id. Usury will not be presumed, imputed, or inferred where an opposite result can be fairly and reasonably reached. Hickman v. Courtney, 361 Ark. 5, 203 S.W.3d 632 (2005).
Under paragraph (c), the Acklins were to pay on a quarterly basis an amount equal to the income generated by the perpetual care trust fund. Obviously, these payments were |7indeterminate and variable, based on whatever earnings the fund might yield. We thus find it difficult to conceive how the payments “were calculated” to include interest. Therefore, we reject Kennedy Funding’s interpretation of the note that the payments made under this provision included a charge of interest. Because the note is not usurious on its face, Kennedy Funding bore the burden of proving that the note was usurious. Evans, supra.
The test for usury is to determine the amount that the borrowers would pay on the principal at the maximum rate of interest, and then compare that amount to what would actually be paid. Davidson v. Commercial Credit Equip. Corp., 255 Ark. 127, 499 S.W.2d 68 (1973); McDougall v. Hachmeister, 184 Ark. 28, 41 S.W.2d 1088 (1931). Parol evidence has long been considered admissible for the purpose of showing usury. Aclin Ford Co. v. Cordell, 274 Ark. 341, 625 S.W.2d 459 (1981); Heidelberg S. Sales Co. v. Tudor, 229 Ark. 500, 316 S.W.2d 716 (1958); Tillar v. Cleveland, 47 Ark. 287, 1 S.W. 516 (1886). However, Kennedy Funding did not offer any proof on this issue and, therefore, failed to carry its burden of proving that the note was usurious.
Kennedy Funding’s second argument is that the circuit court erred in awarding accrued interest to Shelton because the note provided that interest was already included in the payments owed to Shelton. This issue fails for the same reason as the first. We also find that the argument is contrary to the evidence presented at trial that the circuit court relied upon in reaching its decision.
In his testimony Virgil Shelton represented that the $675,000 contained in the January 1999 Estoppel Certifícate was principal only, the amount required to pay off the note. In | Rcalculating the amount presently owed, Shelton testified that he gave the Acklins credit for $38,555.13 in principal, leaving a principal balance of $636,444.87. Shelton claimed interest of $482,518 from the time the Acklins defaulted in July 2001 until the time of trial in July 2008. How Shelton arrived at this figure is not explained. Nevertheless, the circuit court accepted, as a matter of fact, Shelton’s calculation of the principal amount owed at the time of default. However, the court allowed only $357,167.03 in simple interest for the seven-year period between the time of default and the time of trial, during which time Shelton did not have use of the money.
Prejudgment interest is awarded for the period of time in which the recovering party has been deprived of the use of money or property. USAA Life Ins. Co. v. Boyce, 294 Ark. 575, 745 S.W.2d 136 (1988). Prejudgment interest is allowed because one who has use of another’s money should be justly required to pay interest from the time it lawfully should have been paid. Home Mut. Fire Ins. Co. v. Jones, 63 Ark.App. 221, 977 S.W.2d 12 (1998). The sum awarded is consistent with an award of prejudgment interest in that it is roughly eight percent of the principal amount for the seven years between default and trial. In our view, the circuit court did nothing more than award prejudgment interest. Although the note may mention eight-percent interest in the catch-all provision, the testimony establishing the deficiency, believed by the circuit court, involved principal only without an interest component. Accordingly, we find no merit in -this argument.
| (Affirmed.
ROBBINS and GRUBER, JJ., agree.
. Beverly Shelton and John Shelton are Virgil Shelton’s children. We collectively refer to them as Shelton unless the context requires otherwise.
. This amount was to be paid to Virgil Shelton for life and then to his wife for her life, if she survived him.
.The payment listed in paragraph (d) was apportioned between Virgil Shelton and his two children.
. The court twice amended the decree. However, no issues are raised concerning the provisions changed in the amended decrees.
. The circuit court awarded Shelton judgment for $635,444.87 instead of $636,444.87 as testified to by Shelton. This discrepancy is not explained, and the parties do not take issue with the amount. | [
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PAUL E. DANIELSON, Justice.
1 Appellants Donald B. Bedell, Little Rock Healthcare # 1 d/b/a Little Rock Healthcare and Rehab (“LRHC”), and Heartland Personnel Leasing, Inc., appeal from a judgment in favor of appellee Brenda Williams, as personal representative of the Estate of Minnie Lee Valentine, deceased, which was entered on November 15, 2010, by the Pulaski County Circuit Court. In addition, each appellant also appeals from their motions for judgment not withstanding the verdict and, alternatively, their motions for new trial or remittitur. Appellant Bedell argues the following on appeal: (1) the circuit court deprived Bedell of his defense by prohibiting the use of post discharge evidence; (2) the negligence verdict must be reversed and dismissed; (3) the punitive-damages verdict must be reversed or dismissed; and 12(4) the compensatory-damages award should be either vacated or reduced: Appellants LRHC and Heartland, for their points on appeal, argue that the circuit court erred by (1) failing to grant a new trial after making several errors on evi-dentiary rulings; (2) allowing a witness to give expert testimony on the issue of dignity; (3) denying LRHC’s motion in limine to preclude adverse opinion testimony from its nurses pursuant to Ark.Code Ann. § 16-114-207(8); (4) giving a jury instruction on the Residents’ Rights Act claim that omitted proximate causation as an element of the claim; (5) instructing the jury on spoliation; and (6) denying Heartland’s motion for directed verdict. After review, we reverse, dismissing appellant Bedell and remanding for a new trial as to LRHC and Heartland.
The pertinent facts are these. Minnie Valentine suffered a severe stroke on May 14, 2004. A little over a week after her stroke, Valentine left the care of St. Vincent Hospital and entered into the care of LRHC, a nursing care facility located in Little Rock. She was fully dependent on nursing care for her daily needs and entered LRHC with a feeding tube, a urinary tract infection, and a pressure sore on her coccyx. Despite treatment, Valentine’s coccyx pressure sore did not heal. Additionally, she showed signs of dehydration and malnutrition despite her feeding tube and care from a nutritionist.
On June 10, 2004, Valentine was transferred and admitted to Baptist Health Medical Center with pneumonia. Despite treatment from wound-care specialists, Valentine’s pressure sore worsened. Baptist continued the basic nutrition plan for Valentine initiated by LRHC. After two weeks at Baptist, Valentine returned to LRHC on June 25, 2004. Her health continued to decline, and her pressure sore continued to worsen. On July 6, 2004, | -¡Valentine's nurses reported signs of infection related to her pressure sore to her physician. Subsequently, on July 7, 2004, Valentine was readmitted to Baptist due to infection. Again, despite continuous treatment from wound-care specialists at Baptist, the condition of Valentine’s pressure sore declined.
On August 11, 2004, Valentine was discharged from Baptist and admitted to Quapaw Quarter Nursing Center and Rehab, another nursing care facility. There, Valentine’s general medical condition continued to decline. Despite receiving weekly treatments from wound-care specialists from the Arkansas Heart Hospital, the pressure sore on Valentine’s coccyx steadily worsened and additional pressure sores developed on her ankles and feet, which ultimately necessitated multiple amputations. Valentine died in February 2005, seven months after her second discharge from LRHC.
On February 17, 2006, Williams, as the personal representative of the Estate of Minnie Valentine, filed suit against Donald B. Bedell, the sole member of the governing body for LRHC; Heartland; HC Services & Solutions; Claims Administrators of Arkansas, LLC; Arkansas Health Care Holdings; Arkansas Health Care Management, LLC; and Care Options, Inc., alleging claims for ordinary negligence, medical malpractice, violation of the Residents’ Rights Act, and felony neglect. The complaint also asserted several causes of action against Quapaw, including a count for wrongful death, based on allegations that Quapaw had failed to provide appropriate care to Valentine during her residency there from August 11, 2004, through her death in February 2005. Approximately one week prior to trial, Williams nonsuited her claims against Quapaw.
_JjBefore trial, the circuit court granted partial summary judgment for Claim Administrators of Arkansas and declared Ark.Code Ann. § 16-114-207(3) unconstitutional as a violation of the separation-of-powers doctrine. During the course of the trial, Williams voluntarily dismissed her claims against HC Services & Solutions, Claims Administrators of Arkansas, and Arkansas Health Care Holdings. The circuit court granted a directed verdict in favor of Bedell, LRHC, and Heartland on the felony-neglect claim.
Following trial, the jury returned a $5.1 million verdict against LRHC, awarding $1.8 million in compensatory damages for ordinary negligence, $1.9 million in compensatory damages for medical negligence, and $1.4 million in compensatory damages for violation of the Residents’ Rights Act. Although the jury also found LRHC liable for punitive damages, it awarded no money on the punitive-damages claim against LRHC. The jury returned a verdict for $350,000 in compensatory damages against Heartland on the ordinary-negligence claim, but found that Heartland had no liability on the remaining claims against it. Additionally, the jury rendered a $5 million verdict against Bedell on the claim for ordinary negligence, awarding $3 million in compensatory damages and $2 million in punitive damages. The jury found no liability against Arkansas Health Care Management, LLC, and Care Options, Inc. The circuit court entered a judgment on these verdicts and dismissed with prejudice all remaining causes of action.
On November 29, 2010, LRHC, Heartland, and Bedell filed motions for new trial and judgment notwithstanding the verdict, which the circuit court denied on December 16, 2010. Thereafter, LRHC, Heartland, and Bedell, filed timely notices of appeal on January 6, 2011. | ¡Appellants appeal from the final judgment and all orders denying their motions for judgment notwithstanding the verdict and for new trial. Additionally, each appellant appeals all intermediate rulings by the circuit court that affected the above-mentioned judgment and orders.
Our standard of review for a denial of a directed-verdict motion is well settled:
[I]n reviewing the denial of a motion for [a directed verdict], we will reverse only if there is no substantial evidence to support the jury’s verdict, and the moving party is entitled to judgment as a matter of law. Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. It is not our place to try issues of fact; we simply review the record for substantial evidence to support the jury’s verdict. In determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. A motion for directed verdict should be denied when there is conflict in the evidence, or when the evidence is such that fair-minded people might reach different conclusions.
Carter v. Cline, 2011 Ark. 474, at 10, 385 S.W.3d 745, 752. The same standard holds true for a motion for judgment notwithstanding the verdict. See id. A circuit court may enter a judgment notwithstanding the verdict only if there is no substantial evidence to support the verdict and the moving party is entitled to judgment as a matter of law. See id.
A motion for new trial is addressed to the sound discretion of the circuit court, and the circuit court’s refusal to grant it will not be reversed on appeal unless an abuse of discretion is shown. See Cochran v. Bentley, 369 Ark. 159, 251 S.W.3d 253 (2007). An abuse of discretion means a discretion improvidently exercised, ie., exercised thoughtlessly and without due consideration. See id.
We first address Bedell’s argument that the circuit court erred by denying his directedjverdict6 motion and his judgment notwithstanding the verdict, as we agree and dismiss Bedell. Bedell argues that a claim of negligence against him could not stand because Williams failed to establish that he owed a duty to Valentine. Williams responds that the circuit court correctly denied Bedell’s motions because a duty was established by both a federal regulation and an internal policy of LRHC. We disagree and hold that Bedell, as the president of the corporation that operated LRHC, owed no personal duty to Valentine.
The first issue in determining whether there was evidence of negligence is whether Bedell owed any duty to Valentine. See Yanmar Co., Ltd. v. Slater, 2012 Ark. 36, 386 S.W.3d 439. This court has stated that the question of what duty, if any, is owed a plaintiff alleging negligence is always a question of law and never one for the jury. See id. Thus, the law of negligence requires as an essential element that the plaintiff show that a duty of care was owed. See id. Duty is a concept that arises out of the recognition that relations between individuals may impose upon one a legal obligation for the other. See id.
When “it can be shown that an individual employed by a corporation is personally involved in the events surrounding an injury, the individual may be sued.” Bayird v. Floyd, 2009 Ark. 455, at 6, 344 S.W.3d 80, 84 (quoting McGraw v. Weeks, 326 Ark. 285, 294, 930 S.W.2d 365, 367 (1996)). A review of the record and Williams’s argument on appeal reveal that there was no attempt to argue that Bedell was actually involved personally in the events surrounding Valentine’s injury or her care. Rather, Williams argued, and the circuit court found, that Bedell’s duty arose from a federal regulation covering the obligations of governing bodies of nursing homes and from an internal policy of LRHC. We disagree.
17WiIliams argues, as she did below, that 42 C.F.R. § 483.75(d) creates the duty required. It states:
(1) The facility must have a governing body, or designated persons functioning as a governing body, that is legally responsible for establishing and implementing policies regarding the management and operation of the facility; and
(2) The governing body appoints the administrator who is—
(i) Licensed by the State where licensing is required; and
(ii) Responsible for management of the facility.
However, it is clear to this court that this regulation is a rule that nursing homes must follow to qualify for participation in medicare and medicaid, and we will not interpret it to create a duty in tort. The funding regulations specifically limit themselves to “serve as the basis for survey activities for the purpose of determining whether a facility meets the requirements for participation in Medicare and Medicaid.” 42 C.F.R. § 483.1(b).
While this court has not addressed this issue before, the Court of Appeal of Louisiana did in Satterwhite v. Reilly, 817 So.2d 407 (La.Ct.App.2002). In Satter-white, the plaintiff sued a nursing home’s medical director under 42 C.F.R. § 483.75(i), which states that a facility’s medical director must implement resident-care policies and coordinate medical care in the facility. The Satterwhite court affirmed dismissal of the claims against the medical director because the regulation did not create a duty:
Dr. Reilly urges that no court has ever imposed a tort duty upon a nursing home’s medical director based solely on this regulatory provision. We agree. Nothing in the regulation sets forth a standard of care for medical directors; the purpose is plainly to qualify providers for the Medicare and Medicaid programs. On this record and on authority cited, we decline to hold that 42 C.F.R. § 483.75(i) grants a private cause of action against a medical director of a nursing home or establishes the standard of care or duty that a nursing home medical director owes to the patients of the nursing home he serves[.]
| RSatterwhite, 817 So.2d at 412.
We find this persuasive in the instant case. Nothing in the regulation cited by Williams imposes a duty in tort, and we decline to hold that section 483.75(d) creates the basis for a separate cause of action here.
Williams also relied on a LRHC internal policy to establish a duty as to Bedell. That policy stated that “a governing body is established for this facility which has full legal authority and responsibility for the operation of this facility.” This language appears to summarize the language required by the federal regulation. For the same reasons that the regulation does not create a duty, the policies created to comply with that regulation do not impose a duty. Additionally, allowing these types of internal policies with broad, governing language to create a duty that establishes personal liability of a company’s owner would open the door for many lawsuits filed in an attempt to pierce the corporate veil. Generally, internal policies should not create a legal duty where none exists. See, e.g., Young v. The Gastrointestinal Ctr., Inc., 361 Ark. 209, 205 S.W.3d 741 (2005) (internal policy instructing that discharged patients not be allowed to drive could not create a legal duty where the law did not recognize one); Arkansas Louisiana Gas Co. v. Stracener, 239 Ark. 1001, 395 S.W.2d 745 (1965) (company internal safety policy could not create a legal duty).
While much is made of Dr. Loren Lipson’s, Williams’s expert, testimony regarding her opinion that a legal duty was created, we take this opportunity to note that the fact that an expert testifies that a duty existed does not make it so. A jury question is not created simply because an expert believes a legal duty exists. See Young, supra.
| ¡Accordingly, because Bedell owed no legal duty to Valentine, it was error for the circuit court to deny his motion for a directed verdict. We, therefore, reverse the circuit court’s ruling and dismiss appellant Bedell. As such, it is unnecessary to discuss Bedell’s remaining points on appeal. We now turn to the arguments presented by appellants LRHC and Heartland.
Appellants first argue that the circuit court erred by making several evidentiary errors, including: (1) granting a motion in limine during LRHC’s opening statement to exclude relevant evidence; (2) refusing to grant a mistrial or allow for a continuance after excluding that evidence; (3) withdrawing evidence that had been stipulated to by the parties and previously admitted; and (4) allowing Williams to introduce evidence of the same nature that LRHC was prohibited from presenting. The crux of this argument is that the circuit court excluded Valentine’s post discharge medical evidence, which appellants argue was erroneous, prejudicial, and warrants a new trial. We agree.
One of the main defenses at trial of all appellants in the instant appeal was that Valentine’s medical decline, regardless of which care facility she was located at or received treatment from, illustrated that her medical problems were the result of inevitable medical decline rather than negligence. However, the circuit court, during LRHC’s opening statement, granted a motion to exclude any and all mention of Valentine’s medical condition and treatment subsequent to August 11, 2004.
Williams argued to the circuit court that because the claim against Quapaw, a subsequent care provider for Valentine, had been dropped, Valentine’s medical records and ^evidence regarding her health during that time was irrelevant. The circuit court agreed, finding that the lawsuit was “really about what happened up until August 4th.” As a result, LRHC, Heartland, and Bedell were prohibited from making any mention of Valentine’s medical condition or treatment after August 11, 2004, and the circuit court later withdrew from the record pertinent joint exhibits, exhibits 11 through 15, to which had previously been stipulated.
On appeal, we will not reverse a circuit court’s ruling on the admission of evidence absent an abuse of discretion nor will we reverse absent a showing of prejudice. See Grummet v. Cummings, 836 Ark. 447, 986 S.W.2d 91 (1999); Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998). Moreover, the balancing of probative value against prejudice is a matter left to the sound discretion of the circuit court, and its decision on such a matter -will not be reversed absent a manifest abuse of that discretion. See Grummet, supra.
As the circuit court determined this evidence was not relevant, it did not engage in a balancing analysis under Ark. R. Evid. 403 (2011). Accordingly, our review on appeal is limited to the issue of whether the circuit court abused its discretion in granting Williams’s motion in limine on the basis that the evidence was not relevant. See McCoy v. Montgomery, 370 Ark. 333, 259 S.W.3d 430 (2007); Yeakley v. Doss, 370 Ark. 122, 257 S.W.3d 895 (2007).
Pursuant to Ark. R. Evid. 401 (2011), “relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Arkansas Rule of Evidence 402 (2011) provides that irrelevant evidence is inadmissible.
|nIn the instant case, Williams asserted claims of ordinary negligence, medical malpractice, and violation of the Residents’ Right Act, all of which require proof of causation as an element. The heart of the case was that Valentine’s caregivers were negligent in their treatment of the pressure sore on Valentine’s coccyx and, as such, caused the pressure sore to worsen. The main defense, developed during discovery, was that Valentine’s general medical condition, and not her care or lack thereof, was the proximate cause of her pressure sores and declining health.
Appellants assert that proof of this theory was found in the medical records from the months following Valentine’s residency with LRHC, which showed that Valentine continued to develop new pressure sores on her ankles and feet despite receiving care at another facility and wound treatments. Appellants further argue that this evidence also showed that the pressure sore on Valentine’s coccyx continued to worsen, increased in size, and became infected. Additionally, appellants claim that all of this evidence, which was contained in Valentine’s medical records, tended to show that her general medical condition was the proximate cause of Valentine’s injuries rather than her care.
The evidence excluded contained information that spoke to the exact medical issues of Valentine that Williams complained of in her case. The records excluded related to the continued progression of the same wound complained of in the instant case, as well as the development of additional, similar wounds that Valentine developed following her time at LRHC. Moreover, the excluded evidence was proximate in time to the issues in the instant case. Specifically, the excluded evidence in this case related to Valentine’s medical condition 112from August 11, 2004, through her death, a time period that began approximately five weeks after Valentine left the care of LRHC and continued for a little over six months.
We hold that the circuit court abused its discretion by excluding this evidence, which was clearly relevant in the instant case. In doing so, the circuit court allowed LRHC and Heartland to, at the last minute, be stripped of an entire defense that had been clearly developed throughout the litigation to the full knowledge of Williams. Therefore, the circuit court also abused its discretion in failing to grant them a new trial. For this reason, we reverse and remand for a new trial.
We address the remaining points argued on appeal to the extent they are likely to arise in retrial. First, LRHC and Heartland contend that the circuit court erred by permitting Williams’s expert, Suzanne Frederick, to testify as to the meaning of dignity as it is used in the Arkansas Residents’ Rights Statute, Ark.Code Ann. § 20-10-1204(a)(21), because that was an issue squarely within the common understanding of an average juror. Williams avers that the term dignity, as used in the statute, is a term of art; that prior to Frederick’s testimony about the definition, another witness also testified about its definition without objection; and that the argument is contradictory to another argument made by appellants that the term needed to be found void for vagueness. We agree with LRHC and Heartland that the testimony should not have been permitted.
113Our case law provides that we review the admission of expert testimony under an abuse-of-discretion standard. See Bayer CropScience LP v. Schafer, 2011 Ark. 518, 385 S.W.3d 822. In discussing our standard of review for evidentiary rulings, we have said that circuit courts have broad discretion and that a circuit court’s ruling on the admissibility of evidence will not be reversed absent an abuse of that discretion. See id.
First, we find no merit in Williams’s argument that LRHC and Heartland waived this argument by not objecting to the testimony regarding the definition of dignity by another witness because that particular witness was not qualified as an expert. Here, part of the argument of LRHC and Heartland is that the testimony should not have been allowed to come from someone qualified as an expert as expert testimony is given a higher degree of credibility than the testimony of an average witness.
The pertinent part of the Arkansas Residents’ Rights Act, Ark.Code Ann. § 20-10-1204(a)(21) (Repl.2005) states:
(a) All long-term care facilities shall adopt and make public a statement of the rights and responsibilities of the residents of the facilities and shall treat the residents in accordance with the provisions of that statement. The statement shall assure each resident of the following:
(21) The right to be treated courteously, fairly, and with the fullest measure of dignity and to receive a written statement and an oral explanation of the services provided by the licensee, including those required to be offered on an as-needed basis.
Williams’s expert, Frederick, provided the following testimony as an expert:
ATTORNEY : Going back, based upon your knowledge, training and skill, Ma’am, can 114you give the ladies and gentlemen of the jury a working definition of the word dignity as it relates to long term care?
Frederiok: Okay. And I may not define it properly as far as the law goes, but dignity is being provided the care and services that an individual deserves based on their condition, meeting their daily basic needs. Not being neglected, not being mistreated and abused. And being — meeting their needs and providing services so that they attain and maintain their highest practicable condition.
Attorney: And did you make a determination as to whether or not Ms. Valentine was treated with the fullest measure of dignity?
Frederick: I did make a determination.
Attorney: And what is your opinion?
Frederick: It’s my opinion that they violated this. They did not provide care to ensure that her dignity was maintained. For example, she was vulnerable and totally dependent when she was moved to this nursing home, and they knew it. And to not turn and reposition her and let her skin break down and develop sores. To not provide incontinent care and let her lay in feces and urine is not dignified care. To not — to not bathe her routinely. To not provide her basic nutrition and hydration to a human being when they knew that she was totally dependent on them when she was admitted is not dignified care.
The general test for the admissibility of expert testimony is whether certain scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue. See Ark. R. Evid. 702 (2011). This court has taken the position that the opinion of an expert is not admissible if the point in issue is not beyond the comprehension of the jury. See Missouri Pac. R.R. Co. v. Biddle, 293 Ark. 142, 732 S.W.2d 473 (1987). Additionally, where the introduction of expert testimony would invade the function of the jury or where it does not help the jury, the testimony is not admissible. See Vance v. State, 2011 Ark. 243, 383 S.W.3d 325.
The word dignity, simply because it is part of a statute, is not complex and does not mean something different than its ordinary and usually accepted meaning in common | ^language. And, in statutory construction, one of the most basic rules is that words in a statute are given their ordinary and usually accepted meaning in common language. See Broussard v. St. Edward Mercy Health Sys., Inc., 2012 Ark. 14, 386 S.W.3d 385.
Additionally, none of the facts presented to the jury by Frederick that she used in explaining her definition of dignity and her opinion that Valentine had not been treated with such was beyond the comprehension of the average juror. We cannot find any reason to say that an average juror would not be competent to determine from the facts, when considered together, whether Valentine was treated with dignity. This court has held that it is prejudicial error to admit expert testimony on issues which could conveniently be demonstrated to the jury from which they could draw their own conclusions. See St. Louis Sw. Ry. Co. v. Jackson, 242 Ark. 858, 416 S.W.2d 273 (1967). For these reasons, we hold that the circuit court erred by admitting expert testimony on the meaning of dignity.
LRHC and Heartland next contend that the circuit court erred as a matter of law by ruling that Ark.Code Ann. § 16-114-207(3) did not apply to the nurses in the instant case because they did not testify against themselves, but rather against their employer, LRHC. The appellants contend that such an interpretation renders section 16-114-207(3), in large part, meaningless. LRHC and Heartland additionally argue that the circuit court erred in its alternative ruling, that section 16-114-207(3) was unconstitutional. Williams avers that the circuit court’s interpretation was reasonable; that, regardless, this case fell outside the statute; and that, should this court hold that the statute does apply here, the circuit court was correct in finding it unconstitutional.
b (¡This court reviews issues of statutory interpretation de novo, because it is for this court to determine the meaning of a statute. See Dachs v. Hendrix, 2009 Ark. 542, 354 S.W.3d 95.
Prior to trial, LRHC moved to prohibit Williams from seeking expert opinions from its nurse employees pursuant to Ark.Code Ann. § 16-114-207(3) (Repl.2006), which provides in pertinent part as follows: “In any action for medical injury ... [n]o medical care provider shall be required to give expert opinion testimony against himself or herself as to any matters set forth in § 16-114-206 at a trial.” However, the circuit court denied the motion and found that section 16-114-207(3) did not apply because the nurses were not being called to testify against themselves, but rather against their employer, LRHC. Additionally, the circuit court ruled, in the alternative, that section 16-114-207(3) was unconstitutional under the separation-of-powers doctrine.
For purposes of section 16-114-207(3), “medical care provider” is defined to include various medical-care entities such as hospitals, nursing homes, community health centers, and clinics, in addition to individual medical professionals. See Ark.Code Ann. § 16-114-201(2). Clearly, a legal entity such as a hospital or nursing home cannot literally give testimony against itself. Rather, it is the people that make up such an entity, that is, the entity’s officers, directors, employees or agents, who can testify on its behalf. Moreover, section 16-114-207(3) clearly speaks in regard to expert medical testimony and, as such, the officers, directors, and other administrators of such medical care entities generally could not be called upon to give expert opinion testimony on medical issues. It follows that only those medical professionals employed by the entities, such as their physicians and nurses, could be called fyupon to give expert medical testimony against the entity itself under the meaning of section 16-114-207(3). Were we to interpret the statute to allow for an employee of a medical-care provider to give expert testimony against that provider, we would render the statute meaningless in regard to hospitals, nursing homes, and other entities. We construe statutes so that no word is left void, superfluous, or insignificant, and we give meaning to every word in the statute, if possible. See Rylwell, L.L.C. v. Arkansas Dev. Fin. Auth., 372 Ark. 32, 269 S.W.3d 797 (2007). Therefore, we hold that the statute does apply to the nurse employees of LRHC, and the circuit court erred in finding otherwise.
As for the circuit court’s alternative ruling that the statute is unconstitutional, we reverse that finding as well. In short, section 16-114-207(3) simply creates a privilege for purposes of trial. It gives medical care providers, or their representatives (where the provider is an entity), the privilege to refuse to testify as to the matters set forth in section 16-114-206. This court has specifically given the General Assembly the power to enact statutes regarding testimonial privilege. See Ark. R. Evid. 501 (no person has a privilege to refuse to testify or prevent another from being a witness “except as otherwise provided by constitution or statute ”) (emphasis added). Therefore, this section does not violate the separation-of-powers doctrine.
We note that in addition to the medical-malpractice claim, a claim was made for ordinary negligence and was carried to a jury verdict. Williams argues that the privilege created by section 16-114-207(3) only applies in medical-malpractice claims and because there are additional claims made here, it does not apply. While the nurses could certainly testify as |1sto the facts, the privilege did not lose all effect simply because a cause of action by a different name was asserted. Therefore, the appellants were still protected by the privilege as to any testimony by the nurses regarding their opinions about “matters set forth in section 16-114-206.”
For their fourth point on appeal, LRHC and Heartland argue that the circuit court erred by giving the jury an instruction on the Residents’ Rights claim that omitted causation as a separate element of proof. Williams avers that the way the statute is written, whenever it is proven that a resident is in fact deprived of any of his or her rights contained within the statute, the statute holds she is injured and adding causation would be redundant when instructing the jury.
Under Arkansas law, 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 giving the instruction. See Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003). We will not reverse a circuit court’s refusal to give a proffered instruction unless there was an abuse of discretion. See id.
The Resident’s Rights Act provides the following regarding civil enforcement:
(a)(1) Any resident who is injured by a deprivation or infringement of his or her rights as specified in this subchapter may bring a cause of action against any licensee responsible for the deprivation or infringement.
(2) The action may be brought by the resident or his or her guardian or by the personal representative of the estate of a deceased resident.
(3) The action may be brought in any court of competent jurisdiction in the county in which the injury occurred or where the licensee is located to enforce such rights and to recover actual and punitive damages.
(4) The resident may seek to recover actual damages when there is a finding that an employee of the long-term care facility failed to do something which a reasonably careful person would do or did something which a reasonable person would not do under circumstances similar to those shown by the evidence in the case, which caused an injury due to an infringement or a deprivation of the | isresident’s rights.
(5) No separate award of attorney’s fees may be made by the court.
Ark.Code Ann. § 20-10-1209(a) (Repl. 2005) (emphasis added). Therefore, there first must be a finding that an employee erred in failing to do something or erred by doing something. Secondly, that error must have caused injury as a result of an infringement or deprivation of the resident’s rights. There is, indeed, a causa tion element in the plain language of the statute instructing when a resident may-seek actual damages. After a review of the jury instruction giyen in the instant case, the jury was simply instructed that Williams had to prove that LRHC infringed or deprived Valentine of certain statutory resident’s rights. While a definition of proximate cause was given to the jury, proximate cause was never used in connection with the instruction on resident’s rights. When a jury instruction is erroneous or misleading, it is prejudicial and should not be given to the jury. See Bailey v. Rose Care Ctr., 307 Ark. 14, 817 S.W.2d 412 (1991). Therefore, we hold the circuit court abused its discretion in not including in the instruction to the jury the causation element required when damages are sought for a violation of residents’ rights.
LRHC and Heartland also take issue with the jury instruction given on spoliation and argue it should not have been given because there had been no evidence that certain documents had been intentionally destroyed or suppressed. Williams avers that the circuit court did not abuse its discretion in finding that enough evidence existed to support the inference and giving the instruction.
Appellants do not allege that the instruction was an incorrect statement of the law. Therefore, the only issue is whether or not there was some basis in the evidence to support 1 ana spoliation instruction. This court recently, in Bunn Builders, Inc. v. Womack, 2011 Ark. 231, 2011 WL 2062393, noted that Arkansas case law on spoliation is sparse. In Bunn Builders, we held that under Arkansas law, a circuit court is not required to ■ make a specific finding of bad faith on the part of the spoliator prior to instructing the jury and that the AMI correctly and adequately sets forth the law with respect to spoliation of evidence and the adverse inference to be drawn from it. See id. Additionally, in that case, because the circuit court clearly found that the party against whom the instruction was given had intentionally destroyed evidence in the case, we held that the circuit court had not abused its discretion by instructing the jury on spoliation of evidence.
In the instant case, the circuit court did not make a finding that LRHC had destroyed the documents at issue, the Activities of Daily Living Flowsheets (ADL sheets). Additionally, no evidence was presented to suggest that the ADL sheets had been destroyed. Williams argues that because federal law required LRHC to maintain and safeguard ADL sheets and the ADL sheets could not be located, intentional destruction of evidence was clearly at issue. However, we disagree. While Williams might have been able to make that leap in argument to the jury, we hold that evidence of those facts alone — that ADL sheets were required to be maintained; that ADL sheets existed at one time; but that ADL sheets were not produced — does not support a basis for a spoliation instruction. Therefore, we hold that the circuit court abused its discretion by giving the spoliation instruction in the instant case.
Lastly, Heartland contends that the circuit court erred in denying its directed-verdict motion because Williams failed to prove that Heartland had been the employee leasing |21 company to lease the administrator, Dan Yancey, and the director of nursing, Helen Jones, to LRHC during the relevant time period. Without such proof, Heartland contends that there was insufficient evidence to show that Heartland owed Valentine a duty of care. Williams avers that there was evidence in the record sufficient to show that Heartland was the employer of Yancey and Jones. Furthermore, Williams argues, the contradictory evidence only created a question of fact for the jury.
Having already set forth our standard of review for a denial of a directed-verdiet motion, we turn then to whether the circuit court erred in denying Heartland’s motion. It did not.
The relevant evidence presented at trial as to what company had employed Yancey and Jones is the following. Brad Bedell, through his videotaped deposition, initially testified that Heartland was the employee leasing company for LRHC in 2004. He later stated, “I believe I may have misspoken earlier. [In] 2004, HC Services and Solutions was leasing those ... the administrator and [director of nursing] at this facility in 2004.” Dan Yancey also testified that he and Jones had been employees of HC Services and Solutions in 2004. However, in his deposition he said he had heard of HC Services and Solutions, but did not know he had worked for them. On redirect examination, he clarified that after the subject had arisen during his deposition, he was curious and researched it. Yancey testified that at the time of his deposition, he believed he had worked for Heartland. One of Williams’s experts, Dr. Lipson, merely stated that, “from the best of his understanding,” Heartland had supplied LRHC with an administrator and a director of nursing. Finally, an employee leasing |22agreement between Heartland and LRHC dated April 1,1996, was admitted into evidence, although it was from nearly eight years prior to the relevant time period of Valentine’s residency at LRHC.
As Williams argued, the evidence presented created a question of fact, and the evidence simply conflicted as to this issue. As our standard of review dictates, a motion for directed verdict should be denied when there is conflict in the evidence; therefore, the circuit court did not err by doing so.
For all the above reasons, we reverse, dismiss appellant Bedell, and remand for a new trial on Williams’s claims against LRHC and Heartland.
Reversed and dismissed in part; reversed and remanded in part.
. Appellants additionally argue that the circuit court erred by allowing Williams to present evidence from after August 11, 2004. They contend that it was blatantly unequal and fundamentally unfair because, if evidence after August 11, 2004, was not relevant for the defense, it was equally irrelevant to the plaintiff. However, we need not address this argument as we hold that the circuit court erred in excluding the post-discharge evidence.
. "Attorney” was counsel for Williams. | [
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ROBERT J. GLADWIN, Judge.
| ,The issue before us is whether the trial court abused its discretion in setting aside its dismissal order pursuant to Arkansas Rule of Civil Procedure 60 (2010). We hold that, under a strict application of Rule 60, to set aside the order was an abuse of discretion and reverse the trial court’s ruling.
Appellees John and Tasha Sims filed a complaint for breach of contract against John Pinto and appellant Brandy Pinto in Saline County Circuit Court on November 5, 2008. Appellees sought damages against the Pintos related to a residential-construction contract wherein the Pintos agreed to manage the construction of the appellees’ house. Appellees alleged in their complaint that they paid the Pintos $60,000 to purchase building materials and subcontract for labor to build the house and that the Pintos failed to pay for the labor or materials.
|2On January 20, 2009, John Pinto’s attorney filed a motion to be relieved from representing both John and Brandy Pinto. On February 10, 2009, an order was filed granting the attorney’s request to be relieved. The trial court granted appellees’ motion to have requests for admission deemed admitted on May 20, 2009. On October 7, 2009, appellees’ attorney moved to withdraw as counsel, and he was relieved by order filed October 20, 2009.
Because there was no longer an attorney of record for either party and no recent activity in the case, the trial court sent the parties a letter in December 2009 indicating that the case would be dismissed if there was not a notification in writing prior to December 30, 2009. On December 17, 2009, David C. Hawkey filed an entry of appearance on behalf of appellees. However, “due to inactivity herein and after notice no objection being offered,” an order of dismissal without prejudice was signed and filed on December 30, 2009. Neither party was notified of the dismissal order.
On February 25, 2010, appellees filed a motion for summary judgment based on the admissions of the Pintos, and a hearing was set for April 28, 2010. On May 4, 2010, the case was transferred from second division to fourth division in Saline County Circuit Court. The Pintos failed to appear at the hearing, and on June 4, 2010, the trial court granted summary | ¡¿judgment to appellees based on the record. The final judgment included in the summary-judgment order against the Pintos was $83,117.85.
In order to enforce the judgment, appel-lees filed a writ of garnishment on appellant Brandy Pinto’s employer. On October 5, 2010, the trial court filed an order setting aside the dismissal order filed December 30, 2009. The order stated that the dismissal order had been “entered in clerical error.” On October 12, 2010, a motion to set aside was filed by appellant, wherein she argued that because the case had been dismissed on December 30, 2009, the trial court should vacate and declare void any proceeding held thereafter, including the order granting summary judgment.
The trial court entered an order on November 23, 2010, granting appellant’s motion to set aside its order of October 5, 2010, wherein the trial court had vacated its December 30, 2009 dismissal order. However, the trial court entered a new order setting aside the December 30, 2009 dismissal order, describing it as an accidental dismissal. The order states in part:
This is a fairly standard contract case which is unremarkable except that an error by the court resulted in the accidental entry of an Order of Dismissal which did not result in the actual closure of the case; was not recognized by the Court or any party during the remaining pendency of the action; and was only brought to light after the Plaintiff had taken action to enforce the final judgment through garnishing the wages of the defendant Brandy Pinto. The question before the court is whether the Court’s own error can be used to invalidate a judgment which would otherwise have been proper under the law.
The trial court’s order cites McGibbony v. McGibbony, 12 Ark.App. 141, 671 S.W.2d 212 (1984), and Harrison v. Bradford, 9 Ark.App. 156, 655 S.W.2d 466 (1983), and is premised on |4its inherent power to enter oi’ders correcting its judgments to make them speak the truth and to reflect its actions accurately.
Appellant filed a motion for reconsideration on December 6, 2010, and the trial court denied it by order filed December 10, 2010. This appeal timely followed.
Arkansas Rule of Civil Procedure 60 provides in pertinent part as follows:
(a) Ninety-Day Limitation. To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk.
(b) Exception; Clerical Errors. Notwithstanding subdivision (a) of this rule, the court may at any time, with prior notice to all parties, correct clerical mistakes in judgments, decrees, orders, or other parts of the record and errors therein arising from oversight or omission. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
(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 of the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order:
(3) For misprisions of the clerk.
(4) For misrepresentation or fraud (whether heretofore denominated intrinsic or extrinsic) by an adverse party.
Ark. R. Civ. P. 60(a), (b) & (c)(3)-(4).
It is within the discretion of the circuit court to determine whether it has jurisdiction under Rule 60 to set aside a judgment, and the question on appeal becomes whether there has been an abuse of that discretion. See Watson v. Connors, 372 Ark. 56, 270 S.W.3d 826 (2008); New Holland Credit Co. v. Hill, 362 Ark. 329, 208 S.W.3d 191 (2005); Burns v. Madden, 271 Ark. 572, 609 S.W.2d 55 (1980); Hendrix v. Hendrix, 26 Ark.App. 283, 764 S.W.2d 472 (1989).
Appellant contends that the trial court erred in setting aside its dismissal order of December 30, 2009, arguing that Rule 60 is inapplicable. Appellant maintains that Rule 60(a) does not apply, as the matter before the trial court was clearly outside the ninety-day time limitation. Further, she claims that Rule 60(b) does not apply because there is no evidence of clerical mistake, oversight, or omission. Finally, she argues that Rule 60(c) is inapplicable without further expansion of her argument.
She cites Francis v. Protective Life Ins. Co., 371 Ark. 285, 265 S.W.3d 117 (2007), wherein the Arkansas Supreme Court explained that Rulé 60 and case law provide that a circuit court can, at any time, correct clerical mistakes in order to make the record speak now what was actually done then. “This court has defined a true clerical error, one that may be corrected by nunc pro tunc order, as ‘essentially one that arises not from an exercise of the court’s judicial discretion but from a mistake on the part of its officers (or perhaps someone else).’ Luckes v. Luches, 262 Ark. 770, 772, 561 S.W.2d 300, 302 (1978).” Id. at 293, 265 S.W.3d at 123.
Appellant also cites Harrison, supra, where this court did not allow a trial court to modify a divorce decree under Rule 60:
Rule 60(a), which is merely a restatement of well settled law, has no application here. Courts have an inherent power to enter orders correcting their judgments where necessary to make them speak the truth and reflect actions accurately. This inherent authority has been recognized and sustained by this court in a long line of decisions from King & Houston v. State Bank, 9 Ark. 185 (1848) to the present. This power, however, is confined to correction of the record to the extent of making it conform | fito the action which was in reality taken at the time. It does not permit the change of a record to provide something that in retrospect should have been done but was not done. Fitzjarrald v. Fitzjarrald, 233 Ark. 328, 344 S.W.2d 584 (1961).
Harrison, 9 Ark.App. at 158, 655 S.W.2d at 468.
Appellant claims that there is no clerical error in the instant case to be corrected under Rule 60(b). She argues that the dismissal order was signed by the presiding judge and was filed of record with the circuit clerk. She contends that if appellees thought the dismissal order was entered as a result of an error or mistake, they had ninety days to present a motion to set aside the court’s order under Rule 60(a). She asserts that, outside the ninety-day limitation, mistakes can only be corrected if they are clerical errors, which are caused by mistakes of the officers of the court who incorrectly record what actually took place before the court. She claims that the signing of the December 30, 2009 dismissal order was the action taken by the trial court and that it was not a mistake in recording, or inadvertence or mistake by an officer of the court in recording what actually happened. Therefore, she contends that the December 30, 2009 order cannot be set aside and that the trial court erred in so doing.
We agree. No matter how we torture the facts to fit within the remedy provided under Rule 60, we cannot in good conscience hold that Rule 60 is applicable herein. The Arkansas Supreme Court has held that where an order is entered by the trial court in error, it is not a clerical error. See Wal-Mart Stores, Inc. v. Taylor, 346 Ark. 259, 57 S.W.3d 158 (2001). As |7stated in Watson, supra, it is only clerical errors that may be corrected at any time pursuant to Rule 60(b). While we understand and empathize with the trial court’s procedure in maintaining its docket, we cannot hold, in light of Watson, that in doing so, a clerical error occurred. Thus, neither Rule 60(a) or (b) was an available remedy for the parties in this case because the trial court set aside the dismissal outside the ninety-day limitation, and the error was not clerical in nature.
Appellees cite Gholson v. State, 2009 Ark. App. 373, 308 S.W.3d 189, a criminal case that was erroneously dismissed by a nolle prosequi order then continued to hearing on the State’s petition to revoke. On appeal, we stated that an order entered in error does not speak the truth, and courts have the power to enter an amended judgment and commitment order nunc pro tunc to correct an erroneous judgment. Id. There, a nolle prosequi order resulted from a mistake by an officer of the court, the prosecutor, by presenting the case to the trial judge as one of many ripe for dismissal after having no activity for a year. Id. After the case was dismissed, all parties proceeded as if the petition to revoke was pending because they were unaware of the nolle prosequi order. Id. We found no error in the trial court’s setting aside of the nolle prosequi order. Id. Similar to the State’s argument in Gholson, appellees assert that it was not an abuse of discretion for the trial court to set aside the accidental dismissal because substantial evidence indicates that nobody involved with the case was aware that a dismissal was filed on December 30, 2009.
IsAppellant contends that the distinguishing factor between the instant case and Gholson is that it was never the intention of the circuit judge to dismiss the criminal case against the defendant in Gholson, but it was the intention of the circuit court to dismiss the case at hand if no action was taken by the parties to prevent it. The trial court’s error in overlooking the entry of appearance was not clerical in nature, and we agree that appel-lees had ninety days to ask the trial court to set aside the dismissal order based on the trial court’s mistake.
Finally, appellees contend that the trial court properly set aside the accidental dismissal pursuant to Rule 60(c)(3) as a misprision of the clerk. They assert that the clerk continued to accept pleadings from them even after the dismissal order had been filed; that two letters were accepted within ninety days from the dismissal order; a motion for summary judgment was filed; the ease was transferred on May 4, 2010; an affidavit of service was filed on May 7, 2010; a summary-judgment order was filed on June 4, 2010; and the clerk never realized that activity was being taken in a closed case. Appellees argue that the clerk’s failure to close the case resulted in constructive fraud on the part of the clerk against them. Appellees contend that constructive fraud is a breach of a legal or equitable duty, which, irrespective of the moral guilt or the valid reason, the law declares fraudulent because of its tendency to deceive others, and intent to deceive is not an essential element of constructive fraud. Davis v. Davis, 291 Ark. 473, 725 S.W.2d 845 (1987). Appellees also cite Hyden v. Circuit Court of Pulaski County, 371 Ark. 152, 264 S.W.3d 493 (2007), where a mistaken misrepresentation by the adverse 19party to the trial court resulted in a dismissal, and the trial court correctly vacated its dismissal based on misrepresentation.
We disagree with appellees’ contention regarding misprision. The trial court signed a dismissal order prior to any alleged wrongdoing on the circuit clerk’s part. Because of the trial court’s mistake, relief from that judgment could only have been found through Rule 60(a), within ninety days of entry of the dismissal order. To vacate the trial court’s order after ninety days based on the circuit clerk’s failure to close the case after the dismissal order was filed would be a misapplication of the rule.
Reversed.
WYNNE and GRUBER, JJ„ agree.
. Attorney David A.F. McCoy filed an answer on behalf of defendant John Pinto. Appellees filed a motion for default judgment against appellant Brandy Pinto based on her failure to file an answer after having been duly served with the summons and complaint and a motion to strike defendant John Pinto’s answer because it was filed one day late. The corresponding rulings are not reflected in the record presented.
. Judge Gary Arnold, second division circuit judge in Saline County, realized that he knew one of the parties and recused himself from the case, transferring it to Judge Robert Herz-feld.
. In Watson, supra, our supreme court discussed the modification of Rule 60 since Taylor, supra, was decided and concluded that the language in Taylor stating that "where an order is entered by the court in error, it is not a clerical error,” was not affected by the amendment to Rule 60. Watson, 372 Ark. at 60, 270 S.W.3d at 829.
. We note that both Hyden and Davis dealt with Rule 60(c)(4), which allows for a vacation of judgment based on misrepresentation or fraud by an adverse party. | [
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CLIFF HOOFMAN, Judge.
| Appellant William Phillips was convicted by a jury of second-degree murder and was sentenced to twenty years’ imprisonment, with an additional eight years for the use of a firearm. On appeal, Phillips argues that there was insufficient evidence to show that he knowingly caused the death of the victim. We disagree and affirm the conviction.
At trial, the following evidence was presented by the State. The victim, John Baugh, Jr., and Phillips were acquaintances. John Baugh, Sr., the victim’s father, testified that his son owned a car lot where vehicles had been vandalized on sev eral occasions over a two-month period and that they suspected Phillips was involved in the crimes. Baugh, Sr. testified that on the morning of November 1, 2009, he and his son decided to go to the car lot early in the morning to see if they could catch the vandal. At approximately 5:45 a.m., while Baugh, Jr. was getting coffee at a nearby restaurant, Baugh, Sr. stated that he saw a truck drive by the |2lot very slowly. After the truck turned around and came back by the lot, still driving slowly, Baugh, Sr. testified that he recognized the driver as Phillips. Baugh, Sr. called his son and told him that the vandal was there, and when his son returned, Baugh, Sr. stated that they saw Phillips make two more trips back and forth in front of the car lot. When the truck did not reappear, Baugh, Jr. returned to the restaurant, and his father testified that Phillips again started driving by the lot. According to Baugh, Sr., his son told him that he was going to catch Phillips and ask him why he was driving by the lot and staring at them that early in the morning. Baugh, Sr. remained on the phone with his son while Baugh, Jr. followed Phillips down Broadway Avenue and onto Riverside Drive, where Phillips stopped at the boat-launch area. Over the phone, Baugh, Sr. heard his son ask Phillips what he meant by going back and forth in front of the car lot and staring. There was no reply, and Baugh, Sr. testified that those were the last words he heard from his son before the phone went dead. He immediately got in his car and drove down to Riverside Drive, where he saw his son’s vehicle on the left side of the road up against a tree, approximately two blocks away from the boat-launch area. He testified that his son was dead and slumped over the steering wheel, with the driver’s side window broken. Baugh, Sr. stated that he could tell that his son had been shot, and he told a bystander to call 911.
John Wiesle testified that he witnessed Baugh, Jr.’s vehicle driving down Riverfront Drive and swerving. As the car passed him, Wiesle stated that the driver was slumped over in the seat and that he next saw the car swerve across the road and hit a tree. He thought the driver had been shot because the window was broken out. Wiesle testified that he stopped | sand called 911 at the request of Baugh, Sr., who was very upset.
Officer Mark Wright, with the North Little Rock Police Department, testified that he had contact with Baugh, Jr. on two occasions in September 2009, when Baugh, Jr. called concerning vandalism to his vehicles. Wright stated that Baugh, Jr. named Phillips as a suspect and that he went to Phillips’s home and left his card when Phillips was not there. Wright testified that Phillips called him back several days later and stated that he had no idea why he was being named as the vandal. According to Wright, he told Phillips just to stay away from Baugh, Jr.
The next witness was Samuel Iverson, a retired police officer, who testified that he lived next door to Phillips and that Phillips was not a violent person to his knowledge. Iverson stated that he also knew Baugh, Jr. and that he knew him to be friendly with Phillips. Iverson testified that on the morning of November 1, 2009, Phillips called him and told him that he had shot Baugh, Jr. According to Iverson, Phillips told him that Baugh, Jr. had followed him down to the river, then approached him and attacked him with a pipe. Phillips told Iverson that he fired a shot at Baugh, Jr., but did not know if he hit him, so he fired again. Phillips told Iverson that he thought he fired three shots. Iverson then told Phillips to call the police.
Officer Paul Riley testified that he responded to the accident on November 1, 2009, at approximately 7:00 a.m. He stated that there were three witnesses present, including Baugh, Sr. After securing the crash scene, Riley then went to the scene of the shooting, which he stated was one-half of a mile away. He saw tire treads from two vehicles and found |4two shell casings near the treads, as well as broken glass. Riley stated that the ground was muddy because it had rained the previous night.
Detective Clinton O’Kelley testified that he processed the evidence from both crime scenes. From the crash scene, O’Kelley collected the victim’s shirts and flannel jacket, a black cell phone, and a bullet fragment found at the bottom of the driver’s side door inside the vehicle. From the scene of the shooting, O’Kelley collected three .32-caliber shell casings and glass fragments. O’Kelley further testified that when he and defense counsel examined the flannel jacket at the police station on a later date, a bullet core fell out of the jacket and was also sent to the crime lab. According to O’Kelley, there was evidence that four shots were fired at the scene, although only three shell casings were found.
Sergeant Brian Dedrick testified that he interviewed Phillips after Phillips called the police that morning and was taken to the police station. This interview was recorded, and the tape was played for the jury. According to Phillips’s statement, he got up early on Sunday morning, November 1, 2009, and after he had gotten the newspaper and some gas, he drove by a drywall business to see if they had any aluminum studs stacked out front because he was wanting to enclose his patio. Phillips stated that he drove by the business, saw that the studs were there, and wrote down the phone number to call them later. He stated that he was afraid that he had gotten the number wrong, so he circled around and drove back by the drywall business to double check. He admitted that Baugh, Jr.’s car lot was near the drywall place, but stated that he was not even thinking about the car lot at that time. Phillips stated that he and Baugh, Jr. had been friends and used to drink coffee together, but that he had not | fiseen him in more than one month. Phillips was aware that Baugh, Jr. had named him as a suspect in the vandalism, but he denied being involved.
According to Phillips, after he left the drywall business, he drove down to the river to use the restroom and to look at the water level of the river. He stated that Baugh, Jr. then drove up beside him, got out of his vehicle, said that he was going to “knock his head off,” and then physically attacked Phillips with a weapon in his hand that he described as a piece of black pipe or something similar. Phillips stated that the weapon hit and injured his left hand and that he stumbled backward and fell onto the ground. He then took his pistol out of his right pocket and fired at Baugh, Jr. from his position on the ground when he continued to come at him. In his statement, Phillips initially stated that he hit Baugh, Jr. in the arm on the first shot and in the chest on the second shot; however, he later stated that he did not think that he hit Baugh, Jr. with his first shot because there was no reaction to the shot and that his second shot may have hit Baugh, Jr. in the arm because Phillips saw him grab his arm after the shot. Phillips stated that Baugh, Jr. then got into his car and sped off. While he was rolling over on his side to get up off the ground, Phillips indicated that he accidentally fired a third shot, although he was not aiming at anything. Phillips stated that he drove straight home, changed his clothes because they were muddy from falling on the ground, and then called his neighbor and told him what happened.
Sergeant Dedrick testified that Phillips did not seem to know that Baugh, Jr. had died until he informed him during the interview and that Phillips appeared shocked at this fact. Dedrick took pictures of Phillips’s left hand, which had a small abrasion, and these pictures | ¿were introduced into evidence. Dedrick testified that there were many inconsistencies in Phillips’s account of the events after repeated questioning, such as differences in where and when he shot the victim and different descriptions of Baugh Jr.’s alleged weapon. Phillips gave consent for police to search his house and car, and Dedrick stated that he found a scrap of paper with the name and phone number of the drywall business in Phillips’s car.
Detective Dane Pederson testified that he searched Phillips’s residence and that he found the Keltee .32-caliber handgun where Phillips had indicated it would be. Pederson stated that there was a bullet in the chamber and two bullets in the clip. He also found a bullet on the kitchen counter and in the bedroom. Pederson seized Phillips’s clothes from earlier that morning and stated that there was a mud spot on the back of his pants and a few drops on the leg. The t-shirt did not appear to be wet or covered in mud, according to Pederson, and he stated that the majority of the clothing did not appear to be consistent with someone who fell down on his back and then rolled over to get up. He also testified that there was a smear of blood on the left leg of Phillips’s pants, which was later found to be Phillips’s and that would be consistent with someone wiping off blood from his hand.
Dr. Daniel Konzelman, the medical examiner in this ease, testified that there were two gunshot wounds to the victim’s left upper arm, as well as a gunshot wound to the left chest wall. There was also another scrape in the same area of the chest that Dr. Konzelman testified could have been a result of one of the shots to the arm or could have been a completely separate gunshot wound. Dr. Konzelman described the bullet trajectory of the first shot to the upper arm as being “left to right, back to front, and downward.” This particular bullet |7exited the inner arm. The other shot to the victim’s left arm was just above the elbow, and the bullet jacket and bullet fragments were recovered from the wound. The trajectory of this bullet wound was “back to front, left to right, and upward.” The gunshot wound to the left chest wall was caused by a bullet that went “left to right, front to back, and downward,” and this bullet was lodged in the victim’s spine. According to Dr. Konzel-man, the injury to the victim’s chest was the most life-threatening, and the injuries would have caused the victim’s death in minutes, although the victim would have been able to drive a car for a short time. He also testified that a fourth bullet was found imbedded in the victim’s jacket and that this bullet contained shards of glass, indicating that it struck the glass before hitting the victim’s clothing. Dr. Konzel-man testified that the downward trajectory of two of the bullets would be consistent with the victim sitting at the steering wheel of his car with a suspect standing up and shooting at him from outside the car. He further stated that he listed the cause of Baugh, Jr.’s death as homicide.
Jennifer Floyd, a firearm and tool-mark examiner with the State Crime Laboratory, testified that she examined Phillips’s pistol and that it was her opinion that it could not be fired accidentally. She stated that her analysis of the shell casings and bullet fragments indicated that they were fired from Phillips’s gun. Floyd also did gunshot-residue analysis on the victim’s clothing and stated that the bullet hole in the shirt pocket indicated that the shot was fired from a distance of between three and eighteen inches from the victim and that the shot in the upper arm was fired from a distance of between three and thirty-six inches. The other bullet holes were not able to be tested for distance comparisons, although Floyd testified 18that one of these bullet holes was much larger than the others, indicating that the bullet had hit an intermediary object, such as glass, causing it to tumble through the air before hitting the victim.
Following the State’s case, Phillips moved for a directed verdict, arguing that there was insufficient evidence presented to show that he knowingly caused the death of Baugh, Jr. This motion was denied by the trial court. The defense then presented witnesses that testified as to Phillips’s honest character and that corroborated his version of events. The motion for directed verdict was renewed by the defense at the close of all of the evidence and was again denied. Although Phillips was charged with first-degree murder, the jury convicted him of the lesser-included offense of second-degree murder, for which he received a sentence of twenty years’ imprisonment, with an eight-year-sentence enhancement for the use of a firearm. Phillips now appeals from the verdict and challenges the sufficiency of the evidence supporting his conviction.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Wyles v. State, 368 Ark. 646, 249 S.W.3d 782 (2007). On appeal from a denial of a motion for directed verdict, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. In determining whether there is substantial evidence to support the verdict, this court reviews the evidence in the light most favorable to the State and considers only that evidence which supports the verdict. Id. Substantial evidence is that evidence which is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Id. The fact that evidence |flis circumstantial does not render it insubstantial; however, when circumstantial evidence is relied upon, it must exclude every other reasonable hypothesis but the guilt of the accused. Id. The question of whether circumstantial evidence excludes other reasonable hypotheses is for the jury to decide. Id.
Phillips argues that his conviction cannot be sustained because the State failed to prove that he knowingly caused the death of Baugh, Jr. According to Ark. Code Ann. § 5-10-103(a)(1) (Repl.1996), a person commits second-degree murder if he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life. A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct or the attendant circumstances exist, and he acts knowingly with respect to the result of his conduct when he is aware that it is practically certain that his conduct will cause the result. Ark.Code Ann. § 5-2-202(2)(A) & (B) (Repl.2006). Extreme indifference has been defined as deliberate conduct that culminates in the death of another person. Wyles, supra. Intent or state of mind is rarely capable of proof by direct evidence, but must usually be inferred from the circumstances surrounding the offense. Id. One is presumed to intend the natural and probable consequences of his actions. Id. The circumstances from which intent may be inferred include the type of weapon, the manner in which it was used, and the nature, extent, and location of the trauma suffered by the victim. Id. In addition, the jury is responsible for resolving questions of conflicting testimony and may choose to believe the State’s ac count of the facts, rather than the defendant’s. Id.
As support for his argument that there was insufficient evidence of his intent shown |10by the State, Phillips mainly recites the evidence supporting his version of the events: the victim initiated the altercation; he sustained an injury to his hand during the fight; there was mud on his clothing consistent with his story that he fell on the ground after being attacked by Baugh, Jr.; he did not pursue Baugh, Jr. after he drove away. However, the evidence is not reweighed on appeal, and only the evidence supporting the verdict is considered. Id.
A review of the evidence supporting the verdict in this case demonstrates that there is substantial evidence to show that Phillips knowingly committed second-degree murder. The victim sustained four gunshot wounds, including two shots to the left chest area, and he died as a result of a chest wound. While Phillips asserted that he only fired the gun to protect himself from the victim’s attack with a weapon, he sustained only a small abrasion to his hand, and the alleged weapon used by the victim was never found at the crime scene or in the victim’s car. Also, in contrast to Phillips’s version of events, the driver’s side window was smashed, and pieces of glass were embedded in a bullet found inside the victim’s jacket; thus, there was evidence that this bullet was fired at the victim through the closed driver’s side window. The medical examiner also testified that at least two of the shots were fired from a downward angle, which contradicted Phillips’s story that he fired upward at Baugh, Jr. while lying on the ground. Instead, the medical examiner testified that the trajectories were consistent with the shooter standing outside the driver’s side window and firing shots at the driver sitting at the wheel. The bullet that struck the victim’s chest was also fired at a close range of three to eighteen inches, and the firearm and tool examiner testified that the pistol required six to seven pounds of pressure to pull the trigger and opined that it could not be |nfired accidentally.
From this evidence, the jury reasonably concluded that Phillips knowingly and with an extreme indifference to human life fired a deadly weapon at the victim multiple times and at close range. As the State asserts, Phillips is presumed to intend the natural and probable consequences of his actions, Wyles, supra, and the pattern of the gunshots, which were aimed at the victim’s chest and upper-arm area, as well as the trajectory of the bullets show that Phillips acted deliberately in a manner that would naturally and probably culminate in the victim’s death.
Although Phillips argues that he was only acting in self-defense, that he did not intend to cause the victim’s death, that he did not believe that he had hit Baugh, Jr. with the gunshots, except for the second shot to his arm, and that he was surprised to learn later that the victim was fatally injured, the jury was free to disbelieve Phillips’s version of events. Wyles, supra. A similar argument was rejected in Johnson v. State, 2010 Ark. App. 153, 375 S.W.3d 12, where the appellant contended that she fired the weapon either accidentally or in self-defense when she and the victim were arguing and that there was no evidence that she knowingly caused his death, where she only shot him once in the wrist and did not know that she had even hit the victim at all. This court held that the facts presented a credibility issue for the jury and that there was substantial evidence presented to support the jury’s determination that she acted knowingly in causing the victim’s death and that she was guilty of second-degree murder. Id. In the present case, there was also sub stantial evidence presented to support the jury’s verdict that Phillips was guilty of second-degree murder, and we affirm.
Affirmed.
VAUGHT, C.J., and BROWN, J., agree. | [
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CLIFF HOOFMAN, Judge.
I,Forrest City appeals from a Workers’ Compensation Commission opinion awarding appellee Michael Long permanent total disability benefits. On appeal, appellants argue that there were no objective findings to support a finding of a compensable injury and that Long failed to prove that he was permanently and totally disabled. We disagree and affirm.
When Long was employed as a Forrest City police officer on July 16, 2006, he responded to an altercation at the St. Francis County jail and was subsequently struck in the face with an industrial mop handle. Long suffered lacerations, which required stitches, and his left orbital bone was fractured. Temporary total disability and related medical expenses were paid for this admittedly compensable injury. A hearing was held before Chief Administrative Law Judge David Greenbaum on April 16, 2010, to determine Long’s entitlement to permanent disability benefits.
Following his injury, Long was treated by Dr. Frank Schwartz. During that time he | ^suffered numbness to the left side of his face, problems with sensitivity to light and peripheral vision, difficulty focusing, and severe headaches almost to the point of nausea at times. Long also suffered a burning sensation along the suture area near his left eye. Dr. Schwartz attributed the headaches to a post-concussive syndrome. Narcotic pain relievers prescribed by Dr. Schwartz did not help, and Long was subsequently referred to a neurologist, Dr. Lance Wright.
Long first saw Dr. Wright on September 12, 2006. Dr. Wright diagnosed Long with “posttraumatic chronic daily headache disorder” and “traumatic left supraorbital neuropathy” — which was causing the burning and numbness in Long’s forehead. Dr. Wright also noted that Long had subjective complaints of visual disturbance. From September 12, 2006, to June 11, 2007, Dr. Wright tried and failed to remedy Long’s symptoms with seven different headache preventatives. After this time, Dr. Wright prescribed long-acting opiates. Long was eventually prescribed Avinza, which provided the greatest relief he had experienced since his injury. On November 19, 2007, Dr. Wright noted that the Avinza had helped Long’s head pain modestly, although he still had a great deal of head pain most of the time. Dr. Wright noted that they were “about at the end of our rope in terms of things to try” and declared Long to be at maximum medical improvement. Long continued to followup with Dr. Wright approximately every three months and received prescription refills. At one visit, Long complained of balance and speech problems.
In a letter to Long’s attorney dated December 11, 2007, Dr. Wright attempted to calculate a permanent partial impairment rating. Using the Fourth and Fifth Editions of the |SAMA Guides to the Evaluation of Permanent Impairment, Dr. Wright had Long fill out a questionnaire rating his pain, its interference with his activities, and its effect on his mood. Dr. Wright calculated Long to be in the “moderately severe impairment class” and noted that the guides did not assign strict percentages for chronic head pain as they do for other disorders. In a letter to the City of Forrest City and Long’s attorney dated February 22, 2008, Dr. Wright described Long’s condition, noting that Long “basically still has constant head pain which is aggravated by any sort of activity.” “The pain is severe enough that it can be expected to be distracting to him and cause him to have a difficult time keeping his mind on whatever he happens to be doing.” Dr. Wright opined that this should be regarded as a permanent problem. Regarding Long taking Avinza, Dr. Wright stated that “[ajlthough it does help his pain enough to make it worth taking, he still has pretty bad head pain most of the time especially if he tries to move about or be active.” In a letter dated May 19, 2009, Dr. Wright noted that Long has a “very severe constant headache” that he did not expect to improve in the future, and he did not think Long was capable of being gainfully employed. In a letter dated May 7, 2009, Dr. Schwartz noted that Long had been “unable to return to his previous employment because of the headaches and it is unlikely that they will improve enough to where he can be employed again.”
Long, who was fifty-four years old at the time of the hearing, testified that he was still taking the drug Avinza and that it had helped some but had not alleviated the problem. He testified that along with his headaches, he continued to have some loss of peripheral vision, extreme sensitivity to light that intensified his headaches, trouble identifying things, difficulty | concentrating, short-term memory loss, difficulty carrying on a conversation and making decisions, problems balancing and negotiating steps, and lightheadedness. Long testified that he never had these problems prior to his injury. He testified that he could not function when his symptoms became really painful, and he would spend a lot of time lying down and resting. Long testified that during the hearing, his pain was a nine out of ten, and it was one of his better days. He testified that the pain stayed about the same all of the time. The laceration Long suffered had healed, but he had scars that ran through his eyebrow.
Long testified that he had previously asked Dr. Wright to release him to go back to work, which Dr. Wright did. The documentation of Long’s December 12, 2006 office visit notes that Long told Dr. Wright that he wanted to try to go back to work and see if he can function with the pain. Dr. Wright gave him a letter approving him to go to full duty on a trial basis. Dr. Wright noted that he was not entirely convinced that Long would be able to do it. Long was not able to carry out his duties when he attempted to return to the police force for three days. He testified that he could not perform his duties, including filing reports the way he used to, because he could not remember things or keep his concentration. After delivering prisoners to the jail, Long backed his vehicle into another vehicle. He testified that he then knew he was probably a danger to others in his current condition. Long has not worked or applied for any employment since this brief return to work.
Long lives in Missouri with his wife, their nine-year-old granddaughter, and his father. Both his wife and his father are disabled and cannot drive. Long is able to drive and testified that he does so on a limited basis. He testified that his granddaughter takes the bus to school, Rbut he sometimes drives her to school. Long does the grocery shopping for his household. The day before the hearing, Long drove from his home in Missouri to Forrest City, Arkansas, an estimated 305 miles. The trip took about thirteen hours, and Long drove the entire way. They stopped twice for gas, once to eat, and twice for restroom breaks and rest. Long testified that it was painful driving to the hearing, but he drives when he must.
Charles Kuczynski, Long’s friend and former partner on the police force, testified that Long was not capable of going back to work as a police officer. He said Long was no longer capable of taking appropriate action when an incident transpired and intervening when necessary. Kuczynski had observed Long’s coordination problems, balance problems, and short-term memory loss. He testified that a three- to five-minute conversation would take fifteen to twenty minutes with Long because of the need to refresh his memory. Kuczynski testified that Long’s hesitation as a police officer could place himself or other officers in jeopardy. Kuczynski no longer felt comfortable working with Long.
Dwight Duch, the chief of police at the Forrest City Police Department, knew Long since he was hired in May 1996. When Long came back to work briefly in 2007, Duch was the interim police chief. Duch testified that Long was on heavy medication, but Duch did not know if Long was able to do his job because he was not out in the field with him nor did he observe him much during this time. Duch did, however, ask for a list of Long’s medications to see if his medications would hamper his ability to be a police officer. Duch consulted with a doctor the city used, who said he would not recommend that Long be working the streets while on a particular medication on the list. Duch noticed that when RLong came back to work his speech pattern had changed and he would halt his speech for extended moments. Duch also noticed that Long’s eyes twitched and that he was unsteady on his feet.
The ALJ filed an opinion on June 10, 2010, finding Long permanently and totally disabled. The ALJ noted that Long was motivated to return to work, as evidenced by his request that Dr. Wright release him to return to work. The ALJ found that appellants offered no medical opinion whatsoever that Long was capable of working; thus, the medical opinion concerning Long’s permanent disability was undisputed. The ALJ found Long to be “a most credible witness,” and throughout Long’s testimony, the ALJ observed “significant involuntary facial tremors.” The ALJ noted that “[w]hile my observations are not medical findings, it was obvious to all observants in the courtroom that the claimant’s facial tremors were involuntary.” The ALJ also observed that Long “spoke with a slight stutter and frequently forgot the question previously asked, confirming his allegation of short-term memory loss.” The ALJ noted that his personal observations were confirmed by observations recounted by Kuczynski and Duch, whose testimony was uncontroverted.
The Commission filed an opinion on December 14, 2010, affirming and adopting the decision of the ALJ. Appellants filed a notice of appeal on January 13, 2011.
In deciding whether substantial evidence supports the Commission’s decision, this Court views the evidence and the inferences deducible therefrom in the light most favorable to the Commission’s findings. Wayne Smith Trucking, Inc. v. McWilliams, 2011 Ark. App. 414, 384 S.W.3d 561. We affirm if reasonable minds could reach the Commission’s | yconclusion, always remembering that weighing the evidence and making credibility determinations are within the Commission’s province, not ours. Id. When the Commission, as it did here, affirms and adopts the ALJ’s opinion, we consider both the ALJ’s decision and the Commission’s majority opinion. Id.
Permanent total disability means inability, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment. Ark.Code Ann. § ll-9-519(e) (Supp.2011). The burden of proof shall be on the employee to prove inability to earn any meaningful wage in the same or other employment. Id. Permanent total disability shall be determined in accordance with the facts. Ark.Code Ann. § 11-9-519(c).
Appellants first argue that there are no objective findings to support a finding of permanent anatomical impairment; thus, Long is not entitled to permanent partial disability. However, we need not address this argument because we affirm the award of permanent total disability. As opposed to a determination of permanent partial disability, there is no statutory requirement in making a permanent total disability determination that a claimant have an impairment rating established by the medical evidence. Rutherford v. Mid-Delta Cmty. Servs., Inc., 102 Ark.App. 317, 285 S.W.3d 248 (2008).
Based on the testimony that Long drove the lengthy distance to attend the hearing, that he is the only person in his household who drives, and that he performs the grocery shopping for his household, appellants argue that Long can perform activities of daily living without substantial modification. They claim that a conclusion that he cannot earn any | ^meaningful wages ignores the facts. Appellants, however, offered no proof to rebut the medical opinions that Long’s condition prevented him from working. Furthermore, the ALJ found Long to be a credible witness who was motivated, yet not capable of working. The fact that Long testified that he drives on a limited basis and that he drove some 305 miles over thirteen hours to attend the hearing is not sufficient to prove that he can earn meaningful wages. Substantial evidence supports the Commission’s decision; thus, we affirm the finding that Long is permanently and totally disabled. Affirmed.
GLADWIN and ROBBINS, JJ., agree. | [
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DONALD L. CORBIN, Justice.
11 Appellants Yanmar Co., Ltd., d/b/a Yanmar Diesel Engine Co., Ltd. (Yanmar Japan), and Yanmar America Corporation appeal the order of the Jefferson County Circuit Court awarding $2.5 million to Ap-pellee Wanda H. Slater. On appeal, Yan-mar Japan argues at the outset that the order should be reversed and dismissed where the circuit court lacked personal jurisdiction over Yanmar Japan and where substantial evidence did not support the jury determination that it manufactured an unreasonably defective or dangerous tractor or that its failure to install a rollover-protection system (ROPS) caused the death of Rudolph Slater, Appellee’s husband. Yanmar Japan also argues that the circuit court erred in allowing the jury to consider that it had a post-sale duty to warn of the absence of a ROPS or to retrofit the tractor. Yanmar America ar gues that there was not substantial evidence to support the jury’s finding that it was negligent, as it had nothing to do with the manufacture or sale of the tractor and never supplied parts for the tractor. Additionally, both Appellants argue that the circuit court erred with regard to certain evidentiary rulings. This case was certified to this | ¡.court because it involves an issue of first impression and an issue requiring clarification or development of the law; hence, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(b)(1) and (5) (2011). Because the circuit court lacked personal jurisdiction over Yanmar Japan and because the jury’s verdict as to Yanmar America is not supported by substantial evidence, we reverse and dismiss this case.
Rudy Slater purchased a Yanmar YM2000 tractor from Chris Elder Enterprises, Inc., on September 28, 2004. The tractor had been manufactured in 1977 by Yanmar Japan and sold to Koide Agricultural Equipment Co., Ltd., an authorized Yanmar distributor in the Toyama Prefecture of Japan. At the time of its manufacture, the tractor was equipped with a rotary tiller. In 2003, some twenty-six years after it was manufactured, and without Yanmar Japan’s knowledge, the tractor came into the possession of a Vietnamese company, Lucky Company, f/k/a Le Chau Company, Ltd.
The tractor was then imported to the United States on January 10, 2004, through the “gray market” and sold to LCI Equipments, Inc., a Texas company. An Le, owner of LCI, regularly purchased tractors from Lucky Company. LCI, in turn, sold the tractor at an auction- in Oklahoma to Chris Elder, owner of Chris Elder Enterprises, Inc. At the time he purchased the tractor, it was equipped with a front-end loader that had apparently been added to the tractor while in the possession of Lucky Company. Mr. Elder then equipped it with |sa bush hog, as the original rotary tiller had been removed at some point. According to Mr. Elder, the tractor looked brand new, as it had new paint, new rear tires, and the hours meter on the tractor was very low. Mr. Elder also stated that the tractor had been refurbished, all the stickers on it were new, and that it did not appear to be a thirty-year-old tractor. On October 4, 2004, just days after Mr. Elder sold the tractor to him, Mr. Slater was using the tractor to mow grass on a slope near a pond on his property when it rolled over, killing him.
Following the death of Mr. Slater, Mrs. Slater and the couple’s son, Barton Slater, filed a wrongful-death action against Yan-mar Japan, Yanmar America, and Chris Elder Enterprises, Inc. A second amended complaint was filed, adding LCI and John Does 1-10 as defendants. In her third amended complaint, Mrs. Slater added Lucky Company as a defendant. She alleged therein claims for fraud, strict liability, breach of implied and express warranties, negligence and negligent failure to warn, violation of the Arkansas Deceptive Trade Practices Act, and violation of the odometer-regulation statutes. She sought both compensatory and punitive damages.
Following lengthy discovery and several motions for summary judgment, the case was tried beginning on October 19, 2009. Of the claims alleged, the jury was ultimately allowed to consider claims for negligence as to Yanmar Japan, Yanmar America, and LCI, and strict liability against Yanmar Japan and LCI. The jury returned a verdict in favor of Mrs. Slater, |4finding in her favor on each of the aforementioned counts and awarding her damages in the amount of $2.5 million. The jury apportioned fault as follows: Yanmar Japan, 39%; Yanmar America, 25%; LCI, 29% and; Mr. Slater, 7%.
The circuit court entered judgment accordingly, and the Yanmar defendants appealed to the Arkansas Court of Appeals. The court of appeals dismissed the appeal without prejudice because some of the claims remained outstanding. Yanmar Co. v. Slater, 2011 Ark. App. 167, 2011 WL 715972. After obtaining a final order from the circuit court, the Yanmar defendants again appealed and, as previously stated, the appeal was transferred to this court.
I. Yanmar Japan
The first issue we consider is Yan-mar Japan’s argument that the circuit court lacked personal jurisdiction over it and, thus, erred in denying its motion for a directed verdict. Specifically, Yanmar Japan argues that there was no substantial evidence to support the conclusion that it had the requisite contacts with the State of Arkansas to subject it to suit here. According to Yanmar Japan, the judgment against it should be reversed and the case dismissed. Mrs. Slater counters that the evidence demonstrates that Yanmar Japan had continuous and systematic contacts with Arkansas that satisfied the finding of personal jurisdiction. Further, Mrs. Slater argues that Yanmar Japan waived its objection to personal jurisdiction when it voluntarily invoked the power of the court by seeking contribution, indemnity, and a judgment against codefendant LCI. We review the circuit court’s finding of jurisdiction under our clearly erroneous standard of review. John Norrell Arms, Inc. v. Higgins, 332 Ark. 24, 962 S.W.2d 801 (1998).
|sWe begin our analysis with a review of this state’s long-arm statute. Under prior law, a court of this state could exercise personal jurisdiction over a nonresident defendant through the long-arm statute when there was a cause of action arising from the person transacting any business in this state, contracting for services or things in this state, causing tortious injury in this state, owning real property in the state, as well as other grounds. See Ark. Code Ann. § 16-4-101(0 (repealed 1995). But, that statute was amended by Act 486 of 1995, and is now limited only by the constraints imposed by the Due Process Clause of the Fourteenth Amendment. Arkansas’s long-arm statute now reads in relevant part:
PERSONAL Jurisdiction. The courts of this state shall have personal jurisdiction of all persons, and all causes of action or claims for relief, to the maximum extent permitted by the due process of law clause of the Fourteenth Amendment of the United States Constitution.
Ark.Code Ann. § 16^-101(B) (Repl.2010).
We recently explained in Gibbs v. PrimeLending, 2011 Ark. 255, 381 S.W.3d 829, that unlike some long-arm statutes, and unlike previous versions of Arkansas’s long-arm statute, the current statute does not limit the exercise of personal jurisdiction to certain enumerated circumstances. Rather, the exercise of personal jurisdiction is limited only by federal constitutional law. Accordingly, “this court now looks only to Fourteenth Amendment due pro cess jurisprudence when deciding an issue of personal jurisdiction.” Davis v. St. John’s Health Sys., Inc., 348 Ark. 17, 23, 71 S.W.3d 55, 58 (2002).
We turn now to that due-process jurisprudence. The seminal case on the issue of personal jurisdiction is International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), wherein the United States Supreme Court first articulated the minimum-contacts test as a way to establish | ¿jurisdiction over a defendant not physically present in the state. The touchstone principle announced by the Court in International Shoe is that due process requires “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Id. at 316, 66 S.Ct. 154 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). The Court in International Shoe looked to the nature of the contacts that the nonresident defendant had with the forum state, explaining that attention must be paid to the “quality and nature” of those contacts, and also to whether that defendant through those contacts enjoyed the “benefits and protection” of the laws of the foreign state. Id. at 319, 66 S.Ct. 154. The Court further acknowledged that there may be situations in which a nonresident-defendant’s contacts with a forum state may be so substantial and continuous as to justify jurisdiction over that defendant, even though the cause of action is “entirely distinct from those activities.” Id. at 318, 66 S.Ct. 154.
The Supreme Court has revisited the law on personal jurisdiction since the holding in International Shoe. Notably, the Court held in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), that a nonresident defendant’s contacts with a forum state must be sufficient to cause the defendant to “reasonably anticipate being haled into court there.” “This ‘purposeful availment’ requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)). And, of significance to the instant case, the Supreme Court in Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), explained the distinction |7between the two types of personal jurisdiction: general and specific. There, the Court stated that when a cause of action arises out of or is related to a defendant’s specific contacts with the forum state, the exercise of personal jurisdiction is one of specific jurisdiction. Id. However, if the exercise of jurisdiction arises in a case not stemming from the defendant’s contacts with the forum state, the exercise of personal jurisdiction is one of general jurisdiction. Id. When general jurisdiction is in question, a defendant may be subject to the forum state’s exercise of personal jurisdiction if generally its contacts with the state are continuous, systematic, and substantial. Id.
Here, there is no dispute that the type of jurisdiction at issue is general. Thus, the question for this court is whether the circuit court correctly exercised general jurisdiction over Yanmar Japan. In finding that it had personal jurisdiction over Yanmar Japan, the circuit court ruled as follows:
Until 1991, Yanmar Japan manufactured and distributed for sale in the United States a Yanmar brand of tractor. The tractors were sold through Yanmar America, a subsidiary of Yan-mar Japan. The facts presented indicate that replacement parts for the trac tors it manufactured and sold in the United States market can be purchased in. Arkansas through authorized Yanmar distributors conducting business in the state of Arkansas. Yanmar [America] admits that its annual business dealings within the state of Arkansas are approximately $10,000.00 a year.
Yanmar Japan admits that it manufactured the tractor which is the subject of the lawsuit but alleges that this particular tractor was never intended to be sold in the United States. Yanmar Japan explains that the sale of its Japanese market tractors in the United States has been given the name “gray market” tractors. In fact, Yanmar Japan has known about the “gray market” for years and has taken steps to warn United States consumers of the problems with the use of these tractors.
Yanmar Japan and Yanmar America enjoy a symbiotic relationship. Yanmar Japan is the manufacturer of the tractor in question. Yanmar Japan has sold tractors |sand continues to sell tractor replacement parts through Yanmar America and its distributors in the United States, including the state of Arkansas.
When looking at the totality of circumstances, the “minimum contacts” requirement has been met as described in Meachum [v. Worthen Bank and Trust Co., 13 Ark.App. 229, 682 S.W.2d 763, cert. denied, 474 U.S. 844, 106 S.Ct. 132, 88 L.Ed.2d 108 (1985) ]. Applying the analysis in Anderson v. Dassault Aviation, 361 F.3d 449 (8th Cir.2004), Yan-mar Japan through its subsidiary, Yan-mar America, reaps the benefits of the sale of its products in the state of Arkansas and due process is not violated by exercising jurisdiction over these corporations.
In reviewing the circuit court’s findings on the issue of jurisdiction, it appears that the circuit court determined that jurisdiction existed because Yanmar Japan had sufficient contacts with the state and because there existed a “symbiotic” relationship between Yanmar Japan and Yanmar America. We will examine first Yanmar Japan’s contacts with this state.
The evidence adduced here is as follows. Yanmar Japan is incorporated and has its principal place of business in Japan. It is undisputed that Yanmar Japan is not authorized to do business in Arkansas, nor does it have an agent for service of process in Arkansas. Likewise, it does not have any offices, employees, assets, bank accounts, or property in Arkansas. But, until 1991, Yanmar Japan did sell its tractors in the United States, although it no longer does so. Yanmar America, which is a subsidiary of Yanmar Japan, sells parts for authorized Yanmar tractors in the United States. Its primary place of business is Illinois. In its answers to discovery, Yanmar America admitted that it has, and continues to, sell Yanmar parts in Arkansas and has authorized dealers in this state.
Mrs. Slater relies on Yanmar Japan’s past contacts with the state, as well as its subsidiary’s current connection to the state through its selling of Yanmar parts, to support a finding of sufficient minimum contacts. She argued below, and to this court, that Yanmar 19Japan previously had significant contacts with Arkansas, as it used to sell Yanmar tractors in Arkansas until 1991, and it used to manufacture tractors and component parts for John Deere tractors that were sold in Arkansas. In support of her position, she cites to the Alabama Supreme Court’s decision in Smith v. Yanmar Diesel Engine Co., 855 So.2d 1039 (Ala.2003), a case involving a Yanmar gray-market tractor:
The issue presented in Yanmar’s motion was whether it had “such contacts with Alabama that it ‘should reasonably anticipate being haled into court [here].’ ” The resolution of this issue requires a penetrating analysis of the “quality and quantity of [those] contacts.”
Yanmar stipulated that it “sold and continues to sell genuine Yanmar parts in Alabama through authorized Yanmar dealers in Alabama.” This is a broad, general assertion that suggests the possibility, at least, of substantial contacts with Alabama. Depending on the pervasiveness of those sales and related activities, such contacts could well constitute the sort of “continuous and systematic” activity necessary to confer on Alabama courts general jurisdiction. In other words, the stipulation essentially conceded the existence of a genuine issue of material fact, making a summary judgment inappropriate.
This concession obviated Smith’s burden to produce evidence to establish a factual dispute. Otherwise stated, because Yanmar failed to “make a prima facie showing that there is no genuine issue of material fact,” the burden never shifted to Smith, the nonmovant, to “establish a genuine issue of material fact.” The trial court erred, therefore, in entering the summary judgment for Yan-mar.
Id. at 1043 (citations omitted).
We find the Smith case to be unavailing. First, the decision there seems to be based on the case’s procedural posture, in that the court found that the burden never shifted to Smith to establish evidence that Yanmar had contacts with the state. That is not the situation now before us.
| inSecond, we find the Alabama court’s analysis to be contrary to the United States Supreme Court’s recent decision in Goodyear Dunlop Tires Operations v. Brown, — U.S.-, 181 S.Ct. 2846, 180 L.Ed.2d 796 (2011). In that case, the Court was presented with the issue of whether a foreign subsidiary of a United States parent company was amenable to suit in state court on claims unrelated to any activity of the subsidiary in the forum state. In addressing the issue, the Supreme Court noted that the North Carolina Court of Appeals had improperly blended general- and specific-jurisdiction inquiries to reach the conclusion that it had personal jurisdiction over a foreign subsidiary, where some of the products made abroad by the subsidiary had reached North Carolina through “the stream of commerce.” Id. at 2851 (quoting Brown v. Meter, 199 N.C.App. 50, 681 S.E.2d 382, 394-95 (2009)). In reversing, the Supreme Court held that such a limited connection between the forum and the foreign corporation was an inadequate basis for the exercise of general jurisdiction, as it “d[id] not establish the ‘continuous and systematic’ affiliation necessary” to confer jurisdiction. Id. at 2851. The Court further explained that while the flow of a manufacturer’s goods into the forum may support an affiliation pertinent to specific jurisdiction, it does not warrant a determination that, based on those ties, the forum has general jurisdiction. Id. According to the Supreme Court, “[u]nder the sprawling view of general jurisdiction urged by respondents and embraced by the North Carolina Court of Appeals, any substantial manufacturer or seller of goods would be amenable to suit, on any claim for relief, wherever its products are distributed.” Id. at 2856.
lnClearly, under the holding in Goodyear, we cannot consider Yanmar America’s distribution of parts in this state as somehow conferring general jurisdiction over Yanmar Japan. It is simply not enough that Yanmar Japan used to sell tractors in Arkansas or that it has a subsidiary that distributes parts in this state. The circuit court in this case engaged in the “sprawling view of general jurisdiction” that the Supreme Court rejected in Goodyear in concluding that it had general jurisdiction over Yanmar Japan. As the Supreme Court explained, the “purposeful availment” requirement ensures that a “defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.” Rudzew-icz, 471 U.S. at 475,105 S.Ct. 2174. While Arkansas certainly has an interest in providing its residents a forum to adjudicate claims, we cannot ignore the confínes of the Due Process Clause. In sum, there was no evidence to establish that Yanmar Japan had the requisite minimum contacts with this forum to warrant the exercise of general jurisdiction, and the circuit court’s finding to the contrary was clearly erroneous.
This brings us to the court’s alternate basis for the exercise of jurisdiction, the symbiotic relationship between Yanmar Japan and Yanmar America. In concluding as it did, the circuit court relied on the Court of Appeals for the Eighth Circuit’s decision in Anderson v. Dassault Aviation, 361 F.3d 449 (8th Cir.2004). There, a foreign defendant, Dassault Aviation, was held subject to personal jurisdiction in an Arkansas federal court based on the contacts of Dassault’s corporate subsidiary, Dassault Falcon Jet, which is located in Arkansas. The parent corporation manufactured jet aircraft that were later sold in this country by the subsidiary. Id. Though the parent corporation itself was not directly present doing business |12in Arkansas, the Eighth Circuit nevertheless concluded that the subsidiary’s contacts could be attributed to the parent. Id. The two corporations had a “close, synergistic relationship that is not an abuse of the corporate organizational form, but is clearly relevant to the jurisdictional question.” Id. at 453. The court pointed to such facts as the two corporations used the same name and logo and purposefully “unif[ied] the efforts of both Dassault Aviation and Dassault Falcon Jet to create this brand and logo image.” Id. at 454. The court concluded that jurisdiction over the foreign parent corporation was proper where it had a “clear awareness of and interest in its subsidiary’s substantial operations in Arkansas.” Id. at 453.
But, more recently, in Viasystems, Inc. v. EBM-Papst St. Georgen GmbH & Co., KG, 646 F.3d 589 (8th Cir.2011), the Eighth Circuit revisited its decision in Anderson and cautioned against a misapplication of that decision. In Viasystems, the Eighth Circuit explained that determining whether a parent purposefully directed products at a forum state and attributing the conduct of a subsidiary to a parent within a given forum should be “conceptually separate” inquiries. Id. at 596. The Eighth Circuit opined that attribution of subsidiary conduct to a parent entity for jurisdictional purposes requires a degree of parental control and domination. Id. Although not quantifying the degree of parental control and domination required, the Eighth Circuit equated the parental relationship necessary to attribute the conduct of a subsidiary to its parent corporation with the alter ego relationship required by Epps v. Stewart Information Services Corp., 327 F.3d 642 (8th Cir.2003). Specifically, the court pointed to its holding in Epps that jurisdiction over a nonresident parent corporation can be based on the actions of a resident subsidiary corporation “only if the parent 11Rso controlled and dominated the affairs of the subsidiary that the latter’s corporate existence was disregarded so as to cause the residential corporation to act as the nonresidential corporate defendant’s alter ego.” Id. at 596 (quoting Epps, 327 F.3d at 649).
Here, the evidence that demonstrated a link between Yanmar Japan and Yanmar America included testimony from Ryan Pott, who works as corporate counsel for Yanmar America. He testified at trial that part of Yanmar America’s website states that the company was founded in 1912 and developed the world’s first diesel engine in 1938, thus, indicating that the two companies share one website. It was undisputed that both companies use the brand name Yanmar. And, there was evidence that the two companies worked together on issues involving trademark litigation for Yanmar tractors.
We agree with Yanmar Japan that this was insufficient proof to show that it dominated and controlled its subsidiary, Yan-mar America, such that personal jurisdiction can be predicated on the relationship between the two companies. We simply cannot say that Yanmar America acted as Yanmar Japan’s alter ego. Moreover, the fact that Yanmar America distributes Yan-mar parts in Arkansas does not satisfy the requirements for personal jurisdiction. See Viasystems, 646 F.3d 589, 597 (explaining that even if a foreign corporation “pours its products” into a regional distributor for distribution in a multistate area, this connection alone is “so limited” that it “is an inadequate basis for the exercise of general jurisdiction”) (quoting Goodyear, — U.S. at-, 131 S.Ct. at 2851). The circuit court’s finding to the contrary was clearly erroneous.
114FinaIIy, we note that Mrs. Slater’s argument that Yanmar Japan waived its jurisdictional argument is unavailing. Yanmar Japan argues that this waiver argument was never raised below and cannot now be raised on appeal. It is correct. Mrs. Slater never argued to the circuit court that Yanmar Japan had waived its objection to personal jurisdiction by alternatively seeking contribution and indemnification. And, thus, we will not consider the merits of this argument. McCourt Mfg. Corp. v. Rycroft, 2010 Ark. 93, 360 S.W.3d 138. Although this court may affirm a circuit court’s decision for an alternative reason on the basis that the circuit court may have reached the right result but the reason stated for the decision is wrong, we will not do so when an issue was never raised below. E.g., Green v. Ferguson, 263 Ark. 601, 567 S.W.2d 89 (1978) (this court refused to consider the appel-lee’s alternative argument raised for first time on appeal). This is so because we must determine the issues upon the record that was made in the circuit court, and issues not raised below cannot serve as the basis for a decision in this court. See Palmer v. Cline, 254 Ark. 393, 494 S.W.2d 112 (1973).
Because there was insufficient evidence to establish personal jurisdiction over Yan-mar Japan, the circuit court clearly erred in finding that it could properly exercise jurisdiction over Yanmar Japan. We therefore reverse and dismiss as to Yan-mar Japan. Having done so, it is not necessary to address Yanmar Japan’s remaining points on appeal.
II. Yanmar America
We turn now to Yanmar America’s arguments on appeal. Yanmar America first argues that the circuit court erred in denying its motion for a directed verdict because there was no | ^substantial evidence to support the jury’s verdict finding it negligent. Specifically, it argues that it had no duty to Mr. Slater, as it did not design, manufacture, sell, or import the tractor. Nor did it assume any duty to Mr. Slater by engaging in activities to prevent gray-market sales. Finally, Yan-mar America argues that it had no post-duty sale to warn Mr. Slater about any dangerous condition or to retrofit the tractor. In addition, it asserts that it did nothing that proximately caused Mr. Slater’s accident.
Our standard of review of the denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence. Nat’l Bank of Ark. v. River Crossing Partners, LLC, 2011 Ark. 475, 385 S.W.3d 754. We reverse only if there is no substantial evidence to support the jury’s verdict, and the moving party is entitled to judgment as a matter of law. Id. Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. ConAgra Foods, Inc. v. Draper, 372 Ark. 361, 276 S.W.3d 244 (2008). It is not our place to try issues of fact; rather, we simply review the record for substantial evidence to support the jury’s verdict. Carr v. Nance, 2010 Ark. 497, 370 S.W.3d 826. In determining whether there is substantial evidence, we view 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 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 a different conclusion. McMickle v. Griffin, 369 Ark. 318, 254 S.W.3d 729 (2007).
|1fiUnder Arkansas law, in order to prevail on a claim of negligence, the plaintiff must prove that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach was the proximate cause of the plaintiffs injuries. See Branscumb v. Freeman, 360 Ark. 171, 200 S.W.3d 411 (2004); Wilson v. Rebsamen Ins., Inc., 330 Ark. 687, 957 S.W.2d 678 (1997). The burden in a negligence case is always on the party asserting the claim; negligence is never assumed. Morehart v. Dillard Dep’t Stores, 322 Ark. 290, 908 S.W.2d 331 (1995). Negligence may be established by direct or circumstantial evidence, but a plaintiff may not rely on inferences based on conjecture or speculation. Ark. Kraft, a Div. of Green Bay Pkg. v. Cottrell, 313 Ark. 465, 855 S.W.2d 333 (1993). Substantial evidence is not present where a fact-finder is merely given a choice of possibilities that requires the fact-finder to guess as to a cause. Id. The mere fact of an accident does not give rise to an inference of negligence. Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993).
The first issue to look at in determining whether there was evidence of negligence is whether Yanmar America owed any duty to Mr. Slater. This court has stated that the question of what duty, if any, is owed a plaintiff alleging negligence is always a question of law and never one for the jury. Kowalski v. Rose Drags of Dardanelle, Inc., 2011 Ark. 44, 378 S.W.3d 109; Marlar v. Daniel, 368 Ark. 505, 247 S.W.3d 473 (2007). Thus, the law of negligence requires as an essen tial element that the plaintiff show that a duty of care was owed. Young v. Gastrointestinal Ctr., 361 Ark. 209, 205 S.W.3d 741 (2005); Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994). Duty is a concept that arises out of the recognition that relations between individuals may impose upon one a legal obligation for the other. Mar-lar, 368 Ark. 505, 247 S.W.3d 473; see also William L. Prosser, Handbook on the Law of Torts § 42, at 244 (4th ed.1971).
Yanmar America argues that it owed no duty to Mr. Slater because it had nothing to do with the YM2000 tractor and, in fact, was not even in business at the time of its manufacture. Further, Yanmar America did not distribute the tractor, was not involved in the gray market, or with any of the persons responsible for bringing the tractor through the gray market. Yanmar America also asserts that it is a separate and distinct entity from Yanmar Japan and, as such, any negligence of Yanmar Japan cannot be imputed to Yanmar America, either through theories of joint venture or agency. According to Yanmar America, each company had a separate interest in discouraging the sale of gray-market tractors. Yanmar Japan wanted to avoid litigation over tractors never intended for use in the United States, while Yanmar America wanted to protect the brand, and its profits, by remaining the only authorized distributor of Yanmar products. Finally, Yanmar America argues it assumed no duty to Mr. Slater.
Yanmar America is correct that it owed no duty to Mr. Slater. First, Yan-mar America was not even in existence at the time that this tractor was manufactured. Yanmar America had nothing to do with the design, manufacture, or distribution of the tractor. Second, Yanmar America sells parts for authorized Yanmar tractors. It is uncontroverted that Yan-mar America never sold Mr. Slater a part for his tractor. Moreover, we will not impute any duty of Yanmar Japan to Yan-mar America. As we have explained:
All corporations, regardless of the fact that the holders of stock and the officers of the corporation are. identical, are separate and distinct legal entities; and it follows 11sthat, in the absence of facts on which liability can be predicated, one such corporation is not liable for the debts of another. See Mannon v. R.A. Young & Sons Coal Co., 207 Ark. 98, 179 S.W.2d 457 (1944). “The fact that the officers of one corporation are also officers of another does not make the corporations the same, nor the acts of one the acts of the other.” Id. (citing 19 C.J.S., Corporations, § 789, p. 166). “The fact that some of the stockholders in one company had also stock in each of the other companies, and the fact'that the general managers and officers of one company were also general managers and officers of another company, did not make these companies the same corporation, nor the acts of one the acts of the other.” Id. (citing Fort Smith Light & Traction Co. v. Kelley, 94 Ark. 461, 127 S.W. 975 (1910)).
K.C. Props, of Nw. Ark, Inc. v. Lowell Inv. Partners, LLC, 373 Ark. 14, 32-33, 280 S.W.3d 1, 16 (2008). There was simply no evidence to support Mrs. Slater’s theories that Yanmar America was engaged in a joint venture with or acted as an agent for Yanmar Japan such that we will impute any duty or liability to Yanmar America.
Finally, to the extent that an argument may be raised that Yanmar America assumed a duty to Mr. Slater based on the fact that it engaged in activities to prevent gray-market sales, it must fail. This court generally discussed assumption of a duty in Chatman v. Millis, 257 Ark. 451, 517 S.W.2d 504 (1975), wherein we cited with approval from Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275 (1922):
“It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.” Even though Fulfer’s invitation to Du-vall was gratuitous the law required that his conduct be characterized by ordinary care.
Chatman, 257 Ark. at 464, 517 S.W.2d at 512-(quoting Glanzer, 135 N.E. at 276). Thus, even where no duty arises, if a person undertakes to act, they must do so carefully or they may be liable for negligence. Steward v. McDonald, 330 Ark, 837, 958 S.W.2d 297 (1997); Keck v. Am. Emp’t Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983).
ImThis is simply not a case, however, where Yanmar America assumed a duty to Mr. Slater. It did engage in a parts-blocking program and took other measures to notify consumers that Yanmar tractors were being imported into the United States. But, this is not enough to demonstrate assumption of a duty. See Hall v. Rental Mgmt., Inc., 323 Ark. 143, 913 S.W.2d 293 (1996) (landlord did not voluntarily assume a legal duty to protect tenants from the criminal acts of third parties even though it implemented certain security measures to reduce criminal activity on its premises).
Accordingly, because Yanmar America owed no duty to Mr. Slater, it was error for the circuit court to deny its motion for a directed verdict. We reverse and dismiss as to Yanmar America. As such, it is unnecessary to discuss Yanmar America’s remaining points on appeal.
Reversed and dismissed.
. The "gray market” is defined as "[a] market in which the seller uses legal but sometimes unethical methods to avoid a manufacturer's distribution chain and thereby sell goods (esp. imported goods) at prices lower than those envisioned by the manufacturer.” Black's Law Dictionary 1056 (9th ed.2009).
. Mrs. Slater reached a settlement with Chris Elder Enterprises, and the company was then dismissed from the case prior to trial. LCI does not appeal the jury verdict against it. Also named as defendants were Lucky Company and John Does 1-10. Mrs. Slater non-suited her action against Lucky Company, and the John Doe defendants were never served. These parties were also subsequently dismissed from the case, as was Barton Slater. | [
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RAYMOND R. ABRAMSON, Judge.
[Appellant Petrohawk Properties is the lessee on four oil-and-gas leases executed by appellees Isaac Heigle, Lance Heigle, Roy Heigle, and Claude Wallace (the Hei-gles). The leases were signed in May 2005 and provided a primary term of five years with the possibility of extension if certain conditions were met. Shortly after the end of the five-year term, the Heigles sued Petrohawk, seeking a declaration that the leases had expired. Petrohawk responded that its operations on the leased property extended the leases into a secondary term. The circuit court ruled that the leases expired at the end of the primary term. Petrohawk appeals and argues that the court erred in its interpretation. We affirm the circuit court’s ruling.
[¡.The leases covered various properties in Cleburne County. Each lease contained the following habendum clause, which established the term of the lease:
It is agreed that this lease shall remain in force for a term of Five (5) years from the date (herein called primary term) and as long thereafter as oil or gas, or either of them, is produced from said land by the Lessee, and as long thereafter as operations, as hereinafter defined, are conducted upon said land with no cessation for more than ninety (90) consecutive days.
(Emphasis in original.) The lease then defined the term “operations” as follows:
Whenever used in this lease the word “operations” shall mean operations for and any of the following: drilling, testing, completing, reworking, recomplet-ing, deepening, plugging back or repairing of a well in search of or in an endeavor to obtain production of oil, gas, or other minerals, or production of oil, gas, or other minerals, whether or not in paying quantities.
The issues in this case revolve around that portion of the habendum clause that extends the lease term “as long thereafter as oil or gas, or either of them, is produced from said land by the Lessee, and as long thereafter as operations, as hereinafter defined, are conducted....” (Emphasis added.) The Heigles argue that the use of the word “and” means that, in order to extend the lease into a secondary term, the lessee must both conduct operations and produce oil or gas during the primary term and thereafter. Petrohawk argues that the ha-bendum clause affords two alternative means by which to effect an extension: commencement of production or operations during the primary term and continuing thereafter.
IsThe facts are undisputed in all pertinent respects. No gas was produced on the leased property before the end of the five-year lease term. But, in April 2010, just before the expiration of the leases, Petrohawk began clearing a roadway and a well-pad site on the leased land and obtained a drilling permit for a proposed well. The Heigles do not dispute that these activities constituted operations as defined in the lease. Petrohawk then continued its operations beyond the end of the primary term and eventually began producing natural gas.
On June 7, 2010, and July 19, 2010, the Heigles filed a complaint and an amended complaint in Cleburne County Circuit Court, seeking a declaration that the leases expired at the end of the five-year primary term. The Heigles alleged that their leases could not be extended by simply commencing operations during the primary term and then continuing them but required that production of oil or gas also be commenced -within the primary term. They claimed that, because Petrohawk did not commence production during the primary term, the leases expired. Petrohawk answered that its operations, conducted both before and after the end of the primary term, satisfied the conditions necessary to extend the leases.
The issues were presented to the circuit court by cross-motions for summary judgment. Following a hearing, the court ruled that both conditions of the habendum clause — operations and production — must be satisfied in order to extend the lease beyond its primary term and that, because Petrohawk had not produced oil or gas by the expiration of the primary term, the leases expired. Petrohawk now appeals the court’s ruling. Because the parties filed crossjmotions4 for summary judgment and agree on the basic facts, we need only determine if the Heigles were entitled to judgment as a matter of law. Pam’s Inv. Props, v. McCampbell, 2011 Ark. 279, 2011 WL 1425015.
The duration of an oil-and-gas lease is subject to extension if the habendum clause contains a “thereafter” provision. A “thereafter” provision defines those activities that the lessee must conduct both during the primary term and after the primary term in order to keep the lease alive. See 2 W.L. Summers, The Law of Oil and Gas § 14:8 (3d ed.2006). Thus, if a lease states that it is to last five years “and as long thereafter” as oil or gas is produced, production during the primary term is a condition to the extension of the lease. 2 W.L. Summers, The Law of Oil and Gas §§ 14:7 & 14:8 (3d ed.2006); 3 Patrick Martin & Bruce Kramer, Williams & Meyers Oil & Gas Law §§ 604 & 604.1 (Rev. ed.2010). Similarly, if a lease states a term of five years “and as long thereafter” as operations are conducted, operations must begin during the primary term in order to extend the lease. See generally Mize v. Exxon Corp., 640 F.2d 637 (5th Cir.1981); Snowden v. JRE Invs., 2010 Ark. 276, 370 S.W.3d 215; Garner v. XTO Energy, 2011 Ark. App. 606, 2011 WL 4824319.
The habendum clause in the present case contains two thereafter provisions, connected by the word “and.” One provision extends the lease “as long thereafter as oil or gas, or either of them, is produced from said land by the Lessee .... ” The other extends the lease “as long thereafter as operations, as hereinafter defined, are conducted.... ” The word “and” is a conjunctive term. Where two conditions are joined by that term, both must be met in order |sto carry out the meaning of the contract. See Smith v. Farm Bureau Mut. Ins. Co., 88 Ark.App. 22, 194 S.W.3d 212 (2004) (holding that an insurance-policy provision defining a motor vehicle to include a trailer designed for travel on public roads and subject to motor vehicle registration means that the trailer must meet both requirements to fit the definition). See also State Farm Fire & Gas. Co. v. Stockton, 295 Ark. 560, 750 S.W.2d 945 (1988) (holding that a statute requiring an automobile insurer to send notice of cancellation to the named insured and to any bank having a lien on the vehicle means that the notice must be sent to both).
Words of a lease are to be taken and understood in their plain and ordinary sense. Phi Kappa Tau Housing Corp. v. Wengert, 350 Ark. 335, 86 S.W.3d 856 (2002). Here, the word “and” in the ha-bendum clause plainly means that both the production condition and the operations condition must be met in order to continue the lease term. Given the undisputed fact that no production occurred on the leased property during the five-year primary term, we conclude that the leases expired at the end of the five-year primary term.
Petrohawk argues that the language in the present leases is comparable to that in Snowden, supra, and Gamer, supra, in which operations were held to extend the primary term of a lease. In fact, the language in those cases is easily distinguishable. In Snowden and Gamer, the habendum clauses provided that the leases would remain in force for a set number of years and as long thereafter as oil, gas, or other hydrocarbons were produced. A separate provision then stated that “notwithstanding anything contained in this Lease to the contrary,” it was agreed that, if the lessee commenced operations while the lease was in force, the lease would | ^remain in force so long as such operations were prosecuted. The leases in Snowden and Gamer thus expressly contemplated that operations alone could extend the primary term. Significantly, the operations condition in those cases is not linked with the production condition by the word “and,” as in the present case, but is set apart in a distinct provision, described as being operable “notwithstanding” the production condition.
Petrohawk also argues that interpreting “and” in the conjunctive leads to an absurd result. It posits that a lessee that is producing gas at the end of the primary lease term cannot extend the lease unless the lessee is also conducting “operations” on the property, thus leading to the unlikely scenario of a lease expiring while it is still producing. It is true that the word “and” and its disjunctive companion “or” have sometimes been interpreted contrary to their regularly accepted meanings in order to avoid an absurd interpretation in a document or statute. See, e.g., Ortho-McNeil Pharm. v. Mylan Labs., 520 F.3d 1358 (Fed.Cir.2008); City of Dover v. Barton, 337 Ark. 186, 987 S.W.2d 705 (1999); Shinn v. Heath, 259 Ark. 577, 535 S.W.2d 57 (1976). No absurd result occurs here, however. The leases define the term “operations” to include the “production of oil, gas, or other minerals, whether or not in paying quantities.” Thus, a lessee’s production of oil or gas during the primary term would necessarily meet both the production requirement and the operations requirement for extending the primary term. As a result, a producing well would always extend the primary term.
Petrohawk next argues that the intention of the parties is to be gathered not from |7disjointed or particular words and phrases found in the contract but instead from the whole context of the agreement. Gamer, 2011 Ark. App. 606, 2011 WL 4824319. It contends that interpreting “and” in the conjunctive sense results in disharmony with other sections of the lease, such as the force majeure clause, the shut-in clause, and the pooling clause. We disagree.
The pooling clause provides that “operations upon and production from” unitized property shall be treated “as if such operations were upon or such production was from the leased premises.... ” (Emphasis added.) While this clause contemplates that either operations or production might occur on the leased property, or on the property with which it has been pooled, it does not address whether production, operations, or both are required to extend the lease beyond the primary term, as does the habendum clause. Thus, there is no conflict between the pooling clause and the habendum clause. Likewise, the shut-in clause, which states that, in a shut-in situation, the lease shall “continue in force as though operations are being conducted” does not purport to define or specify the circumstances under which the lease shall be extended beyond the primary term.
The force majeure clause does touch on the matter of extending the primary lease |sterm. It essentially provides that, if the lessee “is not conducting operations” by reason of any law, rule, order, regulation, or other cause beyond the lessee’s control, the primary term may be extended for a set period following the removal of the cause of the delay, and the lease “may be extended thereafter by operations as if such delay had not occurred.” Petrohawk insists that it is incongruous to interpret the habendum clause as requiring both production and operations in order to extend the lease when the force majeure clause permits an extension by operations alone. We see no incongruity. The force majeure clause recognizes that a lessee that is “not conducting operations” due to events beyond its reasonable control should be allowed to extend the lease term by “operations” once the cause of the delay is removed. The habendum clause, by contrast, makes it clear that, in the ordinary course of events where outside forces do not delay the lessee’s activities, the lessee may only extend the lease where operations and production have occurred during the primary term.
Petrohawk also argues that the Heigles executed “paid-up” leases, meaning that any delay rentals were fully paid in advance, and they therefore implicitly agreed that the lease might continue even if production were not achieved during the primary term. While the leases in this case are of the paid-up variety, Petrohawk cannot escape the fact that the plain language of each lease’s habendum clause requires, as conditions for extension of the lease, that the lessee commence production and operations during the primary term.
Finally, Petrohawk appears to argue that the circuit court erred by not making specific findings of fact, pursuant to Ark. R. Civ. P. 52(a) (2011). This case was decided on motions |9for summary judgment. Findings of fact and conclusions of law are unnecessary on decisions of motions. Id.
Affirmed.
WYNNE and BROWN, JJ., agree.
. The Heigles executed the leases with Petro-hawk's predecessor, Gaslight Exploration, LLC.
. Isaac Heigle leased the rights to 34.24 acres in Section 4, Township 9N, Range 10W; Lance Heigle to 60 acres in Section 4, Township 9N, Range 10W; Roy Heigle to 80 acres in Section 4, Township 9N, Range 10W; and Claude Wallace to 76.707 acres in Sections 4, 30, & 31, Townships 9 & 11N, Ranges 9 & 10W.
. The amended complaint named three defendants, but the defendants other than Petro-hawk were dismissed by court orders.
. A clause generally relieving the lessee from the harsh termination of the lease due to circumstances beyond its control that would make performance untenable or impossible, such as acts of God. 38 Am.Jur.2d Gas & Oil § 91 (1999).
. A well is shut in where it is capable of paying production but is unable to produce for want of a market, such as where a pipeline to the well has not been connected. 3 Patrick Martin & Bruce Kramer, Williams & Meyers Oil & Gas Law § 631 (Rev. ed.2010).
.A clause that allows the lessee to operate separately owned tracts as a unit. 2 W.L. Summers, The Law of Oil and Gas § 14:38 (3d ed.2006). | [
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JOHN B. ROBBINS, Judge.
_JjThis is a case involving the mineral rights to two tracts of property in Van Burén County. The appellants are Ronald E. Mauldin and Pamela D. Mauldin, and they own title to the surface of both tracts. The Mauldins filed a complaint against appellees Danny Snowden, Sheila Snow-den, Darrell K. Flory, Martha K. Flory, Petrohawk Operating, Inc., and Chesapeake Exploration, LLC, requesting a judgment against the defendants for title in the minerals. After a bench trial, the Van Burén County Circuit Court entered an order and an amended order in favor of the defendants, thus denying the Mauldins’ claim to the mineral rights. The Mauldins now appeal from those orders, and we affirm.
12Our standard of review on appeal from a bench trial is not whether there was substantial evidence to support the finding of the circuit court, but whether the circuit court’s findings were clearly erroneous or clearly against the preponderance of the evidence. See Omni Holding & Dev. Corp. v. C.A.G. Invs., Inc., 870 Ark. 220, 258 S.W.3d 374 (2007). A finding is clearly erroneous when, although there is evidence . to support it, the reviewing court on the entire evidence is left with a firm conviction that an error has been committed. See id. Facts in dispute and determinations of credibility are within the province of the fact-finder. Duke v. Shinpaugh, 375 Ark. 358, 290 S.W.3d 591 (2009).
The historical facts of this case are as follows. On April 1,1992, Danny Snowden and Sheila Snowden acquired title in fee simple absolute, surface and minerals, to the South 1/2 of the Southwest 1/4 of Section 17, Township 11 North, Range 15 West, in Van Burén County.' On March 8, 1993, the Snowdens executed and recorded a mineral deed conveying their rights to the minerals under that property to Ce-nark Oil and Gas Company, a corporation owned by the Snowdens.
On September 3, 1997, the Snowdens acquired title to the surface only of the Northwest 1/4 of the Southwest 1/4 of Section 17. At the time the Snowdens acquired title to the surface of that property, Cenark held record title to one-half of the underlying minerals. Also on September 3, 1997, the Snowdens executed and recorded a warranty deed conveying the South 1/2 of the Southwest 1/4 and the Northwest 1/4 of the Southwest 1/4 of Section 17 to Darrell K. Flory and Martha A. Flory. The warranty deed did not reflect a reservation of the mineral interests.
hOn November 20, 2003, the Florys executed and recorded a warranty deed conveying these two tracts of property to the appellants herein, the Mauldins. As with the prior conveyance between the Snow-dens and Florys, the warranty deed between the Florys and Mauldins did not reflect a reservation of mineral interests.
On November 18, 2004, the Snowdens, in their capacity as officers of Cenark, caused Cenark to execute and record a mineral deed conveying Cenark’s mineral interest in the two tracts of land to the Snowdens. On February 22, 2005, the Snowdens executed an oil and gas lease that included both tracts of land, and on December 20, 2005, that lease was assigned to Chesapeake Exploration. On May 31, 2006, the Snowdens executed and recorded a mineral deed conveying all of their mineral interests in the subject properties to JayJon, Inc.
The Mauldins filed their complaint against the appellees on October 20, 2008. In their complaint, the Mauldins claimed that the execution and recording of the 2004 mineral deed from Cenark to the Snowdens triggered the after-acquired title statute, Ark.Code Ann. § 18-12-601 (Repl.2003), which provides:
If any person shall convey any real estate by de,ed purporting to convey it in fee simple absolute, or any less estate, and shall not at the time of the conveyance have the legal estate in the lands, but shall afterwards acquire it, then the legal or equitable estate afterwards acquired shall immediately pass to the grantee and the conveyance shall be as valid as if the legal or equitable estate had been in the grantor at the time of the conveyance.
The Mauldins requested that the trial court enter an order declaring them to be the owners of the mineral rights underlying the two tracts they acquired from the Florys. Alternatively, the Mauldins asserted breach of warranty against the Snowdens and Florys, and prayed for judgment for the fair market value of the minerals under the two parcels. Finally, the RMauldins asked for an order ejecting all of the defendants from the properties and extinguishing any of their claims. After the defendants answered the complaint, the Mauldins filed an amended complaint on February 6, 2009, wherein they named additional defendants including JayJon, Inc.
On February 26, 2009, Chesapeake Exploration filed an answer to the amended complaint, a counterclaim, and a cross-claim against the Snowdens and JayJon for breach of warranty of title. On March 11, 2009, the Florys filed a counterclaim against the Mauldins, wherein the Florys asserted:
(3) The defendants, Darrell K. Flory and Martha A. Flory, and the plaintiffs knew that the Florys likely did not own the mineral rights to the property.
(4) The above-described warranty deed [between the Florys and Mauldins] contained warranties of title. However, the warranties of title should have only been applicable to the surface of the property, and not the mineral rights.
(5) Due to the mutual mistake of the parties to the deed, the above-described warranty deed did not contain the parties’ true intentions regarding warranties of title to the mineral interest associated with the property being conveyed.
WHEREFORE, the defendants, Darrell K. Flory and Martha A. Flory, ask that the above-described deed be reformed to modify the warranty language to exclude any warranties as to mineral ownership, and for all other proper relief.
On May 17, 2010, the Snowdens filed a cross-claim against the Florys, asking that the deed from the Snowdens to the Florys be reformed to convey only surface rights because neither party intended for the deed to convey mineral interests, and asserting that the failure to limit the deed to a conveyance of the surface only was the result of a mutual mistake common to the Snowdens and Florys.
15A bench trial was held on July 16, 2010. On November 18, 2010, the trial court entered an order finding that the Florys’ counterclaim for reformation and the Snowdens’ cross-claim for reformation should be granted. The order recites:
Based on evidence presented in the pleadings and at trial, it is the Court’s opinion that the transaction from the Defendants Snowden to the Cross-Defendants Flory of the land by Warranty Deed without reservation was a mutual mistake and the deed should be reformed to reflect that mistake. Both the Snowdens and the Florys agreed that the transaction would convey the surface interests only, and that no minerals or mineral interests would be conveyed as part of the transactions.... Judgment in favor of the defendants is GRANTED in this case, based on the foregoing reasons. The Deed between Defendants Snowden and Flory should be reformed to reflect a reservation of mineral interests.
The Mauldins filed a timely notice of appeal from the trial court’s order, and on December 29, 2010, the Mauldins filed a motion for reconsideration pursuant to Ark. R. Civ. P. 60(a). On January 4, 2011, the Florys answered the Snowdens’ motion for reconsideration, asking the trial court to clarify that there was also a mutual mistake in the transaction between the Florys and Mauldins, and asserting that the deed between those parties should be reformed. On January 26, 2011, the trial court entered an amended order that was materially identical to the first order with the additional finding that there was also a mutual mistake in the transaction between the Florys and Mauldins, and that that deed should also be reformed to reflect a reservation of the mineral interests. The Mauldins timely appealed from the trial court’s amended order.
Danny Snowden was the first to testify at the bench trial. Mr. Snowden recalled that during the 1997 transaction with the Florys, he told Mr. Flory that the mineral rights had been severed and Mr. Flory understood from their conversation that he was not getting the | fimineral rights. Mr. Snowden testified that he did not intend for the mineral rights to go with the property, and that the Florys gave no consideration for the mineral rights. Mr. Snowden testified that he began assessing the mineral rights separate from the surface rights before he sold the property to Mr. Flory, and that he has continued to assess and pay taxes on the mineral rights since that time. Mr. Snowden asked the court to reform the Snowdens’ deed to the Flo-rys to show that the minerals did not go with the property, and that only the surface rights were conveyed.
Mr. Flory testified that he bought the property from the Snowdens in 1997 for the purpose of cutting and selling timber. Mr. Flory maintained that Mr. Snowden told him that the minerals did not convey, and Mr. Flory stated that he never thought he owned the minerals. Mr. Flory stated that he purchased the property at issue for $54,000, sold timber for $9000, and subsequently sold the property to the Mauldins for $84,000. Mr. Flory testified that, prior to closing on the conveyance to the Mauldins, he told Mr. Mauldin that he did not own the minerals and did not know who owned the minerals, and that Mr. Mauldin advised that he would check into it. Mr. Flory stated that there was not any doubt that he did not own the minerals, and that he recalled receiving a letter from Mr. Mauldin after closing wherein Mr. Mauldin acknowledged that he (Mr. Mauldin) did not own the minerals. While Mr. Flory gave the Mauldins a warranty deed with no reservations, he said that he would not have signed the deed had he known he was warranting title to the minerals. As far as Mr. Flory was concerned, the warranty deed to the Mauldins was a mistake.
|7Mr. Mauldin testified that during his conversations with Mr. Flory, Mr. Flory never told him that he did not have the mineral rights. Mr. Mauldin stated that he thought he owned the mineral rights until he unsuccessfully attempted to execute a mineral lease sometime later. Mr. Mauldin stated that he bought the property for hunting and leisure, and he acknowledged that he probably would have bought the property without regard to the minerals, although he suggested that he probably would not have paid as much. Mr. Mauldin stated that he did not make any investigation as far as the minerals were concerned prior to buying the property. He did acknowledge, however, that the lady who closed the transaction indicated at the closing that, for at least one of the two tracts, the minerals were not part of the conveyance.
In this appeal, the Mauldins challenge the trial court’s ruling that they are not entitled to ownership of the mineral interests in the subject properties. The Maul-dins’ first argument is that the trial court erred in refusing to enforce Ark.Code Ann. § 18-12-601 (Repl.2003), which is the after-acquired title statute. Appellants contend that the undisputed facts in this case established that the after-acquired title statute applies and that pursuant to that statute, record title to the minerals passed to the Mauldins immediately upon recording of the 2004 mineral deed from Cenark to the Snowdens. The Mauldins rely on Peterson v. Simpson, 286 Ark. 177, 690 S.W.2d 720 (1985), where our supreme court said that in the United States, the recording system is the only method we have for keeping track of the ownership of mineral rights. When fairness to individual parties and preservation of a viable recording system are in conflict, preservation of the recording system, being more important, must | ^control. Id. The Maul-dins submit that the preservation of a viable recording system must prevail over a subjective inquiry into what the parties intended, and that the decision of the trial court must therefore be reversed.
The Mauldins’ remaining two arguments are that the trial court erred in awarding an equitable remedy on the facts of this case and, more particularly, that the proof did not support the trial court’s finding of reformation. Appellants cite Lawrence v. Crafton, 2010 Ark. App. 231, 374 S.W.3d 224, where we discussed the equitable remedy of reformation and wrote:
Reformation is an equitable remedy that is available when the parties have reached a complete agreement but, through mutual mistake, the terms of their agreement are not correctly reflected in the written instrument purporting to evidence the agreement. A mutual mistake is one that is reciprocal and common to both parties, each alike laboring under the same misconception in respect to the terms of the written instrument. A mutual mistake must be shown by clear and decisive evidence that, at the time the agreement was reduced to writing, both parties intended their written agreement to say one thing and, by mistake, it expressed something different. Whether a mutual mistake warranting reformation occurred is a question of fact. Even in reformation cases, where the burden of proof is by clear and convincing evidence, we defer to the superior position of the trial judge to evaluate the evidence, and the proof need not be undisputed.
Lawrence, 2010 Ark. App. 231, at 2-3, 374 S.W.3d at 228.
The Mauldins assert that, in this case, the equities are against the Snowdens. Appellants maintain that the proof established that the Snowdens lacked diligence beginning in 1997 when they executed a warranty deed to the Florys with knowledge that they did not own the minerals. Appellants contend that the Snowdens could have easily avoided the problem they now confront by simply making sure they were not conveying something that they knew they did not own. Appellants further assert that the Snowdens again displayed a lack of vigilance |flby executing the mineral deed from Cenark back to themselves in 2004, thereby triggering application of the after-acquired title statute. The Mauldins contend that the Snowdens could have protected themselves by not executing that mineral deed or by filing a reformation claim sometime earlier than 2010. Appellants argue that equity is not available to those who have not acted with reasonable diligence, and thus it was not available to the Snowdens under these circumstances.
The Mauldins also contend that reformation should not have been granted on these facts because, at most, there was a unilateral mistake by only the Snowdens regarding their transaction with the Florys. Appellants assert that Mr. Flory’s testimony was garbled and equivocal on the issue of whether he thought he was acquiring the mineral rights from the Snowdens when the 1997 deed was executed. Appellants argue that, because Mr. Flory never formed any particular intent on that issue, there was no mutual mistake and thus a lack of evidence to support a claim for reformation.
We hold that the trial court’s decision reforming both the 1997 deed from the Snowdens to the Florys and the 2003 deed from the Florys to the Maul-dins, to reflect the reservation of mineral interests, was not clearly erroneous. Reformation occurs when an instrument does not reflect the terms intended by the parties to the instrument, and the court revises the terms of the instrument to reflect the parties’ intent. Roberson Enterprises, Inc. v. Miller Land & Lumber Co., 287 Ark. 422, 700 S.W.2d 57 (1985). In the present case it, is evident that Mr. Snow-den knew in 1997 that he had no mineral rights to convey because he had previously conveyed his mineral interests to Cenark, and Mr. Snowden testified that he |10did not intend for the mineral rights to convey to the Florys. Moreover, Mr. Snowden testified that no consideration was given for the mineral rights and that he told Mr. Flory that Mr. Flory was not receiving the mineral rights. Contrary to appellants’ argument, Mr. Flor/s testimony was consistent with that notion because he stated that he never thought he owned the minerals and that “I am sure Mr. Snowden said they didn’t convey.” Moreover, Mr. Flory testified that, when he conveyed the property to the Mauldins in 2003 (at a far lower purchase price than Mr. Flory paid in 1997), he told Mr. Mauldin that he did not own the minerals and that they both understood that the mineral rights did not convey. While Mr. Mauldin disputed that fact, this was a credibility decision for the trial court. There was testimony from which the trial court could conclude, by clear and decisive evidence, that mutual mistakes tainted both conveyances and that in each case the respective parties intended a reservation of the mineral rights.
Contrary to the Mauldins’ contention on appeal, the after-acquired title statute did not operate to convey them the mineral rights when Cenark conveyed its mineral rights to the Snowdens in 2004. Our supreme court in Mason v. Jarrett, 218 Ark. 147, 234 S.W.2d 771 (1950), held that, upon the reformation of an instrument, the general rule is that it relates back to, and takes effect from, the time of its original execution, especially as between the parties thereto and purchasers with notice. Inasmuch as the Mauldins were parties to the 2003 deed that was reformed to reserve mineral rights, its reformation relates back to the date of the deed’s execution. Once the deeds were reformed, there was no mineral title to pass under | Hthe after-acquired title statute. Therefore, the trial court committed no error in denying the Mauldins’ claim to the mineral interests.
Affirmed.
WYNNE and GLOVER, JJ., agree. | [
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WAYMOND M. BROWN, Judge.
| Appellant Johnnie Williams appeals from a decision of the Arkansas Workers’ Compensation Commission (Commission) denying the compensability of his back injury. Williams argues on appeal that the Commission failed to perform a proper de novo review of the record, which resulted in it making erroneous factual findings upon which it expressly relied in reaching its decision. We affirm.
The administrative law judge (ALJ) determined that Williams failed to prove that he suffered a work-related injury to his back on July 7, 2009. The Commission, after performing a de novo review, adopted and affirmed the opinion of the ALJ. This appeal followed.
When an appeal is taken from the denial of a claim by the Workers’ Compensation Commission, the substantial-evidence standard of review requires that we affirm the decision [2if the Commission’s opinion displays a substantial basis for the denial of relief. In determining the sufficiency of the evidence to support the findings of the 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 those findings are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It is the Commission’s function to determine the credibility of witnesses and the weight to be given their testimony. Further, the Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict.
Williams had worked as a heavy equipment operator for appellee Hot Springs Excavating Company (HSEC) since 1991. Williams allegedly suffered a back injury while performing excavating work on July 7, 2009, on the property of Chester Shaw. Williams was seen by nurse practitioner Jacqueline Laper on July 13, 2009. The progress notes from that date indicate that Williams presented complaining of “excruciating left hip pain,” which started “about a week and a half ago.” The note further stated that there was no history of injury and that Williams had “been having intermittent numbness in his left hand and foot 1 ¡¡since 12/08.” Williams was assessed with left-hip pain with no known injury. Williams was given pain medication and told that if there was no resolution in his pain, he may need to be hospitalized. Williams returned on July 14 stating that the pain medication he received the day before did not work and that he could not take the pain. He also complained of nausea. He was subsequently hospitalized at HealthPark Hospital. The pre-admission history indicated that Williams suffered from left-hip pain after being on a track-hoe all day approximately a week and a half ago. The history also stated that Williams denied any back pain. An MRI was performed on Williams’s back, which showed left foraminal disc herniation at L4-5 with effacement of the left L4 nerve root sheath and probable small annular tear at L5-S1.
Williams presented to Dr. Michael Young on July 16, 2009, with complaints of back and leg pain. Dr. M. Young opined that Williams might benefit from surgical intervention. Williams saw Dr. Andrew Young on July 17, 2009. Dr. A. Young planned to continue treating Williams conservatively. However, Dr. A. Young indicated that if conservative treatment failed to provide Williams with relief, surgery would be the next step. Dr. James Arthur performed surgery on Williams’s back on July 23, 2009. Dr. Arthur released Williams to work as of August 31, 2009.
Williams testified that on July 7, 2009, at approximately 3:30 p.m., he was on an incline clearing brush that had previously been cut down by loggers. He said he put the D-5 dozer he was operating in reverse and hit a stump approximately three-feet tall. Williams stated that the dozer came to a “dead stop,” and he immediately felt a sharp pain in his back. He described the pain as “like a knife sticking in [his] back.” Williams stated that he got off |4of the dozer and “kind of stood there” to make sure he was not hurt badly. He said that he thought he was experiencing the normal aches and pains that come with running heavy equipment. Williams stated that he decided against telling anyone about his injury because if he went home, he would not get paid. He said that he got his trackhoe, dug up the stump, and put it in the pile of brush that he had made. He testified that he finished work that day; however, he said that when he got home, he took an aspirin and placed a heating pad on his back. Williams stated that he finished out his work week (Monday-Thursday), even though it felt as if his back pain “progressed into something worse.” He testified that on Friday, July 10, he could hardly move. He called his doctor, Dr. Andrew Grose, and was prescribed some pain medicine by the nurse practitioner to last him throughout the weekend. Williams said that the medicine did not help his pain so he decided to go see the nurse practitioner on Monday, July 13. He testified that the practitioner, Jacqueline Laper, was the first person he told about his accident. He also stated that she wrote down everything he told her. Williams said that on July 14, 2009, while he was in the hospital, he called Lloyd Wynn and informed him about the injury. According to Williams, Wynn came to see him immediately. Williams also stated that Wynn filled out his paper work concerning the injury.
On cross-examination, Williams stated that he filed a workers’ compensation claim when he injured his ankle in 1997 while working for HSEC. He said that he was seen at “some little day clinic” that same day. He acknowledged that he was “familiar with how to ^process a workers’ comp claim.” Williams testified that he went to Wynn’s office on Thursday night, July 9, 2009, to pick up his check. He continued,
When I went into his office I didn’t say anything about the injury as far as the injury goes, but I went to sit down and talk to [Wynn] and I said “[Wynn], I can’t sit down.” He said something to the effect of “I understand” or something like that, I walked out, went and cashed my check and went home. I didn’t mention my injury.
Williams stated that he never mentioned his injury to Shaw. Williams conceded that even though he had Wynn’s and Shaw’s phone numbers, he never called to inform them about his injury prior to July 14, 2009. Williams denied telling Dr. Grose’s nurse practitioner on July 18, 2009, his pain started a week and a half ago. Williams stated that he took the stump out after he hit it because he did not want anyone else to get hurt.
Wynn testified that he is Shaw’s son-in-law and the vice president of HSEC. He stated that even though business is slow, the company has kept Williams on because he is a good worker. Wynn also said that he had found Williams to be a truthful person in the past.
On cross-examination, Wynn stated that he was not present on July 7, 2009, when Williams allegedly injured his back. On redirect, Wynn stated that he did not remember Williams complaining about having difficulty with his back before July 7. He also said that he has had compression fractures and that he could not drive heavy equipment with the fractures.
On re-cross, Wynn testified that Williams had said something to him about back trouble he was having at the time, but Williams never referred to any injury he had sustained. He also stated that he did not remember Williams mentioning to him that he backed over a stump. According to Wynn, he would have sent Williams for treatment if Williams had | (¡reported an injury to him. Wynn said that he learned of Williams’s injury after Williams had already been admitted to the hospital. On redirect, Wynn said that Williams said something to him on Thursday night about his back being stiff but that he could not remember if he asked Williams any questions about his back.
Wynn told the ALJ that before Thursday night, Williams had not complained about any physical problems with his back that Wynn could recall. Wynn stated that Williams called him on July 14, 2009, saying that he wanted to fill out a workers’ compensation claim for an injury he suffered the previous week. Wynn testified that he went straight to First Arkansas to pick up the forms and went to the hospital where Williams was. Wynn stated that Williams was in a lot of pain when he was at the hospital with Williams. According to Wynn, Williams told him that he was operating a bulldozer and backed over a stump with one of the tracks causing his injury. Wynn said that he took the completed form back to First Arkansas who submitted it to appellee EMC. Wynn testified that he did not know whose decision it was to dispute Williams’s claim.
On re-cross, Wynn stated that Williams told him that his injury took place in the morning and that was why he put morning on the form. Wynn said that Williams had access to call him if Williams needed to report a work-related injury.
On redirect, Wynn stated that he went to work for HSEC as a laborer and worked as a heavy-equipment driver. According to Wynn, “[tjhere are days when you get off of one of those things and your back hurts and you think it is going to get better.”
|7On re-cross, Wynn testified that if the form stated that Williams “backed up, ran over stump, and jarred on landing,” that was what Williams told him.
Shaw testified that he was the previous owner of HSEC. He stated that in July 2009, Williams was on his property re-piling some brush so that Shaw could burn it. Shaw stated that he had daily contact with Williams and denied that Williams ran a bulldozer. According to Shaw, Williams was not physically able to run a bulldozer so he had to run an excavator. Shaw testified that he was present on July 9 and that Williams did not say anything to him about hurting his back that day. Shaw stated that he observed that Williams had been stopping the trackhoe all day long and went to Williams to see what was wrong. According to Shaw, Williams told him that he was taking aspirin and that he had to stop and walk around “every so often.” Shaw stated that when he asked Williams what was wrong with him, Williams replied “I got that Ulm disease my dad had.” Shaw testified that he did not ask Williams what he meant by that. However, he stated that Williams did not indicate any problem with his back. He also said that Williams did not say anything to him about backing over a stump. Shaw testified that there were no stumps on his property because that property had been completely cleared. Shaw stated that he would have taken Williams to the clinic if Williams had come to him and told him about a back injury. Shaw said that there were no stumps on his property close to three-feet tall. Shaw testified that Williams never would have backed into a stump that high because he would have seen it.
On cross-examination, Shaw testified that there are a couple of small stumps on his property that are about four-to-six inches tall. He stated that after Williams reported an injury, | Rhe attempted to find a stump on the brush pile and could not. Shaw said that he walked around the brush piles and looked at them
On redirect, Shaw stated that if Williams had backed a trackhoe or bulldozer over even a six-inch stump, he would have been jarred “pretty hard” and would have nearly been thrown out. He also said that if a three-foot stump had been removed, he would expect to see evidence of it. According to Shaw, there would be holes in the ground after rain. However, he stated that there are no holes in the ground.
Williams was recalled and on redirect, he stated that his father did not have any back problems. He said that his father died from high blood pressure. Williams testified that he was not trying to shake out his back on July 9 but that he was only trying to rest some. He acknowledged that he told Shaw that he had the same disease his father had but insisted that his father did not have any long-term back disease. Williams stated that he was hoping that the back pain he experienced on July 7 would resolve.
On re-cross, Williams stated that the pain he experienced on July 7 was about the same as the pain he had previously experienced while operating heavy equipment, just deeper. He said that he did not know that he was injured that badly. Williams testified that he worked full days the Wednesday and Thursday following his injury.
Williams told the ALJ that he put the good dirt back and packed it after he removed the stump so that there would not be any holes left on the property.
The ALJ issued an opinion on July 10, 2010, denying Williams benefits. The ALJ noted that Williams did not give a history of a work-related injury to any of his initial medical | ¡¡providers. The ALJ also noted that Williams did not inform his employer of any injury until after he was hospitalized and an MRI revealed a herniated disc. The ALJ found Williams’s course of conduct to be inconsistent with his claim in that Williams failed to inform his employer of his injury even though he saw Wynn two days after the alleged injury, and he failed to inform Shaw about his injury, claiming only to have the same disease his father had. The ALJ stated that Williams’s statement to Shaw indicated a pre-existing condition. Williams appealed to the Commission. The Commission affirmed and adopted the decision of the ALJ in an order filed December 2, 2010. This appeal followed.
In its ruling, Commission stated that it had conducted a de novo review of the record and found that the ALJ’s findings of fact and conclusions of law were correct, and specifically adopted those findings. When the Commission affirms and adopts the ALJ’s opinion, we consider both the ALJ’s decision and the Commission’s majority opinion. Here, the ALJ made factual findings regarding the evidence presented during Williams’s hearing, including the testimony and medical evidence. Based on our review, we conclude that the findings of the ALJ were sufficiently detailed to allow us to determine if the Commission decided the case in accordance with the law. We find no error.
Affirmed.
PITTMAN and GLADWIN, JJ„ agree.
. McDonald v. Batesville Poultry Equip., 90 Ark.App. 435, 206 S.W.3d 908 (2005).
. Id.
. Id.
. Whitten v. Edward Trucking/Corporate Solutions, 87 Ark.App. 112, 189 S.W.3d 82 (2004).
. Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000).
. The doctor was out of the office on July 10 and July 13.
. The boss of HSEC.
. Fayetteville Sch. Dist. v. Kunzelman, 93 Ark. App. 160, 162, 217 S.W.3d 149, 151 (2005).z | [
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DOUG MARTIN, Judge.
| Appellant Kendall Davis was charged by felony information with one count of rape by engaging in deviate sexual activity with another person who was less than fourteen years of age. Following his arrest, Davis gave a statement to police in which he admitted that his penis “made contact” with the mouth of his then five-year-old niece. The morning of his bench trial, Davis argued that his statement should be suppressed because, during the questioning by police, he requested an attorney. The circuit court denied his motion, finding that Davis never made a demand or a specific request to see a lawyer. The case was then tried to the court without a jury, and the court found Davis guilty of rape and sentenced him to twenty-five years in prison, with an additional ten years’ suspended imposition of sentence.
Davis filed a timely notice of appeal, and he now raises three points for reversal: (1) the circuit court erred in denying his motion to suppress; (2) the evidence was insufficient | ?to support his conviction; and (3) the circuit court abused its discretion in overruling his hearsay objection to the testimony of the victim’s mother. We find no error and affirm.
Although Davis raises his sufficiency challenge as his second point on appeal, double-jeopardy considerations require us to address it first. Percefull v. State, 2011 Ark. App. 378, 383 S.W.3d 905. In reviewing a challenge to the sufficiency of the evidence, this court views the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Id. We will affirm a conviction if there is substantial evidence to support it, and substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion without resort to speculation or conjecture. Id. A rape victim’s uncorroborated testimony describing penetration may constitute substantial evidence to sustain a conviction of rape, even when the victim is a child. Harlmo v. State, 2011 Ark.App. 314, 383 S.W.3d 447; Elliott v. State, 2010 Ark.App. 809, 379 S.W.3d 101.
Davis was charged with rape under Arkansas Code Annotated section 5-14-103(a)(3)(A) (Repl.2006). This statute provides that 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 ... [t]he penetration, however slight, of the ... mouth of a person by the penis of another person.” Ark. Code Ann. § 5-14-101(1)(A) (Repl.2006).
At trial, the State introduced the testimony of the victim, L.D., Davis’s niece. L.D. was five years old at the time Davis was charged; she was six by the time of trial. L.D. testified that Davis regularly came to her home when she lived in Jones-boro, but he did not Income over anymore because she did not like him. When asked why she did not like Davis, L.D. stated that he “put his pee-pee in [her] mouth.” She explained that, while she was in the bathroom, Davis came in and pulled his pants down and kept her from leaving the bathroom. L.D. also said that Davis touched her “where I used the bathroom in the front.”
L.D.’s mother, Cathy Davis, testified that these events occurred on October 31, 2009. Cathy stated that she and some other family members were standing around and visiting outside her trailer when L.D. went inside to use the bathroom. Davis went inside shortly thereafter, and Cathy and the others went inside after that. Cathy stated that L.D. then came running down the hall, yelling. Cathy said that L.D., who looked scared and frightened, stated that Davis had put his pee-pee in her mouth. Cathy’s husband, Randy Davis (who is the appellant’s brother) also testified that he saw L.D. come running down the hallway and that L.D. told him that Davis had put his pee-pee in her mouth.
In addition, the State introduced the videotaped statement that Davis gave to police following his arrest. In his statement, Davis initially denied having done anything to L.D. Eventually, however, he said that he and L.D. were in the bathroom and he “had [his] penis out” and “ran it across her lips” so that it “made contact briefly on top.” Davis denied putting his penis in L.D.’s mouth but claimed to have “raked the outer part of her lips.” LLater, however, he said that “she may have opened her mouth to breathe or something, but ... it was quick.”
On appeal, Davis argues that there was no evidence that he penetrated the mouth of the victim with his penis. He further contends that his confession was “not a true reflection of the events” and that the other witnesses were not credible. It is the function of the fact-finder, however, and not the reviewing court, to evaluate the credibility of the witnesses and to resolve any inconsistencies in the evidence. Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008); Elliott v. State, 2010 Ark. App. 809, 379 S.W.3d 101. Here, the victim’s testimony, coupled with the defendant’s confession, constituted substantial evidence to support Davis’s rape conviction.
Davis next argues that the circuit court erred when it refused to suppress the statements Davis made during his custodial interrogation. Specifically, Davis argues that, once he asked the investigating officer whether he needed an attorney, the questioning should have ceased.
When reviewing the denial of a motion to suppress evidence, this court conducts a de novo review based on the totality of the circumstances, reversing only if the circuit court’s ruling is clearly against the preponderance of the evidence. Sykes v. State, 2009 Ark. 522, 357 S.W.3d 882; Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147. A statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily. Bell v. State, 371 Ark. 375, 266 S.W.3d 696 (2007).
|fiA defendant may end questioning at any time by unequivocally invoking his right to remain silent. Sykes, supra. Our criminal rules provide that a police officer shall not question an arrested person if that person indicates “in any manner” that he does not wish to be questioned or that he wishes to consult counsel before submitting to any questioning. Ark. R.Crim. P. 4.5 (2009).
When invoking a Miranda right, however, the accused must be unambiguous and unequivocal. Whitaker v. State, 348 Ark. 90, 71 S.W.3d 567 (2002). Furthermore, if a suspect makes a reference to an attorney that is ambiguous or equivocal such that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require cessation of questioning. Sykes, supra; Higgins v. State, 317 Ark. 555, 879 S.W.2d 424 (1994). An equivocal request for counsel does not obligate the police to cease questioning and seek clarification, and interrogation may continue until the suspect clearly requests counsel. Holsombach v. State, 368 Ark. 415, 246 S.W.3d 871 (2007); Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995).
Davis was questioned about his crime by Officer Jeremy Parnell of the Jonesboro Police Department. Prior to the interrogation, Davis signed a “Statement of Rights” form, waived his rights, and averred that he was willing to make a statement and did not want a lawyer at that time. At the outset of the questioning, Officer Parnell had Davis verbally agree that he understood his rights and still agreed to give a statement. As mentioned above, Davis initially denied any wrongdoing. As the interview progressed, however, Davis began questioning the officer about how it would look if he changed his story and said that he felt |fiit would make him “look guilty as hell” if he did so. Parnell said that he could not make any promises or vouch for what the prosecuting attorney would do, but he did comment that he would let the judge know that Davis cooperated. Davis then asked what the possible range of punishment was, and Parnell replied that it was ten to forty years’ imprisonment.
At that point, Davis asked, “How soon can I talk to a lawyer?” Officer Parnell replied,
I mean, it would be — be as soon as— as soon as you get one. I mean, like, I said ... if you want to talk to one — if you want to stop right now we can stop it now and if you bond out you can get one then, or the judge will — like I said, you’ll be coming back here Monday whether you bond out ... or not; if you bond out, you’re still going to come back here Monday and we’ll go over the paperwork and it will either be you’ll get a public defender or you’ll hire your own attorney, and you’ll talk to them once everything gets over there.
Davis then said, “But how ... would it make me look, though, if I just told you all of that stuff before then [and] all of a sudden changed my statement?” The conversation proceeded from there, and Davis never repeated his question or specifically requested an attorney. Moreover, during the suppression hearing, Davis testified that he did not feel that he needed an attorney present when he gave his statement.
The circuit court denied Davis’s motion to suppress his statement, finding that Davis never made a demand or a specific request to see a lawyer “at that time.” The court also found it
very significant that after [Davis] asked that question of the officer and after the officer responded with those options of how an attorney would be obtained, [Davis] did not miss a beat and immediately started resuming his questioning of the officer of how it would make him look if he changed his story.
The court stated that it did not hear Davis say that he wanted an attorney to be with him.
|7The appellate courts have found that statements such as “You’ll furnish me a public defender,” Holsombach, 368 Ark. at 421, 246 S.W.3d at 876; “Do I need to call an attorney,” Flanagan v. State, 368 Ark. 143, 160, 243 S.W.3d 866, 878 (2006); and “Do you think I need an attorney,” Higgins v. State, 317 Ark. 555, 560, 879 S.W.2d 424, 427 (1994), were not unequivocal requests for counsel. Similarly, in Baker v. State, 363 Ark. 339, 214 S.W.3d 239 (2005), the statement “I don’t feel like I can talk with you without an attorney sitting right here to give — have them here to give me some legal advice” was held to be an ambiguous reference to an attorney, after which the defendant continued with the interview; on those facts, our supreme court affirmed the trial court’s denial of Baker’s motion to suppress his statement. Id. at 345, 214 S.W.3d at 243.
Here, Davis’s question — “How soon can I talk to an attorney?” — was not an unambiguous and unequivocal request for an attorney. Moreover, after Davis made that statement, Officer Parnell informed Davis of the process by which he could obtain an attorney’s services, and Davis thereafter continued to talk to Officer Parnell without further referencing his desire for an attorney. Davis’s comments at the beginning of his recorded statement also make clear that he was aware of his Miranda rights and deliberately waived those rights. A reasonable officer in the situation would not have understood that, by saying “How soon can I talk to an attorney?” Davis was clearly and unequivocally invoking his right to counsel. In short, viewing the totality of the circumstances, we conclude that the circuit court did not err in denying Davis’s motion to suppress.
|8In his final point on appeal, Davis argues that the circuit court erred when it allowed Cathy Davis to testify that L.D. told her that Davis had “put his pee-pee in her mouth.” The circuit court allowed the testimony over Davis’s hearsay objection, finding that the child’s statement qualified as an excited utterance. On appeal, Davis argues that Cathy’s testimony — i.e., that L.D. came to her and made the statement within seconds after the event occurred— was in conflict with that of Randy Davis, who said it took longer for the child to come into the room; therefore, Davis maintains, the conflict in the testimony should have rendered the statement inadmissible.
Arkansas Rule of Evidence 803(2) provides an exception to the hearsay rule for excited utterances, regardless of the availability of the declarant. For the exception to apply, there must be an event which startles or excites the declarant. Frye v. State, 2009 Ark. 110, 313 S.W.3d 10; Rodriguez v. State, 372 Ark. 335, 276 S.W.3d 208 (2008). In addition, it must appear that the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive, rather than the product of reflection and deliberation. Frye, supra. The statements must be uttered during the period of excitement and must express the declarant’s reaction to the event. Id. It is within the circuit court’s discretion to determine whether the statement was made under the stress of excitement. Id.
Our supreme court has recognized that there are several factors to consider when determining if a statement falls under the excited utterance exception in Rule 803(2): the lapse of time, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement. Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990) (adopting the factors from the decision in United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980)). In setting out these factors, the supreme court observed that the lapse of time between the startling event and the out-of-court statement, although relevant, is not dispositive. Smith, 303 Ark. 524, 798 S.W.2d 94.
In Frye, supra, the trial court admitted the testimony of the nine-year-old rape victim’s mother that her daughter told her about the abuse the day after it occurred. In that case, the supreme court acknowledged that sexual abuse is a startling event within the meaning of Rule 803(2). Frye, 2009 Ark. 110, at 4, 313 S.W.3d at 13. The court also stated that whether the statement was made under the stress of the excitement of the event rather than after intervening reflection and deliberation is a matter included within the trial court’s discretion to admit or exclude evidence, and the appellate courts will not reverse a trial court’s decision regarding the admission of evidence absent a manifest abuse of discretion. Id. (citing Rodriguez v. State, supra).
In permitting the testimony under the excited-utterance exception to the hearsay rule, the circuit court considered Cathy Davis’s testimony that L.D. had a scared expression on her face; further, the court noted that it appeared that the statement was made “almost immediately following the child’s encounter with Mr. Davis.” Although Davis argues on appeal that there was a conflict in the testimony regarding the lapse in time between the abuse and the child’s statement, any conflict between Cathy Davis’s statement that it was mere “seconds” and Randy Davis’s claim that “minutes” elapsed was a matter of credibility for the trial court to settle. See Washington v. State, 2011 Ark. 872, 2011 WL 4396989 (noting that any conflicts | min the testimony are for the circuit court to resolve, as it is in a superior position to determine the credibility of the witnesses). Moreover, even if “minutes” had elapsed, as Randy Davis testified, the trial court nonetheless did not abuse its discretion in finding that L.D.’s statement was made “under the excitement of the event rather than after intervening reflection and deliberation.” Frye, 2009 Ark. 110, at 4, 313 S.W.3d at 13. Accordingly, Davis’s argument is without merit.
Affirmed.
VAUGHT, C.J., and GLADWIN, J., agree.
. Davis’s hearsay objection to Cathy Davis’s testimony is the subject of Point III of this appeal.
. The videotape was the subject of Davis’s suppression motion, and its introduction is discussed in Point II below. | [
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PAUL E. DANIELSON, Justice.
|2AppelIants Kenneth Joe May; Mary A. May; Michael Bryant; Donna Bryant; Ralph Bryant; Christi Bryant; C.M. Sneed; Carolyn Sneed; E.C. Rowlett Limited Partnership; B.J. McNair; Donna McNair; Danny Snowden; and Shelia Snowden, on behalf of themselves and all other owners of oil and gas royalty and production interests in the state of Arkansas (collectively, “the Taxpayers”), appeal from an order of the White County Circuit Court dismissing their complaint against appellees Debra Akers-Lang, tax assessor of White County, Arkansas; Sue Liles, tax collector of White County, Arkansas; White County, Arkansas; Jeff Stephens, tax assessor of Faulkner County, Arkansas; Steve Simon, tax collector of Faulkner County, Arkansas; Faulkner County, Arkansas; Helen Noll, tax assessor of Conway County, Arkansas; Catherine Bradshaw, tax collector of Conway County, Arkansas; Conway County, Arkansas; Trina Jones, tax assessor of Van Burén County, Arkansas; Lisa Nunley, tax collector of Van Burén County, Arkansas; Van Burén County, Arkansas; Karen Reed, tax assessor of |3Cleburne County, Arkansas; Kathy White, tax collector of Cleburne County, Arkansas; and all other tax assessors, tax collectors, and counties in the state of Arkansas that assess and collect an ad valorem tax on oil and gas royalties (collectively, “the Counties”). The Taxpayers argue that the circuit court erred in finding that their complaint failed to state a claim of illegal exaction under the Arkansas Constitution and, as a result of that finding, dismissing their complaint. We affirm the order of the circuit court.
The Taxpayers are the owners of all or a portion of the oil, gas, and other minerals in, on, and under each of their real property located in the counties party to this lawsuit. On April 1, 2010, the Taxpayers filed a complaint against the Counties, seeking declaratory judgment and injunc-tive relief. The first-amended complaint, adding additional parties, was filed on October 7, 2010.
The Taxpayers asserted the following: (1) the Taxpayers are the owners of all or a portion of the oil, gas, and other minerals in, on, and under their real property; (2) the Taxpayers have leased the oil, gas, and other minerals to third-party oil and gas exploration and production companies that, pursuant to the lease agreements, have installed wells and pipelines on the Taxpayers’ property, or lands unitized therewith; (8) those third-party companies are producing oil or gas from the wells and selling the oil or gas at market value, which fluctuates substantially over short periods of time, to one or more third-party purchasers; (4) the Taxpayers are paid royalties on the oil or gas, or both, that is produced from their properties and lands unitized therewith, while the production companies are paid the remainder of the purchase price of the gas as their “production” or “working interest”; |4(5) the pro duced oil or gas resulting in the royalty and working interest payments is also subject to a severance tax assessed by the State of Arkansas and to income tax assessed by the United States government and the State of Arkansas; (6) the tax assessors of the Counties obtain the amounts of royalty paid on an annual basis by the third-party companies to owners of the oil, gas, and other minerals pursuant to leases under which those companies produce and market oil or gas, and which show the amounts received by the gas exploration and production companies as their “working interests”; (7) the tax assessors of the Counties assess owners and companies an ad valorem tax on behalf of their respective counties by using ah “average contract price” for the sale of the oil or gas derived from the owner’s property; multiplying that price by the “working interest percent”; subtracting therefrom the production expenses (arbitrarily set at 13%), multiplied by a .20 assessment rate to obtain an “Assessment Value per Thousand Cubic Feet (“MCF”) of Average Daily Production (“ADP”)”; (8) the tax assessors of the Counties used the figure of $6.60 per MCF as the average contract price to be used in applying the above-stated formula for assessing the ad valo-rem for the taxable year 2009 and, the Taxpayers believe, beginning in the taxable year 2008; and (9) the “ad valorem royalty tax” is an illegal exaction prohibited by Arkansas Constitution article 16, section 13.
The Taxpayers cited the following reasons for alleging the tax described is an illegal exaction: (1) the assessment of an ad valorem tax on properties from which there is production of oil and gas, without assessment of such ad valorem tax on properties that contain oil and gas but from which there is no production violates the Equal Protection Clauses of Arkansas ^Constitution article 2, section 18, and of the Fourteenth Amendment to the United States Constitution; (2) money paid to the Taxpayers as royalty for the sale of oil or gas produced from their properties is “intangible personal property,” and as such, ArlcCode Ann. § 26-3-302 prohibits levying an ad valorem tax on the money; (3) the oil or gas upon which the royalty is paid is included in the ad valorem taxes assessed against the Taxpayers prior to the time that the oil or gas is removed from the Taxpayers’ property, resulting in double or multiple taxation of the same property; (4) the oil or gas upon which the royalty is paid is assessed a severance tax and an income tax that is paid to the State of Arkansas, again resulting in multiple taxation of the same property; (6) the tax upon which royalty is paid for oil or gas production and sale is a privilege or excise tax in that it is assessed after the oil or gas is separated from the realty in which it is located, and is a tax upon the privilege of separating such oil or gas, or upon the sale of such oil or gas, and is therefore a privilege or excise tax in violation of Ark. Code Ann. § 28-58-110; (6) payments received by the Taxpayers from the royalty paid for oil or gas extracted from their property are assessed an income tax by the United States Government and the State of Arkansas and the tax the Counties assess upon the Taxpayers is also an income tax that they are not authorized by law to assess; and (7) the' “average contract price” used in the determination of the ad valorem tax is not based upon and does not reflect the actual contract prices paid for oil or gas produced from the property owned by the Taxpayers, a violation of Arkansas Constitution article 16, section 5.
Various motions to dismiss were filed, and the circuit court held a hearing on January 14, 2011. The circuit court concluded that the Taxpayers had failed to make a proper illegaljexaction6 challenge and dismissed their lawsuit. Specifically, the circuit court found that Arkansas Constitution article 16, section 5 provides that all real and tangible property shall be taxed according to its value, a value to be ascertained in such manner as the General Assembly shall direct; the value of real property includes the value of both surface rights and mineral rights; the Arkansas General Assembly has directed that the value of gas and oil deposits be assessed at the time the deposits are removed from the land; the tax at issue is not an income tax; the tax at issue is a valid, legally adopted, ad valorem tax on the value of mineral rights; and, the lawsuit filed by the Taxpayers did not properly allege an illegal-exaction challenge. The court entered its order on February 18, 2011.
On February 28, 2011, the Taxpayers filed a motion for new trial or rehearing, which was denied by an order of the circuit court entered March 18, 2011. The Taxpayers now present the instant appeal.
Before turning to the merits, we must determine the appropriate standard of review. The circuit court’s order of dismissal reflected that the circuit court considered “the motions, the pleadings, evidence presented, the law and other matters” and had held a hearing on the motions to dismiss to consider the arguments of counsel. It is well settled that when a circuit court considers matters outside the pleadings, the appellate court will treat a motion to dismiss as one for summary judgment. See Koch v. Adams, 2010 Ark. 131, 861 S.W.3d 817. Ordinarily, upon reviewing a court’s decision on a summary-judgment motion, we would examine the record to determine if genuine issues of material fact exist. See Travis Lumber Co. v. Deichman, 2009 Ark. 299, 319 S.W.3d 239. However, in a case such as this one, which 17does not involve the question of whether factual issues exist but rather the application of legal rules, we simply determine whether the Counties were entitled to judgment as a matter of law. See id. We now turn to the merits of the appeal.
The Taxpayers argue that the circuit court erred in dismissing their claim because the allegations contained in their complaint supported an illegal-exaction claim. They contend that the claim properly alleged that the tax complained of is, itself, illegal. While the Counties filed several separate briefs, the crux of the argument they collectively counter is that the Taxpayers’ claim actually took issue with the manner in which the tax was assessed. Several of the Counties further allege that the Taxpayers’ claim was improperly raised to the circuit court.
Article 16, section 13 of the Arkansas Constitution grants Arkansas citizens standing to pursue an illegal-exaction claim. See Comcast of Little Rock, Inc. v. Bradshaw, 2011 Ark. 431, 385 S.W.3d 137 (citing Robinson v. Villines, 2009 Ark. 632, 362 S.W.3d 870). An illegal exaction is defined as any exaction that is either not authorized by law or is contrary to law. See id. There are two types of illegal-exaction cases: “public funds” cases, where the plaintiff contends that public funds generated from tax dollars are being misapplied or illegally spent, and “illegal-tax” cases, where the plaintiff asserts that the tax itself is illegal. See id. (citing White v. Arkansas Capital Corp./Diamond State Ventures, 365 Ark. 200, 226 S.W.3d 825 (2006)).
Here, the Taxpayers are not pursuing a “public funds” type of illegal-exaction claim; rather, they are attempting to make an “illegal-tax” claim. However, the assessments at issue |swere made for the purpose of ad valorem taxation on a mineral, here, the gas, and the Taxpayers in no way dispute that an ad valorem tax on gas as a mineral is legal.
Property taxes are authorized by virtue of the Arkansas Constitution and are required to be levied upon all personal and real property, not exempt, for the levy of taxes for schools, cities, counties, roads, hospitals, and public libraries made within the county in accordance with the Arkansas Constitution and laws of Arkansas. See Ark. Const, art. 16, § 5; art. 14, § 3; amend. 59; amend. 61; art. 12, § 4; art. 16, § 9; amend. 32; amend. 38; amend. 40; amend. 71; amend. 72; amend. 74; and amend. 79. County assessors, collectors, and treasurers are under clear respective mandates of the Arkansas Constitution and laws of the State of Arkansas to assess, collect, and distribute property tax revenues to the appropriate taxing unit for their immediate use for vital governmental operations. See Ark.Code Ann. § 14-14-904(b)(1). The Arkansas Constitution assigns the county assessors the primary task of assessing the value of property within the county from which they are elected under the valuation scheme of property as erected by law. See Ark. Const, art. 7, § 46. Article 16, section 5 of the Arkansas Constitution provides: “[a]ll real and personal property subject to taxation shall be taxed according to its value, that value to be ascertained in such a manner as the General Assembly shall direct.” Arkansas Code Annotated section 26-26-407 prescribes that the Assessment Coordination Department shall oversee the implementation of the standards for assessment of property in Arkansas. Assessors must determine the value of both personal property and real estate.
Mineral interests, which include ownership of natural gas deposits, constitute tangible |9real property. See Sorkin v. Myers, 216 Ark. 908, 227 S.W.2d 958 (1950); Ark.Code Ann. § 26-26-1110 (Repl.1997 & Supp.2011). Therefore, county assessors are left to determine the value of gas deposits so that the tax may be applied “equally] and uniform[ly].” Ark. Const, art. 16, § 5(a). The legislature provides guidance in Ark.Code Ann. § 26-26-1110(c), which provides:
(1) Because of the difficulty of ascertaining the value of a nonproducing mineral right and in order to ensure equal and uniform taxation throughout a state, a nonproducing mineral right has zero (0) value for the purpose of property tax assessment and is included in the value of the fee simple interest assessed.
Therefore, the gas that remains as a mineral in the ground is valued at zero, but a value is assessed for tax purposes if it is produced and sold. As noted in the complaint, there is an equation used for the assessment based on values gathered at the mineral’s point of sale.
A review of the Taxpayers’ first-amended complaint reveals that the crux of their argument was that the tax assessed against them is illegal because of when it is assessed — at the point of sale. The Taxpayers argue that to value the gas for an ad valorem tax based upon a price at a distant market, after it is separated from the ground, is a misapplication of an ad valorem tax and greatly distorts the value to the prejudice of the landowner because, at that point, the value of the gas has been enhanced by capture, treatment and transportation to a point of sale. The Taxpayers’ claim and their argument on appeal, however, ignore our well-settled precedent. This court has strictly adhered to the rule that “if the taxes complained of are not themselves illegal, a suit for illegal exaction will not lie” and that “a flaw in the assessment or collection procedure, no matter how serious from the taxpayer’s point of view, 11fldoes not make the exaction itself illegal.” Hambay v. Williams, 373 Ark. 532, 535, 285 S.W.3d 239, 241-42 (2008) (quoting Pockrus v. Bella Vista Village Prop. Owners Ass’n, 316 Ark. 468, 472, 872 S.W.2d 416, 418 (1994)).
The instant case is similar to that presented in Comcast, supra. In Comcast, the cable-television-services provider had asserted that the Commission’s Tax Division erroneously included' the value of Com-cast’s intangible personal property, property that Comcast contended fell within a statutory exemption, when calculating its assessments. We held that Comcast’s claim did not challenge the validity of the underlying tax, but alleged that the assessment was carried out in an illegal fashion and, therefore, the suit did not come within Arkansas’s illegal-exaction provision. Comcast, 2011 Ark. 431, at 12, 385 S.W.3d at 144. Here, as the appellant did in Comcast, the Taxpayers essentially argue that, for various reasons, the assessment is flawed.
The Taxpayers attempt to present their challenge in a few additional ways. They allege that the way in which the taxes are assessed transform the tax into a tax on intangible personal property or into an income tax; however, as they concede, the values used in the assessment formula are not unique based on the income of each taxpayer. Instead, the assessment is based on average contract prices, production figures, and a standard assessment rate. Any issue with the values used in the formula is an issue with the assessment of the tax. While the Taxpayers claim that the tax at issue is an illegal duplicative tax because it is also subject to a severance tax, such circumstances were explicitly contemplated by the legislature. Arkansas Code Annotated section 26-58-109 (Repl.2008) expressly provides, “[t]he severance tax imposed |nby this subchap-ter is in addition to the general property tax.” Therefore, the co-existence of ad valorem property taxes on minerals, oil, and natural gas interests and the subsequently enacted severance tax on minerals has been explicitly authorized.
Finally, the Taxpayers argue that the tax violates the Equal Protection Clause because landowners that own non-producing mineral interests are not taxed the same way. There are two reasons that argument simply lacks merit here. First, they have not shown how they are similarly situated to those landowners, a requirement to state a claim under equal protection. See Arkansas Beverage Retailers Ass’n v. Langley, 2009 Ark. 187, 305 S.W.3d 427. Second, the heart of that argument is really that the value of those landowners’ gas mineral has been set at zero, see Ark.Code Ann. § 26-26-1110(c)(1), while the Taxpayers here are taxed at some other value. Again, that is a contention with how the taxes are assessed.
We have held that an allegation that the assessment of taxes was carried out in an unconstitutional and illegal manner does not fall within the illegal-exaction provision. See Pledger v. Featherlite Precast Corp., 308 Ark. 124, 823 S.W.2d 852 (1992) (holding no illegal-exaction action where taxpayer did not contend that the use tax itself was illegal, but rather contended that the assessment of its individual tax was erroneously based on certain tangible personal property). Likewise, a suit to determine whether a taxpayer’s transactions fall within a statutory exemption does not come within article 16, section 13. See Taber v. Pledger, 302 Ark. 484, 791 S.W.2d 361 (1990); see also Western Foods, Inc. v. Weiss, 338 Ark. 140, 992 S.W.2d 100 (1999). Because the Taxpayers’ claim did not challenge the validity of the underlying tax, it is clear to this court that their suit does not come within Arkansas’s illegal-I, {.exaction provision.
The proper appeal process for allegations of improper ad valorem tax assessments is set forth in Ark.Code. Ann. §§ 26-27-317 to -318 (Repl.1997 & Supp. 2011). An aggrieved property owner’s first step is to contest the ad valorem property tax assessment to the county equalization board. See Ark.Code Ann. § 26-27-317. The board’s decision, once rendered, can be appealed to the county court. See Ark.Code Ann. § 26-27-318. See, e.g., Crittenden Hosp. Ass’n v. Bd. of Equalization of Crittenden County, 330 Ark. 767, 958 S.W.2d 512 (1997). This court has upheld this process in the past when it was ignored. See, e.g., Jones v. Crouch, 231 Ark. 720, 332 S.W.2d 238 (1960).
For the above-stated reasons, the circuit court was correct in dismissing the Taxpayers’ complaint. The Taxpayers’ avenue of relief for its assessment grievance lay with each county’s equalization board. Accordingly, we affirm the order of the circuit court.
Affirmed.
HANNAH, C.J., and BAKER, J., not participating. | [
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DAVID M. GLOVER, Judge.
|!White Oak Construction Company and its carrier appeal from the Commission’s decision, which affirmed and adopted the ALJ’s decision, to award dependent benefits to deceased employee Alberto Olvera’s parents. White Oak contends (1) that there is not a substantial evidentiary basis in the record for the Commission’s determination that the appellees were wholly and actually dependent on the deceased employee; (2) that the Commission erred by not using Arkansas Code Annotated section 11-9-111 because the parents are alien dependents; (3) that the parents did not prove they were dependent for one year prior to July 26, 2007, pursuant to Arkansas Code Annotated section 11-9-111; and (4) that if the parents are found to be dependent, they are only partially dependent under Arkansas Code Annotated section 11-9-527. We affirm.
| ^Background
Alberto Olvera died on July 28, 2007, after falling from a roof while working for White Oak Construction Company. He was working in the United States under a work visa; his citizenship was in Mexico, where his parents lived. Alberto’s parents’ names are Flora Olvera Moran and Jesus Verde Cabello. Although Alberto had initially worked for White Oak for eight months without a visa, he returned to Mexico to obtain a visa, and then resumed work in the United States. He worked for White Oak for six additional months before dying in the fall from a roof.
His father, Jesus, testified that Alberto sent money home to Mexico to help support him and Flora and the other children; that they had struggled to pay their bills after Alberto’s death; and that he had been a welder but had to stop about twenty years ago because of impaired vision. He said that the money from Alberto was the only income he had until he started receiving his pension and the salary he made as a babysitter. He testified that Alberto would send money to them about every fifteen days. Jesus explained that he now receives social security in the amount of 2800 pesos per month and that those payments began in 2008. He acknowledged that Alberto’s money was sent to Flora. He said that he did not have a bank account and did not have records of how the money was spent, but that it was used to buy food and pay for other expenses. He stated that each time his son made a money transfer, he would get a receipt, but that he did not have those | .¡receipts. He testified that Alberto had supported him and Flora from 1990 until the time of his death.
Aberto’s mother, Flora, testified that she and Jesus had been married and lived together since 1971; that they have five children, including Aberto; and that A-berto sent money to her and Jesus until his death. She stated that she had not worked outside the home during the entire marriage, that one son still lives with them, and that the other three children are married and have families of their own. She explained that the only source of income for her and Jesus since Aberto’s death is Jesus’ pension. She explained that they had been “living on a shoestring” since Aberto’s death; that they did not have a bank account; that Aberto would send the money to her and she would distribute the money to Jesus; and that she received the payments about every fifteen or twenty days. She testified that she last saw Aberto in December 2006 in Mexico; that he did not work during the six months that he was in Mexico; that he returned to the United States during the first week of May 2007; and that he was the only family member from whom she received money during 2006 or 2007. She stated that she handled the household money, paid the bills in cash, and spent the money from Alberto on food, clothing, shoes, water, electricity, gas, and medications.
The records of money transfers made to Flora Olvera Moran showed:
1) March 27, 2006 — 2,152.00 Pesos
2) April 17, 2006 — 7,117.00 Pesos
($642.00)
3) May 15, 2006 — 3,237.00 Pesos
($290.40)
4) May 27, 2006 — 2,158.90 Pesos
($193.66)
5) June 5, 2006 — 7,290.00 Pesos
($645.99)
6) July 3, 2006 — 11,200.00 Pesos
($1,004.12)
|47) August 21, 2006 — 21,280.00 Pesos ($1,070.00)
8) September 11, 2006 — 6,518.00 Pesos ($589.05)
9) November 21, 2006 — 8,648.00 Pesos ($786.37)
10) May 21, 2007 — 1,070.00 Pesos
($95.99)
11) July 16, 2007 — 8,580.00 Pesos
($796.61)
12) July 25, 2007 — 5,345.00 Pesos
($491.91)
The ALJ found in pertinent part that at the time of Alberto’s death, neither Alberto’s mother nor his father was working; that the credible evidence established that Alberto was the sole primary source of income to the household from 1999 until Alberto’s death in 2007, and that it was not until Alberto’s death that his father returned to the work force by taking care of children, and began collecting a monthly government pension. The ALJ concluded that the evidence clearly demonstrated that Alberto had provided financial support to his parents for at least one year prior to his death and that his parents had a reasonable expectation of support from Alberto.
Standard of Review
As this court explained in Robinson v. Ed Williams Constr. Co., 38 Ark. App. 90, 94, 828 S.W.2d 860, 862-63 (1992):
Dependency is a fact question to be determined in the light of the surrounding circumstances. The findings of the Workers’ Compensation Commission must be upheld on review if there is substantial evidence to support them. The issue on appeal is not whether this court would have reached the same results as the Commission on this record or whether the testimony would have supported a finding contrary to the one made; the question here is whether the evidence supports the findings which the Commission made. Before we can reverse a decision of the Commission, we must be convinced that fair-minded persons with the same facts before them could not have reached the same conclusion reached by the Commission.
lfi(Citations omitted.) In determining the sufficiency of the evidence to sustain the findings of the Workers’ Compensation Commission, we review the evidence in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998).
(1) Wholly and actually dependent
For its first point of appeal, White Oak challenges the sufficiency of the evidence supporting the Commission’s award of benefits, arguing that “there is not a substantial evidentiary basis in the record for the Commission’s determination that the appellees were wholly and actually dependent on the deceased employee.” We disagree.
Arkansas Code Annotated section 11-9-527 (Repl.2002) provides in pertinent part:
11-9-527. Compensation for death.
(c) Beneficiaries — Amounts. Subject to the limitations as set out in §§ 11-9-501-11-9-506, compensation for the death of an employee shall be paid to those persons who were wholly and actually dependent upon the deceased employee in the following percentage of the average weekly wage of the employee and in the following order of preference:
(4) To the parents, twenty-five percent (25%) each[J
(Emphasis added.)
Our supreme court addressed the statutory phrase “wholly and actually dependent” in Lawhon Farm, Servs. v. Brown, 335 Ark. 272, 280-81, 984 S.W.2d 1, 5 (1998):
The history of § 11-9-527 and the record of our interpretation of it are helpful. Originally, the term “wholly dependent” was construed to refer to those ordinarily recognized in law as dependents. A conclusive presumption thus arose to |fithe effect that a wife or child of a deceased employee who was killed in the course and scope of his employment was a dependent for purposes of the statute. See Chicago Mill & Timber [Lumber ] Co. v. Smith, 228 Ark. 876, 310 S.W.2d 803 (1958). In 1976, the General Assembly amended § 11-9-527 to provide that a widow or widower shall establish “actual” dependency before she or he will be entitled to benefits. We interpreted that change as eliminating the conclusive presumption and requiring a widow to establish facts showing dependency upon the decedent before being entitled to benefits. Roach Mfg. Co. v. Cole, 265 Ark. 908, 582 S.W.2d 268 (1979). We held that dependency was to be determined in light of the surrounding circumstances, citing Smith v. Farm Service Coop., 244 Ark. 119, 424 S.W.2d 147 (1968), and in light of prior events and not controlled by an unusual, temporary situation, citing Nolen v. Wortz Biscuit Co., 210 Ark. 446, 196 S.W.2d 899 (1946).
While the widow in the Roach Mfg. Co. case failed to show that she was actually dependent on the decedent, her child was held to be actually dependent. We quoted from Professor Larson’s treatise: “Proof of bare legal obligation to support, unaccompanied by either actual support or reasonable expectation of support, is ordinarily not enough to satisfy the requirement of actual dependency.” LARSON, WORKMEN’S COMPENSATION LAW § 63 (1976). Because the widow had not attempted to obtain support for herself, she was unable to meet the requirement, but we held that the child, unable to act for herself, was not bound by the ruling with respect to the widow and was dependent, as she had a reasonable expectation of support from the deceased worker.
The Commission ruled that all three children in this case were “wholly dependent” upon Mr. Brown in accordance with the interpretation of that term in Chicago Mill & Lumber Co. v. Smith, supra. The requirement of “actual dependency,” added to the statute in 1979, as interpreted in Roach Mfg. Co. v. Cole, supra, was met as well. The Commission ruled that the children had a “reasonable expectancy of future support” and were “wholly and actually” dependent on Mr. Brown at the time of his work-related death.
White Oak basically contends:
We do not know who sent the money orders, how they were spent, or who ended up using them. The orders were dated at erratic intervals and stopped for months. Appellees had no bank records, no invoices, and no proof that the money they allegedly received was not being held or used for the deceased son.
The argument totally discounts the testimony of Flora and Jesus, the decedent’s parents. They both testified that Alberto sent them money on a regular basis from the United States 17while he was working here, but that he had also supported them since 1990 when he was working in Mexico refilling fire extinguishers. They testified that the money was critical to them; that they used it for essentials; that they received no other money from family members; that, in fact, they often helped their other children; and that they paid their bills in cash. The money-transfer records were made out to Flora, but she testified that she took care of household bills and that she distributed the money to Jesus as needed.
Moreover, as this court explained in Robinson, supra, “actual dependency” does not require a showing of total dependence. A finding of some measure of actual support or a reasonable expectation of it will suffice.
Under our standard of review, dependency is a factual question that is to be determined in the light of the surrounding circumstances. Viewing the evidence in the light most favorable to the Commission’s findings, we are convinced that fair-minded persons with the same facts before them could have reached the Commission’s decision.
(2) Arkansas Code Annotated section 11-9-111 (‘'father or mother”)
For its second point of appeal, White Oak asserts that the “Commission erred by not using Arkansas Code Annotated section 11-9-111 (Repl.2002) because appellees are alien dependents.” Its basic contention is that it was error for the Commission to award benefits to both parents because the use of the word “or” in the statute allows benefits for one parent or the other, but not both. We disagree.
Section 11-9-111 provides in pertinent part:
(a) Compensation to alien nonresidents of the United States or Canada shall be the same in amount as provided for residents, except that alien nonresident dependents in |sany foreign country shall be limited to the surviving wife or children or, if there is no surviving wife or children, to the surviving father or mother whom the employee has supported, either wholly or in part, for the period of one (1) year prior to the date of the injury.
(Emphasis added.) White Oak contends that the phrase, “father or mother” means that only one alien nonresident dependent parent can be eligible for benefits. The Commission rejected this argument and we agree.
As quoted previously, Arkansas Code Annotated section 11-9-527 sets forth the amount of death benefits that are to be awarded to parents: “(4) To the parents, twenty-five percent (25%) each.” (Emphasis added.) Section ll-9-lll(a) ensures that residents and nonresidents receive equal compensation and limits the class of alien-nonresident dependents. Death & Perm. Total Dis. Trust Fund v. Rodriguez, 104 Ark.App. 375, 292 S.W.3d 827 (2009). Nothing in section 11-9-527 excludes alien nonresidents from receiving benefits, and nothing in section 11-9-111 renders the provisions of section 11-9-527 inapplicable except to the extent that certain beneficiaries are excluded. Id. That is, section 11-9-527 provides for death benefits to a much broader group, e.g., brothers, sisters, grandchildren, and grandparents, Ark.Code Ann. § 11-9-527(c)(5) (Repl.2002), while section 11-9- 111 limits recipients of death benefits “to the surviving wife or children or, if there is no surviving wife or children, to the surviving father or mother whom the employee has supported, either wholly or in part, for the period of one (1) year prior to the date of the injury.” Sections 11-9-527 and 11-9-111 must be read together to understand the legislature’s intent. Even when statutes are to be strictly construed, they must be construed in their entirety, harmonizing each subsection where possible. Lawhon Farm Servs. v. Brown, supra. We are not convinced that by the use of the word “or” to separate the words father and mother in section 11-9-111, the legislature intended to render the award of benefits to each parent provided by section 11-9-527 void.
(3) Arkansas Code Annotated section 11-9-111 (“one year prior to the date of injury”)
Under this point, White Oak’s basic argument is that if the parents “were dependent on the deceased employee, [they] were only dependent for about two months prior to the death of the employee.” We disagree.
Section 11-9-111 states in pertinent part that the support must have been provided for “the period of one (1) year prior to the date of the injury.” However, it does not limit that support to specific amounts of money, or specific time frames, or even the performance of “documented” work. In attempting to limit the period of support provided by Alberto to the two months immediately preceding his death, White Oak dismisses the money transfers that were made from March 27, 2006, through November 21, 2006, when Alberto was working for White Oak without proper documentation. It also dismisses the testimony from the hearing that the family had basically been dependent upon Alberto since 1990, which apparently was when Jesus could no longer perform his welding job because of vision trouble. There was also testimony that during the six-month period when Alberto returned to Mexico to obtain his work visa, his parents lived on what they had saved from the money that he had sent from the United States earlier.
The one-year period prior to Alberto’s death would have been July 2006 through July 2007. The testimony presented by his parents, coupled -with a portion of the earlier [ inshown records of money transfers (July 3, 2006 through July 25, 2007), are sufficient to support the Commission’s determination that Alberto provided support for one year prior to the date of his death.
(4) Partial dependency
For its final point, White Oak contends that if the parents are determined to be dependent, that they are only partially dependent under Arkansas Code Annotated section 11 — 9—527(i)(l), which provides in pertinent part:
(i) Partial Dependency. (1) If the employee leaves dependents who are only partially dependent upon his or her earnings for support at the time of injury, the compensation payable for partial dependency shall be in the proportion that the partial dependency bears to total dependency.
We do not address this issue because it was neither presented to the ALJ nor addressed by the ALJ. Consequently, it was not properly preserved for our review. Even if we were to address this issue, it would have no merit in light of our discussion under the first point of appeal regarding the sufficiency of the evidence supporting the Commission’s decision.
Affirmed.
ROBBINS and WYNNE, JJ., agree. | [
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RITA W. GRUBER, Judge.
| Rafael Santillan appeals a decision of the Workers’ Compensation Commission that denied his claim for additional benefits related to a compensable back injury. He had various jobs at Tyson over a continuous fifteen-year period and was an “order selector” for the last eight years, driving a forklift and stacking and counting boxes that weighed fifty to sixty pounds. The injury occurred on July 20, 2007, when he was stacking a pallet and a load of boxes fell on him. He contends that substantial evidence does not support the Commission’s finding that he is not entitled to additional medical treatment in the form of pain management. We affirm.
Arkansas Code Annotated section 11 — 9— 508(a) (Supp.2009) requires the employer of an injured employee to promptly provide such medical and surgical treatment “as may be reasonably necessary in connection with the injury received by the employee.” The ^employee may be entitled to ongoing medical treatment after the healing period has ended if the treatment is geared toward management of the com-pensable injury. Patehell v. Wal-Mart Stores, Inc., 86 Ark.App. 230, 184 S.W.3d 31 (2004).
Santillan was seen several times by company doctor Cathleen Vandergriff, who treated him with a steroid injection, physical-therapy orders, and a thirty-day prescription for Celebrex. Her office notes reflect that in August 2007 Santillan reported decreased pain with exercises and the injection, and that in November 2007, despite some relief from the Celebrex, he reported constant back pain, morning stiffness and numbness in his back. After having a lumbar MRI, Santillan was referred to neurosurgeon Dr. Michael Stan- defer for evaluation; to Dr. Jared Ennis, who ordered more physical therapy, administered lumbar epidural pain injections, and administered a bilateral facet nerve block at L5-S1; and finally to orthopedic surgeon Dr. James Blankenship, who in February 2009 performed bilateral pedicu-lar fixation for L5-S1 disc herniation and in May 2009 performed two more surgical procedures for an infection that developed at the location of the right pedicle screw.
Dr. Blankenship’s office notes of June 2009 show that Santillan was taking Hy-drocodone and Cipro, and Dr. Blankenship added Lyrica to “settle down ... myofas-cial leg pain.” Dr. Blankenship wrote in July 2009 office notes that Santillan reported continuing pain; Santillan said a bone stimulator he had received five months earlier was not working; the stimulator worked correctly in the office; he had been coached on using it frequently; |ssoIid arthrodesis appeared to be developing without its use; and he had been “extremely noneompliant” about using it.
In August 2009 Dr. Blankenship reviewed a recent functional capacity evaluation (FCE) in which Santillan ranked himself in the crippled range and exhibited low effort. Dr. Blankenship viewed this as an expected outcome and wrote that San-tillan’s poor input and psycho-dynamics were “not uncommon in someone who has had chronic pain of this nature, especially with postoperative complications with infections and multiple surgeries to have an inappropriate illness behavior secondary to fear avoidance.” Noting past attempts to assure Santillan that his back had become stable and he could do more than he perceived, Dr. Blankenship scheduled two more weeks of “active increasing therapy” and released him to work within restrictions set out in the FCE.
An October 2009 note from Dr. Blankenship’s clinic states that Santillan had a flare-up of increased back pain and left-buttock pain, the incision was well healed with no sign of infection, Santillan reported faithfully walking but not stretching, and he was instructed on the importance of stretching. At an office visit the following week, Dr. Blankenship noted that Santillan had been working twenty-hour weeks and reported complete exhaustion from exercise and work along with myofascial pain radiating into the groin away from L5 or SI nerve distribution. Regarding the original surgery and postoperative infection, Dr. Blankenship wrote that Santillan had reached maximum medical improvement and assessed a twelve-percent impairment to the body as a whole.
Dr. Blankenship delayed a final work release pending results of further x-rays and ^another FCE, which took place in November 2009. The evaluator noted a general match between Santillan’s “subjective reports of pain/limitation” and “distraction-based clinical observations,” with minor overall inconsistencies. Dr. Blankenship released Santillan to work in December 2009 at the FCE’s recommended “light physical demands level.”
At a one-year postoperative office visit on February 18, 2010, Dr. Blankenship noted that Santillan complained of bilateral anterior thigh pain and significant lower back pain “when he does anything,” and said he was doing his exercises three times a week rather than the recommended five days. Dr. Blankenship reported that physical examination revealed myofascial tightening and quad tightness, that Santil-lan said some of his myofascial symptoms were improving, that Dr. Blankenship told him his symptoms should improve with more activity and stretching, and that Dr. Blankenship thought Santillan’s reported incontinence and decreased sexual function might be medication-related but “most likely” had to do with “his depression and his chronic pain.” Dr. Blankenship scheduled no follow-up appointment but recom mended a lumbar MRI to see if anything else could be done.
In a letter of March 11, 2010, Dr. Blankenship reaffirmed that Santillan had achieved maximum medical improvement with an impairment rating of twelve percent. Dr. Blankenship noted that a March 9, 2010 MRI showed good decompression of the neural structures but L4-5 disc-space changes; that another doctor who read the MRI thought the process was degenerative rather than infectious; and that, because of the degenerative-disc reading, Dr. Blankenship did not feel it had anything to do with the work-related injury. He concluded:
| ¿Unfortunately, I do think we are looking at a failed back syndrome with post-laminectomy syndrome. I do not feel that any further treatment is going to afford him any significant benefit, at least from the standpoint of neurosurgical intervention and evaluation. From that standpoint, I feel like he is at MMI for the treatment of his current back problems.... In summary, I do feel that the gentleman is at MMI, and no further surgical evaluation or treatment would be warranted at present.
In May 2010 Dr. Blankenship released Santillan to a forty-hour work week with permanent restrictions of lifting no more than twenty-three pounds, sitting or standing in twenty-to-thirty minute periods, twelve-inch to overhead lifting, pushing and pulling no more than forty pounds, and rarely sitting or crouching.
At the hearing before the administrative law judge, Santillan testified that his symptoms and pain had not changed much since he saw Dr. Blankenship in February 2009. Santillan said his pain sometimes worsened and was really strong, and some days he could not even wash dishes. He stated, “The last time I saw Dr. Blankenship he gave me a lot of prescriptions for pain. I am also seeing my family doctor for pain.” He said he was no longer working because Tyson would not consider him for light duty after his year of probation.
The administrative law judge found that Santillan failed to meet his burden of proving entitlement to additional medical treatment in the form of pain management. She found that Santillan’s testimony of being given pain medications at his last visit with Dr. Blankenship and seeing his family physician for complaints of lumbar pain was contradicted by Dr. Blankenship’s report and the absence of any family physician’s records. She noted that San-tillan complained at the last visit of significant lower back pain, but Dr. Blankenship “did not recommend any additional medical treatment at that time,” informed San-tillan that stretching and becoming more active would improve his myofascial symptoms, and scheduled | fino follow-up evaluation. Reviewing Dr. Blankenship’s letter of March 11, 2010, the law judge wrote:
[I]t is the opinion of Dr. Blankenship, claimant’s primary treating physician, that claimant is not in need of any additional medical treatment for his compen-sable injury. Claimant admitted that his current complaints are the same complaints he had at the time of his last visit with Dr. Blankenship on February 18, 2010. Despite those complaints, Dr. Blankenship did not recommend any additional medical treatment, but to the contrary indicated that no additional treatment would be warranted.
Finding Dr. Blankenship’s opinion credible and entitled to great weight, the law judge concluded that Santillan had not proved he was entitled to additional medical treatment in the form of pain management. The Commission affirmed and adopted her opinion.
Santillan contends on appeal that the Commission unreasonably denied pain management as additional medical treatment to a man with no back problems prior to his work injury. He argues that, in light of his surgeries and failed-back syndrome, the Commission unreasonably denied at least an evaluation for pain management. The claimant bears the burden of proving entitlement to additional medical treatment. Patchell v. Wal-Mart Stores, Inc., 86 Ark.App. 230, 184 S.W.3d 31 (2004). What constitutes reasonably necessary treatment is a question of fact for the Commission, which has the duty to use its expertise to determine the soundness of medical evidence and to translate it into findings of fact. Hamilton v. Gregory Trucking, 90 Ark.App. 248, 205 S.W.3d 181 (2005). In order to reverse a decision of the Commission, we must be convinced that fair-minded persons, with the same facts before them, could not have arrived at the conclusion reached by the Commission. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983).
Here, the primary basis of the Commission’s decision was neurosurgeon Dr. 17Blankenship’s written opinion after seeing Santillan in the final visit. The Commission denied Santillan’s claim for additional medical treatment in the form of pain management, stating that “Dr. Blankenship did not recommend any additional medical treatment.” Evidence supporting this finding was Dr. Blankenship’s final release to work, no recommended followup care, and the contradiction between the medical records and Santillan’s testimony that his doctors recently treated his pain with prescriptions. Thus, fair-minded persons, with the same facts before them, could have arrived at the conclusion reached by the Commission.
Affirmed.
HART and BROWN, JJ., agree.
. An interpreter’s presence was noted in most of the medical records, but on at least one occasion the interpreter’s absence was noted. | [
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CLIFF HOOFMAN, Judge.
|,Appellant Loretta Threadgill appeals from the order of the Pulaski County Circuit Court terminating her parental rights to her three children, twelve-year-old C.N. and eleven-year-old twins, T.N.l and T.N.2. On appeal, Threadgill argues that there was insufficient evidence presented to establish by clear and convincing evidence that termination was in her children’s best interests. We affirm.
This case first began on September 3, 2009, when the Arkansas Department of Human Services (DHS) received a call from the Pulaski County Sheriffs Department that Threadgill and the children’s putative father, Tyrone Nutt, Sr., had been arrested after a drug raid on [2the home and charged with maintaining a drug premises, possession of a controlled substance with intent to deliver, and endangering the welfare of minors. According to the affidavit attached to the petition for emergency custody, Nutt delivered narcotics to an undercover informant in the home, Threadgill was found with crack cocaine in her possession, and stolen property was found inside the home. The report further stated that the children were sleeping on inflatable mattresses, that there was inadequate food and drink in the home, and that the residence was filthy and infested with roaches.
DHS exercised an emergency hold on the children on September 8, 2009, and probable cause for removal was found at a hearing held on September 15, 2009. The adjudication hearing was held on November 10, 2009, and the trial court found that the children were dependent-neglected and that they had been subjected to aggravated circumstances based upon “an extreme risk of the children being harmed.” The court noted that a drug premises poses substantial risks to its inhabitants, including exposure to unsavory visitors and possible violence, as well as to police raids that put the children at risk of harm. Threadgill was ordered to submit to a psychological evaluation and random drug testing. She was also ordered to follow the recommendations of the evaluation, to attend counseling, and to maintain stable housing and income.
A review hearing was held on February 2, 2010, and the goal of reunification was continued, even though the court noted that the results of the psychological evaluations on Threadgill and Nutt were “not encouraging.” Threadgill also tested positive for cocaine on her hair-follicle test. The trial court advised the parents that they had one year in which to ^pursue reunification with their children and that the “clock is ticking.” The court ordered that Threadgill follow the recommendations from her evaluation, which were that she sever her relationship with Nutt and live independently in her own home, complete residential drug treatment, complete parenting classes, participate in individual therapy, and obtain an adequate income.
At the first permanency-planning hearing on July 13, 2010, the court stated that it was “hard pressed to find compelling reasons to continue the goal of reunification but will give the benefit of the doubt to the parents and continue with the current goal” until at least the next hearing, at which time the parents’ criminal issues would hopefully be resolved. The court further found that the psychological evaluations indicated that reunification with either parent was a “long shot,” although some effort had been made by Threadgill toward compliance with court orders. A second permanency-planning hearing was held on October 5, 2010, and the trial court again continued the goal of reunification, finding that there were compelling reasons to do so because of the children’s ages, their behavior, and due to the parents’ cooperation with the court and DHS. The trial court did note, however, that the parents still had unresolved criminal charges.
At the third permanency-planning hearing on December 21, 2010, the trial court changed the goal of the case to termination. The court found that Threadgill remained in a relationship with Nutt, who continued to use drugs, had been recently arrested, had unresolved criminal charges, and faced incarceration. The court stated that there were two issues preventing return of the children to Threadgill: a lack of adequate housing and her ^continued relationship with Nutt. The court stated that it was also concerned about the fact that ThreadgilFs most recent home was “shot up” by a person with a firearm. However, the trial court noted that termination was not a “foregone conclusion,” that services would continue to be provided, and that Threadgill had until the next hearing “to step it up” and demonstrate that she had become a fit and appropriate parent.
The petition for termination was filed by DHS on February 16, 2011. It alleged that there were two grounds for termination: (1) the children had been adjudicated dependent-neglected and had remained out of the home for more than twelve months and, despite meaningful efforts by DHS to rehabilitate the home, the conditions had not been remedied; and (2) the parent had subjected the children to aggravated circumstances.
The termination hearing was held on March 15, 2011. ThreadgilFs therapist, Vicki Lawrence, testified that Threadgill was unable to care for her children without the mental, emotional, and financial support that she continued to seek from Nutt and his family because her family lived out of town. Lawrence also expressed concern about ThreadgilFs psychological evaluation.
Christy Hilborn, the family’s therapist, testified that Threadgill had made progress but that she did not recommend that the children be returned at that time due to ThreadgilFs recent positive drug test, her instability, and her dependence on Nutt. Hilborn stated that she did not think that more time would result in a successful reunification. She testified that the children had behavioral problems and that their behavior would negatively impact their adoptability. She was concerned that if the children were returned to Threadgill, their ] .¡behavior problems would continue because of a lack of boundaries by Threadgill, although the children’s problems had also persisted in foster care with a relative. She indicated that the current foster parent was unable to continue caring for the children after the end of the school year and that the boys might need residential treatment in the future. Hilborn testified that ThreadgilFs sister had recently expressed interest in adopting the children, although she would need to be made aware of their behavioral problems.
Tiffany Harper, the DHS caseworker, testified that DHS was recommending termination to provide permanency for the children. Harper stated that Threadgill had recently tested positive for drugs, had ongoing criminal charges, and had recently moved again. Although Threadgill had told Harper that she had no contact with Nutt, she then admitted that she had called him after her recent failed drug test. Harper testified that it was in the best interests of the children for parental rights to be terminated because the ease was “not even close” to a possible reunification with Threadgill. Harper testified that she was excited about the possibility of the children’s aunt adopting them and indicated that the aunt was a former foster parent who had also adopted her foster child.
Brenda Keith, the adoption specialist, testified that she was familiar with the children and that they were adoptable, although she stated that she might have to recruit a potential family. She stated that she had not produced a list of possible matches for the children at that time.
Threadgill testified that she loved her children and that she wanted them returned to her custody. She stated that she now had a part-time job and that she could support her | (¡family. She also testified that she had recently obtained an appropriate home, although DHS had not yet had a chance to inspect it. When questioned by the trial court about recently testing positive for cocaine, Threadgill testified that she had gone to the dentist and that they had given her a prescription for pain medication but that she did not know the name of it. She stated that she did not knowingly come in contact with cocaine. Threadgill also testified that she had only been in telephone contact with Nutt, although she admitted that she had lied to her caseworker about it. She agreed that it was not a good idea for her to be around Nutt. Threadgill stated that it would be difficult for her children to be adopted by anyone but her sister and that she wanted her sister to be a possible placement if her parental rights were to be terminated. According to Threadgill, she still faced criminal charges in connection with the search of her home in September 2009.
At the conclusion of the hearing, the trial court reviewed the history of the case and made extensive findings. The court found that DHS had proved the grounds for termination by clear and convincing evidence. The court noted that Threadgill was diagnosed with depressive disorder and moderate mental retardation and that the evaluation stated that she was very mentally retarded, with an IQ of 53 and a second-grade academic ability. The evaluation further stated that she had poor judgment and that she had demonstrated little ability to parent her children safely and independently. The trial court found that Threadgill had made efforts to comply with court orders, but that she had only obtained stable housing in the month prior to the hearing and that she was not credible in her claim that she had no relationship with Nutt. The court also found that she did not give a credible explanation for |7her positive drug test. According to the trial judge, Threadgill might be on the “verge of stability, but it would take ... several months to determine if the gains she’s made are going to hold.” Therefore, the court found no compelling reason to give Threadgill more time and that the children needed permanency as quickly as possible. Addressing the issue of adopta-bility, the court stated that “they may not be the easiest kids to get adopted out, but the point is that further delay only makes that more difficult” as the children get older. The trial court found that it was in the best interests of the children for Threadgill’s parental rights to be terminated and for them to be adopted. The termination order was entered on April 7, 2011, and Threadgill has timely appealed from this order.
The rights of natural parents are not to be passed over lightly; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. J.T. v. Arkansas Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). A trial court’s order terminating parental rights must be based upon findings proven by clear and convincing evidence. Ark.Code Ann. § 9-27-341(b)(3); Dinkins v. Arkansas Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and convincing evidence is defined as that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Dinkins, supra. On appeal, the appellate court will not reverse the trial court’s ruling unless its findings are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, an appellate court gives due deference to the 18opportunity of the trial court to judge the credibility of witnesses. Id.
Pursuant to Ark.Code Ann. § 9-27-341(b)(3) (Repl.2009), an order terminating parental rights shall be based upon a finding by clear and convincing evidence that it is in the best interest of the juvenile, including consideration of the likelihood of adoption and the potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent. The order terminating parental rights also must be based on a showing of clear and convincing evidence as to one or more of the grounds for termination listed in section 9-27-841(b)(3)(B).
Threadgill does not challenge the statutory grounds for termination on appeal but only argues that there was insufficient evidence that termination was in the children’s best interests; therefore, there is no need to discuss the evidence supporting the trial court’s stated grounds for termination. Welch v. Arkansas Dep’t of Human Sens., 2010 Ark. App. 798, 378 S.W.3d 290. Specifically, Threadgill contends that there was insufficient evidence presented to establish that the children were adoptable. We disagree.
Threadgill admits in her argument that the issue of adoptability of the children need not be proved by clear and convincing evidence. Renfro v. Arkansas Dep’t of Human Servs., 2011 Ark. App. 419, 385 S.W.3d 285. Instead, it is merely one of the factors that must be considered by the trial court in its best-interest analysis. Id. However, she contends that the evidence in this case as to adoptability was “totally insufficient.” Threadgill points to the therapist’s testimony that the boys’ behavioral problems would negatively impact their adoptability, the caseworker’s testimony that the children’s current foster parent could no |alonger cope with them, and the adoption specialist’s testimony that she might have to do special recruitment to find potential adoptive families for the children. Given this evidence, Threadgill asserts that the adoption specialist’s “unsupported” opinion that the children were adoptable and that it would be possible to find an adoptive home for them is not sufficient. She cites this court’s decision in Grant v. Arkansas Dep’t of Human Servs., 2010 Ark. App. 636, 378 S.W.3d 227, as support for her argument.
In Grant, the adoption specialist opined that the child at issue was adoptable even with a recent diagnosis of autism, because “she believed that all children are adoptable.” 2010 Ark. App. 636, at 9, 378 S.W.3d at 231. This court held that, given the insufficient evidence presented as to the likelihood of adoption of the specific child involved in that case and given that the mother had never volitionally subjected the child to harm, the trial court clearly erred in finding that termination of parental rights was in the child’s best interest. Id.
The present case is distinguishable, however, because the adoption specialist in Grant did not identify any potential adoptive families for the child, other than an email from a person who might be willing to adopt a child with autism. Id. Here, there was evidence that the children’s aunt had expressed interest in adopting them, and Threadgill testified that she would like her sister to adopt them if her parental rights were terminated. While the evidence shows that the children have behavioral problems, the adoption specialist nonetheless testified that she believed the children were adoptable. This court affirmed the trial court’s best-interest finding under similar facts in Cobbs v. Arkansas Dep’t of Human Servs., 87 Ark.App. 188, 189 S.W.3d 487 (2004), where the caseworker testified that the children, even though Imthey were older and had issues to work through, were still adoptable. Therefore, contrary to Threadgill’s assertions, there was sufficient testimony presented in this case on the issue of adoptability.
Also, contrary to Grant, supra, there was evidence presented here to establish potential harm to the children if returned to their mother. She was found to have subjected the children to aggravated circumstances due to their residence in a drug premises and her involvement in criminal activity. It is true that Threadgill had made some progress in the case, and this was duly noted by the trial court, which declined to change the goal of the case to termination until the third permanency-planning hearing. However, the evidence at the termination hearing established that Threadgill had recently failed a drug test without satisfactory explanation and that she was still facing criminal charges. Threadgill had also maintained contact with Nutt, despite warnings not to do so, and the trial court found her testimony that she was no longer in contact with him not to be credible. In addition, her psychological evaluation indicated that Threadgill had moderate mental retardation and that she had demonstrated little ability to parent her children safely and independently. Although the children had behavioral problems and were in need of further treatment, the family’s therapist testified that the behavior would only continue if they were returned to Threadgill because there are no boundaries or limits in her home. Thus, after consideration of the evidence supporting the likelihood of adoption, as well as the potential harm to the children caused by continuing contact with Threadgill, the trial court’s finding that it was in the children’s best interests for Threadgill’s parental rights to be terminated is not clearly erroneous.
Affirmed.
PITTMAN and ABRAMSON, JJ., agree.
. Tyrone Nutt, Sr., was shown by a paternity test to be the father of T.N.l and T.N.2. The father of C.N. was not identified during these proceedings. The petition for termination also sought to terminate Nutt's parental rights to his two children; however, termination as to him was not addressed at the March 2010 hearing after it was determined that he did not receive notice of the hearing. | [
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JOSEPHINE LINKER HART, Judge.
It Teresa Eagle Bloodman appeals from an order of the Jefferson County Circuit Court dismissing her complaint with prejudice after she attempted to nonsuit separate defendants Steven H. Wright, M.D., and Continental Casualty Insurance Company (Continental), whom she sought to sue under Arkansas’s direct-action statute. On appeal, she argues that the trial court erred as a matter of law when it dismissed the complaint with prejudice because she filed her notice of voluntary dismissal before the entry of the trial court’s order and because she has an absolute right to a voluntary nonsuit pursuant to Rule 41(a) of the Arkansas Rules of Civil Procedure. We affirm.
The facts in this case are not in dispute. On December 80, 2008, Bloodman, as 12administrator of the estate of her father, John Thomas Eagle, Jr., brought a medical-negligence suit against Jefferson Hospital Association, doing business as Jefferson Regional Medical Center, and its liability carrier, Continental. She later amended the complaint to add Wright as a defendant. Bloodman failed to obtain service on Wright and direct-action defendant Continental within 120 days as required by Rule 4(i) of the Arkansas Rules of Civil Procedure. Wright and Continental moved to dismiss.
After a hearing on the appellees’ motions, the trial court announced from the bench that it was dismissing Bloodman’s complaint with prejudice. He instructed the appellees to prepare an order of dismissal. However, prior to entering the proposed order, Bloodman filed a motion to dismiss her case pursuant to Rule 41(a) of the Arkansas Rules of Civil Procedure. The trial court denied the motion, finding that it was untimely filed. Bloodman appealed.
Rule 41(a) of the Arkansas Rules of Civil Procedure states in pertinent part:
Subject to the provisions of Rule 28(d) and Rule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court. Although such a dismissal is a matter of right, it is effective only upon entry of a court order dismissing the action.
The supreme court has been resolute in holding that the right to nonsuit, as outlined by the rule, is absolute and may not be denied by the trial court so long as the case has not been |ssubmitted to the jury or the court. Burgie v. Norris, 2011 Ark. 137, 2011 WL 1206654. Once submitted, the trial court has discretion to decide whether to grant a voluntary nonsuit. Wright v. Eddinger, 820 Ark. 151, 894 S.W.2d 937 (1995). On appeal, we review the trial court’s decision under an abuse-of-discretion standard.
Bloodman first argues that the trial court erred as a matter of law when it dismissed the complaint with prejudice because she filed her notice of dismissal before the entry of the trial court’s order. She cites numerous cases for the proposition that a judgment is not effective until it is reduced to writing and entered by the court. This argument fails because the plain wording of Rule 41(a) gives a party the absolute right to nonsuit only until the case is submitted. A case has been finally submitted at a hearing for Rule 41(a) purposes when the argument has closed. Burgie v. Norris, supra. Here, Bloodman did not move to nonsuit until after she had completed her argument to the trial court and received an adverse ruling from the bench. Accordingly, the trial court did not err in finding her motion to nonsuit untimely.
Citing Linn v. NationsBank, 341 Ark. 57, 14 S.W.3d 500 (2000), and Lemon v. Laws, 305 Ark. 143, 806 S.W.2d 1 (1991), Bloodman next argues that the trial court erred because she has an absolute right to a voluntary nonsuit pursuant to Rule 41(a) of the Arkansas Rules of Civil Procedure. Again, her argument fails. In Wright v. Eddinger, supra, the supreme court held that a plaintiff no longer had an absolute right to a voluntary nonsuit after the trial court announced its decision from the bench. Accordingly, we reject Bloodman’s argument on this point as well. Linn and Lemon do not compel a different result. Both of those cases involved Umotions to nonsuit filed before the case was submitted. Her citation of Shaw v. Destiny Industries, Inc., 78 Ark.App. 8, 76 S.W.3d 905 (2002), is similarly unpersuasive because that ease involved claims that had not been dismissed by the grant of partial summary judgment.
As a final note, we clarify the disposition of this case. As noted previously, dismissal with prejudice of the complaint against Wright and Continental was proper. Nonetheless, dismissal does not sever whatever contractual obligations Continental has to Jefferson Regional Medical Center and Jefferson Hospital Association; the liability, if any, between these parties has not been adjudicated in this action.
Affirmed.
ROBBINS, J., agrees. .
PITTMAN, J., concurs.
. Arkansas Code Annotated section 23-79-210 (Supp.2011).
. On July 8, 2009, Bloodman voluntarily non-suited Jefferson Hospital Association doing business as Jefferson Regional Medical Center.
. We note that, ordinarily, a trial court only has authority to dismiss the complaint without prejudice pursuant to Rule 4(i) of the Arkansas Rules of Civil Procedure. However, the order of dismissal came after the two-year statute of limitations that applies to medical-negligence actions had lapsed. In accordance with the supreme court’s direction in Brennan v. Wadlow, 372 Ark. 50, 270 S.W.3d 831 (2008), dismissal with prejudice was proper. | [
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LARRY D. VAUGHT, Chief Judge.
| Melissa Landis-Maynard and Tommy Dale Niccum appeal from an order terminating their parental rights in their three-year-old son, T.N. Landis-Maynard’s attorney has filed a no-merit brief and motion to withdraw, stating that there are no issues of arguable merit for appeal. Linker-Flores v. Ark. Dep’t of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004); Ark. Sup.Ct. R. 6 — 9(i) (2011). Niccum, who is represented by separate counsel, seeks reversal on the grounds that termination was not in the child’s best interest and that the Arkansas Department of Human Services (DHS) did not make meaningful efforts to rehabilitate him. We affirm the termination order as to both parents and grant Landis-Maynard’s counsel’s motion to withdraw.
I. Factual Background
Melissa Landis gave birth to T.N. when she was seventeen years old. The father, 12Tommy Niccum, was fourteen. Not long after the child’s birth in March 2008, Lan-dis married Patrick Maynard. Niccum continued to live at home with his mother.
On September 16, 2009, DHS received a report that T.N. had been injured and that Patrick Maynard did not like the child. An investigation revealed that T.N. had bruises on his face and ear, and scratches and bruises on his thigh and testicles. Upon being questioned by a DHS worker, Melissa Landis-Maynard could not identify a specific incident that corresponded to the injuries. She told the worker that T.N. fell a lot, sometimes hit himself with his toys, and may have been scratched by the family dog. DHS placed a seventy-two-hour hold on T.N. and obtained emergency custody of him on September 21, 2009. A probable-cause order was entered several days later, maintaining custody with DHS.
At a November 6, 2009 hearing, the circuit court adjudicated T.N. dependent-neglected due to physical abuse by “the father,” meaning the stepfather, Patrick Maynard. The court established a goal of reunification and ordered the mother to accomplish various tasks, including attending and completing parenting-without-violence classes; attending and completing a drug-and-alcohol assessment and complying with recommendations; attending and completing a psychological evaluation and complying with recommendations; and obtaining and maintaining appropriate housing, income, and transportation. The court also ordered that Patrick Maynard have no contact with T.N.
Following the adjudication hearing, DHS developed a case plan, which provided, in part, that the mother should have no contact with Patrick Maynard. The plan also declared an intention to refer Tommy Niccum for DNA testing and, if paternity could be established, |sto have Niccum complete parenting classes; undergo a drug-and-alcohol assessment and a psychological evaluation; maintain stable housing, income, and transportation; and visit T.N. regularly. Subsequent genetic testing established Niccum’s paternity, and the court declared Niccum to be T.N.’s father following an April 9, 2010 review hearing. The court also continued the goal of reunification with the mother and granted Nic-cum visitation upon completing parenting classes, with the proviso that visitation would not occur if Niccum were intoxicated.
On May 26, 2010, Niccum attended a DHS staffing and signed the case plan. By the time of a September 13, 2010 permanency-planning hearing, however, Nic-cum had not completed parenting classes, had not submitted to a psychological evaluation or drug-and-alcohol assessment, and was living in unstable housing with his mother. Similarly, Melissa Landis-May-nard had failed to comply with virtually all aspects of the case plan and court orders, and she continued to reside with Patrick Maynard. The court changed the goal of the case to termination of parental rights and adoption. The order recited that DHS provided several services during the case and made reasonable efforts to achieve a goal of permanency.
In the ensuing months, Niccum completed parenting classes and submitted to a psychological evaluation, completing it a few weeks before the January 2011 termination hearing. Niccum did not attend a drug-and-alcohol assessment, despite having received a referral from DHS in August 2010.
|4The termination hearing was held on January 24, 2011. Landis-Maynard testified that she had no funds and owed money for utility bills and a traffic fine. She also stated that she had not completed parenting-without-violenee classes and that she had recently given birth to a child with Patrick Maynard. She said that she had seen Maynard just two or three weeks before the hearing and that she was aware that Maynard had been arrested for neglecting or harming another child. She acknowledged that, during her pregnancy, she made two police reports against Maynard for inflicting physical abuse on her. She did not, however, believe that Maynard had abused T.N.
Niccum, who was seventeen at the time of the hearing, testified that he lived with his mother and her boyfriend and that he had stopped attending high school after the tenth grade in order to enroll at a day treatment center. He completed his time at the center in May 2010 but did not attend school or take GED classes thereafter. He testified that his high school would not let him return because he did not have an original copy of his birth certificate. On the Monday before the hearing, he began working at a pizza parlor. Niccum stated that he planned to get a driver’s license when he turned eighteen.
Niccum explained that he had not attended the drug-and-alcohol assessment for which he received the referral because it was too far from his home. He denied drinking alcohol and said that several empty alcohol bottles, which a DHS worker observed in his room, came from a friend’s house and were there for decoration.
DHS caseworker Robbie McKay testified that she had observed Melissa Lan-dis-Maynard with injuries to her face and neck during the case and with a black eye as recently |Bas a month and a half before the hearing. McKay also said that she had offered to provide transportation to Niccum to attend the drug-and-alcohol assessment but received no response. She additionally questioned Niccum’s claim that he had not returned to school for want of a birth certificate. She testified that he was still enrolled in school while at the day treatment center and that she knew of no requirement that he re-present his birth certificate. McKay stated further that Niccum’s home was not appropriate for T.N. because there were alcohol bottles on Niccum’s couch and dresser, a knife on the floor, tools lying around, and an air-gun on the couch. Finally, McKay testified that T.N.’s foster parents had expressed an interest in adopting him and that she saw no impediments to the adoption.
Niccum’s mother, Stacy Lynn Schwennly, agreed that her home was not currently appropriate for a child but said that things could be fixed up rather quickly. She testified that Niccum saw T.N. often before the child went into DHS custody and that Niccum bathed and fed the child. On cross-examination, Schwennly admitted that Niccum and her boyfriend had gotten into an altercation that resulted in the boyfriend going to jail for threatening to shoot Niccum.
In addition to the above testimony, DHS introduced Niccum’s psychological evaluation, which revealed that he had dropped out of school in the tenth grade “because it would be easy”; that he had a history of legal problems due to arguing and fighting; that he had been diagnosed with explosive disorder, major depression, anxiety, and ADHD, for which he had entered the day treatment center; and that he had stopped taking his medication. Also introduced was a CASA report indicating that Landis-Maynard had recently been fired from filler job for lateness, rudeness, and inattention to her duties, and that Niccum had not followed up on outpatient treatment after his discharge from the day treatment center.
On April 20, 2011, the circuit court entered an order terminating Landis-May-nard’s and Niceum’s parental rights in T.N. The court noted the mother’s lack of compliance with the case plan and her continued contact with Patrick Maynard, and the father’s inability to meet T.N.’s needs in light of his just beginning his first job, his reliance on his mother and her boyfriend for support, and the instability and violence in that household. Both parents filed timely notices of appeal.
II. Landis-Maynard’s No-Merit Appeal
We agree with counsel that the termination decision as to Melissa Landis-Maynard presents no issues of arguable merit for appeal. DHS established a permanency-planning goal of adoption, and the circuit court heard evidence that T.N.’s foster parents had expressed interest in adopting him, with no impediments to the adoption. During the sixteen-month case, Landis-Maynard remained financially unstable and could not hold a regular job. She did not complete parenting-without-violence classes as ordered by the court and attended only three of eighteen sessions. She also maintained a relationship with Patrick Maynard and had another child with him, despite his propensity for extreme violence toward her and despite knowing that her continued contact with him could affect her ability to regain custody of T.N.
A parent’s unstable living and financial situation and volatile and abusive relationships demonstrate potential harm in returning the child to the parent. Dority v. Ark. Dep’t of Human Servs., 2011 Ark. App. 295, at 7, 2011 WL 1495988. Further, where a parent stands by a perpetrator of abuse and steadfastly refuses to believe that the perpetrator has abused her child, despite the court’s having made such a finding at the adjudication hearing, a termination order may be affirmed. See Sparkman v. Ark. Dep’t of Human Servs., 96 Ark.App. 363, 365-66, 242 S.W.3d 282, 284 (2006); Wright v. Ark. Dep’t of Human Servs., 83 Ark.App. 1, 5-6, 115 S.W.3d 332, 334-35 (2003). Given these authorities and DHS’s proof in this case, any appeal from the termination order would be wholly without merit.
Likewise, two adverse evidentiary rulings at the termination hearing reveal no meritorious grounds for reversal, given that Landis-Maynard could not possibly demonstrate prejudice from either ruling. Carpenter v. Ark. Dep’t of Human Servs., 2009 Ark. App. 340, at 4, 2009 WL 1153245. We therefore affirm the termination ruling as to Landis-Maynard and grant counsel’s motion to withdraw.
III. Niccum’s Appeal— Reasonable Services
Once a child has been adjudicated dependent-neglected, there is a presumption that DHS will provide services to preserve and strengthen the family unit. Tuck v. Ark. Dep’t of Human Servs., 103 Ark.App. 263, 266, 288 S.W.3d 665, 668 (2008). Niccum argues that DHS’s efforts in this regard were not meaningful or reasonable.
The record does not reflect that Niccum raised this argument to the circuit court. We will not address a reasonable-efforts argument for the first time on appeal. Kelley v. Ark. Dep’t of Human Servs., 2011 Ark. App. 481, at 4, 2011 WL 2577561. Moreover, the circuit court made a finding of reasonable efforts in the permanency-planning order, and Niccum did not appeal from the | finding in that order. He has therefore waived consideration of this issue on appeal. Kelley, 2011 Ark. App. 481, at 5, 2011 WL 2577561.
In any event, Niccum’s argument on this point is not well taken. DHS made several services available to Niccum: referrals for paternity testing, parenting classes, a psychological evaluation, and a drug-and-alcohol assessment, as well as offers of transportation assistance. Niccum utilized some of these services after the court set a date for the termination hearing but did not undergo a drug-and-alcohol assessment. He argues that he was unable to attend the assessment because it was too far from his home. The DHS caseworker testified, however, that she offered Niccum transportation to the assessment locale but that Niccum did not respond.
Niccum also contends that DHS failed to provide him with information about keeping his home safe for a child. Yet, he underwent parenting- classes and had supervised visits with T.N., thereby receiving parenting instruction. He also claims that he had only a short time to take advantage of DHS services. In fact, he had approximately eight months, during which he was not employed or in school. Niccum further asserts that he did not receive a referral for anger-management classes as recommended in the psychological evaluation. The psychological evaluation was not completed by Niccum until December 2010, and DHS did not receive the evaluation until approximately two weeks before the January 2011 termination hearing. Niccum offers no convincing argument why DHS should have prolonged the sixteen-month-old case for him to complete anger-management classes, especially in light of the fact that he sought no continuance from the circuit court on that basis.
|flFor these reasons, we decline to reverse on this issue.
IV. Niccum’s Appeal—Best Interest
A termination decision must be based on clear and convincing evidence that termination is in the child’s best interest, taking into consideration the child’s likelihood of adoption and the potential harm in returning the child to the parent. Ark.Code Ann. § 9-27-341(b)(3)(A)(i) & (ii) (Supp.2011). Niccum contends that termination was not in T.N.’s best interest because he had a bond with T.N. and was not the offending parent who caused T.N.’s removal from the home. We see no reversible error.
While it is true that Niccum was not the offending parent at the outset of the case, once he became part of the proceedings, the court received evidence that Niccum was a young man who cavalierly stopped his education in the tenth grade and undertook no other significant education or work activity until the week before the termination hearing. The evidence also showed that Niccum remained at the mercy of his mother and her boyfriend for transportation and basic support, and the environment in the household was a volatile one — the boyfriend was arrested for threatening to shoot Niccum following an argument. Additionally, the proof showed that Niccum was diagnosed with intermittent-explosive disorder and had a history of legal trouble due to arguing and fighting yet was apparently taking no medication and had not followed up on outpatient treatment.
In conducting the best-interest analysis, the focus is on the potential harm that might result from continued contact with the parent. The court is not required to find that actual harm would result or to affirmatively identify a potential harm. Cariker v. Ark. Dep’t of Human 1 2011 Ark. App. 574, at 10, 385 S.W.3d 859, 865. Furthermore, the potential-harm analysis should be conducted in broad terms. Id. at 10, 385 S.W.3d at 865. The circuit court may well have concluded that the evidence outlined above demonstrated potential harm in placing T.N. with Niccum. A child is subject to potential harm if he is placed in a volatile environment with persons who have unresolved mental-health issues. Masterson-Heard v. Ark. Dep’t of Human Servs., 2010 Ark. App. 623, at 4, 2010 WL 3686822. Further, the court heard evidence that the seventeen-year-old Niccum consumed alcohol in his home, as shown by the many empty bottles in his room, yet did not attend the drug-and-alcohol assessment for which he was referred. Given these circumstances, we cannot say that the circuit court clearly erred in ruling that termination of Nic-cum’s parental rights was in T.N.’s best interest.
Affirmed, and motion to withdraw granted as to Landis-Maynard; affirmed as to Niccum.
GLADWIN and MARTIN, JJ., agree.
. For reasons not explained in the record, the order from the April 9, 2010 review hearing was not filed until January 21, 2011. The court did file an order on April 27, 2010, establishing Niccum's paternity. | [
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ROBERT L. BROWN, Justice.
| Appellant Lesa Diane Menne appeals from the circuit court’s denial of her motion to suppress evidence recovered in a search of her vehicle after she was stopped for a traffic violation. We affirm the circuit court’s ruling.
On October 19, 2008, Trooper Phillip Roark of the Arkansas State Police pulled over a pickup truck driven by Menne at approximately 10:57 p.m. outside of Walnut Ridge. Roark initiated the stop because Menne was traveling fifty-five miles per hour in a forty-five-mile-per-hour zone. According to the affidavit Roark filed after the stop, the truck was driven by Menne and had one passenger, Christopher Smith. In the affidavit, Roark says that Menne “appeared nervous,” that he had “arrested Christopher Smith in the same vehicle on [September 20, 2008] for DWI-Drugs and Possession of Marijuana,” that he “located drugs in this same vehicle” during Smith’s arrest, and that he had “information from the Walnut | ¡>Ridge Police Department that Menne was a suspected drug dealer.” Roark concludes, in his affidavit, “[t]aking this into consider ation, I asked for consent to search, which was granted by Menne.”
Roark searched Menne’s vehicle and found .0586 grams of marijuana, .0348 grams of methamphetamine, and a prescription bottle with the label torn off. Menne was charged with possession of marijuana, possession of drug paraphernalia, and possession of methamphetamine, a felony. She then moved to suppress the items seized on grounds that the search was illegal. During the ensuing suppression hearing, Roark testified that after he pulled her over, she provided him with her license, registration, and all the documentation he requested. Nevertheless, because Menne “seemed to be nervous” and he had “information that she was dealing drugs,” and “due to the time of night and the previous drug arrest with this vehicle,” Roark called for a K-9 unit to conduct a dog sniff of the vehicle.
On cross-examination, Roark admitted that when he walked up to the vehicle during the traffic stop, he did not observe anything illegal. He also testified that he ran a driver’s license check and “found out that she had a criminal record too.” He could not recall, though, what the criminal record was for or what state it was from, and he admitted that when he called Men-ne’s license in to the dispatcher, the dispatcher did not say anything about a criminal record.
IsRoark testified that about six to seven minutes into the stop, he had determined that Menne’s driver’s license was valid and at about nine to ten minutes into the stop he had determined that the vehicle was properly registered. After he had verified Menne’s documentation, he stated that there was nothing further he needed to do to investigate the traffic violation other than to give Menne her paperwork and a warning citation he had already written but had not yet given to Menne to sign.
Roark further testified that after verifying all of Menne’s documentation, he asked her to step out of the truck approximately thirteen minutes into the stop. He stated that he next requested that Menne consent to a search of her vehicle. This was about fourteen minutes into the stop. He conceded that at some point, Menne said something to the effect of “this is harassment,” although he added that she only said that one time. He proceeded to testify that Menne said he could “go ahead and look.” After she consented, Roark stated that he found in the truck .0368 grams of methamphetamine, .05 grams of marijuana, and a prescription pill bottle with the label torn off. Roark testified that he had not returned Menne’s vehicle registration to her and that he had not had her sign the warning ticket before asking for consent to search the vehicle.
Menne relayed facts different from Roark at the suppression hearing. She testified that Roark returned all of her documents to her eight or nine minutes into the stop. She said that when Roark asked for consent to search her vehicle, she asked him “for what and why.” She said that Roark told her he had “probable cause because of [Smith] being with me.” Menne further said that it was her understanding that Roark “was going to [search] no matter what |4I said.” Menne added that she told Roark four times she felt like she was being harassed and that she never voluntarily consented to a search of the vehicle. On cross-examination, Menne said that she told Roark he could not search her vehicle the first two times he asked, and she reiterated to him “you’re harassing me.” When Roark asked if she cared if he searched her vehicle, she denied ever saying “no, I don’t guess I do,” or “go ahead and look.” During her testimony, the prosecutor repeatedly played a video and audio made by Roark of the stop and asserted that a conversation to that effect could be heard on the video. In response, Menne testified that Roark had asked her “do you have anything in your vehicle,” to which she responded, “no, I guess I don’t.”
After hearing all of the testimony and evidence, including the video and audio of the stop, and hearing argument from counsel, the circuit court denied the motion to suppress. The court gave no reason or explanation for doing so. After the subsequent jury trial, Menne was found guilty of possession of methamphetamine, possession of drug paraphernalia with the intent to use, and possession of marijuana. She was fined a total of $4500.00 for all of the charges and sentenced to thirty-six months’ probation for the methamphetamine charge. On appeal, Menne challenges only the circuit court’s denial of her motion to suppress. The court of appeals reversed the ruling of the circuit court, Menne v. State, 2010 Ark. App. 806, 379 S.W.3d 86, and this court granted the State’s petition for review. When this court grants review, we do so as if the matter had been originally appealed to this court. Brookshire v. Adcock, 2009 Ark. 207, 307 S.W.3d 22.
| Jn reviewing a circuit 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 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 circuit court and proper deference to the circuit court’s findings. Yarbrough v. State, 370 Ark. 31, 36, 257 S.W.3d 50, 55 (2007) (citing Mann v. State, 357 Ark. 159, 161 S.W.3d 826 (2004)). We reverse only if the circuit court’s ruling is clearly against the preponderance of the evidence. Yarbrough, 370 Ark. at 36, 257 S.W.3d at 55 (citing Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001)).
Menne’s principal argument is that she was illegally detained after the purpose of the traffic stop was complete in contravention of this state’s case law and Arkansas Rule of Criminal Procedure 3.1. We first observe that Trooper Roark’s initial stop was legal, and Menne does not appear to contest that issue on appeal. Roark testified that Menne was traveling fifty-five miles per hour in a forty-five-mile-per-hour zone. See Ark.Code Ann. § 27-51-201. The legality of the stop, accordingly, is not an issue in this appeal.
Two issues confront this court in the instant case. The first is whether the purpose of the traffic stop was over at the time Trooper Roark requested Menne’s consent to search the vehicle. The second issue is whether Roark developed a reasonable suspicion during the course of the traffic stop that was a sufficient basis to detain Menne further. The parties agree that at the time Roark requested a consent to search, he had not given Menne the warning citation for speeding. According to Roark’s testimony, he had not yet returned all of Menne’s documents to her. Our case law suggests that a stop is not complete until the warning citation Rand other documents are delivered back to the driver. See Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007) (holding that it was permissible for a police officer to ask for consent to search the vehicle when the officer had determined that he would issue a warning ticket but had not yet returned the driver’s identification papers or issued that ticket); see also Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004) (noting that the legitimate purpose of the traffic stop ended after the officer handed back the driver’s license and registration along with a warning ticket). Countering that, however, is Menne’s assertion that the warning citation was not provided to her by Roark because he was waiting for the K-9 unit to begin the dog sniff. Because we conclude that Roark had reasonable suspicion to detain Menne, we need not resolve the first issue.
We conclude that Roark had reasonable suspicion to detain Menne pursuant to Rule 3.1 of our Arkansas Rules of Criminal Procedure. Rule 3.1 requires the officer to possess reasonable suspicion that the person is committing, has committed, or is about to commit a felony or a misdemeanor involving danger to persons or property. Malone v. State, 364 Ark. 256, 262-68, 217 S.W.3d 810, 814 (2005). The officer must develop reasonable suspicion to detain before the legitimate purpose of the traffic stop has ended. Id. at 263, 217 S.W.3d at 814 (citing Burks v. State, 362 Ark. 558, 210 S.W.3d 62 (2005)). Whether there is reasonable suspicion depends upon whether, under the totality of the circumstances, the police have “specific, particularized, and articulable reasons indicating that the person may be involved in criminal activity.” Malone, 364 Ark. at 263, 217 S.W.3d at 814 (citing Laime v. State, 347 Ark. 142, 155, 60 S.W.3d 464, 473 (2001)).
|7The factors that combined to give Roark a reasonable suspicion that Menne was engaged in criminal activity are (1) one month earlier he had stopped the same truck and arrested Menne’s passenger, Christopher Smith, for DWI and possession of marijuana; (2) during a criminal history check, Roark discovered Menne had been previously arrested; (3) he had information from a local police department that Menne was suspected of drug dealing; (4) Menne was nervous; and (5) the time of night.
We are mindful that while one of these factors may not have been enough to lead to “reasonable suspicion,” viewing the totality of these circumstances, we cannot say the circuit court erred in denying the suppression motion. See, e.g., Laime, 347 Ark. at 159, 60 S.W.3d at 475 (holding that under a totality-of-the-circumstances review, the officer legitimately entertained a reasonable suspicion of criminal activity but noting that mere nervousness, standing alone, was not sufficient to constitute reasonable suspicion of criminal activity and grounds for detention). Arkansas Code Annotated section 16-81-203 specifically mentions the demeanor of the suspect, knowledge of the suspect’s background and character, time of night, and information received from third parties as factors to be considered by law enforcement officers to determine grounds for reasonable suspicion. See Ark.Code Ann. § 16-81-203(1), (3), (6), (9) (Repl.2005). There is no requirement under the statute that a police officer need to have personally observed any or all of these factors.
We further emphasize that the search by Roark occurred within fifteen minutes of the stop, even though the fifteen-minute time constraint under Rule 3.1 would not have begun | ^running until after Roark completed his routine tasks associated with the traffic stop. We hold that Menne was reasonably detained at the time Roark made his request to search.
Regarding the consent itself, the State had the burden of proving by clear and positive evidence that consent to a search was freely and voluntarily given and that there was no actual or implied duress or coercion. Ark. R.Crim. P. 11.1 (2008). Roark testified that when he asked Menne if he could search her vehicle, she responded, “if you want to, go ahead and look.” Roark acknowledged that at some point Menne alleged that he was harassing her. According to Roark’s testimony, after she made that allegation, he informed her that she had the right to refuse consent. The video and audio of the stop does not contradict Roark’s testimony. This exchange occurred while Roark and Menne were standing behind her truck on the side of the road.
The circuit court apparently believed Roark’s version of the events, which is supported by the video and audio. Hence, it denied Menne’s motion to suppress. Credibility of witnesses is an issue for the finder of fact. R.M.W. v. State, 375 Ark. 1, 8, 289 S.W.3d 46, 51 (2008). We cannot say that the circuit court erred in finding that Menne’s consent was voluntarily given and was not the product of harassment.
Justice Baker’s dissent is in error in two fundamental respects. First, it concludes that Roark impermissibly extended the traffic stop by not returning the warning ticket to Menne. Although this issue was summarily argued by Menne, her briefs to this court focused on the lack of reasonable suspicion for continued detention. To the extent that Menne argued that the legitimate purpose of the traffic stop ended before Roark requested consent to search, Menne does not support that argument with citation to authority. We do not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. Roberts v. State, 324 Ark. 68, 71, 919 S.W.2d 192, 194 (1996). Moreover, this court has been resolute in stating that we will not make a party’s argument for that party or raise an issue, sua sponte, unless it involves the trial court’s jurisdiction. Hanlin v. State, 356 Ark. 516, 529, 157 S.W.3d 181, 189 (2004).
Next, Justice Baker’s dissent argues that Roark did not have reasonable suspicion to detain Menne after the purpose of the traffic stop had ended. The stop, however, had not ended because the warning ticket had not been given to Menne. See, e.g., Yarbrough, 370 Ark. 31, 257 S.W.3d 50. But beyond that, the dissent says in its view the factors giving rise to Roark’s reasonable suspicion did not pass muster. That, though, is not the standard of review. Rather, it is whether, after a de novo review of the totality of the circumstances, the Imcircuit court’s ruling denying the motion to suppress is clearly against the preponderance of the evidence. Yarbrough, 370 Ark. at 36, 257 S.W.3d at 54. We do not think it was.
Chief Justice Hannah’s dissent falls into something of the same trap. Whether the traffic stop had ended without the issuance of a warning citation was not developed on appeal by Menne. Moreover, this dissent surmises that Roark withheld issuing the citation to extend that stop. Roark’s “belief’ and any ulterior motive in this regard are not supported by the record.
But regardless, Roark had reasonable suspicion to detain Menne as already discussed. After Menne’s vehicle was stopped, with Smith as a passenger, Roark recollected that he had stopped the same vehicle and arrested Smith for drug-related offenses one month earlier. In addition, he had information from a local police department that Menne was involved in drug dealing. Roark also had knowledge of Menne’s prior arrest. It was late at night, and Menne was nervous. All of these factors combined give Roark reasonable suspicion, and the circuit court so found.
We affirm the circuit court’s denial of Menne’s motion to suppress the evidence seized as a result of Roark’s search of her truck, because that ruling is not clearly against the preponderance of the evidence.
Affirmed. Court of appeals opinion vacated.
HANNAH, C.J., and BAKER, J., dissent.
GOODSON, J., not participating.
. The State did not pursue charges relating to the pills found in the prescription bottle after Menne produced a valid prescription.
. As part of a valid traffic stop, a police officer may detain a traffic offender while the officer completes certain routine tasks, such as computerized checks of the vehicle’s registration and the driver’s license and criminal history, and the writing up of a citation or warning. Sims, 356 Ark. at 514, 157 S.W.3d at 535 (citing Laime, 347 Ark. 142, 60 S.W.3d 464 (2001)). During this process, the officer may ask routine questions such as the driver’s destination, the purpose of the trip, or whether the officer may search the vehicle. Sims, 356 Ark. at 514, 157 S.W.3d at 535. In addition, the officer may act on whatever information is volunteered. Id. This detention is unrelated to a detention under Arkansas Rule of Criminal Procedure 3.1. Laime, 347 Ark. 142, 157, 60 S.W.3d 464, 474.
. Under Welch v. State, 364 Ark. 324, 219 S.W.3d 156 (2005), Roark was not required to advise Menne that she had the right not to consent to the search. | [
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JOHN B. ROBBINS, Judge.
| iThis is an appeal of a divorce proceeding heard in Pulaski County Circuit Court after twenty-two years of marriage between appellant Robert (Bob) Bamburg and appellee Lisa Bamburg. Bob appeals portions of the trial court’s order that (1) awarded primary custody of their two children to Lisa; (2) divided the parties’ business and personal property interests; and (3) failed to order Lisa to reimburse Bob the full amount of marital funds spent by her toward an adulterous relationship. Lisa cross-appeals the trial court’s denial of her request to “reconcile the parties’ joint checking account” and to order Bob to pay her half of his marital income diverted during the pendency of divorce. Each contends that the trial court’s findings bare clearly erroneous on their issues raised on appeal. We affirm on direct appeal on his first and third points, we reverse in part on his second point, and we affirm on her cross-appeal.
With regard to custody, the primary consideration is the welfare and best interests of the children involved; all other considerations are secondary. Hicks v. Cook, 103 Ark. App. 207, 288 S.W.3d 244 (2008). The factors a trial court may consider in determining what is in the best interest of the children include the psychological relationship between the parents and children, the need for stability and continuity in the relationship between parents and children, the past conduct of the parents toward the children, and the reasonable preference of the children. Rector v. Rector, 58 Ark. App. 132, 947 S.W.2d 389 (1997). On appeal, we perform a de novo review, but we will not reverse unless the findings are clearly erroneous. Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (2003); Ross v. Ross, 2010 Ark. App. 497, 2010 WL 2404168. This necessarily turns in large part upon credibility determina tions, and we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the, children’s best interest. Sharp v. Keeler, 99 Ark. App. 42, 256 S.W.3d 528 (2007). There are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carry as great a weight as those involving children. Judkins v. Duvall, 97 Ark. App. 260, 248 S.W.3d 492 (2007).
With regard to property division, Ark.Code Ann. § 9-12-315 (Repl.2009) requires that the trial court divide marital property equally between the parties unless the trial court finds such a distribution inequitable. The statute requires the circuit court to consider the following factors when making an unequal division of marital property: (1) length of the |?,marriage; (2) the age, health, 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 the 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. § 9-12-315(a)(1)(A). While the trial court must consider these factors and state its reasons for dividing property unequally, it is not required to list each factor in its order nor to weigh all the factors equally. Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001). Appeals of property-division cases are also reviewed de novo; we will affirm unless the trial court’s findings are clearly erroneous. Hernandez v. Hernandez, 371 Ark. 323, 265 S.W.3d 746 (2007).
In this case, the parties married in 1988, separated in 2009, participated in a three-day divorce. hearing in June 2010, and were divorced by decree filed in July 2010. They bore two children, a daughter EB born in March 1995, and a son JB born in December 1996. Both parties sought to be granted a divorce from the other, wanted full custody of the children, and loved and cared for the children.
Multiple witnesses described each parent’s positive parental qualities. By all accounts, EB was a bright and pleasant teenage girl, and JB was a sweet, severely autistic pre-teen boy. Bob, an attorney with a private law practice and city-attorney position in Jacksonville, was an active participant in the children’s raising, but Lisa took the primary role in day-to-day activities for them. Lisa owned a small gift shop that was open only in November and 14Pecember each year, she worked on occasion as a contract laborer at UAMS, and she received dividends each year from her portion of stock in her family’s business.
Lisa testified in late 2009 at the temporary hearing, denying any romantic relationship with Mary Alice Hughes. Lisa and Mary Alice lied repeatedly at that hearing, acknowledging that they were very best friends but denying they were romantically involved. At the final hearing, Lisa admitted it fully, stating that it had begun in the summer of 2009 around the time of separation. She reasoned that she had not yet told their daughter and wanted to do that first. Lisa believed that Mary Alice was a good person who was good to her children. ' She denied that Mary Alice had moved in, but she agreed Mary Alice was present a lot of the time prior to the temporary hearing, spending the night at her home and traveling with her and the children.
At the end of the temporary hearing, the judge told the parties that Mary Alice was not to “be around” the children. Lisa said she obeyed that order but did not prevent contact by e-mail or text until her attorney informed her what the order actually recited. Lisa believed that she should be the primary custodian because she had served in that role their entire lives, and she was much more involved in every aspect of their raising. She believed the children, especially JB, were more content in her care than their father’s.
A psychological examination demonstrated that Lisa was a steady, balanced person, and that JB was nonverbal, required special attention, and was demonstratively secure with his mother. JB attended a school with special educational services and one-on-one attention. | ¡¡One of his teachers testified about JB’s day-today experiences and emotions since the divorce proceedings were initiated as well as the high level of care he required.
Regarding travel and entertainment expenses, Lisa agreed that she spent some but not a lot of marital funds during her and Mary Alice’s travels. Mary Alice testified that she (Mary Alice) paid for a good bit of their travel, and when Lisa charged items attributable to her (Mary Alice), she would reimburse Lisa for it. Mary Alice admitted that she lied about the nature of their relationship at the temporary hearing. She said that she had developed a friendly relationship with Bob and Lisa when their marriage was still intact, and she was involved in the same church before and after they separated. She maintained her own residence in North Little Rock and had a steady job, but she admittedly spent lots of time with Lisa and her children. She said she understood that after the temporary hearing, she was not to be around the children, meaning in their presence, but thought it was okay to contact them by other means.
Although EB attended a church-affiliated private high school at the time of the divorce, Lisa had home schooled her from grades one through eight. EB expressed a strong desire to live with her mother. EB loves and respects her father, but she explained that her mother was much more involved, affectionate, and patient than her father. EB had a good relationship with her mother’s girlfriend, was eventually informed of the nature of the relationship, and had no problem with it. She added that her mother and Mary Alice did not flaunt their relationship. She said she was upset at not being able to be with Mary Alice while the divorce was pending, which she blamed on her father. She said her little brother also | Jiked their mother’s girlfriend very much and that they had an affectionate bond. EB added that JB’s behavior and responsiveness deteriorated when they stayed at their father’s house for a few days and that their father was very strict.
Bob held strong reservations about Lisa having custody of their children because Lisa was in an adulterous homosexual relationship and openly had her girlfriend stay overnight while the children were present. He believed their romantic relationship started earlier than either was willing to admit. Bob disapproved of Lisa and Mary Alice sleeping in the same bed together when the children were present, a sign of poor judgment and morals. Although he did not question Lisa’s basic skill at parenting, he asserted that Lisa’s relationship was detrimental to the children’s welfare and embarrassing for them. He called into question Lisa’s removing photographs of him in the marital home, replacing them with photos containing her girlfriend. He stated that Lisa was not compliant with the court’s temporary order, allowing Mary Alice continued contact with their children and demonstrating disdain for authority to their children. Bob asserted that he was always the disciplinarian in the household, which the children needed, as opposed to the “friend” that Lisa was.
As far as the personal property and realty, Lisa was content to allow it all to be sold and the proceeds divided if they could not come to an agreement. She wanted their marital savings and retirement accounts evenly divided. She freely acknowledged particular funds that Bob traced to a premarital account, so that he should keep one large account valued at approximately $284,000 despite it being opened during the marriage. She claimed ownership of her premarital interest in her family’s business, which had been her primary source of 17income. Her share of the income from this subchapter S corporation reportable for income tax purposes varied from year-to-year but exceeded $200,000 in both 2008 and 2009.
Lisa testified to an estimated $18,000 value of the inventory in her Kids Korner shop that she operated seasonally. She was open to Bob taking half of that inventory, but she thought she should just keep the interest in Kids Korner, and Bob should keep his law practice, although he was winding down to become a full-time city attorney.
Lisa complained that Bob stopped depositing his paychecks from the city-attorney job into their joint checking account when they separated, which she believed amounted to about $50,000 of income that he did not share. She said Bob did not give her half of their $575 in monthly rental income on one of their properties for five months in 2009 and two months in 2010. She said Bob wrongfully took $21,000 out of their joint account in December 2009 for his own use. Although Bob presented her an accounting in January 2010 with a tally of the checks he wrote attributable to Lisa and the children in the amount of $21,246.90, she disputed its accuracy. Lisa also said Bob had failed to share in his part of the children’s expenses for things like JB’s medicines and mowing fees at a rental house.
Bob wanted an even division of everything, although he thought it detrimental to them both if they sold all their personal property by court order and divided the proceeds. Bob testified that of the six vehicles Lisa listed on her inventory, only four were actually marital assets. Two were his nonmarital assets: a 1963 Cadillac Coupe DeVille and a 1973 Volkswagen Beetle. Bob prepared a list of the marital vehicles and his estimate of their current fair-market value, which was admitted into evidence. His stated preference was for | sLisa to keep the 2002 Honda Odyssey minivan that was in her possession. The three remaining were a 1982 Volkswagen Rabbit, a 1993 Isuzu Rodeo, and a 2005 Audi. Bob said Lisa could have the 1982 Volkswagen, but he wanted the 1993 Isuzu he used for utility purposes and he preferred to have the 2005 Audi because it was “newest.” He added that he would be fine with whatever the judge decided was appropriate.
Bob wanted reimbursement from Lisa for all the money she spent on her romantic relationship with Mary Alice. This, he said, included credit transactions and cash disbursements that he thought were directly tied to their courtship, which he tallied at $24,404.32. He said he reviewed documents Lisa produced in discovery where he found marital funds spent for dinners, liquor and wine, lodging, clothing, cash— “things that I know were not expenses for me and were not expenses on behalf of the kids.”
As far as their businesses, Bob accepted Lisa’s “conservative estimate” on the value of her inventory at Kids Korner, which was kept in a warehouse owned by Lisa’s mother. He argued that her Kids Korner account money was misused for Lisa’s ro mantic pursuits. As for his law practice, he said the only remaining items in his office were used or old furniture, which Lisa had listed on an exhibit that was entered into evidence. Bob testified that because he was very near closure of his private practice to become a full-time city attorney, his accounts receivable were “nominal.” He stated that his mother loaned them $53,000 to buy the law-office building. He had ho documentation to support the existence of such a loan, and he admitted no payments had ever been made to his mother.
|flBob admittedly quit depositing his paychecks into their joint account after they separated. He said he created a detailed daily account of charges and expenses at the end of the year in 2009, and then he divided the balance in the joint account evenly, each party receiving the amount used by the other, resulting in the $21,000 withdrawal Bob took from the account. Bob also presented his own tally of expenses paid and rents received by each from the beginning of 2010 forward, when he began using his own account, which was admitted into evidence. According to Bob’s calculations, each owed the other for things like medical costs for the children, utility expenses, rental repairs, and rental income. These ended in Bob determining that he owed Lisa $1,230.12, which he paid her by check. Bob believed he was doing the best he could to keep all reimbursements current, and he said that he never deprived Lisa of her part of the rent income or his part of repairs, utilities, and children’s expenses.
At the conclusion of the hearing, the trial judge took the matter under advisement for a month before issuing a fourteen-page order in July 2010. Bob was awarded the divorce on his counterclaim against Lisa. The trial judge, after summarizing portions of testimony derived from some of the seventeen witnesses, concluded that these were both good and loving parents who had differing parenting approaches, neither of which were contrary to the children’s best interest. The judge found that Bob’s work responsibilities necessarily affected the amount of time Bob was able to spend with the children. The judge, noting the unfortunate circumstance of Lisa’s affair and her failure to be forthcoming about it, nonetheless concluded that there was no evidence that Lisa and her girlfriend acted | inappropriately in the presence of the children. On this topic, the judge stated, “Although the Court does not condone [Lisa] introducing a romantic partner to the children, in the present case, that fact alone does not negate the fact that [Lisa] has been the primary caregiver of the children from the date of birth to the present time.” EB’s stated preference was taken into consideration. Lisa was awarded primary custody of the children. Both parties were ordered to refrain from having any romantic partner to whom they were not married as overnight guests when the children were present, at home or on vacation. Bob was awarded liberal visitation, and he was ordered to pay child support and maintain health insurance for them.
As for division of assets and debts, the trial judge ordered all six pieces of marital realty (including the marital residence and Bob’s law office) to be sold and the proceeds evenly divided. The parties’ boat, jet ski, and flip trailer were ordered sold and the procéeds evenly divided. Individual items of personal property (furniture, household goods, etc.) as listed on the parties’ exhibits were to be evenly divided. Each party retained two of the four marital vehicles: Lisa was awarded the 2002 Odyssey and 2005 Audi, and Bob was awarded the 1993 Isuzu and 1982 Volkswagen.
Lisa was permitted to retain the assets of her business called “Kids Korner” with any attendant debt, and Bob was permitted to retain the assets of his private law practice with any attendant debt. Each was permitted to retain one IRA in their own names of equal value, and one marital IRA valued at $15,527.09 was ordered to be divided evenly. Bob was awarded the Regal Securities account valued at just under $240,000 as nonmarital property, which Lisa|nhad disclaimed against advice of her counsel. Lisa was awarded ownership of fifteen percent of stock in Zumwalt Enterprises, her family’s business, which Bob conceded was hers as nonmarital.
The trial judge, denied Bob’s request to have a $53,000 loan from his mother deemed marital debt. The judge found he had failed to prove the existence of such a loan. The judge denied Lisa’s request for reimbursements and reconciliation of their joint checking account from and after separation, finding that any funds Bob retained were marital and used to pay marital debt and toward items benefitting the children and family.
Bob’s request for reimbursement from Lisa for marital funds used toward her romantic relationship was granted in part. The judge determined that assuming Bob’s tally of $24,000 was accurate, Lisa would be responsible to reimburse Bob $12,000, but Bob could not prove the exact amount spent. Because some trips and entertainment were undeniable, the judge found Bob entitled to $2500 in reimbursement.
Bob presented a request for attorney’s fees and costs of over $11,000 necessitated by Lisa’s untruthful denials of the romantic relationship until the final hearing, by the efforts required to determine Lisa’s income from her family’s business, and by work required to defend against Lisa’s request for alimony that she abandoned during the final hearing. Lisa filed a response in opposition, seeking to discount a substantial portion of those fees and costs as unrelated and unnecessary. Bob was ultimately awarded 48,864.80 in fees and costs in a separate order.
ligBoth parties appealed, and we consider Bob’s points first. In his first point on appeal, Bob argues that the trial court’s decision to give Lisa primary custody was clearly erroneous and against the children’s best interest. He echoes his assertions at trial, contending that Lisa is an adulterous liar who disobeys court orders and is a “friend” instead of a parent. We disagree that the trial court clearly erred.
It is true that unmarried cohabitation with a romantic partner, or a parent’s promiscuous conduct or lifestyle, in the presence of a child cannot be abided. Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001). Evidence of an extramarital affair is but one factor the trial court is to consider in deciding what custody arrangement serves the best interest of a child. Atkinson v. Atkinson, 72 Ark. App. 15, 32 S.W.3d 41 (2000); Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1985). Custody is not awarded to reward or punish either parent. Eaton v. Dixon, 69 Ark. App. 9, 9 S.W.3d 535 (2000). The paramount concern in a custody determination is the best interest of the child; all other considerations are secondary. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002). The trial court undoubtedly considered the ample evidence provided by both parents, their experts, their lay witnesses, their daughter, and the historical relationship between the parents and children. The trial court was mindful of the testimony when he ordered, as he had done in the temporary order, that neither parent have overnight visits by romantic partners, addressing the concern of inappropriate cohabitation. On this record, we cannot say that there is clear error on the custody determination.
Moving to Bob’s second point, he argues that the trial court erred in failing to award him any portion of the value of Lisa’s gift-store inventory, which she estimated at $18,000. 11sBob was permitted to retain the value of his law practice, but the undisputed evidence was that he was near closure of that practice to fulfill his duties as full-time city attorney and its value was only in the used contents of the building, which were set out on their personal property lists that they equally split. The law-office realty was to be sold and the proceeds divided. Thus, he states he was deprived of $9000 in his portion of the marital asset Lisa retained in full. He also argues that the trial court unequally divided the parties’ four marital vehicles without an explanation for doing so, manifesting clear error. He reasons that although they each were awarded two vehicles, the aggregate value of Bob’s was $3000 whereas the aggregate value of Lisa’s was $24,000, leaving him unfairly deprived of $10,500 worth of marital assets. We agree with him as to the inventory but not the vehicles.
Trial courts have broad powers in distributing marital property in order to effect a division that is fair and equitable under the specific circumstances present. Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001). What is important is achieving an overall distribution of the marital estate that is fair under the circumstances. Copeland v. Copeland, 84 Ark. App. 303, 139 S.W.3d 145 (2003).
It is clear to us that the trial court was attempting to make as close to a 50/50 distribution of the entire marital estate as possible. The trial court ordered each party to retain the marital assets derived from the businesses they ran independently of one another. On the evidence, however, this is uneven distribution without an explanation. Lisa testified to an $18,000 value of the inventory of her business, Kids Korner. The law office building was to be sold and divided, and the contents (chairs, desks, conference tables, cabinets, couches, etc.) | uwere included on the personal-property lists entered into evidence by the parties. The items on such lists were to be divided between the parties. Bob’s unchallenged testimony established that his private practice was already out of business. The only conclusion to be drawn is that this was an uneven distribution, depriving Bob of $9000 in marital assets. We reverse on the this portion of Bob’s second argument.
Addressing the vehicles, Bob’s testimony reflected his desire for the court not to sell the vehicles and divide the proceeds but to give each party two of the marital vehicles. He identified the two particular vehicles he hoped to receive, but not on the basis of their current fair-market value. His testimony reflected how he would divide them based upon actual use and personal preference. In conclusion, he testified that he would be satisfied however the trial judge decided the issue. Inasmuch as Bob assented to whatever division the trial court chose to make of the vehicles, he cannot now be heard to complain about the court’s division.
As Bob’s final point on appeal, he contends that it was clearly erroneous for the trial court to award him only $2500 when he believed his review of documents entitled him to $12,000 that Lisa should have reimbursed him. Lisa and Mary Alice took a number of trips together, a fact not in dispute. The women’s testimony disputed that marital funds were depleted to the extent Bob claimed. Mary Alice stated that she paid for some of their travel, and she stated that any expense that Lisa incurred for her, she reimbursed Lisa.
It is permissible to have one spouse reimburse the other for improper expenses attributable to a paramour, and we have upheld decisions to do so. Williams v. Williams, 82 Ark. App. 294, 108 S.W.3d 629 (2003). It is also axiomatic that one must present evidence 115to prove such an assertion, and Bob could not do so with certainty. In the absence of more exacting documentation, and with the evidence from Lisa and Mary Alice in opposition, we cannot say that the trial court clearly erred in ordering this amount of reimbursement.
We now turn to Lisa’s cross-appeal. She contends that the trial court clearly erred (1) by failing to require Bob to remit one-half of his income during their separation, which he ceased depositing into joint accounts, and (2) by failing to require Bob to repay her for living expenses for which he was responsible per the temporary order. There is no provision in the decree addressing marital income during the pendency of the divorce from either party. The temporary order does not address marital income either. The closing portion of the decree states that the court had “considered all other requests for relief, and hereby denies any claim not otherwise addressed in this Decree.” The trial court specifically denied Lisa’s request regarding reconciliation of the parties’ joint checking account.
Lisa contends it was error for the trial court not to require Bob to remit half of his income to her pending the divorce. We disagree on these facts. Both parties retained marital income and did not remit half to the other. Both parties incurred and paid for reasonable and necessary expenses for themselves and the children. The incomes were used to fund their lives, which until the divorce, was all marital, whether it came from their joint checking account or Bob’s later-established independent checking account. The trial court was satisfied with Bob’s evidence that he was supporting his family with his income while they remained married. This was a matter of credibility. See Friend v. Friend, 2010 Ark. App. 525, 376 S.W.3d 519. To the | Ir,extent particular findings on this issue were necessary, Lisa failed to request them pursuant to Ark. R. Civ. P. 52(b).
Lisa also argues that the trial judge clearly erred in rejecting her request to reconcile the joint checking account when he found that the monies were used to pay for marital debt and for the benefit of the children and family. Again, this was a matter of extensive conflicting testimony from each party. Bob presented detailed accounts of where the money went, what it was for, and his conviction that he had paid all expenses and remitted all rental income that he was under a duty to pay. The trial judge made a credibility call on this issue, and this is one upon which we defer to the trial judge.
In summary, we affirm Bob’s appeal with the exception of the ruling on division of Lisa’s Kids Korner assets, and we affirm on Lisa’s cross-appeal.
PITTMAN and HART, JJ., agree. | [
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LARRY D. VAUGHT, Chief Judge.
bln an order filed March 10, 2011, the Washington County Circuit Court terminated appellant Darrell Rhine’s parental rights to his daughter, R.R. (born October 16, 2008). Rhine appeals from the termination order, contending that the circuit court erred in finding that it was in the child’s best interests to terminate his parental rights. We hold that the circuit court clearly erred in finding that termination of Rhine’s parental rights was in his daughter’s best interests. Accordingly, we reverse the order terminating his parental rights.
On February 24, 2009, police responded to a domestic disturbance between Rhine and R.R.’s mother. Following the incident, Rhine was arrested for possession of a controlled substance, probation violation, and domestic assault. Officers at the scene also observed that R.R.’s mother was under the influence of methamphetamine and had numerous track marks on 12her arms. Based on these events, the Arkansas Department of Human Services (DHS) took R.R. into custody, and the court adjudicated her dependent-neglected on April 15, 2009.
A review hearing was held on September 2, 2009. R.R.’s mother did not appear, and the court found that her whereabouts were unknown and that she had not complied with any of the court orders or demonstrated fitness to parent R.R. Rhine was still in jail and had established paternity; nevertheless, the court changed the goal from reunification to adoption. The court ordered Rhine, upon his release from jail, to call DHS caseworker Steve Hodge once a week, get a job, pass weekly drug screens, maintain stable housing and employment, maintain contact with his attorney, and follow the terms of his probation and parole.
At the permanency-planning hearing held on February 3, 2010, the court found that the goal of the case should continue to be adoption, despite the fact that certificates reflecting Rhine’s completion of life-skills and parenting classes (while in prison) were entered into the record and considered by the trial court. The court also found that Rhine, who was still incarcerated, had “not participated in the services provided by [DHS].” The court directed counsel for DHS to file a termination-of-parental-rights (TPR) petition by March 3, 2010, and ordered Rhine (immediately following his release) to participate in supervised visits with R.R. for one hour each week. The court set the TPR hearing for April 29, 2010.
Rhine was released from jail on February 24, 2010. At the TPR hearing on April 29, the court terminated the parental rights of R.R.’s mother. However, the court did not terminate ^Rhine’s parental rights, finding that he had passed his drug screens since being released, had maintained employment and had participated in parenting classes, and had made progress toward reunification. The court ordered DHS to provide Rhine with services and ordered Rhine to cooperate with DHS, to keep them informed of where he was living, to maintain contact with his attorney, to not use alcohol or illegal drugs, to pass random drug screenings twice a month, to finish taking his parenting class and demonstrate that he could protect R.R. and keep her safe from harm, to maintain stable housing and employment to maintain a clean and safe home, and to follow the law and the terms of parole. The court increased Rhine’s supervised visits with R.R. to three hours per week.
On June 28, 2010, an agreed order was entered finding that Rhine had attended each weekly visit and that the eight visits had “gone extremely well and [Rhine] ha[d] displayed excellent parenting skills during the visits, and ha[d] formed a good bond with [R.R.] ” The court further found that Rhine had passed all his weekly drug screens and had followed through with getting a drug-and-alcohol assessment as ordered by the court. The court recommended unsupervised visits and scheduled a permanency-planning hearing for July 28, 2010. At the July 28 hearing, the court changed the goal of the case to reunification with Rhine and ordered that custody would return to him on September 1.
The court also allowed Rhine unsupervised, overnight visits with R.R. once a week for two weeks, then two overnight visits a week for the foEowing two weeks. The court also ordered that once Rhine resumed custody, the foster parents be permitted visits with R.R. at least once a week or more. Per the hearing order, the court observed that Rhine “has followed the Court | ¿orders, has passed drug screens, maintained stable housing and employment, has had visits that have been very appropriate, he is the biological and legal father of [R.R.] — He has shown he is very committed to [R.R.] and has worked hard since getting out of prison & has shown he is stable and can properly parent [R.R.] ” (Emphasis in original.) Again, the court ordered that Rhine follow the court orders and terms of his parole and to make sure R.R. had no contact with her mother. The court also ordered DHS to provide daycare for R.R. as a service to assist with reunification. On September 1, 2010, the court placed custody of R.R. with Rhine and found that it was in R.R.’s best interests to do “phased-in expanded visits.”
After almost two months of progress, on October 25, 2010, DHS took R.R. into emergency custody, and at a review hearing on October 27, 2010, the court found that R.R. could not return to Rhine because of two alleged events involving alcohol — the use of which was in violation of Rhine’s parole and the court’s orders. The first event involved the consumption of alcohol while watching television. The record shows that Rhine had his brother and three to four friends over to his apartment to watch a football game between Arkansas and Ole Miss, and during the course of the evening (which included a five-hour delay of the game due to lightning) the men went out to buy a twelve-pack of beer and shared it. The testimony reflects that R.R. was not present for any of this because she was spending the night with a family friend.
The second incident involved alcohol located in a vehicle. According to the testimony, Rhine rode with friends to pick up R.R. from daycare. One of the other men had an open container of liquor in the car, and they went through the drive-through at a liquor store with |fiR.R. in the car. A police officer stopped the car and found that the driver had a suspended license but did not ticket anyone or confiscate the alcohol. There was no evidence presented suggesting that Rhine was consuming alcohol or knew that the driver had a suspended license. Additionally, at the October 27 review hearing, the court also found that Rhine had failed to inform DHS that he had moved with R.R. to a new home. As a result, R.R. was returned to her former foster parents, and the court set a show-cause hearing for December 15. The court ordered that “If dad comes to visits with liquor on his breath or high, all visits [shall] stop!” and “Father follow all terms of parole!” (Emphasis in original.)
At the hearing held on December 15, 2010, the court found that Rhine had been drinking alcohol against court order and was making choices not in R.R.’s best interests. The poor choices cited by the court were the car incident and appellant moving in with a woman he had only known for two months. The court found that Rhine had failed to comply with court orders based on the same incidents addressed at the October 27 review hearing.
At a TPR hearing held on February 17, 2011, the court terminated Rhine’s parental rights based on the two alcohol incidents, the fact that on one occasion Rhine had consumed alcohol in violation of the terms of his parole and the court’s orders, and had failed to visit R.R. since December 2010. The court noted that although the parole officer had not taken action after being informed that Rhine had drunk alcohol, the parole officer was being “easy” on Rhine and R.R. was put at risk by Rhine violating his parole and risking revocation. The termination order stated that Rhine had failed to remedy the factors leading to R.R.’s removal, but in the place where such services are to be listed, none are noted. At the hearing, the circuit court added the [fifact that Rhine had failed to contact DHS caseworker Steve Hodge on a weekly basis, had missed several drug screens as additional reasons for terminating his rights, and had failed to attend several visitations with R.R. after her removal. In a dramatic move, the court ordered that Rhine was authorized to have a final, one-hour visit with R.R. at the DHS facility and directed R.R.’s foster mother to provide Rhine a photo of R.R.
An order terminating parental rights must be based upon a finding by clear and convincing evidence that termination of a parent’s rights is in the best interest of the children, considering the likelihood that the children will be adopted if the parent’s rights are terminated and the potential harm caused by returning the children to the custody of the parent. Ark.Code Ann. § 9-27-341(b)(3)(A) (Supp. 2005). The court must also find one of the grounds outlined in § 9-27-341(b)(S)(B). In this case, the court based its termination order on subsections (b)(3)(B)(i) and (vii):
(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.
(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to 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 the incapacity ... to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent return of the juvenile to the custody of the parent.
Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Causer v. Ark. Dep’t of Human Servs., 93 Ark. App. 483, 220 S.W.3d 270 (2005). “[A] parent’s interests in the nurture, upbringing, companionship, care, and custody of children are generally protected by the Due Process Clause of the Fourteenth Amendment.” Troxel v. Granville, 530 U.S. 57, 77, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (Souter, J., concurring). However, courts are not to enforce parental rights to the detriment or destruction of the health and well-being of a child. Causer, 93 Ark. App. at 486-87, 220 S.W.3d at 273. A heavy burden is placed on a party seeking to terminate the parental relationship, and the facts warranting termination must be proven by clear and convincing evidence. Id., 220 S.W.3d at 273. Clear and convincing evidence is that degree of proof which will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Id., 220 S.W.3d at 273.
This standard of proof reduces the possibility that a parent’s rights are terminated based on “a few isolated instances of unusual conduct or idiosyncratic behavior” and “impresses the fact[-]finder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate terminations will be ordered.” Santosky v. Kramer, 455 U.S. at 745, 764-65, 102 S.Ct. 1388. “A termination of parental rights is both total and irrevocable.... [I]t leaves the parent with no right to visit or communicate with the child, to participate in, or even to know about, any important decision affecting the child’s religious, educational, emotional, or physical development.” Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 39, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981).
We do not reverse the circuit court’s finding of clear and convincing evidence unless that finding is clearly erroneous. Causer, 93 Ark.App. at 487, 220 S.W.3d. at 273. 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. Yarbrough v. Ark. Dep’t of Human Servs., 96 Ark.App. 247, 240 S.W.3d 626 (2006). This, however, does not mean that the appellate court is to act as a “super factfinder,” substituting its own judgment or second guessing the credibility determinations of the court; we only reverse in those cases where a definite mistake has occurred. Id. at 249, 240 S.W.3d at 627. We are convinced, however, that here such a definite mistake has occurred.
Rhine without question did consume alcohol after his release from jail, which violated the terms of his parole and the court’s orders. Rhine also permitted R.R. to ride in a car with a passenger who had an open container of alcohol. Rhine acknowledged that it was a poor decision and stated his regret for allowing it. Rhine also accepted the court’s criticism that he had (in the court’s own words) become “less gung ho” about complying with certain DHS reporting requirements, and he acknowledged a need for improvement.
However, these isolated and minor incidents of noncompliance or “being less gung ho” do not necessitate a termination of Rhine’s parental rights in order to protect R.R. First, with regard to the court’s primary concern of alcohol issues, there was no evidence presented that Rhine was ever intoxicated or in actual risk of his parole being revoked. When his parole officer was informed of the alcohol inci dents, the officer took no action. As of the date Rhine’s parental rights were terminated, he had only six months left on his parole. Rhine and his brother testified that Rhine had not consumed alcohol since R.R. was taken back into DHS custody in October 2010, and DHS presented no evidence to the contrary. Also, in spite of its professed concerns about alcohol, the circuit court never attempted to address that issue with alcohol-related services or measures like AA or NA. In fact, other than daycare services provided by DHS, the ^court’s orders do not reflect that any services were provided to the appellant other than the ones he successfully participated in, such as parenting, anger management, and life-skills classes, most of which he completed before he was released from jail.
As a secondary ground for TPR, the circuit court found that Rhine had attended only two of his weekly scheduled visits with R.R. from December 15, 2010 to February 17, 2011. At the TPR hearing, the court acknowledged that two of those visits had to be canceled because the DHS office was closed due to inclement weather and that those two visits did not “count.” Of the five remaining missed visits, there was evidence that Rhine missed one because he was sick and one because he had to work out of town and did not want to lose his job (maintaining employment being one of the court’s continuing orders). Rhine missed one of the three other visits for an unspecified reason and attempted to reschedule, but DHS could not accommodate him because they were “booked up.” At worst, Rhine had three “unexcused” absences and at best, two. Although less than perfect with his visitation, the record establishes that Rhine did not overtly neglect his duty to attend visitation for a two-month period.
Rhine testified that his girlfriend had moved out of the home based on his decision to place R.R. first. Indeed, by all accounts R.R. was a well-adjusted, developmentally normal child who had bonded very well with Rhine in the short time they had lived together. All visits between R.R. and Rhine were noted to be very successful, and the evidence and testimony as a whole show Rhine to be a loving father who worked hard upon his release from jail to achieve reunification with R.R. by maintaining a stable job and good housing, staying off drugs, providing love to R.R., and complying with the court’s orders. The only significant exception | into that compliance was his occasional, moderate consumption of alcohol. We are mindful of the circuit court’s duty to ensure that R.R.’s best interests are served, and we are respectful of the court’s power to order certain behavior to serve that end. We also agree that disregarding a court’s order should have consequences. However, in this case, where the court itself stated that “this isn’t about that little thing of drinking some beer,” which “in the whole scheme of things, [is] not a big deal,” the consequence was too severe.
Termination of parental rights should be the goal only when “the return of a juvenile to the family home is contrary to the juvenile’s health, safety, or welfare and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the juvenile’s perspective.” Ark.Code Ann. § 9-27-341(a)(3) (Supp. 2005). “Few consequences of judicial action are so grave as the severance of natural family ties. Even the convict committed to prison and thereby deprived of his physical liberty often retains the love and support of family members.” Scmtoslcy, 455 U.S. at 788, 102 S.Ct. 1388 (Rehnquist, J., dissenting). The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Benedict v. Ark. Dep’t of Human Servs., 96 Ark.App. 395, 396-99, 242 S.W.3d 305, 307-09 (2006). Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. Id., 242 S.W.3d at 309.
Certainly Rhine did not demonstrate flawless compliance with all of the circuit court’s orders. He is certainly not a perfect parent; but the law does not require him to be perfect in |norder to retain his parental rights. There is no evidence that any harm or real risk of potential harm was introduced into R.R.’s life by Rhine’s slight lapses in judgment, or that her best interests would be served by having her father permanently and irrevocably removed from her life. In this case, by all standards, the greater quantum of evidence favors reunification over termination. Consequently, we are left with the definite and firm conviction that a mistake has been made. Based on the evidence before us, we find clear error in the circuit court’s termination of Rhine’s parental rights and reverse.
Reversed.
HOOFMAN and BROWN, JJ., agree.
. The circuit court also terminated the parental rights of R.R.'s mother in a separate proceeding, and that disposition is not relevant to this appeal.
. The addendum does not contain the document setting forth the terms of his release; however, the permanency-planning-hearing order entered February 4, 2010, states that his parole-release form was entered into the record. | [
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COURTNEY HUDSON GOODSON, Justice.
| Appellant Division of Developmental Disabilities Services of the Arkansas Department of Human Services (DDS) appeals an order of the Saline County Circuit Court granting a motion for summary judgment filed by appellee Civitan Center, Inc. and denying a motion for summary judgment filed by DDS. For reversal, DDS argues that the circuit court erred in granting Civitan’s request for declaratory relief, in finding a due-process violation, and in ruling that DDS violated the Administrative Procedure Act by denying Civitan a hearing. We reverse and dismiss.
Pursuant to Arkansas statutes, DDS administers community services benefitting individuals with mental retardation and developmental disabilities, and DDS licenses providers of these services. In 2000, DDS licensed Civitan to operate an adult developmental day-treatment clinical-services (DDTCS) center in Benton. Civitan also offered DDTCS in RBryant. In 2004, DDS began implementing a policy to define when an area was unserved or under-served in order to clarify the process for expansion of services. On October 17, 2004, DDS drafted Policy 1089, which DDS later promulgated. This policy established the criteria for the expansion of DDS services, including the following provisions:
(a) Underserved: Requested services are available within one hour of the consumer’s home but there are unduplicat-ed service requests amounting to at least 5% of the total number of people receiving that service within that county, or 5% of the total number of people receiving that service in that particular county have indicated they are unhappy with the manner in which their services are provided and want to choose a service provider other than those existing in the count [sic]. Any combination of the two categories described above reaching at least the 5% threshold will also cause an area to be deemed under-served.
(b) Existing Provider: A DDS licensed entity that is authorized to provide a service in a particular county by having it included in its contract as of 7/1/03 will be considered an existing provider.
(c) DDS may initiate the expansion of the number of service providers in a specific county if it is identified as un-derserved based upon the number of existing providers and their capacity in relationship to documented service requests. In the event that an area is determined to be underserved, or if services cannot be accessed through providers active within a county, DDS will issue an RFP [Request For Proposal] soliciting entities to provide services in that county.
Before 2005, Friendship Community Care, Inc. (Friendship) did not provide DDTCS and did not have a site in Saline County; however, Friendship served as a Medicaid waiver provider there. Friendship employed individuals working as special-education teachers and aides in the Bryant School District and had relationships with many potential DDTCS clients from Bryant.
Pursuant to Arkansas Code Annotated section 20^18-105 (Repl.2001), which establishes the requirements for the expansion of services, and DDS Policy 1089, DDS | (¡notified community providers, including Civitan, on May 3, 2005, that it listed Saline County as underserved for DDTCS. DDS invited licensed providers to add services and gave licensed providers thirty days to state their intent to expand. On May 18, 2005, Civitan informed DDS that it served as an existing provider of DDTCS and was qualified to serve Saline County. Pursuant to the Freedom of Information Act (FOIA), Civitan requested documents related to DDS’s determination that Saline County was underserved in DDTCS. Civitan also requested a hearing on DDS’s May 3 determination that Saline County was underserved.
In a letter dated May 25, 2005, DDS produced documentation showing that more than five percent of the recipients informed DDS that they were unhappy with the manner in which their services were provided and wanted “to choose a new provider — one that [did] not presently serve Saline County.” Civitan subsequently responded to DDS by requesting that DDS grant Civitan a hearing prior to making any finding that existing service providers were not qualified to extend their services before licensing new service providers in the area. Civitan also reiterated its desire to meet any unmet needs of persons with developmental disabilities in Saline County and reasserted its FOIA request for copies of documents related to DDS’s May 3 determination. DDS informed Civitan that it would take its request for a hearing under advisement and asked Civitan to cite the applicable law for its request.
Civitan informed DDS, by a letter dated June 6, 2005, that its calculation of five percent dissatisfaction was incorrect be cause that figure was based on the number of DDTCS recipients that Civitan served instead of the total number for Saline County. Civitan again requested a hearing from DDS of the May 3 determination and restated its willingness to 14resolve any recipient dissatisfaction.
On June 9, 2005, DDS notified Civitan by letter that its original calculation of the five percent figure in its May 3 determination was incorrect and withdrew its determination of underserved status. However, in that same letter, DDS issued a second determination that, based upon subsequent reports, Saline County indeed was under-served. DDS then notified Civitan and other community providers that DDS was promulgating a new Policy 1089. In response, Civitan repeated its request for a hearing in order to challenge the existing Policy 1089 and the proposed Policy 1089. In a letter dated July 8, 2005, DDS requested that Civitan state the adverse action as the basis for that request and stated that the total number of DDTCS recipients in Saline County was eighty-five and that DDS had “6 unduplicated service requests or statements of dissatisfaction with regard to Saline County adult services.”
In July 2005, DDS licensed Friendship to provide DDTCS in Saline County. By August 1, 2005, six of Civitan’s clients allegedly withdrew to receive services at Friendship. Shortly thereafter, Civitan notified DDS that it would file a preliminary injunction. Civitan then filed a complaint and a request for a preliminary injunction in Saline County Circuit Court. On August 2, 2005, the circuit court held a hearing on the preliminary injunction. The dispute focused on whether DDS applied the correct law in determining that Saline County was underserved. The circuit court issued an order granting Civi-tan’s request for a preliminary injunction, ruling that section 20-48-105 governed the extension and expansion of services for community-based providers, and the court issued a preliminary injunction that prohibited Friendship from taking any new clients in Saline County. DDS then performed jfian analysis and arrived at the same conclusion that Saline County was underserved. On October 18, 2005, by letter order, the circuit court reviewed DDS’s analysis, determined that DDS complied with section 20-48-105 when it approved Friendship to open a disabilities services site in Benton, and dissolved the injunction. Civitan did not appeal the circuit court’s order.
On September 20, 2006, Civitan filed its third amended complaint against DDS, its director, and Friendship. In its complaint, Civitan sought (1) a permanent injunction prohibiting Friendship from accepting any additional clients until it had received a valid license in Saline County; (2) a permanent injunction prohibiting DDS from treating Friendship as a licensed provider in Saline County; from treating Friendship as an existing provider in Saline County; and from paying further government funds to Friendship for providing adult DDTCS in Saline County; (3) a permanent injunction prohibiting Friendship from further solicitation of Civitan’s clients; (4) a ruling ordering Friendship to repay all government funds to DDS that Friendship received for providing adult DDTCS in Saline County; and (5) a declaratory judgment stating that DDS may not lawfully license a new provider in Saline County, pursuant to the proposed Policy 1089, until the policy had been properly promulgated and published as required by Arkansas Code Annotated section 25-15-203 (Repl.2002).
DDS answered and filed a motion for summary judgment. In its motion for summary judgment, DDS argued, among other things, that Civitan was not deprived of a property interest and could not claim a procedural due-process violation; that Civitan had no right to Ra hearing, pursuant to the Administrative Procedure Act; and that the case was nonjusticiable because Civitan was solely seeking declaratory relief, and the litigation would have no practical effect. On June 4, 2010, Civitan filed its motion for summary judgment, seeking declaratory judgment, findings on allegations of violations of due process, and attorney’s fees and costs. On November 24, 2010, by a joint order of dismissal, the circuit court dismissed Civitan’s and Friendship’s claims against each other.
Subsequently, the circuit court held a hearing on the motions for summary judgment. After hearing oral argument, the court granted Civitan’s motion for summary judgment and denied DDS’s motion for summary judgment. On February 16, 2011, the court entered an order ruling that DDS failed to comply with its own procedures and state law; that DDS denied Civitan due process; and that Civitan was denied a hearing in violation of the Administrative Procedure Act. From this order, DDS brings its appeal.
On appeal, DDS argues that the circuit court erred in granting Civitan’s motion for summary judgment. DDS seeks appellate review of three questions of law: (1) whether declaratory relief was justicia-ble if Civitan no longer sought any “tangible relief’ from the circuit court; (2) whether Civitan was entitled to procedural due process when DDS declared its service area “underserved” and allowed a competitor to enter its service area without a hearing; and (3) whether DDS violated the Administrative Procedure Act in failing to provide Civitan with a hearing on the “un-derserved” declaration.
The law is well settled regarding the standard of review used by this court in reviewing a grant of summary judgment. Crockett v. C.A.G. Invs., Inc., 2011 Ark. 208, 381 S.W.3d 793. A trial court will grant summary judgment only when it is apparent that no genuine issues of material fact exist requiring litigation and that the moving party is entitled to judgment as a matter of law. Id. On appeal, this court determines if summary judgment was appropriate based on whether the evi-dentiary items presented by the moving party leave a material question of fact unanswered. Bryan v. City of Cotter, 2009 Ark. 172, 303 S.W.3d 64. Summary judgment is also appropriate when the trial court finds that the allegations, taken as true, fail to state a cause of action. Cottrell v. Cottrell, 332 Ark. 352, 965 S.W.2d 129 (1998). We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Harrisburg Sch. Dist. No. 6 v. Neal, 2011 Ark. 233, 381 S.W.3d 811.
For the first point on appeal, DDS argues that the circuit court improperly rendered declaratory judgments. DDS contends that Civitan moved for summary judgment and sought only declaratory relief, requesting the court to make a ruling upon the applicability of section 20^8-105 and that DDS’s conduct did not comply with the statute. DDS asserts that a justi-ciable controversy no longer existed because Civitan no longer sought an administrative hearing on the issue, did not seek any compensatory damages, and did not seek injunctive relief.
In response, Civitan argues that its claim for declaratory judgment is a justici-. able controversy. Civitan maintains that, in accordance with Arkansas Code Annotated section 25-15-207 (Repl.2002), it brought the present declaratory-judgment action because DDS’s application of section 20-48-105 allegedly injured its business. Civitan states that it requested Udeclaratory relief in the form of findings that section 20-48-105 was applicable to DDS’s conduct that allegedly did not comply with the statute. Civitan asserts that “[t]his is not a case requesting declaratory judgment because of anticipated future harm but a case in which harm actually occurred.”
A declaratory-judgment proceeding is reviewed in the same manner as any other judgment, and if there is any substantial evidence to support the finding upon which the judgment is based, it will be affirmed. Commercial Printing Co. v. Rush, 261 Ark. 468, 549 S.W.2d 790 (1977). In determining whether there is any substantial evidence to support the circuit court’s finding, we must view the record in the light most favorable to the appellee. Id. (citing Power v. Howard, 253 Ark. 1052, 490 S.W.2d 435 (1973)). The presumptions on appeal are all in favor of the validity of the judgment of the trial court. Id. (citing Woodman of Union of Am. v. Henderson, 186 Ark. 524, 54 S.W.2d 290 (1932)).
Declaratory judgments are used to determine the rights and liabilities of respective parties. Stilley v. James, 345 Ark. 362, 48 S.W.3d 521 (2001). Our statute on the right to a declaratory judgment states:
Any person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.
Ark.Code Ann. § 16-111-104 (Repl.2006). The purpose of the declaratory-judgment statutory scheme “is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” Ark.Code Ann. § 16 — 111— 102(b) (Repl.2006).
13While our declaratory-judgment statute recognizes a party’s right to a declaratory judgment, a justiciable controversy is required. Neely v. MeCastlain, 2009 Ark. 189, 306 S.W.3d 424. We have observed that, in order to obtain declaratory relief, the requisite precedent facts or conditions generally held to be required include:
(1) [A] justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy; in other words, a legally protectable interest; and (4) the issue involved in the controversy must be ripe for judicial determination.
MacSteel Div. of Quanex v. Ark. Okla. Gas Corp., 363 Ark. 22, 35, 210 S.W.3d 878, 886 (2005) (citing Andres v. First Ark. Dev. Fin. Corp., 230 Ark. 594, 606, 324 S.W.2d 97, 104 (1959)). As we stated in Nelson v. Ark. Rural Med. Practice Loan & Scholarship Bd., 2011 Ark. 491, 385 S.W.3d 762 (citing Cummings v. City of Fayetteville, 294 Ark. 151, 154-55, 741 S.W.2d 638, 639-40 (1987)):
The Declaratory Judgment Statute is applicable only where there is a present actual controversy, and all interested persons are made parties, and only where justiciable issues are presented. It does not undertake to decide the legal effect of laws upon a state of facts which is future, contingent or uncertain. A declaratory judgment will not be granted unless the danger or dilemma of the plaintiff is present, not contingent on the happening of hypothetical future events; the prejudice to his position must be actual and genuine and not merely possible, speculative, contingent, or remote.
Further, we have held that a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. Neely, supra (citing Shipp v. Franklin, 370 Ark. 262, 258 S.W.3d 744 (2007)). In other words, a moot case presents no justi-ciable issue for determination by the court. Id.
I,nTurning to the present case, Civitan alleged that DDS did not comply with the procedural provisions of section 20-48-105, as it existed in 2005, for the expansion of DDTCS in Saline County. In its motion for summary judgment, Civitan requested the following:
1. That, pursuant to [section 25-15-207], Civitan be granted declaratory judgment stating that DDS may not lawfully license a new provider in a county pursuant to Proposed DDS Policy 1089 until it has been properly promulgated and published as required by [section 25-15-203],
2. A finding that Civitan’s right to due process was violated by DDS in the following manners:
3. That the court grant Civitan reasonable costs and attorney fees pursuant to 42 U.S.C. § 1988 and Ark.Code Ann. § 16-123-105, and for all other relief to which it may be entitled.
Here, in paragraph one of its motion for summary judgment, Civitan made a request for declaratory relief regarding DDS’s policy, but its request does not present a justiciable issue. Civitan does not challenge the validity or applicability of section 20-48-105. Rather, Civitan improperly sought to declare that DDS refrain from licensing an anonymous new provider in an unknown county pursuant to a policy that had not yet been promulgated. In other words, Civitan based its request for declaratory relief upon hypothetical future events against an unknown party-provider in an unnamed county. Civitan sought a legal, advisory opinion instead of a resolution of a present, actual controversy. This request does not comport with our declaratory-judgment statute and precedent.
|,(Further, we note that the gravamen of Civitan’s third amended complaint centered on Friendship’s actions toward Civi-tan. However, by a joint order of dismissal, the circuit court dismissed Civitan’s and Friendship’s claims against each other. Moreover, the circuit court initially issued a preliminary injunction against DDS, and DDS subsequently reviewed the extension of Friendship’s service based on section 20418-105. After filing a motion to dissolve the preliminary injunction, the court dissolved the injunction and ruled that DDS had complied with the statute. Civi-tan never appealed from that order. See Ark. R.App. P.-Civil 2(a)(6) (2011).
Because Civitan failed to present a justi-ciable controversy, declaratory judgment in Civitan’s favor was not proper. In this regard, the requested declaratory relief regarding any alleged due-process violations, which were based upon the lack of a hearing, is moot. Neely, supra. For these reasons, we decline to reach the merits of appellant’s remaining arguments. Thus, we hold that, as a matter of law, the circuit court erred in granting Civitan’s motion for summary judgment. Accordingly, we reverse the circuit court’s grant of summary judgment and dismiss, as no justiciable issue was presented to the circuit court and was therefore moot.
Reversed and dismissed.
. To the extent that Civitan argues that its request for attorney’s fees and costs presents a justiciable controversy, we conclude that, under the circumstances of this case, Civi-tan’s requests for attorney's fees spent in past actions in a moot case does not create a justiciable controversy. | [
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CLIFF HOOFMAN, Judge.
| Appellant Medic One appeals from the Workers’ Compensation Commission’s de- cisión affirming the' Administrative Law Judge’s finding that Medic One is responsible for all reasonably necessary medical treatment subsequent to December 9, 2009. Appellants argue on appeal that the Commission’s decision was based on an error of fact or evidence not in the record. We affirm.
Appellee James Colbert worked as a paramedic for appellant Medic One. On March 15, 2009, Colbert fell and injured his left shoulder while caring for a patient in the back of a Medic One ambulance. Emergency room doctors performed x-rays and provided Colbert a sling. Colbert followed up with the physician selected by appellants and was ultimately referred to Dr. Spencer Guinn, an orthopedic specialist. Dr. Guinn evaluated Colbert and ordered an MRI. Based on the MRI results, Dr. Guinn recommended and performed rotator-cuff repair on June 11, 2009. Post surgery, Dr. Guinn prescribed physical therapy, |2and Colbert began attending therapy sessions with physical therapist Keith Thompson at NEA Ortho-paedic and Sports. Colbert’s condition improved with physical therapy. By mid-September, Dr. Guinn and the physical therapist were both noting excellent progress with decreased pain and improved range of motion. On October 20, 2009, the therapist noted that Colbert reported that his pain had increased over the last several weeks after being off of pain medication. Dr. Guinn saw Colbert on October 21, 2009, and again on November 23, 2009, when he recommended another MRI. The MRI performed on December 3, 2009, revealed a full thickness tear of the anterior supraspinatus tendon with retraction. Dr. Guinn recommended surgery to repair the new tear in Colbert’s shoulder. Appellants denied Colbert’s request for surgery and contended that the new tear was the result of an independent intervening cause, not the admittedly compensable March 15, 2009 injury.
A hearing was held before ALJ Andrew Blood on June 4, 2010. Colbert was the only witness to testify at the hearing. Medical records, the deposition of Dr. Guinn, and the deposition of nurse case manager Rebecca Poston were introduced into evidence at the hearing.
Colbert testified that after his June surgery, he progressed with range of motion and function of his shoulder, and his pain decreased but never subsided. Dr. Guinn placed him on a one-arm restriction for work. In October, Colbert took a two-day course called Advanced Cardiovascular Life Support (ACLS). He testified that he told the instructor, Shawn Perrin, that he could only perform CPR one-handed and that he did in fact perform Lit with one arm. He also used a laryngoscope with his left hand while performing a procedure, but he testified that this did not cause any type of problems with his shoulder. Colbert testified that he did not experience any additional pain or discomfort in his left shoulder at any point during the ACLS class. Colbert testified that he never told his nurse case manager, Poston, that he had to stop doing CPR and intubation because of the pain. He claims he brought up the ACLS class to her to tell her how his shoulder was doing, not to tell her that he re-injured his shoulder. He testified that he told Poston he did CPR with only one arm the first time he talked with her about the class.
Colbert testified that, although in his deposition he said that he had not been hunting from the date of his injury to the date of the deposition, he later provided information to modify that answer. He claimed he thought he was telling the truth at the time of the deposition. Colbert testified that he did go deer hunting and used a muzzleloader to kill two deer on October 17, 2009. He testified that he had hunted approximately four times since early October 2009. He claimed that nothing during his hunts caused any pain or discomfort in his left shoulder. Colbert hunted from a tree stand ten feet off the ground and used his left arm to climb the ladder up to the stand. He did not carry anything up the ladder with him, but he instead pulled his gun and backpack up with a rope. He pulled the rope hand over hand but did take the weight of it on his right arm. He estimated that his backpack weighed about ten pounds. Colbert testified that he never picked up the weight of a deer to load it onto a truck, rack, trailer, or anything. He claimed that he dragged the deer behind a four-wheeler from the deer stand to the deer camp.
14Colbert also testified that he had not had any traumatic incident that caused him to sustain another injury to his left shoulder since the first surgery. He said that he told Dr. Guinn that physical therapy was causing problems with his shoulder. Colbert testified that in physical therapy he engaged in “work-hardening,” which consisted of climbing ladders, lifting weights, lifting heavy boxes from the floor to a standing position, and overall strength training. He claimed that this hurt his shoulder and that every time he went to the physical therapist or the doctor he reported that he still had pain.
Dr. Guinn’s deposition was taken April 21, 2010. Dr. Guinn testified that at each of Colbert’s follow-up visits he continued to have some pain, and although it improved, it was persistent. He testified that the tear observed in the December 2009 MRI was in front of the tear previously repaired. Dr. Guinn testified that it is his opinion that the major cause of the second tear arises from the initial injury of March 15, 2009. He testified that when the rota-tor cuff is damaged, patients can still have fibers intact that have not failed yet. In the first surgery, he repaired the portion that was obviously damaged and during physical therapy, the area just next to it then failed as a result of the original injury he had. He stated that there could have been damage to a larger area of the rota-tor cuff and just one portion of it had failed at the time of surgery. Dr. Guinn testified that it is his opinion that more likely than not the physical therapy actually precipitated this eventual tear.
Dr. Guinn also testified that in his opinion doing one-handed CPR and using his left arm while using a laryngoscope would not have caused Colbert’s rotator-cuff tear. Dr. Guinn testified that although, technically, doing CPR with both hands would be in violation |sof the one-arm restriction, he would have approved it if asked because the way CPR is performed does not concern him. Dr. Guinn stated that Colbert was doing harder exercises than that in physical therapy and that doing chest compressions probably does not even activate the rotator cuff. He also testified that he would have approved the use of the laryn-goscope and that its use could not have caused the new problem in Colbert’s shoulder.
When asked about how climbing a ladder affects the rotator cuff, Dr. Guinn testified that it really depends on whether a person is having to pull himself up or if he is using his legs. Dr. Guinn stated that he would wait a minimum of three months before telling someone that he thinks it is okay to pull overhead. Colbert’s deer hunting trips occurred four months after his surgery. Dr. Guinn stated that the act of cleaning a deer is not particularly stressful to the shoulders. He concluded that CPR, intubation, operating a muzz-loader, and cleaning a deer are all low-risk activities, but there is more variability in climbing a ladder.
Dr. Guinn testified that his concern -with Colbert was that when he reached the point of doing more aggressive strengthening of his shoulder, his pain persisted and then began to worsen. He stated that four or five months out from surgery, therapy should not still be as painful as it was for Colbert. Dr. Guinn stated that a three on the pain scale is still enough to disrupt and that “nobody wants to walk around with a three.” He stated that the level of pain can fluctuate and that rotator-cuff pain tends to be worsened with activities. He testified that with the type of tear revealed in the December 2009 MRI, patients can have full range of motion.
IfiDr. Guinn stated that without performing surgery it is hard to tell if it was a progressive tear, and sometimes even when looking at it, it is not possible to tell if “the whole thing failed at once or if it peeled off.” He stated that if it was a “peeling-type tear,” it would come on over time, as opposed to when a person lifts something heavy, feels a pop, and the whole thing is ripped off at once.
Rebecca Poston’s deposition was taken on March 25, 2010. She testified that in a phone conversation with Colbert, she asked him if he re-injured his arm. She claimed Colbert stated that he did not think so, that he did not remember specifically doing anything to his arm, and that if it had been reinjured it would have to have happened in physical therapy. She claimed that Colbert brought up the fact that he went to an ACLS class and had attempted to do CPR and intubation but could not because of the pain. She stated that he did not say that he used only one arm. Poston testified that it was not until January 2010, after three to five more conversations with Colbert, that he first claimed he had only used one arm to do CPR.
The ALJ issued an opinion on August 30, 2010, wherein he awarded Colbert additional medical treatment upon finding that the need for further surgery to the left shoulder rotator cuff is a continuum of the March 15, 2009 compensable injury. Appellants appealed to the full Commission, which entered an opinion on February 16, 2011, affirming and adopting the ALJ’s opinion. Appellants then filed a timely notice of appeal with this court.
In appeals involving claims for workers’ compensation, our court views the evidence |7in a light most favorable to the Commission’s decision and affirms the decision if it is supported by substantial evidence. Delaplaine Farm Ctr. v. Crafton, 2011 Ark. App. 202, 382 S.W.3d 689. Substantial evidence exists if reasonable minds could reach the Commission’s conclusion. Id. We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id. In making our review, we recognize that it is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Id. When the Commission weighs medical evidence and the evidence is conflicting, its resolution is a question of fact for the Commission. Id.
Appellants argue that the Commission based its decision on an error of fact. They argue that the finding that Colbert suffered a rotator-cuff tear during work-hardening at physical therapy is error because an examination of the medical records reveals that Colbert had not undergone any sessions of work-hardening between his last positive clinical examination and his turn for the worse. Appellants argue that the Commission’s decision is clearly based on facts not in evidence or an erroneous interpretation of the evidence presented. They argue that we are required to reverse and remand when the Commission makes a mistake of fact in its opinion that involves relevant medical evidence that the Commission expressly relied on in reaching its decision. Holloway v. Ray White Lumber Co., 337 Ark. 524, 990 S.W.2d 526 (1999).
Appellants cite medical records showing that after his surgery, Colbert was progressing well with physical therapy and experiencing decreased levels of pain. Appellants argue that |Ron October 14, 2009, just six days before presenting to the doctor with increased pain, Colbert was noted to have 100% passive range of motion in his shoulder -with 4/5 strength and a pain rating of zero to two on a ten-point scale. Appellants argue that Colbert’s positive reports abruptly stopped after a weekend of deer hunting and after participating in a paramedic course in contravention of doctor’s orders. Appellants argue that on October 20, 2009, just three days after an extended deer hunt, Colbert presented in his physical therapist’s office complaining of increasing pain and symptoms in his shoulder. Appellants claim that the visits on October 20 and 21 were the first indication of any worsening of Colbert’s symptoms postoperatively.
Appellants argue that it has to be more than a mere coincidence that the hunting trip Colbert did not want to talk about at his deposition took place less than seventy-two hours before he presented at Dr. Guinn’s office with the problems that eventually showed up in his December 2009 MRI. Appellants presented records from the Arkansas Game and Fish Commission showing that Colbert harvested two deer on October 17, 2009, and appellants express disbelief that Colbert could have forgotten about going hunting when asked in his deposition. Appellants point out how Colbert used his left arm in climbing the ladder to the tree stand, pulling his backpack and rifle up, loading and firing the rifle, and removing deer from the woods. Appellants argue that the most plausible explanation for the new rotator-cuff tear is the activities Colbert engaged in immediately prior to experiencing new pain and symptoms, not work-hardening sessions that had not even taken place yet.
Appellants also cite the deposition testimony of Rebecca Poston, who testified that jgColbert indicated that the ACLS class he attended could have been the cause of the new rotator-cuff tear. Appellants argue that, despite having three to five different conversations with Poston, Colbert did not tell her anything about doing CPR with one arm until his claim for benefits had been denied. Appellants argue that despite Colbert’s contention that everyone saw him perform CPR with one arm, he did not have any witnesses to corroborate his claim. Appellants also point out that the course instructor, Shawn Perrin, stated that he did not remember Colbert performing CPR with one arm.
Appellants argue that Colbert “clearly either tore his rotator cuff doing the ACLS activities that caused his pain to spike, or he injured himself while hunting and doing a variety of tasks with his left arm.” Appellants argue that the problem with the Commission’s decision that the injury occurred doing work-hardening is that the record does not contain evidence of any specific event that would have caused the type of tear revealed in the December 2009 MRI. Appellants also claim that there are no therapy notes nor is there any evidence of work-hardening taking place between Colbert’s positive examination and evaluation on October 14, 2009, and his turn for the worse on October 20 and 21.
Colbert notes that when there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Colbert argues that the Commission did not ignore the evidence about the ACLS class and deer hunting because this evidence was discussed in the ALJ’s decision.
There is substantial evidence to support the Commission’s conclusion. Appellants’ version of events is that Colbert experienced a steady decrease in pain until some specific | inevent caused the tear in his rota-tor cuff at some point between October 14 and October 20, 2009. They note that the physical therapy report from October 14 shows that Colbert’s pain level was between zero and two on a ten-point scale, and the therapy report from October 20 states that Colbert reported that his pain had increased.
While Colbert was experiencing decreased pain levels as he progressed with his therapy after surgery, an examination of the brief therapy notes for each visit shows that his pain level began to increase somewhat before October 20. Although the progress notes written by physical therapist Keith Thompson are nearly completely illegible, the pain rating on each date can be deciphered. In September, the pain rating Colbert reported was one to two out of ten on average. Beginning on October 2, however, the pain was reported as a two or three. Dr. Guinn testified that pain fluctuates and that he looks for more of an average of whether a patient’s pain is increasing or decreasing over a week or month, not what the pain level is on a particular day. Although the progress note for October 14 states that pain was zero to two, for both October 7 and 15, pain was rated at a three out of ten. Although appellants attempted to portray a drastic change from zero to two pain on October 14 to pain reports at five on October 21, the change was not so abrupt in reality.
Furthermore, appellants’ timeline of events does not line up with their argument that Colbert tore his rotator cuff when participating in the ACLS class. This class was held on October 12 and 13, before Colbert’s good report on October 14. Also, although the course instructor, Perrin, could not remember Colbert doing CPR with one arm, he also noted that Colbert may have simulated CPR with one hand and that it would have been allowed.
| uWhile appellants complain that Dr. Guinn did not know all of the details of Colbert’s hunting trip, they disregard Dr. Guinn’s opinion on whether these activities could have caused the tear. The only activity Colbert performed that Dr. Guinn stated could have presented a problem was climbing a ladder. However, Dr. Guinn stated that he would wait three months after surgery before allowing a patient to pull overhead, and Colbert’s hunting trip was more than four months after his surgery. Furthermore, Colbert testified that he did not experience pain in his shoulder while hunting.
Appellants also seem to disregard Dr. Guinn’s testimony that the tear likely occurred over time and was not due to a specific event. Several factors support this version of events. The October 20 therapy note states that Colbert reports that pain had increased over the last several weeks since being off pain medication. The 100% range of motion appellants point to in the October 14 report does not indicate that there was no tear at that time because Dr. Guinn testified that patients with a torn rotator cuff can have 100% range of motion. Dr. Guinn testified that his notes for the October 21 visit stated that Colbert was to continue work-hardening at physical therapy. Dr. Guinn testified that work-hardening was already tak ing place as prescribed in the therapy protocol. The therapist’s progress summary for September 17 states that Colbert is able to lift boxes from ten to twenty-five pounds below shoulder level without pain and that he experiences mild pain when lifting ten pounds above the shoulder. By October 20, Colbert had progressed to lifting forty pounds from the floor to his waist and twenty-five pounds from the floor to above his shoulders. Colbert continued with physical therapy after that visit, and Dr. Guinn testified that the November 28 office visit was the first 11gtime he became very concerned that Colbert was still having such pain.
When asked why the ACLS class and deer-hunting trips were not more plausible explanations for the tear, Dr. Guinn stated as follows:
I think the ones you brought up, I think those were low stress to the rotator cuff particularly, at the point in time postop-eratively when they happened. The therapy, on the other hand, was started immediately after surgery and was three times a week in most cases all the way through. We were putting more specific loads on the rotator cuff in the positions that concern me which is in front of the body and overhead. That is what concerns me more than those other ones due to their biomechanics and due to the length of time out from surgery that they occurred.
When asked how he could say that physical therapy caused the tear without any evidence of anything happening in physical therapy, Dr. Guinn responded as follows:
It’s my opinion that due to the activities he was being asked to perform in therapy and based off of his original findings that this is still a continuum of his original injury where he initially had failure of part of the rotator cuff. We fixed it and then during the course of the next five to six months during therapy that the part of the rotator cuff in front of it or anterior to it then failed.
When asked when this failure took place, Dr. Guinn stated that it occurred over that time period. Lastly, when Dr. Guinn was asked how he could state with any reasonable degree of medical certainty that the rotator-cuff tear happened in physical therapy, Dr. Guinn stated as follows:
Well, it’s just, based off of my knowledge of what he’s doing in therapy at this point. We are adding progressively more weight. We are beginning what’s called work hardening which is where we are trying to simulate activities that he’s going to have to perform such as overhead pressing, lifting away from his body. You know, these are higher stress activities and it’s once we began doing those that he began having his increases in pain.
As the ALJ noted, the determination of the existence of an independent intervening cause is a question of fact for the Commission to determine. Oak Grove Lumber Co. v. Highfill, [1362 Ark.App. 42, 968 S.W.2d 637 (1998). Furthermore, the Commission has a duty to use its experience and expertise in translating the testimony of medical experts into findings of fact. Id. As the ALJ found, only physical therapy has been attributed as the source of the increased pain level and subsequent diagnosis of a torn rotator cuff. The ALJ and Commission’s conclusion that the tear grew out of the original injury is supported by substantial evidence.
Affirmed.
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DOUG MARTIN, Judge.
| jAppellant Sheva Howard was charged by information with one count of Class C felony theft of property. Howard was tried by a Pulaski County jury and convicted of theft of property; she was sentenced to five years’ supervised probation, a term of sixty days in the Pulaski County jail, a $5000 fine, and 200 hours of community service. On appeal, she raises four arguments: 1) there was insufficient evidence to support her conviction; 2) the State’s use of peremptory challenges to exclude black members of the venire violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); 3) the trial court erred in denying her motion for mistrial during the State’s closing arguments; and 4) the trial court erred in allowing the State to | ¡.introduce evidence of “prior bad acts” pursuant to Arkansas Rule of Evidence 404(b). We find no error and affirm.
Howard, a part-time security guard for Dillard’s, was convicted of theft of property for shoplifting three Coach handbags from Dillard’s on August 8, 2009. A person commits theft of property if she knowingly “[t]akes or exercises unauthorized control over or makes an unauthorized transfer of an interest in the property of another person with the purpose of depriving the owner of the property!.]” Ark. Code Ann. § 5-36-103(a)(1) (Repl.2006). Theft of property is a Class C felony if the value of the property is less than $2500 but more than $500. Ark.Code Ann. § 5-36-103(b)(2)(A) (Repl.2006). In her first point on appeal, Howard contends that her theft conviction was not supported by substantial evidence. In doing so, she raises two separate issues, arguing first that the State failed to prove the value of the handbags and, second, that the State failed to prove that she knew the handbags were in the Dillard’s shopping bag she was seen carrying.
The test for determining the sufficiency of the evidence is whether substantial evidence, direct or circumstantial, supports the verdict. Lockhart v. State, 2010 Ark. 278, 367 S.W.3d 530. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. Furthermore, this court views the evidence in the light most favorable to the verdict, and Uonly evidence supporting the verdict will be considered. Rounsaville v. State, 2009 Ark. 479, 346 S.W.3d 289. Circumstantial evidence may be sufficient to support the finding of guilt in a criminal case, but it must exclude every other reasonable hypothesis consistent with innocence. Lockhart, supra; Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). In addition, the credibility of witnesses is an issue for the jury and not this court. The fact-finder is free to believe all or part of the witness’s testimony and to resolve questions of conflicting testimony and inconsistent evidence. Rather than reweighing the evidence presented at trial, this court determines whether there is substantial evidence to support the lower court’s findings. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998).
Howard’s first argument pertains to the value of the Coach purses. At trial, Anielle Babinski testified that, in August 2009, she was the accessories sales manager for Dillard’s. Babinski identified the three Coach handbags and testified, without objection, that two of the bags had retail prices of $198, as reflected on the attached Coach labels and price tags, and the third bag had a retail price of $268, which Babinski ascertained by looking the bag up on the store computer.
Howard argues on appeal that there was “no evidence ... of the cost to Dillard’s to replace the purses,” and she further contends that there was no proof of the amount Dillard’s had paid for the purses. Howard notes Babinski’s testimony on cross-examination wherein she stated that Howard could have purchased the handbags with a Dillard’s employee discount of 25%, thus lowering their “purchase price” to $498. Howard suggests that this | ¿discrepancy in the “price” of the purses cáused the jury to have to speculate as to the value of the stolen property, and as such, the evidence was insufficient to support her conviction.
Howard’s argument is misplaced. In the prosecution of a theft-of-property charge, the State has the burden of establishing the value of the property. Reed v. State, 353 Ark. 22, 109 S.W.3d 665 (2003); Pace v. State, 2010 Ark. App. 491, 375 S.W.3d 751. “Value” is defined as the market value of a property or service at the time and place of the offense or, if the market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the offense. Ark.Code Ann. § 5-36-101(12)(A)(i) (Supp.2007); see also Pace, supra. Value may be sufficiently established by circumstances that clearly show a value in excess of the statutory requirement, including through the testimony of a witness who actually knows the value of the property. See Moss v. State, 2010 Ark. App. 96, 2010 WL 374178. In the prosecution of a theft committed from a retail merchant, the State may prove the fair market value of the property at issue by presenting the testimony of a store employee who has personal knowledge of the fair market value of the property at issue. Id.
Babinski’s testimony, offered without objection, demonstrated her knowledge of the value of the handbags. Further, her knowledge was based on the price tag on two of the stolen handbags and the store’s computer records showing the price of the third handbag. Where evidence of value in excess of the statutory requirement is introduced in the form of |fia price tag, introduced without objection, it is sufficient to establish the value of the stolen property. See Boone v. State, 264 Ark. 169, 568 S.W.2d 229 (1978).
Next, Howard argues that there was insufficient proof that she knowingly had the handbags in her possession. When recovered, the stolen handbags were in an oversized Dillard’s shopping bag. Howard asserts that there was no proof that she ever knew that the handbags were in the shopping bag. This argument, too, is without merit.
According to the testimony introduced at trial, when a Dillard’s employee wishes to purchase something from the store, such purchase is not to be made during the employee’s time on the clock. In addition, if an employee does purchase something, the item is to be taken to the customer-service office to be “package passed,” which means that the employee presents the receipt and the item that was purchased, and the bag is then securely taped and kept in the customer-service department until the end of the employee’s shift. Employees are not supposed to put purchases for other employees in the handbag stockroom, nor should an employee carry around his or her purchase while on duty.
Anielle Babinski testified that, in the month leading up to August 8, 2009, Howard contacted Babinski repeatedly, trying to purchase handbags and damaged handbags at a discounted price. Babinski said that she eventually stopped allowing Howard to purchase discounted handbags because Howard had approached her so many times, it was “almost an annoyance.” Babinski stated that she frequently observed Howard in the handbag department with Regina Hampton, a sales associate in that department.
IfiAs noted, Babinski identified at trial three Coach handbags, two of which had been removed from the stockroom. She explained that Coach bags were not sold “off the floor” but were instead only sold out of the stockroom. The bags stored in the stockroom were left in their plastic wrappings to keep them from being damaged. According to the Dillard’s inventory system, there were supposed to be four pink Coach bags of a particular style: one on the sales floor and three in the stockroom. Two of the three that were supposed to be in the stockroom were missing out the store’s inventory, however, as was a tan bag. Babinski stated that the only people who had access to the stockroom were sales associates who worked in the handbag department.
Babinski also identified the large Dillard’s shopping bag in which the Coach purses were found. She stated that the Dillard’s bag was an oversized bag that was normally used in the bedding department and was not something that would ordinarily be used in the handbag department, nor was it usually stocked in that department. Babinski also noted that, while there was a sales receipt in the oversized shopping bag, along with a white Guess purse and the three Coach purses, the receipt showed that only the Guess purse — and none of the Coach purses— had been purchased.
Kelly Brimley, an employee of Dillard’s, testified that she was one of Regina Hampton’s coworkers in the handbag department. Brimley said that she saw Howard, who was on-duty working as a security officer, in the handbag department on the evening of August 8. On that evening, Brimley observed Hampton place an oversized Dillard’s shopping bag in the corner of the stockroom.
17Lauren Perme, another sales associate in the handbag department, testified that the Coach purses that Dillard’s sells are kept in the stockroom, which is secured by a keypad to which only handbag employees have the key code. Although no one other than handbag employees are supposed to be in the stockroom, Perme said that she had seen Howard in the stockroom with Hampton, rummaging through the Coach purses. About three weeks prior to the incident at issue in this case, Perme saw Howard come out of the stockroom with a Dillard’s shopping bag that Howard did not have with her when she entered the stockroom.
Lemiece Kimbrough worked for Dillard’s in the “camera room” on the east end of the mall, observing activity on the store’s surveillance cameras. On August 8, 2009, Kimbrough observed Howard at the handbag-department register. After leaving the handbag department, Howard came to see Kimbrough in the camera room; when she arrived, Howard was carrying a Dillard’s shopping bag that Howard said she had taped up herself. Kimbrough asked Howard what she had purchased, and Howard opened the bag up just enough so that Kimbrough could see a white purse, along with a “glimpse” of another item with the Coach “C” emblem on it.
Kimbrough explained that Dillard’s policy is for all employees to have their purchases sealed in shopping bags with yellow tape. Kimbrough, who was authorized to seal packages for employees, said that, if an employee came to her to get a purchase secured and that |semployee was still on the clock, the policy was for the purchase to be left with Kimbrough so she could secure it. On the evening in question, Kimbrough said, Howard did not leave her purchase in Kimbrough’s office, even though she was on the clock at that time. Howard said she was taking the shopping bag to her vehicle; however, after Howard left the camera room, Kimbrough observed her on the security cameras, and Howard did not take the package to her car. Instead, Howard went to the men’s Polo department.
Jermaine Starks was working in the Polo department that evening. About 8:30 p.m., Starks saw Howard come to the Polo department carrying a Dillard’s shopping bag. Starks found that strange because employees are not allowed to carry their purchases around unless they are off work. When Howard arrived in the Polo department, she set the large shopping bag, which appeared to have items in it, behind the register. Howard then left and said she was going to get something to eat. The manager on duty, Eddie Carter, came over and asked Starks about the shopping bag; Starks said that it belonged to Howard, and Carter took the bag and left.
Carter testified that he had been advised to check on a “house package” that evening. A “house package” is the term used by Dillard’s for a purchase made by an employee while he or she is on the clock, and such packages are supposed to be taped up and kept in a secure area until the employee’s shift is over. Carter said that the package behind the counter in the Polo department looked suspicious to him, in part because it should never have been left on the floor in the first place. Carter noted that there was a receipt in the shopping bag that |fllisted one item, but when he looked in the bag, he saw that there were two handbags clearly visible in it. Carter, who was familiar with the codes for various handbags, testified that the receipt did not reflect a purchase of a Coach handbag. Carter said that he was able to determine from the sales receipt that the employee who rang up the purchase was Regina Hampton.
When Carter picked up the shopping bag, he thought it felt heavy, as though there was more than just one handbag in it. He also thought the bag was “taped oddly,” in a manner that was not the proper way to seal a “house package.” Carter also said that the shopping bag was “much too large for handbags.” He also noted that the' bag should never have been brought to the east side but should instead have been sealed up and left with the customer-service office on the west end. When he saw that there were two handbags in the shopping bag, but only one item on the receipt, Carter immediately took the bag to the executive office on the west side and gave it to Willie Robinson, the head of Dillard’s security.
Robinson testified that he had placed extra surveillance on Howard in the month leading up to August 2009. Robinson explained that Howard had started purchasing handbags nearly every weekend, saying that they were damaged. On August 8, 2009, Robinson had a conversation with Lemiece Kimbrough about Howard’s strange behavior that day and directed Kimbrough to keep a security camera on Howard. When Carter brought him the shopping bag, Robinson looked inside and saw the white Guess purse and |inthe Coach purse. Shortly after, Robinson was called away on a security matter, but he secured the shopping bag in the assistant store manager’s office.
Jeff Russell, the assistant store manager, testified that he retrieved the shopping bag from his office when he arrived at work on August 10, 2009. When he looked in the bag, he initially saw two purses. When he lifted the white purse, however, it felt noticeably heavy, so he opened it and discovered two other Coach purses stowed inside. From the receipt inside the bag, Russell was able to tell that only one of the purses had been purchased.
The State’s final witness was Beth Ba-kalekos, a detective with the Little Rock Police Department who was assigned to investigate the Coach theft. Bakalekos reviewed the footage from the surveillance cameras and developed a timeline of the events of the evening of August 9. At the beginning of the video, Bakalekos observed Howard and Regina Hampton in the handbag department. On the film, Hampton went into the stockroom, where the shopping bag was already located, and came out a few seconds later; at this time, handbag-department employee Kelly Brimley was inside the stockroom. After Brimley left the stockroom, the video showed Hampton re-enter the stockroom, remain there for thirty to forty-five seconds with the door closed behind her, and reemerge from the stockroom carrying the Dillard’s shopping bag. Shortly thereafter, Howard was seen walking toward the east end of Dillard’s with the shopping bag. In reviewing the video, Bakalekos observed that the only people on the security footage who touched the bag with the stolen Coach purses were Howard, Regina Hampton, and Eddie Carter.
| n Several days later, Bakalekos made contact with Hampton at Hampton’s home. While there, Bakalekos noticed photographs of Hampton and Howard together and surmised that they had a close relationship. Phone records introduced at trial indicated that Howard and Hampton called and texted each other repeatedly in the days surrounding the theft, including nineteen text messages between them before the theft occurred, a text message sent within nine seconds of Howard leaving the security room on the night of the theft, and thirty-six phone calls between Howard and Hampton after the purses were stolen. Bakalekos described another “flurry” of phone calls just after she left Hampton’s house.
On appeal, Howard argues that there was no proof that she ever looked into the Dillard’s shopping bag, and therefore, there was no proof that she knew the purses were in the shopping bag. She argues that the State’s case was entirely circumstantial and that the jury was left to resort to speculation and conjecture to conclude that she had stolen the purses.
While the case may have been somewhat circumstantial, the jury was not required to set aside its common sense to be able to determine that Howard knew that the stolen purses were inside the shopping bag. The evidence showed that Howard had repeatedly expressed interest in purchasing Coach purses, to the point of annoying the sales manager, and she had been seen rummaging through the Coach purses with Regina Hampton in the stockroom in viola tion of store policy. Howard purchased one purse that was placed in an oversized shopping bag, and then Hampton, who had access to the stockroom, placed the oversized bag in the stockroom and then waited until the stockroom was empty to slip inside. When |12the bag was later opened and looked into, it contained not only the purse that Howard had purchased, but a Coach purse that did not appear on the sales receipt; subsequently, two other Coach purses that were missing from the stockroom’s inventory were found inside the purchased purse. Until Eddie Carter picked up the shopping bag from the men’s Polo department, the only people seen in possession of the shopping bag were Howard and Hampton. Other witnesses testified that the shopping bag felt too heavy to contain only one purse.
From this evidence, the jury could conclude, without resorting to speculation and conjecture, that Howard and Hampton colluded to steal the Coach purses and that Howard knew there were purses in the shopping bag that she had not paid for. Accordingly, substantial evidence supported Howard’s conviction.
In her second argument on appeal, Howard argues that the circuit court erred in denying her challenge, during voir dire, to the State’s exercise of peremptory strikes against the only two African-American members of the venire. Howard, who is African-American, argues that the State failed to provide a race-neutral reason for striking Juror Hunt from the jury panel.
A prosecutor may not use peremptory strikes to exclude jurors solely on the basis of their race. Jackson v. State, 375 Ark. 321, 290 S.W.3d 574 (2009); Hawkins v. State, 2011 Ark. App. 164, 2011 WL 714991. Once a Batson objection is made, the circuit court must conduct a three-step inquiry to determine whether a violation occurred. Jackson, supra. First, the opponent must present facts demonstrating a prima facie case of purposeful discrimination. Id. Second, the burden shifts to the State to produce a racially neutral explanation for the strike. Id. The explanation must be more than a mere denial of discrimination or an assertion that a shared race with the opponent would render the challenged juror partial to that opponent. Id. The explanation need not, however, be persuasive or even plausible but can be silly or superstitious. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). The stated reason will be deemed racially neutral unless a discriminatory intent is inherent in the prosecutor’s explanation. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). When the State provides a race-neutral explanation, the initial presentation of a purposeful discriminatory strike is rendered moot. Holder v. State, 354 Ark. 364, 124 S.W.3d 439 (2003). Third, the circuit court must decide whether the opponent of the strike has demonstrated purposeful discrimination. Hawkins, supra. The ultimate burden of persuasion never shifts from the opponent of the strike. Purkett, supra. A circuit court’s ruling on a Batson challenge is reversed only if the findings of fact are clearly against the preponderance of the evidence. Holder, supra.
During voir dire, the State sought to exercise one of its peremptory challenges on Juror Hunt. Howard immediately raised a Batson challenge, asserting that there was nothing in any of Juror Hunt’s responses that were different from those given by other individuals who had not been struck by the State. The prosecutor responded that she had had to call | 14Juror Hunt’s name three times before he responded, and that fact, combined with the fact that she did not have a juror questionnaire from Juror Hunt, made her uneasy. Howard disputed that the State had called Hunt’s name three times and asserted that Hunt had, in fact, been raising his hand. The court, however, found the lack of a juror questionnaire to be a “legitimate cause.”
When Howard sought clarification of the court’s ruling, the court stated that it found that Howard had made a prima facie case but that the State had offered a race-neutral reason for the strike. Howard then argued that the prosecutor could simply ask Hunt the questions that were on the jury questionnaire, “if that was important to her,” but she did not. Howard also contended that Hunt had raised his hand when his name had been called and argued that the State’s “comfort level” was not important in determining whether there was a race-neutral reason for striking the juror. The court dismissed Howard’s Bat-son challenge.
On appeal, Howard argues that the lack of the juror questionnaire cannot be a sufficient race-neutral reason to excuse “the last available African-American” from serving as a juror, especially where the State made no effort to obtain the information in any other manner. This court, however, has held that it could “discern no discriminatory intent” in the State’s explanation that it peremptorily excused a juror because the juror had not filled out a questionnaire and was soft-spoken, among other reasons. Riley v. State, 2009 Ark. App. 613, at 8, 343 S.W.3d 327, 333; see also Hawkins v. State, 2011 Ark.App. 164 (holding that 11Rnot filling out a juror questionnaire may provide a race-neutral reason for striking a particular potential juror).
Moreover, once the State gave its reasons in the present case, the burden was Howard’s to prove that there had been purposeful discrimination. See Williams v. State, 2009 Ark. 433, 373 S.W.3d 237 (the ultimate burden of persuasion that there is a purposeful intent rests with and never shifts from the party opposing the strikes). Here, other than repeating what she had previously argued to the court, Howard offers no evidence demonstrating that the State engaged in purposeful discrimination. Accordingly, we cannot conclude that the circuit court’s decision was clearly against the preponderance of the evidence.
In her third argument on appeal, Howard asserts that the trial court erred in denying her motion for mistrial during the prosecution’s closing argument when, she contends, the State mentioned her failure to testify on her own behalf. During the State’s closing argument, the following exchange occurred:
State: It’s obvious to Mr. Russell. Remember Mr. Russell? He comes back, unlocks [the closet in his office], picks up the purse and says golly, this is too heavy for just one purse. That’s Mr. Russell who doesn’t carry purses day in and day out who’s telling you how obvious that is. All that adds up to circumstantial evidence of [Howard’s] knowing what’s in that bag. Of her knowing what’s in that bag, and it is the only reasonable explanation. It’s the only one.
Now, finally, I want to say pictures are worth a thousand words. Look at that. That’s that big. Look at that bag. Do you seriously — is that — seriously, someone’s going to get up and say I had no idea that there was only, there was more than one purse in there?
Defense: Objection, ask to approach, Judge.
| KjCouRT: You may.
Defense: Judge, I didn’t call any witnesses, and she said she thinks somebody’s going to get up and say that. That implies that the defendant should have testified.
State: I’m talking about defense counsel.
Defense: No. That’s not what she said.... I’m asking for a mistrial because it comments on my client’s right to remain silent and that’s clearly, clearly a violation.
Court: No. I disagree [with] that. I’ll deny it, and if you want to, if you want to—
Defense: Judge, the problem with it is this. My client didn’t testify.
Court: I understand that.
Defense: And she talks about somebody getting up and saying something. She’s implying that my client should have got up and testified. She cannot do that.... [S]he has the right to remain silent.
Court: Okay. There was testimony from the stand with respect to the appearance of the bag as being apparent, as having more than one bag in it.
Defense: Judge, who else would get up and testify about I didn’t know? I don’t remember what her words were. That someone’s going to get up and say I didn’t know what was in the bag, that they don’t know what was in the bag? That’s implying that my client had a responsibility to testify. She did not.
Court: Well, you know, here’s—
Defense: I’ve made my record.
_|jjCourt: Okay. And thank you.
Our appellate courts have stated many times that the trial court is given broad discretion to control counsel in closing arguments, and we do not interfere with that discretion absent a manifest abuse of discretion. Rohrbach v. State, 374 Ark. 271, 287 S.W.3d 590 (2008); Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999). Closing remarks that require reversal are rare and require an appeal to the jurors’ passions. Rohrbach, supra. Furthermore, the trial court is in the best position to evaluate the potential for prejudice based on the prosecutor’s remarks. Id. Closing arguments must be confined to questions in issue, the evidence introduced during trial, and all reasonable inferences and deductions which can be drawn therefrom. Id. It is the trial court’s duty to maintain control of the trial and to prohibit counsel from making improper arguments. Id.
Moreover, it is well settled that a mistrial is an extreme remedy that should be granted only when the error is beyond repair and cannot be corrected by curative relief. Brown v. State, 74 Ark. App. 281, 47 S.W.3d 314 (2001). A trial court has wide discretion in granting or denying a motion for a mistrial, and the appellate court will not disturb the court’s decision absent an abuse of discretion or manifest prejudice to the movant. Id. Among the factors we consider on appeal, however, is whether the defendant requested a cautionary instruction or admonition to the jury, and the failure of the defense to request an admonition may negate the mistrial motion. Rohrbach, supra. Where the possible prejudice could have been cured by admonition by the trial court, our supreme court has found no abuse of 11sdiscretion when defense counsel has refused the trial court’s offer of such a curative instruction. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000).
In this case, as seen from the colloquy above, Howard did not request an admonition to the jury. Her failure to do so, when such an admonition could have cured any prejudice from the allegedly improper statement, precludes relief on appeal. See Weaver v. State, 324 Ark. 290, 300, 920 S.W.2d 491, 496 (1996) (“When there is doubt as to whether the trial court abused its discretion, a failure to request an admonition will negate a mistrial motion.”). Further, the trial court instructed the jury that Howard had an absolute constitutional right not to testify, and the fact that she did not testify was not evidence of guilt or innocence, and under no circumstance was to be considered by the jury in arriving at its verdict. Considering the entirety of the circumstances, it cannot be said that the trial court’s decision to deny Howard’s motion for mistrial constituted an abuse of discretion. See Flowers v. State, 92 Ark.App. 29, 210 S.W.3d 907 (2005) (where trial court instructed jury on defendant’s constitutional right not to testify, there was no abuse of discretion in denying motion for mistrial based on prosecutor’s alleged comment on defendant’s failure to testify).
Finally, Howard argues that the circuit court erred in “repeatedly allow[ing] highly prejudicial evidence of prior bad acts to be admitted.” Prior to trial, Howard sought to preclude the State from eliciting testimony from Dillard’s management and other employees about their suspicions pertaining to Howard and her behavior regarding the purses. The State asserted that it did not intend to talk about any other previous crimes but said it would |19present testimony regarding Howard’s knowledge of and predilection for Coach handbags. The court reserved ruling on the issue, deciding to wait until the matter came up during the trial.
During the course of the trial, several mentions were made of Howard’s previous attempts to obtain Coach handbags. For example, during opening arguments, the State informed the jury that chief of security Willie Robinson had been suspicious of Howard’s repeated purchases of Coach handbags and decided to place Howard under extra surveillance. Anielle Babinski testified that Howard contacted her repeatedly in attempts to get discounted Coach handbags; the court denied Howard’s Rule 404(b) objection on the basis that “it probably does go to motive, plan, or absence of mistake.” When Lauren Perme testified that she had seen Howard rummaging around in the stockroom and coming out of the stockroom with a purse in a Dillard’s shopping bag, Howard objected and asked for a mistrial; the court overruled the objection and denied the mistrial motion, finding that the evidence was relevant with respect to Howard’s plan or the absence of a mistake.
During Willie Robinson’s testimony, Howard objected when the State asked if he had extra surveillance on Howard during the month leading up to August 2009; the court again overruled the objection, noting that the testimony was relevant to show a scheme or plan. Robinson then explained that Howard had been purchasing “a lot of handbags that she said were damaged.”
|?f|On appeal, Howard argues that the repeated admission of “prior bad act testimony” tainted the jury; she asserts that the events about which the witnesses testified were “really nothing more than suspicions and suppositions that something improper was going on.” According to Arkansas Rule of Evidence 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the char acter of a person in order to show that he or she acted in conformity therewith; however, this evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. For evidence of other crimes or bad acts to be admissible under Rule 404(b), such evidence must be independently relevant, and the probative value of the evidence must outweigh any danger or unfair prejudice. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000); Hudson v. State, 85 Ark.App. 85, 146 S.W.3d 380 (2004). The admission or rejection of other crimes is left to the sound discretion of the trial court and will not be reversed on appeal absent a manifest abuse of discretion. Hudson, swpra.
In the present case, evidence that Howard had been frequenting the Coach department, purchasing numerous Coach purses, repeatedly attempting to obtain damaged or discounted Coach purses, and entering the Coach stockroom in violation of company policy was independently relevant to demonstrate her plan, motive, opportunity, and intent to steal the Coach handbags from the stockroom. The testimony and evidence clearly showed that Howard had a particular fondness for Coach handbags and a determination to amass a number of them, and her prior conduct — most notably the rummaging around in the |2i stockroom — was relevant to show that she knew where the purses were, how to get to them, and which ones she wanted. Accordingly, we conclude that the circuit court did not abuse its discretion in allowing the testimony over Howard’s objection.
Affirmed.
GLOVER and ABRAMSON, JJ„ agree.
. The charge was originally filed as a misdemeanor, but the State moved to amend the information to a felony count on April 28, 2010.
. Arkansas Code Annotated section 5-36-103 was amended by Act 570 of 2011 to make theft of property a Class C felony if the value of the property is less than $25,000 but more than $5,000. See Ark.Code Ann. § 5-36-103(a)(2)(A) (Supp.2011). Because the offense in this case took place in 2009, the previous version of the statute applies.
. That Babinski testified that the bags "could have” been purchased at a lower price with an employee discount is of no moment, as the purses were obviously not purchased.
. The Little Rock Dillard’s store has two separate stores on each end of Park Plaza Mall: the west side, where the handbag department is located, and the east side, where the men's Polo department is located.
. Although the State exercised its peremptory challenges with respect to two African-American venire members, Howard concedes that the State provided a race-neutral explanation for striking one of them. | [
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COURTNEY HUDSON GOODSON, Associate Justice.
liA jury sitting in the Union County Circuit Court found appellant Vadarian Meadows guilty of capital murder, residential burglary, and theft of property. Appellant received a sentence of life without the possibility of parole for capital murder, and he was sentenced to terms of five and three years’ imprisonment, respectively, for committing the offenses of residential burglary and theft of property. For reversal, appellant contends that the evidence is not sufficient to support his convictions because the State failed to corroborate his confession and the testimony of an accomplice. He also asserts that the capital murder and first-degree murder statutes are unconstitutionally vague and cause confusion because the statutes contain similar elements. We affirm.
The record reflects that, sometime after 10:00 p.m. on the evening of December 23, 2009, deputies of the Union County Sheriffs Office responded to a call at the rural home of Joel Telford on Lonesome Dove Trail. Once there, they discovered the body of Clarence Ritchey lying face down in the yard. Ritchey, who was deceased, had sustained two gunshot 12wounds to the head. Ritchey and his wife, Janet, lived next door to Telford, who is Janet’s son. During the course of their investigation, the sheriffs office developed appellant, Marquita Meeks, and Victor Meadows, appellant’s cousin, as suspects in the murder. Subsequently, the prosecuting attorney in Union County charged the three with the offenses of capital murder, residential burglary, and theft of property. Prior to trial, the circuit court granted appellant’s motion to sever to be tried individually.
At trial, Janet testified that she and Ritchey had retired for the evening on December 23rd but were awakened by the sound of their dogs barking. Fearing that a coyote might be after their horse, Rit-chey arose and went outside to investigate. Janet said that she heard gunfire and that afterward she repeatedly called out to Rit-chey from the front porch. When he did not respond, she went to look for him. In the dark, she tripped and fell onto his body.
At the scene, the deputies recovered three spent, .380 shell casings. An inspection of Ritchey’s body revealed that he was holding a Keltec semiautomatic handgun that was inoperable because the slide had not closed. The deputies also found six long guns wrapped in a blanket near Rit-chey’s body. Nearby in a wooded area, the deputies located an embankment on which they found skid marks where it appeared that someone had slid down the incline. In that location, they also observed a shoe impression and a piece of white fiber entangled in a barbed-wire fence. During the subsequent investigation, the deputies recovered a Llama .380 handgun and .380 ammunition from a closet in the home of John Meeks, Marquita Meeks’s father.
Telford, who was not at home at the time of the shooting, testified that the back door of his home appeared to have been pried open and that it was not in that condition when he |sleft the house earlier that night. He said that the long guns found in the yard belonged to him and that the blanket in which they were wrapped had been draped over the sofa before he left. Telford stated that, a day or two before the murder, he had bought hydro-codone pills from Victor Meadows on credit. He testified that Victor had called him twice that night demanding to be paid for the pills. Telford said that he gave no one permission to enter his home or take his guns and that he did not trade the guns for the pills he received from Victor.
Marquita Meeks testified that she and Victor, her boyfriend, lived with her parents in December 2009. Marquita recalled that, on the night of December 23, 2009, she and Victor were driving around in her parents’ Suburban and that Victor had spoken to Telford by phone asking to be paid for pills Telford had bought. She said that they picked up appellant, stopped at the Hardy Mart convenience store, and continued driving while smoking marijuana. Marquita said that Victor pulled out a black handgun during the drive. This gun looked familiar to her, and she stated that it was a handgun that her father kept in a closet. Marquita testified that Victor drove down a road, stopped, and told her to turn the vehicle around. She said that appellant and Victor walked away in the darkness and that they returned to the vehicle after she heard gunfire. She said that both men were breathing hard when they jumped into the vehicle. Marquita testified that appellant asked several times to go back to retrieve some guns but that Victor refused, saying, “Don’t you know that man is dead back there?” She said that she was shocked to learn that the dead man was Telford’s stepfather. Marquita testified that Victor told her that Ritchey had a gun and that “he had to do it.”
The State also introduced into evidence a recording and transcript of the statement appellant gave to Chief Investigator Clark Burton. In his statement, appellant said that Victor | informed him about the transaction with Telford and that he agreed to accompany Victor to Telford’s house for the purpose of stealing guns because of the money Telford owed Victor for pills. Appellant acknowledged that both he and Victor were armed and that they drove with Marquita to Telford’s house after stopping at a convenience store. Appellant stated that he and Victor went inside Telford’s house and gathered up a number of guns that they placed in a blanket. He said that, when he went back outside, he heard someone shout, “Who is you?” Appellant stated that he ran into the bushes and then heard gunshots and that he fell onto some barbed wire as he was making his way back to the vehicle. Appellant also stated that the gun Victor possessed that night belonged to Marquita’s father.
The State presented the testimony of an associate medical examiner that Ritchey received a contact gunshot wound that entered just beneath his nose. Ritchey had another medium-range gunshot wound that entered the back of his head on the left side. The medical examiner classified the manner of death as homicide. A firearm and tool-mark examiner from the state crime lab testified that the bullets removed from Ritchey’s head were shot from the Llama .880 handgun recovered from the Meeks’s residence. The shell casings found near Ritchey’s body were fired from that same gun. The State also introduced into evidence a still photograph taken from a video camera at the Hardy Mart convenience store showing appellant and Victor inside the store together at approximately 9:30 p.m. on the night of the murder.
At the conclusion of all evidence, the circuit court instructed the jury on residential burglary, theft of property, capital murder, and the lesser-included offenses of first- and second-degree murder. Based on the evidence presented, the jury found appellant guilty of capital murder, residential burglary, and theft of property. Following the entry of the judgment and | ^commitment order, appellant filed a timely motion for a new trial asserting that the overlapping elements of the capital murder and first-degree-murder statutes rendered the statutes unconstitutionally vague. In support of this motion, appellant submitted the affidavit of the jury foreman who approached appellant’s counsel after trial and who stated that jurors were confused by the overlapping instructions regarding the two offenses and that the jurors believed that they had no choice but to find appellant guilty of the greater offense. The circuit court did not rule on the motion, and thus it was deemed denied after thirty days. See Ark. R.Crim. P. 33.8(c). This appeal followed.
As his first point on appeal, appellant argues that the circuit court erred in denying his motion for a directed verdict because the State failed to adequately corroborate his confession and the testimony of Meeks, his accomplice. On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Smoak v. State, 2011 Ark. 529, 385 S.W.3d 257. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Anderson v. State, 2011 Ark. 461, 385 S.W.3d 214. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Camp v. State, 2011 Ark. 155, 381 S.W.3d 11. On appeal, we review the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Williams v. State, 2011 Ark. 432, 385 S.W.3d 157.
When a defendant has confessed, Arkansas Code Annotated section 16-89-111(d) (Repl.2005) provides that “[a] confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed.” The | ^requirement for other proof is sometimes referred to as the corpus delicti rule and requires only proof that the offense occurred and nothing more. Ware v. State, 348 Ark. 181, 75 S.W.3d 165 (2002). In other words, under the corpus delicti rule, the State must prove (1) the existence of an injury or harm constituting a crime and (2) that the injury or harm was caused by someone’s criminal activity. Ventry v. State, 2009 Ark. 300, 318 S.W.3d 576.
When accomplice testimony is considered in reaching a verdict, Arkansas law provides that a person cannot be convicted based on the testimony of an accomplice “unless corroborated by other evidence tending to connect the defendant ... with the commission of the offense.” Ark.Code Ann. § 16-89-lll(e)(l)(A) (Repl. 2005). Corroboration must be evidence of a substantive nature, since it must be directed toward proving the connection of the accused with the crime, and not directed toward corroborating the accomplice’s testimony. Camp v. State, supra. Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. Id. Rather, it need only, independently of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the crime. MacKool v. State, 365 Ark.. 416, 231 S.W.3d 676 (2006). The test for corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the remaining evidence independently establishes the crime and tends to connect the accused with its commission. Id. The presence of an accused in the proximity of a crime, opportunity, and association with a person involved in a crime in a manner suggestive of joint participation, are relevant factors in determining the connection of an accomplice with the crime; Parker v. State, 355 Ark. 639, 144 S.W.3d 270 (2004) (quoting Andrews v. State, 344 Ark. 606, 613-14, 42 S.W.3d 484, 489 (2001)). When two or more persons assist each other in the commission of a crime, each is an 17accomplice and criminally liable, ultimately, for his own conduct, but he cannot disclaim responsibility because he did not personally take part in every act that went to make up the crime as a whole. Id.
In this appeal, appellant contends that, when a conviction is based on both a confession and accomplice testimony, the State is required to corroborate the confession with independent proof that tends to connect the defendant with the commission of the offense. Thus, he argues that the evidence in this case is not sufficient because the State failed in its burden of independently corroborating both his out-of-court-confession and the testimony of the accomplice with evidence tending to connect him with the commission of the offenses. In response, the State asserts that appellant misconstrues the requirements for corroborating confessions and accomplice testimony. The State’s point is well taken.
This court has long held that a defendant’s voluntary confession is sufficient to corroborate an accomplice’s testimony, as a confession certainly connects the admitting defendant with the commission of the crime. See Booe v. State, 188 Ark. 774, 67 S.W.2d 1019 (1934); Knowles v. State, 113 Ark. 257, 168 S.W. 148 (1914). We have also stated that, to corroborate a confession, the State is not required to connect the defendant to the criminal act through independent evidence; rather, the State need only show that the offense occurred. Johnson v. State, 358 Ark. 460, 193 S.W.3d 260 (2004); see also Ventry, supra; Ware, supra; Tinsley v. State, 338 Ark. 342, 993 S.W.2d 898 (1999). Thus, our law does not require additional corroboration of a confession, even when it stands to corroborate the testimony of an accomplice. Evidence demonstrating the connection of the accused with the crime is simply not an element of the corpus delicti. Hall v. State, 361 Ark. 379, 206 S.W.3d 830 (2005) (citing Hart v. State, 301 Ark. 200, 783 S.W.2d 40 (1990)). Here, the State presented evidence that Ritchey died at the hands of another; that Telford’s home was burglarized; and that Telford’s guns were removed from his home. Thus, the State offered evidence to corroborate appellant’s confession by establishing that the crimes were committed. In turn, appellant’s professed participation in the crimes, as well as the photograph of appellant and Victor at the convenience store just prior to the criminal activity, provided evidence tending to connect him with the commission of the offenses. Based on the evidence showing that both corroboration requirements were met, we hold that there was substantial evidence to support appellant’s convictions.
Appellant next argues that the capital murder statute, Arkansas Code Annotated section 5-10-101(a)(l)(B) (Supp. 2011), and the first-degree-murder statute, Arkansas Code Annotated section 5-10-102(a)(l)(A)-(B) (Repl.2006), are unconstitutionally vague because they are substantially identical and result in jury confusion. Appellant concedes that we have rejected this argument on any number of occasions. See, e.g., Flowers v. State, 362 Ark. 193, 208 S.W.3d 113 (2005); Williams v. State, 346 Ark. 54, 56 S.W.3d 360 (2001); Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980). He contends, however, that the instant case is distinguishable because the jury foreman’s affidavit discloses actual confusion caused by the overlapping jury instructions. As another distinction, appellant points out that the circuit court, when instructing the jury, stated that the capital-murder and first-degree-murder statutes were “identical” and “probably a little confusing.” In response, the State initially asserts that the issue is not preserved for appeal. On the merits, the State contends that the law on this issue is well established and that the juror’s affidavit provides no reason to depart from our settled law because Rule 606(b) of the Arkansas Rules of Evidence precludes consideration of a juror’s affidavit that reveals matters that occurred during the jury’s deliberations. The record bears out the State’s contention that the issue is not preserved for appeal.
Prior to the severance, codefen-dant Victor Meadows moved to quash the information on the ground that the overlap in the statutes rendered them unconstitutionally vague. The circuit court denied the motion to quash at a pretrial hearing. The record of this hearing does not indicate that appellant joined in this motion. Although appellant relies on Victor’s pretrial motion, we have held that an appellant cannot benefit from objections made on behalf of another defendant or personal exchanges between counsel for the other defendant and the circuit court. Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995); Smith v. State, 308 Ark. 603, 826 S.W.2d 256 (1992). Unless an appellant’s counsel objects on appellant’s behalf, the matter is not preserved for appeal. Rockett, supra; Smith, supra. In addition, appellant’s attempt to raise an objection over any confusion that might be caused by the jury instructions came too late in the motion for a new trial. We have often held that objections to a jury instruction must be made before the jury retires, and objections made after the jury retires to deliberate are not |intimely. Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993); Tosh v. State, 278 Ark. 377, 646 S.W.2d 6 (1983); Brown v. State, 277 Ark. 294, 641 S.W.2d 7 (1982). Pursuant to our case law, we decline to address the issue because it is not preserved for appeal. Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510.
The record in this case has been examined for reversible error in accordance with Arkansas Supreme Court Rule 4 — 3(i), and none has been found.
Affirmed.
. This provision of the capital-murder statute states that "a person commits capital murder if, acting alone or with one (1) or more other persons, the person commits or attempts to commit ... residential burglary, ... and in the course of and in furtherance of the felony or in immediate flight from the felony, the person or an accomplice causes the death of a person under circumstances manifesting extreme indifference to the value of human life."
. This provision of the first-degree murder statute states that ‘‘[a] person commits murder in the first degree if, acting alone or with one (1) or more other persons, the person commits or attempts to commit a felony, and in the course of and in furtherance of the felony or in immediate flight from the felony, the person or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life.” | [
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JOHN B. ROBBINS, Judge.
Iiln this eminent-domain case, appellant Delta Regional Airport Authority appeals from the jury’s award of compensation of $150,000 to appellee J.T. Jarrett & Sons, a partnership that holds a leasehold interest in the property. Delta also appeals from the circuit court’s order granting attorney’s fees to the landowners, appellees Grover Gunn, III; Michael Scott Gunn; and Edgar Lindsey Gunn (collectively, the Gunns). We affirm in part and reverse in part.
Delta is a public corporation formed for the purpose of constructing and operating a regional airport for the general public in St. Francis and Cross Counties. Delta sought to acquire 209 acres in St. Francis County from the Gunns. When negotiations failed, Delta filed this eminent-domain action on January 21, 2009, to acquire the fee title from the Gunns and to acquire Jarrett’s leasehold interest. That lease had seven years remaining. Delta deposited | g$505,000 with the clerk of the circuit court, and an order was entered allowing Delta to take possession of the property.
The Gunns counterclaimed against Delta, alleging breach of the purchase contract. Jarrett filed a counterclaim against Delta seeking damages, or, in the alternative, the right to keep farming for the remainder of the lease term. Jarrett also filed a cross-claim against the Gunns, alleging that it had the right of first refusal to purchase the property in the event the Gunns sought to sell.
Based on answers to discovery, Delta filed a motion in limine seeking to prohibit Jarrett from introducing evidence of its anticipated lost profits. The circuit court denied the motion to the extent that it sought to prohibit evidence as to what Jarrett paid in rent. In so ruling, the court said that it realized that proof of what Jarrett earned from the rental of the property was perilously close to being evidence of lost profits. The court also noted that the rent paid does not establish the fair market value.
The case was tried to a jury, which found for Delta on the Gunns’ contract claim and fixed the Gunns’ compensation for the taking at $580,000. The jury also fixed the compensation for the taking of the Jarrett leasehold interest at $150,000. Judgment was entered on the jury’s verdict on July 28, 2010.
The Gunns filed their motion seeking attorney’s fees on August 2, 2010. They argued that they were entitled to attorney’s fees under Ark.Code Ann. § 18-15-605(b) (Repl.2003) because the jury awarded total compensation that exceeded Delta’s initial deposit by more |sthan 20 percent. Delta responded to the motion by arguing that there was no statute that authorized an award of fees in this case and that section 18-15-605(b) applied only to municipal corporations and corporations that supply water. Jarrett filed a separate motion for attorney’s fees on September 20, 2010. The motion cited Ark.Code Ann. §§ 14-362-104, 18-15-605, and City of Fort Smith v. Carter, 364 Ark. 100, 216 S.W.3d 594 (2005) (Carter I), as authority for an award of fees.
By order entered on December 22, 2010, the circuit court awarded the Gunns attorney’s fees of $43,334.38 and costs of $2,322.15. This represented a 30 percent reduction of the amount sought for the unsuccessful prosecution of the Gunns’ counterclaim. The order did not cite any authority for the award, but stated that the court considered the motion and the parties’ briefs addressing the motion. The court denied Jarrett’s motion for attorney’s fees and costs, stating that there was no authority for such an award. Delta filed timely notices of appeal from both the judgment in favor of Jarrett and the judgment for attorney’s fees and costs in favor of the Gunns.
Compensation to Jarrett
Under this heading Delta argues two points: (1) that the circuit court erred in denying its motion for a directed verdict and (2) Jarrett’s proof was improper proof of anticipated lost profits. We address both points together.
In evaluating loss of value to a leasehold interest, the correct measure of damages is the amount by which the fair market value of the lease exceeds the agreed-upon rent. Lamar Advantage Holding Co. v. Arkansas State Hwy. Comm’n, 369 Ark. 295, 253 S.W.3d 914 (2007); Pearson v. Henrickson, 336 Ark. 12, 983 S.W.2d 419 (1999); Arkansas State Hwy. Comm’n v. Humble, 248 Ark. 685, 453 S.W.2d 408 (1970); Arkansas State Hwy. Comm’n v. McHaney, 234 Ark. 817, 354 S.W.2d 738 (1962). Further, the supreme court in McHaney defined rental value:
By rental value is meant not the probable profits that might accrue to the tenant, but the value, as ascertained by proof of what the premises would rent for or by evidence of other facts from which the fair rental value may be determined.
234 Ark. at 819, 354 S.W.2d at 740 (quoting Reeves v. Romines, 132 Ark. 599, 602, 201 S.W. 822, 822 (1918)). There is no difference in principle where the rent agreed upon was part of the crop instead of money. Reeves, 132 Ark. at 602, 201 S.W. at 822. However, in later cases, the supreme court has held that there is an exception to the rule against evidence of lost profits in cases of agricultural property. See Arkansas State Hwy. Comm’n v. Ormond, 247 Ark. 867, 448 S.W.2d 354 (1969); Arkansas State Hwy. Comm’n v. Weir, 237 Ark. 692, 376 S.W.2d 257 (1964); Arkansas State Hwy. Comm’n v. Addy, 229 Ark. 768, 318 S.W.2d 595 (1958); Hot Spring County v. Crawford, 229 Ark. 518, 316 S.W.2d 834 (1958). The reason for the distinction is that, in the case of agricultural land, the income in question was derived from the use of the property itself. See Lamar Advantage Holding, supra; Ozark Gas Transmission Sys. v. Barclay, 10 Ark.App. 152, 662 S.W.2d 188 (1983). It was not error for the circuit court to admit evidence of the value of Jarrett’s crops that include profit because those profits were derived from the use of the land itself and not merely a business conducted on the land.
Our standard of review of the denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence. Advanced Envtl. Recycling Techs. v. Advanced Control Solutions, Inc., 372 Ark. 286, 275 S.W.3d 162 (2008). 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 this 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 determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id. We hold that there is substantial evidence to support the jury’s verdict.
Aubrey Jayroe, Jarrett’s accountant for approximately twenty years, calculated the average rent Jarrett paid to the Gunns at $42,732.34 per year. He also calculated that, based on those averages, the rent for the seven years remaining on the lease would total $299,126.38. He concluded:
That [$202,669] is what I computed to be the total value of the lease based on gross income that the Jarretts would receive less the cost of production over the remaining seven years. That is the cost of the value of what the Jarretts would lose by not having that lease over the next seven years based on their actual gross income production less production cost. That is money they would have made and now won’t.... It is my opinion that, based on 2006, 2007, and 2008, in the following seven years they would have made $202,669 off the Gunns’ 200 acres.
Based on this testimony, the jury could reasonably infer that the fair market value of the remaining life of Jarrett’s lease exceeded the amount of rent remaining under that lease.
Ronnie Jarrett, one of the principals in the Jarrett partnership, testified as to his opinion that the value of the remaining lease on the tract at issue was $250,000. Jarrett also submitted other evidence that corroborated the fair rental value of the property by showing its productivity. There was testimony that the tract at issue was above average for cotton, | f,yielding between two and a half to three bales per acre. There was also testimony that Delta’s appraiser had underestimated the amount of soybeans the land would yield. Thus, the circuit court did not err in denying Delta’s motion for a directed verdict.
Attorney’s Fees to the Gunns
Delta argues that the circuit court erred in awarding attorney’s fees to the Gunns because there was no statutory authority for such an award. The Gunns, on the other hand, argue that fees are permitted by Arkansas Code Annotated section 18-15-605(b) (Repl.2003). Generally, in Arkansas, an award of attorney’s fees is not allowed, unless an award of fees is specifically permitted by statute. Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006).
We hold that the circuit court erred in awarding the Gunns their attorney’s fees because section 18-15-605(b) does not apply to this case. In interpreting a statute, we give the words in the statute their ordinary meaning and common usage. Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997). When a statute is clear, this court will give the statute its plain meaning. Carter I, 364 Ark. at 108, 216 S.W.3d at 599. Additionally, in construing any statute, we will place the statute beside other statutes relevant to the subject matter in question, giving it meaning and effect derived from the combined whole. Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997). Eminent-domain statutes are construed in favor of the landowner. Carter I, 364 Ark. at 109, 216 S.W.3d at 600.
As noted, the Gunns rely on section 18-15-605(b) as authority for an award of attorney’s fees. Section 18-15-605 provides:
|7(a) The further proceedings in the matter of assessment of damages and the making of deposits to secure the owner shall be the same as is now prescribed by law in reference to condemnation proceedings by railroad, telegraph, and telephone corporations, except that the measure of damages shall be the fair market value of the condemned property at the time of the filing of the petition by the corporation or water association as may be determined by law.
(b) In the case of application for orders of immediate possession by the corporation or water association, if the amount awarded by the jury exceeds the amount deposited by the corporation or water association in an amount which is more than twenty percent (20%) of the sum deposited, the landowner shall be entitled to recover the reasonable attorney’s fees and costs.
The Gunns read section 18-15-605(b) to apply to any corporation, not just a municipal corporation or other corporation supplying water. However, this reading is overbroad because, when section 18-15-605(b) is read in conjunction with other statutes in the same subchapter, Flowers v. Norman Oaks Constr. Co., 341 Ark. 474, 17 S.W.3d 472 (2000), it is clear that the reference to corporations in 18-15-605(b) applies only to municipal corporations and other corporations that supply water to cities, towns, or rural areas. Section 18-15-601(a) provides in pertinent part:
(a) All municipal corporations in this state and all corporations, including not-for-profit corporations and water associations, which supply any town, city, or village in this state, or the inhabitants thereof, with water, or which supply water to rural customers or consumers, are authorized to exercise the power of eminent domain to condemn, take, and use private property for the use of the corporations when necessary to carry out the purposes and objects of the corporations ....
When sections 18-15-601(a) and 18-15-605(b) are read in conjunction with each other, it is clear that the corporations referred to in 605(b) are municipal corporations and those corporations that supply water. The Gunns contend that this argument was rejected by the supreme court in Carter I, supra. There, the City of Fort Smith asserted that it exercised its | ¡¡power of eminent domain under Ark.Code Ann. §§ 18-15-401 to -410, rendering Ark.Code Ann. § 18-15-605(b) inapplicable. The supreme court disagreed and concluded that the requirements of subchapter 4 include, and are subject to, the requirements of subchapter 6. 364 Ark. at 109-10, 216 S.W.3d at 600. The city also argued that the plain language of section 18-15-605(b) applied only to corporations and water associations, not municipal corporations. The supreme court rejected this argument as well, noting that the term “municipal corporations” had appeared in the opening paragraph of the statute since its original enactment in 1895. 364 Ark. at 110, 216 S.W.3d at 600-01.
This interpretation of section 18-15-605(b) was made clear in a very recent decision from the Arkansas Supreme Court. Lois Marie Combs Revocable Trust v. City of Russellville, 2011 Ark. 186, 2011 WL 1631122. Delta and the Gunns both cite the case as supporting their respective positions. In Combs Re vocable Trust, the supreme court held that the circuit court correctly denied an award of attorney’s fees because, in order for section 18 — 15—605(b) to apply, the condemning authority must have based its underlying condemnation action upon the use of the power of eminent domain to expand its water-supply facilities. Here, Delta was not seeking to expand its water-supply facilities; rather, it was seeking to construct an airport.
|9The Gunns further argue that Delta’s authority to exercise the power of eminent domain is in accordance with the procedure for eminent-domain proceedings prescribed for railroads, and the reference in section 18-15-605(a) to those same procedures demonstrates a legislative intent to allow attorney’s fees in condemnation cases utilizing the eminent-domain procedures followed by railroads. However, if that were the intent of the legislature, it would have placed what is now section 18-15 — 605(b) in the subchapter relating to eminent-domain procedures for railroad, telegraph, and telephone corporations, instead of in the subchapter relating to entities supplying water to cities. It did not.
Affirmed in part; reversed in part.
GLADWIN and HOOFMAN, JJ., agree.
. The circuit court granted partial summary judgment to the Gunns on this cross-claim.
. Delta alleged that it was a regional airport authority operating under the provisions of Ark.Code Ann. §§ 14-362-101 to -129 (1987 & Supp.2011). Section 14-362-120 gives regional airports the power of eminent domain to be exercised in the manner provided in sections 14-358-101 and 14-358-102, pertaining to county airports, and section 14-360-102, pertaining to municipal airports. Those sections, in turn, state that the procedure for the exercise of eminent domain shall be the procedure prescribed for the exercise of this power by railroads. The procedure for eminent domain by railroads, telegraph, and telephone companies is set forth in Ark. Code Ann. §§ 18-15-1201 to -1207 (Repl.2003). | [
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DOUG MARTIN, Judge.
| Appellant Farm Bureau Mutual Insurance Co. (“Farm Bureau”) appeals from an order of the Mississippi County Circuit Court granting the majority of the summary-judgment motion filed by appellees Jim and Lisa Guyer and denying the majority of Farm Bureau’s cross-motion for summary judgment. The Guyers have cross-appealed from that portion of the circuit court’s order granting Farm Bureau’s summary-judgment motion on the Guyers’ tort claim for bad faith. We find no error and affirm on both direct appeal and cross-appeal.
The Guyers purchased an insurance policy from Farm Bureau; the policy insured the Guyers’ home for $200,000 and their personal property for $100,000. The homeowner policy declaration listed Bank of America as a mortgagee on the property and as a loss payee.
On March 24, 2010, the Guyers’ home and personal property were destroyed by fire. The Guyers met with their insurance adjuster, Matt Cossey, on March 29, 2010, and ^executed a sworn statement and proof-of-loss form. An inspector examined the property on April 3, 2010, to determine whether the fire was suspicious in nature. Even after the inspector determined that the fire was not suspicious, however, Farm Bureau refused to pay the Guyers their policy proceeds, informing the Guyers that it now needed to perform a search for any liens on the property. When Farm Bureau still had not paid on the policy by May 3, 2010, Jim Guyer again contacted Cossey, who stated that Farm Bureau had not discovered any liens on the property but was now having a title opinion prepared. On that basis, Farm Bureau again refused to pay on the policy.
On May 19, 2010, Farm Bureau filed a complaint in interpleader in Mississippi County Circuit Court, naming the Guyers, Bank of America, Regions Bank, MBNA America Bank, and Capital One Bank as defendants. In its complaint, Farm Bureau alleged that, in addition to Bank of America’s mortgage in the amount of approximately $137,250, it had discovered that Regions Bank also had a $40,000 mortgage on the property; that MBNA America Bank had a judgment against Lisa Guyer in the amount of $42,079.41; and that Capital One Bank had a default judgment against the Guyers for $33,257.56. Given the “potential for conflicting claims as to the insurance proceeds,” Farm Bureau claimed it was “in doubt as to which of the defendants is entitled to be paid from the homeowner insurance proceeds.” Accordingly, Farm Bureau asserted that it was in “the best interest of all defendants” for it to tender $300,000 — representing its homeowner policy limits of $200,000 |sfor the dwelling and $100,000 for personal property — into the registry of the court “pending an order from this court as to how these proceeds should be distributed.”
The Guyers filed an answer and counterclaim, and later an amended answer and counterclaim, in which they asserted that Farm Bureau was obligated by the insurance policy to pay the amount of insurance on the Guyers’ dwelling to the Guyers and to Bank of America, and not to any of the other named defendants in the complaint in interpleader. The Guyers asserted that the complaint in interpleader was improper, unreasonable, and resulted in delay and needless expense. Their counterclaim sought the statutory penalty and attorney’s fees provided for in Arkansas Code Annotated section 23-79-208 (Repl.2006); in addition, the Guyers raised claims of breach of contract and bad faith.
Both Farm Bureau and the Guyers filed motions for summary judgment. The circuit court held a hearing on the various pleadings on November 18, 2010. At the conclusion of the hearing, the court found that Farm Bureau had no reasonable basis for filing its complaint in interpleader because, other than the Guyers and Bank of America, none of the named defendants (Regions Bank, MBNA America Bank, and Capital One Bank) had any claim against Farm Bureau at the time the interpleader action was filed. In its order, entered on |4Pecember 3, 2010, the court granted the Guyers’ motion for summary judgment on the interpleader issue and awarded the Guyers the 12% penalty set out in section 23-79-208, as well as attorney’s fees and prejudgment interest. The court found, however, that Farm Bureau’s actions had not amounted to bad faith and granted Farm Bureau’s motion for summary judgment on that issue. Farm Bureau filed a timely notice of appeal on December 30, 2010, and the Guyers filed a timely notice of cross-appeal on January 6, 2011.
In its sole point on appeal, Farm Bureau contends that the trial court committed error by finding that Farm Bureau’s interpleader action added unnecessary parties and awarding the statutory penalty, interest, and attorney’s fees to the Guyers pursuant to section 23-79-208. A trial court’s decision on whether to award attorney’s fees, a 12% penalty, and interest due to an insurer’s failure to timely pay benefits will not be reversed on appeal unless the trial court’s decision is clearly erroneous. S. Farm Bur. Cas. Ins. Co. v. Watkins, 2011 Ark. App. 388, 386 S.W.3d 6; Nationwide Mut. Ins. Co. v. Cumbie, 92 Ark.App. 448, 215 S.W.3d 694 (2005).
The statute at issue provides, in pertinent part, as follows:
In all cases in which loss occurs and the ... property ... insurance company ... liable therefor shall fail to pay the losses within the time specified in the policy after demand is made, the person, firm, corporation, or association shall be liable to 15pay the holder of the policy or his or her assigns, in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorney’s fees for the prosecution and collection of the loss.
Ark.Code Ann. § 23-79-208(a)(l).
The allowance of the statutory penalty and attorney’s fees when an insur er, after demand, fails to pay for an insured loss within the time specified in the policy is punitive in nature and is directed against the unwarranted delaying tactics of insurers. Shepherd v. State Auto Prop. & Cas. Ins. Co., 812 Ark. 502, 850 S.W.2d 324 (1993); Nationwide Mut. Ins. Co. v. Cumbie, supra. In the present case, the insurance contract does not specify a time in which the insurer must pay on a loss following a claim. Where an agreement does not specify a time period in which action is to be taken, the losses must be paid within a reasonable time. Cumbie, supra; McHalffey v. Nationwide Mut. Life Ins. Co., 76 Ark.App. 235, 61 S.W.3d 231 (2001).
Here, the trial court found that Farm Bureau’s filing of its interpleader complaint was unreasonable because none of the named defendants, other than the Guyers and Bank of America, had any claim to the proceeds of the insurance policy. Farm Bureau argues on appeal that the trial court erred because Farm Bureau had a right to protect itself from “competing interests” in the proceeds of the insurance policy. Among those competing interests, Farm Bureau contends, are Regions Bank’s mortgage on the Guy-ers’ property, MBNA America Bank’s judgment against Lisa Guyer, and Capital One Bank’s judgment against the Guyers. Farm Bureau suggests that these entities, as well as Bank of America, the | (¡mortgagee listed as loss payee in the insurance policy, “have or may have ... a right to the policy limits.”
Farm Bureau relies on cases such as Clark Center, Inc. v. National Life Insurance Co., 245 Ark. 563, 433 S.W.2d 151 (1968), and Dennis v. Equitable Life Assurance Society, 191 Ark. 825, 88 S.W.2d 76 (1935), in support of its argument that it was entitled to a reasonable amount of time to investigate the Guyers’ claim and that the trial court’s award of penalties, interest, and attorney’s fees was erroneous. In those cases, however, there were significant questions as to the identities of the beneficiaries of life-insurance policies. In Clark Center, for example, the decedent was insured by National Life and Accident Insurance Company under a policy that obligated the insurer, in the event of the insured’s accidental death, to pay a sum to Clark Center, Inc., a corporation whose stockholders were the decedent’s wife and children. When the corporation demanded payment, the insurer began an investigation and discovered that the insured’s wife was being investigated for murdering her husband. The wife sued the insurance company before the “investigation was completed to [the insurer’s] satisfaction, and the insurance company confessed liability on the policy and tendered the proceeds of the policy into the court’s registry.” Clark Center, 245 Ark. at 564, 433 S.W.2d at 152. The supreme court held that the trial court did not err in refusing to award the wife the statutory penalty and attorney’s fees because the insurance company was making reasonable investigation into the claim, because if the wife (the beneficiary under the policy) had indeed killed her husband, the insured, she was not entitled to collect anything under the policy. Id. at 567, 433 S.W.2d at 153.
17Similarly, in Dennis, supra, the insured was survived by his widow and children; prior to his death, Mr. Dennis enrolled in a group policy of insurance offered by his employer. The policy provided that, in the event of his death, the insurance would be payable to “the following classes of persons,” including the insured’s “widow” and “children.” Dennis, 191 Ark. at 827-28, 88 S.W.2d at 77. The supreme court noted that it was “apparent” that the beneficiaries under the policy could not be determined by mere examination of the policy, “but recourse must be had to extraneous proof for a de termination of the preferred beneficiary in the class surviving the insured.” Id. at 828, 88 S.W.2d at 77. The identity of the proper beneficiary was further confused because Mr. Dennis and his widow were married shortly after the insurance policy was issued, divorced, and then remarried shortly before Mr. Dennis’s death. Id. at 829-30, 88 S.W.2d at 78.
Both Mr. Dennis’s widow and his children filed claims under the policy, and the insurer, in light of the significant questions as to the identity of the proper beneficiary, admitted its liability under the policy but asked that its answer be treated as an interpleader and that it be allowed to pay the money into the registry of the court. Id. at 829, 88 S.W.2d at 78. The trial court determined that the widow was the proper beneficiary, but it denied the widow’s demand for statutory penalties and attorney’s fees. Id. The supreme court affirmed, holding that “the question of a proper beneficiary was a real one” and was a “matter that the parties to this controversy could not determine or settle among themselves.” Id. at 838, 88 S.W.2d at 80. Accordingly, the court held that, because the claimants all asserted their claims in good faith, the insurance company “could not, without involving | ^itself in serious danger, assume the responsibility of deciding disputed facts and controverted propositions of law.” Id. Accordingly, the court concluded that the interpleader action was proper. Id.
More recently, in Primerica Life Insurance Co. v. Watson, 362 Ark. 54, 207 S.W.3d 443 (2004), the supreme court reversed an award of attorney’s fees and penalties. There, a life-insurance policy was issued by Primerica Life Insurance Company to Gary Watson, who, when he died, was survived by a widow named Ronda and an ex-wife named Mary Jane. Primerica, 362 Ark. at 56, 207 S.W.3d at 445. When Gary purchased the insurance, he named his then-wife, Mary Jane, as beneficiary. Gary and Mary Jane divorced in 1993, and Gary married Ronda in 1994. In 1996, Gary called Primerica and asked for a policy-change application so he could change the beneficiary on his policy. There was no specific beneficiary form, so when Gary returned the application, he wrote on it “change name of spouse.” Id. at 57, 207 S.W.3d at 445.
After Gary passed away in 2003, Ronda attempted to assign the life-insurance policy to the funeral home to pay for Gary’s funeral; however, a representative from Primerica contacted Ronda and told her she was not the named beneficiary, but Mary Jane was. After some investigation, Primerica again contacted Ronda and informed her that the company “was about to cut her a check when Mary Jane called and claimed that she was the | .beneficiary.” Id. at 57-58, 207 S.W.3d at 445. Ronda and Mary Jane were unable to reach an agreement, and Ronda subsequently filed suit against Primerica and Mary Jane, asking the court to declare her the rightful beneficiary. Id, at 58, 207 S.W.3d at 446. Primerica answered and interplead the funds of the policy into the registry of the court. A jury found that Ronda was the beneficiary, and after a later hearing, the circuit court found that Ronda was entitled to statutory penalties, interest, and attorney’s fees. Id.
On appeal, Primerica argued that the trial court’s decision was in error because it did not engage in unwarranted delaying tactics and, in fact, had “stood ready, willing, and able to pay the proceeds of the policy” until confronted by competing and apparently legitimate claims from both Ronda, as the widow, and Mary Jane, as the named beneficiary in the policy. Id. at 62, 207 S.W.3d at 448. Primerica argued that, by interpleading the funds, it denied no one recovery but instead took the position that it wanted to pay, but could not determine the rightful payee. Id., 207 S.W.3d at 449. The supreme court agreed, pointing out that while the policy-change application from Gary changed the name of his spouse to Ronda, it did not change the designation of the beneficiary from Mary Jane. Id. Thus, because it was necessary to have a court determine the rightful beneficiary, the supreme court concluded that Primerica’s actions were not “tantamount to the kind of unwarranted delaying tactics envisioned by section 23-79-208.” Id. at 63, 207 S.W.3d at 449-50.
The present case presents a much different scenario. The policy of insurance that Farm Bureau issued to the Guyers contained the following provisions concerning Farm Bureau’s liability to pay in the event of a covered loss:
|in7. Our Payment of Loss
When we pay for a covered loss, we will adjust the loss with you and pay you, unless another payee is named in the policy or is legally entitled to be paid. Our payment of loss will be determined by:
(a) an agreement between you and us; or
(b) a court judgement [sic].
8. Mortgagees and Loss Payees
Mortgage Clause
This clause applies only to coverage on buildings and does not affect your rights or duties. If a mortgagee is shown on the Declaration page, we will pay any loss covered by this policy to the mortgagee and you as interests appear. If more than one mortgagee is shown for an insured location, the order of our payment to each mortgagee is the same as the order of the precedence of the mortgagees.
It is undisputed that there was only one mortgagee — Bank of America— listed on the Homeowner Policy Declaration. Thus, under the plain terms of the insurance policy, the only mortgagee to whom Farm Bureau was liable was Bank of America. When a mortgagee’s interest in property is protected by a standard mortgage clause, this court has noted that the parties have effected a pre-appropriation of the insurance proceeds and the proceeds cannot be used for another purpose without consent of both parties. Ark. Teacher Retirement Sys. v. Coronado Props., Ltd., 33 Ark.App. 17, 20, 801 S.W.2d 50, 52 (1990) (citing Sharp v. Pease, 193 Ark. 352, 355, 99 S.W.2d 588, 590 (1936); Bonham v. Johnson, 98 Ark. 459, 461, 136 S.W. 191, 192 (1911)). Further, when a mortgagee is named as loss payee in its mortgagor’s insurance policy, and a loss occurs, the mortgagee is entitled to enough of the proceeds to satisfy the mortgage indebtedness. Id. at 22, 801 S.W.2d at 54; Echo, Inc. v. Stafford, 21 Ark.App. 201, 205, 730 S.W.2d 913, 915 (1987). See also Wilbanks v. Cobb, 269 Ark. 936, 601 S.W.2d 601 (Ark.App.1980) (a loss-payee clause gives the payee thereunder a superior right |T1in the proceeds to the extent of his interest, and the insured can only recover any balance in excess thereof).
That the Guyers had a second mortgage with Regions Bank is immaterial, insofar as the terms of the policy between the Guyers and Farm Bureau did not name Regions Bank as a loss payee. Indeed, Farm Bureau was entirely unaware of Regions Bank’s mortgage on the property until after Farm Bureau conducted its investigation and title search after the fire occurred. Accordingly, we conclude that the circuit court correctly determined that Farm Bureau’s attempt to name Regions Bank as a defendant in interpleader was unnecessary.
Similarly, Farm Bureau’s concerns about the other two judgment creditors—MBNA America Bank and Capital One Bank—were invalid. In Echo, Inc. v. Stafford, 21 Ark.App. 201, 730 S.W.2d 913 (1987), this court noted that a judgment lien is subject to all other existing hens that are valid as to the landowner, because the judgment lien does not attach to the land, but only to the judgment debtor’s interest therein. Id. at 204, 730 S.W.2d at 915. Even if a judgment lienholder has a lien against the property, however, it does not follow that it has a lien against any insurance proceeds, because “[t]he amount collected on a fire insurance policy by an insured does not, in any sense, constitute proceeds of the property, and the coverage is personal to the insured and is for his benefit only.” Id. Thus, neither MBNA America Bank nor Capital One Bank could have had any interest in the proceeds of the insurance policy, as their liens would not have applied to the insurance proceeds, and the circuit court properly ruled that Farm Bureau’s interpleader action was improper as to these parties.
[ 12Further, even assuming that any of the other banks had opted to pursue their various interests, Farm Bureau would not have been subject to liability if it had simply paid the policy proceeds to Bank of America and the Guyers. Under Arkansas Code Annotated section 23-79-125(a) (Repl.2004), whenever the proceeds of an accident insurance policy become payable in accordance with the terms of the policy, and the insurer makes payment in accordance with the terms of the policy, the person designated in the policy is entitled to receive the proceeds. Subsection (b) of that statute then provides that
[t]he payments shall fully discharge the insurer from all claims under the policy or contract unless, before payment is made, the insurer has received at its home office written notice by or on behalf of some other person that the other person claims to be entitled to the payment or some interest in the policy or contract.
Ark.Code Ann. § 23-79-125(b).
None of the interpleader “bank defendants” gave written notice to Farm Bureau at any point in time that they intended to claim any interest in the policy proceeds. Even assuming Farm Bureau’s “fears” about other creditors coming after the insurance proceeds were valid, Farm Bureau could still have availed itself of the protection of this statute, rather than filing an interpleader action that did nothing but delay payment of the proceeds of the Guyers’ policy. See USAble Life v. Fow, 307 Ark. 379, 820 S.W.2d 453 (1991).
In Fow, the supreme court affirmed the award of statutory penalties, attorney’s fees, and interest where the insurance company, USAble Life, filed a complaint in interpleader when it determined that there were allegedly competing claims to the proceeds of a life | ^insurance policy. The insured, Mr. Church, was insured under a group policy; in 1989, Mr. Church changed his beneficiaries from his wife, Mrs. Church, to his daughters, Thelma Fow and Judith Cole. Mr. Church died in July 1990, and Cole submitted a claim under the policy for herself and her sister. Mrs. Church, however, also contacted USAble Life and threatened to sue the company if it did not pay her. USAble filed a complaint in interpleader in October 1990 and sought to deposit the proceeds of the insurance policy into the registry of the court. Fow, 307 Ark. at 380, 820 S.W.2d at 454.
Fow and Cole, however, objected to the interpleader and counterclaimed for the statutory penalty and attorney’s fee. The circuit court agreed with Fow and Cole and entered judgment against USAble Life, finding it liable to Fow and Cole for the policy proceeds, prejudgment interest, the 12% statutory penalty, and attorney’s fees. The supreme court affirmed, noting that it was undisputed that USAble had in its files the change-of-beneficiary form naming Fow and Cole as beneficiaries of Mr. Church’s policy. In addition, the court stated that USAble Life did not make any investigation as to the proper parties, but instead opted to interplead the policy proceeds based on Mrs. Church’s verbal threat to sue the insurance company. Id. at 381-82, 820 S.W.2d at 455. Citing section 23-79-125, the court concluded that, absent any written notice of other claims, USAble Life’s payment of the insurance proceeds to Fow and Cole would have fully discharged it from all claims under the policy. Because it opted to interplead the proceeds instead of paying on the policy, however, the supreme court held that it was appropriate that USAble Life should “bear the | ^responsibility of the additional expenses visited on the beneficiaries.” Id. at 383, 820 S.W.2d at 455.
In the present case, Farm Bureau claimed it was conducting an investigation into any other potential mortgage holders or judgment creditors in order to avoid being faced with multiple claims on the policy. At the hearing before the circuit court, however, Farm Bureau was unable to articulate any possible basis on which any of the other interpleader defendants could attempt to claim any of the policy proceeds. Even a brief bit of research would — or should — have made it plain to Farm Bureau that the interpleader action was unnecessary. There was no confusion over who the beneficiary was, as was the case in the Clark Center, Dennis, and Primerica cases, cited above, and there was no other mortgagee named as loss payee in the policy declarations besides Bank of America. The trial court correctly concluded that Farm Bureau’s failure to pay the Guyers’ losses within a reasonable time subjected the insurer to the statutory 12% penalty and attorney’s fees pursuant to section 23-79-208(a). Accordingly, we affirm on direct appeal.
In their sole point on cross-appeal, the Guyers argue that the circuit court erred in granting Farm Bureau’s summary-judgment motion on the Guyers’ claim that Farm Bureau committed the tort of bad faith. The standard for establishing a claim for bad faith is rigorous and difficult to satisfy. Unum Life Ins. Co. of Am. v. Edwards, 362 Ark. 624, 210 S.W.3d 84 (2005) (citing Delta Rice Mill, Inc. v. Gen. Foods Corp., 763 F.2d 1001 (8th Cir.1985)). In order to state a claim for bad faith, one must allege that the defendant insurance company engaged in affirmative misconduct that was dishonest, malicious, or oppressive. Edwards, supra; State Auto Prop. & Cas. Ins. Co. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999); Aetna Cas. & Sur. Co. v. Broadway Arms Corp., 281 Ark. 128, 664 S.W.2d 468 (1988). The supreme court has defined “bad faith” as “dishonest, malicious, or oppressive conduct carried out with a state of mind characterized by hatred, ill will, or a spirit of revenge.” Swaim, supra.
Mere negligence or bad judgment is insufficient so long as the insurer is acting in good faith. Id.; Stevenson v. Union Std. Ins. Co., 294 Ark. 651, 746 S.W.2d 39 (1988). The tort of bad faith does not arise from a mere denial of a claim; there must be affirmative misconduct. Edwards, supra. In Swaim, supra, the supreme court explained further:
[T]his court has held on several occasions that a mistake on an insurance carrier’s part or negligence or confusion or bad judgment will not suffice to substantiate the tort of bad faith. For example, we have held that nightmarish red tape, an abrupt attitude evidenced by an insurance representative about higher premium costs following cancellation of a group policy, and confusion over the referral process did not amount to bad faith. Nor did the fact that an insurance company waited three months to investigate a claim.
Examples of cases where we have found substantial evidence of bad faith include where an insurance agent lied by stating there was no insurance coverage; aggressive, abusive, and coercive conduct by a claims representative, which included conversion of the insured’s wrecked car; and where a carrier intentionally altered insurance records to avoid a bad risk.
Swaim, 338 Ark. at 58, 991 S.W.2d at 560-61 (internal citations omitted).
In this case, the Guyers claim that Farm Bureau and its adjuster, Matt Cossey, acted in bad faith in their dealings with the Guyers. In an affidavit offered in support of the Guyers’ | ^motion for summary judgment, Jim Guyer complained that Cossey told the Guyers not to stay in a hotel after the fire, which occurred on March 24, 2010, because it would use up too much of the temporary living expenses provided in the insurance policy. As a result of Cossey’s representation, the Guyers moved into an apartment and had to take turns sleeping on the couch because of inadequate bed space. When the Guyers asked Cossey for payment of the personal-property portion of the policy proceeds, Cossey refused to pay and would not give a reason. When asked if Farm Bureau could pay off the mortgage to avoid additional expenses, Cossey told the Guyers that his boss, Ma-cey Harpo, had told him not to pay anything.
The Guyers rented a house in Blythe-ville on April 20, 2010, but they had to post-date a check for the rent and deposit because they were in “dire financial straits.” As Cossey had told the Guyers that Farm Bureau was checking for liens on the property, Jim Guyer asked Cossey on April 21, 2010, if they had heard anything from the lawyers. Cossey told Guy-er to call Harpo; Harpo, however, was unavailable. The landlords on the Guyers’ rental house cashed the Guyers’ deposit check early, and it bounced, so Guyer called Cossey and told him that they were “desperately tight on money for house and furniture.” Cossey informed Guyer that there were still some “boxes that needed to be filled in” on the proof-of-loss form.
On April 30, Guyer asked Cossey if the money had been sent yet, and Cossey said that it had not. On May 3, Cossey advised Guyer that the lien search had been completed, but now the insurance company was starting to prepare a title opinion; Cossey said that Farm |17Bureau would pay when the title opinion was completed. Cossey also said that he mailed a check for the furniture and house rental, but Guyer complained that Cossey sent it to the wrong address and, when the check was returned to Farm Bureau, Cossey refused to “overnight” the check back to Guyer, even though Guyer offered to pay for expedited shipping.
On May 7, 2010, the Guyers moved into a Holiday Inn after Farm Bureau agreed to “allow for a direct bill.” On May 10, Cossey informed the Guyers that, once they moved into their rental house, Farm Bureau would no longer pay for meals; in addition, Farm Bureau would pay for only two months’ worth of furniture rentals, and after that, the Guyers would be expected to buy their own furniture.
The Guyers continued to attempt to contact Cossey and Harpo about the progress of the title opinion, but Harpo directed them to call Farm Bureau’s attorney. The attorney spoke briefly to Jim Guyer but never called back after that.
On May 19, 2010, Jim Guyer again called Harpo to see if the title opinion was finished; Harpo said that it was, but even though the search “did not turn up anything new,” Farm Bureau was still not going to pay. When Guyer contacted Farm Bureau’s attorney, the attorney advised that Farm Bureau was going to in-terplead the entire amount of the policy. The complaint in interpleader was filed that same day.
On appeal, the Guyers argue that Farm Bureau’s bad faith was evident in Cossey’s “coercive conduct” in inducing them to move into an apartment that was too small; that Cossey lied to or misled the Guyers about the coverage that was available to them; that Farm |lsBureau unreasonably delayed payments on their temporary living expenses; that Farm Bureau refused to pay for furniture rentals for more than one or two months once the Guyers moved into the rental house; that Cossey demanded the Guyers move into the rental house, even though they did not have furniture; and that Farm Bureau refused to pay the balance due on the mortgage to Bank of America as required by the terms of the policy.
These complaints, while serious and undoubtedly egregious and hurtful to the Guyers, do not rise to the level of bad faith but are more akin to the “bad judgment” or “nightmarish red tape” that the Swaim court held did not constitute bad faith. None of the actions about which the Guy-ers complain seems to evince “affirmative misconduct” or “dishonest, malicious, or oppressive conduct carried out with a state of mind characterized by hatred, ill will, or a spirit of revenge.” Columbia Nat’l Ins. Co. v. Freeman, 347 Ark. 423, 429, 64 S.W.3d 720, 723 (2002). As noted above, the standard for establishing bad faith is difficult to satisfy, and on these facts, we are unable to conclude that the circuit court erred in granting Farm Bureau’s summary-judgment motion on the Guyers’ bad-faith claim.
Affirmed on direct appeal; affirmed on cross-appeal.
VAUGHT, C.J., and GLADWIN, J„ agree.
. Of the banks named as defendants, only MBNA America Bank filed an answer in in-terpleader. MBNA America Bank withdrew its claim on December 6, 2010.
. Although not raised by either party, a question arose during this court’s conference whether the circuit court's order was a final, appealable order. The supreme court has held, under Arkansas Rule of Civil Procedure 54(b), that an order is not final that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties. See Schubert v. Target Stores, Inc., 2009 Ark. 89, 302 S.W.3d 33; S. Farm Bur. Cos. Ins. Co. v. Easter, 369 Ark. 101, 251 S.W.3d 251 (2007). Here, while the circuit court’s order does not specifically dismiss the additional bank defendants, the order does explicitly find and declare "that Capital One Bank, MBNA America Bank, N.A., and Regions Bank, a/k/a Regions Financial Corp., did not and do not have any interest in the funds deposited in this interpleader action by the Plaintiff.” We conclude that this language definitively adjudicates the rights of these parties, and accordingly, we have determined that there is a final, appealable order in this case.
. The court's order directed the circuit clerk, with whom the money had been placed, to disburse $117,160.99 to the Guyers' attorney to be wired to Bank of America to pay off the mortgage; the remaining $182,839.01 under the policy was ordered disbursed to the Guy-ers and their attorney.
. Although the circuit court in Dennis declined to award the statutory penalty and attorney's fees, it did order the insurance company to pay interest, a decision that was upheld by the supreme court because there was some "unnecessary delay on the part of the insurance company before interpleading and paying over the fund.” Id. at 833, 88 S.W.2d at 80.
. MBNA America Bank answered the inter-pleader complaint but later withdrew its pleadings.
. In fact, after acknowledging that none of the parties had yet attempted to execute on any of the outstanding liens or mortgages, counsel for Farm Bureau was asked by the court where there was "something [in the policy] that says [Farm Bureau] owe[s] money to a judgment creditor,” and counsel conceded that there was "not anything in the policy.” | [
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ROBERT J. GLADWIN, Judge.
| Appellant Akin O. Williams was convicted of rape by a Hempstead County jury on November 2, 2010, and sentenced to sixty years’ imprisonment. In his four points on appeal, appellant argues that the trial court erred by (1) refusing to. grant his motion for mistrial; (2) denying his motion for directed verdict; (3) permitting the introduction of evidence related to his initial refusal to give a DNA sample; and (4) refusing to permit the introduction of the victim’s criminal history. We affirm appellant’s conviction.
Appellant was charged and tried before a jury on October 25, 2010, for rape. During the prosecutor’s voir dire, the following colloquy occurred:
PROSECUTOR: Now, we’ve got a situation where I don’t believe there’s going to be any question that the parties engaged in sex that day.
DEFENSE COUNSEL: Your Honor, may we approach?
I «THE COURT: You may.
DEFENSE COUNSEL: If they’re going to put on evidence, this is no time — her statement is incorrect.
THE COURT: Okay. I’ll admonish them. I’ll take care of it.
THE COURT: Ladies and gentlemen of the jury, disregard that last comment made by the State. That is not the case, please disregard that. This is voir dire and not evidence to be presented at this time. Thank you.
The prosecutor continued her voir dire, explaining at length how to judge credibility, both as to the victim and the defendant, and how to apply the beyond-a-reasonable-doubt standard. After she concluded, the following colloquy occurred:
DEFENSE COUNSEL: Your Honor, I’m going to move for a mistrial.
THE COURT: Denied.
DEFENSE COUNSEL: May I state for the record my reasons for the mistrial?
THE COURT: You may.
DEFENSE COUNSEL: The statements that she made to the jury, I don’t believe there is any doubt as to whether — That’s like, how can this jury possibly be impartial, I would think that’s an element.
THE COURT: I’ve admonished the jury that these are not — I’ve just admonished the jury that that’s not evidence and they should disregard that comment. You can certainly tell them that that is an issue that you can test strenuously. This is voir dire. This isn’t evidence presented.
DEFENSE COUNSEL: That’s exactly the basis of that new basically presented evidence here. They basically testified for my client. This panel ...
|STHE COURT: I have admonished the jury about that and told them to disregard it. Your motion is denied.
The motion was renewed and denied at the conclusion of jury selection.
The victim, A.A., testified that on November 27, 2009, she was in Hope, Arkansas, partying with acquaintances, one of whom was appellant. After drinking at a club, she, appellant, and Korey Wesley drove to another location to obtain some cocaine. Wesley, with his passengers, then began to drive appellant home. However, Wesley was stopped by police and arrested. Appellant and A.A. were then picked up by appellant’s sister and taken to appellant’s house, where A.A. made phone calls, trying to get a ride home. When A.A. was unable to obtain a ride, appellant allowed her to stay at his house.
A.A. testified that she was lying on the floor under a blanket, watching television, when appellant tried to persuade her to “sleep with” him, saying that he did not have a girlfriend and she did not have a boyfriend. She refused and asked to use the phone again. Instead of. getting the phone for A.A., appellant came up behind her, choked her, and told her she was going to have sex with him because she had used his drugs. She begged him not to do this and offered him money; he told her to “just shut the 'F’ up” and take off her clothes. A.A. said that appellant made her disrobe, then he had sex with her while holding her down against her will. She estimated that the rape occurred for a period of two hours while she cried and prayed. Afterward, he tried to make her bathe to remove any evidence, but she convinced him that it was too cold to bathe and that she would not go to the police.
She testified that she was able to contact a friend to pick her up and take her to another friend’s house, where she called a police officer that she knew. The officer sent a deputy to |4take her to the hospital for a rape examination. At the hospital, she was given a prescription for medication to calm her down. The record notes at several points that she was sobbing as she gave her testimony about the rape. She testified that the rape had negatively affected her life. She identified appellant as her rapist.
Nurse Christie Waller testified that she was working in the Medical Park emergency room when A.A. came in reporting the rape at 9:15 a.m. While Waller saw no bruising, she observed that A.A. seemed to be in shock. Waller collected A.A.’s clothing and performed parts of the rape kit. Waller and the doctor collected oral, vaginal, and rectal swabs, pubic hair, and blood. She turned that evidence over to Heath Ross, an investigator for the Hemp-stead County Sheriffs Department.
Ross testified that when he arrived at the hospital to see A.A., she was “highly upset, very upset, crying.” He collected her clothing and the rape kit from Nurse Waller and sent them to the Arkansas State Crime Laboratory (ASCL) for analysis. He testified that A.A. identified appellant in a photo lineup as the man who had raped her. Ross also submitted to the crime laboratory DNA from an oral swab collected from appellant. He testified that appellant was ordered to submit to a DNA test, but “flat out refused.” However, appellant provided the DNA sample after he was ordered to do so the second time.
Ryan Kemp, a forensic serologist at the ASCL, testified that he performed tests on the rape kit that showed semen on the vaginal swabs, rectal swabs, and underwear. Joseph Hof, a DNA forensic analyst for the ASCL, testified that the vaginal swabs indicated DNA from two persons. From a blood sample given by A.A., she could not be excluded as a contributor 15to part of that DNA. The other major contributor from the vaginal-swab-DNA sample matched appellant’s DNA profile. The strength of that match was “quite high” so that Hof “was able to conclude that the DNA identified as a major component of [the vaginal swab] originated from Akin Williams within all scientific certainty.”
When the State rested its case, appellant renewed his motion for mistrial stating,
Yes, sir. First of all I’d like to renew my earlier motion for mistrial, would be additional evidence created some doubt about the DNA which further enhances the error made by the Prosecution and risings [sic], there was no question about this critical element of the crime. So I would renew that motion at this time, Your Honor.
The motion was denied. Finally, appellant moved for a directed verdict, claiming that the State had not met its burden of proof as to the elements of intercourse or compulsion. The trial court denied the motion, finding that the State had met its burden to move forward based upon the testimony presented. The defense rested with no further motions. The jury found appellant guilty of rape and sentenced him to sixty years’ imprisonment. Appellant filed a timely notice of appeal, and this appeal followed.
I. Directed Verdict
Although appellant presents his challenge to the circuit court’s denial of his motion for directed verdict as his second point on appeal, we must address such a challenge first for purposes of double jeopardy. See Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510. We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Sparacio v. State, 2009 Ark. App. 350, 2009 WL 1154707. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id. The credibility of witnesses is an issue for the jury and not the court. Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.
Appellant contends that the trial court erred in denying his motion for directed verdict because the State failed to present sufficient evidence of sexual intercourse or forcible compulsion. Arkansas Code Annotated section 5-14-103(a) (Supp. 2009) provides that “[a] person commits rape if he or she engages in sexual intercourse ... with another person ... [b]y forcible compulsion.” “Forcible compulsion” is “physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person.” Ark.Code Ann. § 5-14-101(2) (Supp.2009). “Physical force” is “any bodily impact, restraint or confinement, or the threat thereof.” Freeman v. State, 331 Ark. 130, 132, 959 S.W.2d 400, 401 (1998). Force is present if “the act is against the will of the party upon whom the act was committed.” Id. at 132-33, 959 S.W.2d at 401.
Appellant argues that, even though a victim’s testimony alone can be enough for a rape conviction, see Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992), A.A. was not a credible witness, and her testimony should be disregarded. He points to A.A.’s prior felony conviction |7for crack cocaine and her consumption of multiple beers and cocaine on the night of the incident. He asserts that she willingly went to his house and admitted that she did not contact police because of outstanding warrants for her arrest. He further claims that there was no bruising on A.A.; no hair from appellant was found by the forensic serologist; a third person could not be excluded from the vaginal swab, and intercourse could not be conclusively shown between A.A. and appellant from the swab; the scene was not investigated; and A.A. admitted that she knew appellant before she selected him from the photograph lineup. Therefore, he argues that the evidence was insufficient to establish either sexual intercourse or forcible compulsion.
The credibility of witnesses is an issue for the jury and not this court. Morgan, supra. The fact-finder is free to believe all or part of the witness’s testimony and resolve questions of conflicting testimony and inconsistent evidence. Id. Ar kansas appellate courts have “continually held that a rape victim’s testimony alone is sufficient and is substantial evidence to support a rape conviction.” Hickey v. State, 2010 Ark. 109, at 2, 2010 WL 745919; see also Bishop, supra. Moreover, the uncorroborated testimony of a rape victim is sufficient evidence to support a conviction. Hickey, supra. Inconsistencies in a rape victim’s testimony are matters of credibility that are solely for the jury to decide, and the jury may accept or reject testimony as it sees fit. Id. Accordingly, we find no error in the trial court’s denial of appellant’s motion for directed verdict, as sufficient evidence was presented to support the verdict.
| SII. Motion for Mistrial
A mistrial is a drastic remedy and should be declared only when there has been an error so prejudicial that justice cannot be served by continuing the trial and when it cannot be cured by an instruction to the jury. Sweet, supra; Tryon v. State, 871 Ark. 25, 268 S.W.3d 475 (2007). An admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. Zachary v. State, 358 Ark. 174, 188 S.W.3d 917 (2004). The circuit court has broad discretion in granting or denying a motion for a mistrial, and this court will not reverse the circuit court’s decision absent an abuse of discretion. Williams v. State, 371 Ark. 550, 268 S.W.3d 868 (2007).
Appellant contends that the trial court erred in refusing to grant his motion for mistrial. He argues that the State’s impermissible questioning in voir dire was not cured by the trial court’s admonition to the jury. He cites Sanders v. State, 278 Ark. 420, 646 S.W.2d 14 (1983), where the Arkansas Supreme Court held that even though the prosecutor went beyond the purpose of voir dire, the judgment was affirmed because there was no motion for mistrial or request for an admonition.
Appellant cites his motion for mistrial— made sometime after the trial court’s admonition to the jury based on appellant’s objection to the prosecutor’s comment that there was “no question that the parties had engaged in sex that day.” Appellant did not move for mistrial until the conclusion of the prosecutor’s lengthy voir dire; however, appellant claims that the trial court erred in denying his motion. He argues that the State improperly attempted to interject evidence and testify on his behalf. He urges that this case is like Sanders, | ¡¡supra, where the prosecutor exceeded the purpose of voir dire. He contends that the State’s tactic was patently inflammatory and an admonishment to the jury was not an adequate remedy. Based on this argument, he asks that the jury verdict be reversed.
We hold that appellant’s argument cannot be reached because his mistrial motion was untimely. The Arkansas Supreme Court has been resolute in holding that a motion for mistrial must be made at the first opportunity. See McCoy v. State, 2010 Ark. 373, 370 S.W.3d 241. That is because the circuit court must be given the opportunity to correct any perceived error before prejudice occurs. Id. Here, defense counsel objected to the prosecutor’s statement in voir dire that “we’ve got a situation where I don’t believe there’s going to be any question that the parties had engaged in sex that day.” The objection merely asserted that the statement was incorrect and that the prosecution could not “put on evidence” during voir dire. The circuit judge agreed, then admonished the jury to disregard the comment. The prosecutor then continued with voir dire. Only when the prosecutor finished her voir dire did defense counsel move for a mistrial. Clearly the circuit judge interpreted defense counsel’s mistrial request to con cern the prosecutor’s earlier statement regarding the expected proof that the parties had sex on the day in question. Defense counsel did nothing to dispel that notion or to protest that his objection had been misunderstood by the court, if indeed that were the case. Thus, because the mistrial motion came much later than the objection, after voir dire had moved on to other topics, it was untimely, and appellant’s argument on appeal cannot be reached. See McCoy, supra.
| inIII. Introduction of Evidence
The standard of review for evi-dentiary rulings is that circuit courts have broad discretion and that a circuit court’s ruling on the admissibility of evidence will not be reversed absent an abuse of that discretion. Vance v. State, 2011 Ark. 392, 384 S.W.3d 515. Rule 402 (2011) of the Arkansas Rules of Evidence provides that irrelevant evidence is inadmissible. Rule 401 (2011) of the Arkansas Rules of Evidence defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The test of admissibility of evidence over an objection for irrelevancy is whether the fact offered into proof affords a basis for rational inference of the fact to be proved. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). Even if relevant, evidence may nonetheless be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Ark. R. Evid. 403 (2011).
Appellant contends that the trial court abused its discretion and irreparably prejudiced him when it permitted the introduction of testimony related to his initial refusal to submit to a DNA sample. He contends that the evidence was irrelevant and cumulative. He argues that his initial refusal to submit to a DNA sample would not make the existence of any fact of consequence more or less likely, making the evidence irrelevant. He argues that his refusal had nothing to do with whether there was sexual intercourse or forcible compulsion, which are the elements that the State had to prove. Moreover, he claims that the evidence was cumulative, without explaining how.
|nThe State maintains that the trial court did not abuse its discretion by allowing evidence of appellant’s initial refusal to submit to a DNA sample. First, the State argues that appellant has changed his argument on appeal. He argued at trial that the evidence was cumula-' five and did not go to the truth of the DNA matter in any way. He now argues that the evidence was irrelevant and that, even if it were relevant, its probative value would have been substantially outweighed by the danger of unfair prejudice and the presentation of cumulative evidence under Rule 403. Thus, the State contends that the only preserved argument is that the evidence was cumulative. We agree.
We also agree that this evidence is not cumulative, as there is no other evidence of appellant’s refusal to give a DNA sample. Further, the State offered this evidence to show consciousness of guilt, not to bolster the accuracy of the DNA evidence. See Forrester v. State, 2010 Ark. 291, 2010 WL 2473241 (where the refusal to submit to a chemical test was properly admitted as circumstantial evidence showing a knowledge or consciousness of guilt). Therefore, the trial court’s admission of the evidence of appellant’s refusal to submit to giving a DNA sample was not an abuse of discretion.
IV. Introduction of Victim’s Criminal History
The admissibility of evidence is left to the sound discretion of the trial court, and its decision will not be reversed absent an abuse of discretion. Vance, supra. Appellant contends that the trial court abused its discretion in refusing to allow him to cross-examine the victim about her prior drug conviction or a pending misdemeanor for criminal impersonation based on relevancy.
1 ^Under Rule 404(a) (2011) of the Arkansas Rules of Evidence, character evidence cannot be introduced solely for the purpose of proving he or she acted in conformity therewith. However, evidence of a pertinent trait of character of the victim of a crime offered by an accused is admissible. See Ark. R. Evid. 404(a)(2). Appellant argues that A.A.’s prior actions go directly to her honesty and should have been permitted for impeachment purposes.
However, appellant’s argument is speculative, as he made no proffer of the exact evidence to be admitted or how this evidence of only a single misdemeanor charge would have shown a “pertinent trait of character.” Moreover, appellant did not raise the Rule 404(a)(2) argument below, and thus it is not preserved and cannot now be considered. London v. State, 354 Ark. 313, 125 S.W.3d 813 (2003).
Affirmed.
VAUGHT, C. J., and MARTIN, J., agree.
. Renewal of a directed-verdict motion is not required to preserve a sufficiency challenge on appeal when the defense rests without presenting any evidence. Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994). | [
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KAREN R. BAKER, Justice.
| j Appellants BDO Seidman, LLP, Mark Puckett, and James Cross (“BDO”) appeal from the Sebastian County Circuit Court’s denial of their amended motion to compel arbitration against appellees SSW Holding Co., Inc., Straits Steel & Wire, Co., and Straits Diversification, LLC (“SSW Holding”). On appeal, BDO argues (1) that the circuit court erred in denying arbitration because the claim of fraud in the inducement must be resolved by the arbitrator and not the courts, (2) that arbitration cannot be avoided because of unconsciona-bility, and (3) that all of the claims raised fall within the scope of the broad arbitration provisions. An order denying a motion to compel arbitration is an immediately appealable order. Ark. R.App. P.-Civ. 2(a)(12) (2011); Ark.Code Ann. § 16-108-228 (Repl.2006); see IGF Ins. Co. v. Hat Creek P’ship, 349 Ark. 133, 76 S.W.3d 859 (2002). We reverse and remand.
|2I. Procedural Background
SSW Holding filed a complaint against BDO and other defendants in the Sebastian County Circuit Court, asserting claims for breach of fiduciary duty, negligence/professional malpractice, negligent misrepresentation, disgorgement of excessive and illegal fees, fraudulent inducement, fraudulent concealment, declaratory judgment, fraud, civil conspiracy, and breach of contract. SSW Holding sought damages arising from a tax-advantaged investment strategy involving investments in distressed debt that SSW Holding entered into and utilized on its federal tax returns for the 2001-2005 tax years. SSW Holding alleged that BDO devised a scheme and advised SSW Holding to execute the distressed debt strategy (“DDS”), claiming it would yield a substantial profit and minimize SSW Holding’s tax liability. According to SSW Holding, at the time BDO sold the DDS, it knew or should have known that the DDS would not yield the results promised and that federal authorities were investigating the legality of similar “abusive tax shelters.”
Some of the defendants removed the case to the United States District Court, Western District of Arkansas, asserting that federal-question jurisdiction existed. The district court disagreed that it had subject-matter jurisdiction and remanded the case to the Circuit Court of Sebastian County. In Sebastian County Circuit Court, BDO filed an amended motion |sto compel arbitration and stay the action. BDO asserted that it and SSW Holding entered into two consulting agreements (“Consulting Agreement” or “Consulting Agreements”), dated April 24, 2001, and September 19, 2003, wherein BDO agreed to provide certain tax services. BDO alleged that the Consulting Agreements provided for arbitration before the American Arbitration Association. The relevant paragraphs are as follows: formance or breach of this agreement and cannot be resolved by facilitated negotiations (or the parties agree to waive that process) then such dispute, controversy or claim shall be settled by arbitration in accordance with the laws of the State of New York, and the then current Arbitration Rules for Professional Accounting and Related Disputes of the American Arbitration Association (“AAA”), except that no pre-hearing discovery shall be permitted unless specifically authorized by the arbitration panel, and shall take place in the city in which the BDO office providing the relevant Services exists, unless the parties agree to a different locale.
2001 Consulting Agreement:
Dispute Resolution.
8. (d) If any dispute, controversy or claim arises in connection with the per-
11. Governing Law. This agreement shall be governed and construed in accordance with the laws of the State of New York, except for its conflict of law principles.
2003 Consulting Agreement:
9. (d) If any dispute, controversy or claim arises in connection with the performance or breach of this Agreement (including the validity or enforceability of this Agreement) and cannot be resolved by facilitated negotiations (or the parties agree to waive that process) then such dispute, controversy or claim shall be settled by arbitration. The arbitration proceeding shall take place in the city in which the BDO Seldman office providing the relevant services exists, unless the parties agree to a different locale. The proceeding shall be governed by the provisions of the Federal Arbitration Act (“FAA”) or, if a court of competent jurisdiction determines the FAA inapplicable, by the laws of the state in which the proceeding is to take place. In any arbitration instituted hereunder, the proceedings shall proceed in accordance with the then current Arbitration Rules for Professional Accounting and Related Disputes of |4the American Arbitration Association
(“AAA”), except that no pre-hearing discovery shall be permitted unless specifically authorized by the arbitration panel. 12. Governing Law and Severability. This Agreement, shall be governed by, and construed in accordance with, the laws of the State of Michigan (without giving effect to the choice of law principles thereof).
SSW Holding filed a response to the amended motion to compel arbitration and stay this action. SSW Holding stated that the 2001 Consulting Agreement contained an arbitration provision and that New York law governed. SSW Holding argued that under New York law, the arbitration provision was invalid and unenforceable because fraud permeated the entire Consulting Agreement. As a basis for denying the motion, SSW Holding also asserted that the claims against BDO were outside the scope of both arbitration provisions as those provisions only covered disputes arising “in connection with the performance or breach” of the Consulting Agreements, which specifically stated that they do not apply to investment advice and services. Finally, SSW Holding stated that the arbitration provision in the 2001 Consulting Agreement was procedurally and substantively unconscionable under New York law and that the arbitration provision in the 2003 Consulting Agreement was substantively unconscionable under Michigan law because (1) the arbitration provisions violate public policy as they were part of a conspiracy to commit criminal fraud, (2) BDO was the sole creator of the provisions, (3) the provisions contain unreasonable and impermissible limits on discovery, and (4) the provisions impermissibly preclude SSW Holding’s right to recover punitive damages. The response included voluminous exhibits of actual pleadings in criminal cases wherein some of the original defendants, their officers, and employees had been charged or convicted of offenses arising ¡from the performance of DDS with other clients.
BDO replied that all of the claims raised in the complaint related to services that it agreed to provide pursuant to the Consulting Agreements, which contain a broad provision mandating arbitration of “any dispute, controversy or claim aris[ing] in connection with the performance or breach of this agreement.” BDO contended that under New York law the arbitration clause must provide that New York law governed its “enforcement” and as that language was absent from the 2001 Consulting Agreement, the FAA applied. BDO asserted that the FAA required arbitration of the fraudulent-inducement claim. BDO also argued that because the claim of un-conscionability concerned the contract as a whole, as opposed to only the arbitration provision, arbitration and not the court must decide the issue.
After a hearing, the circuit court entered an order denying BDO’s amended motion to compel arbitration. The court found that New York law governed the 2001 Consulting Agreement and that the FAA does not apply and does not preempt New York law. The order stated that BDO could not enforce the 2001 arbitration provision because BDO committed fraud as part of a grand scheme that permeated the entire 2001 Consulting Agreement and its arbitration provision. The court further held that BDO could not enforce the arbitration clause in the 2001 Consulting Agreement because it was pro-eedurally and substantively unconscionable. The court also found that BDO could not enforce the arbitration provision in the 2008 Consulting Agreement because pursuant to the FAA the arbitration clause was proeedurally and substantively unconscionable under Michigan law.
| fiII. Standard of Review
We review a circuit court’s order denying a motion to compel arbitration de novo on the record. S. Pioneer Life Ins. Co. v. Thomas, 2011 Ark. 490, 385 S.W.3d 770. De novo review means that the entire case is open for review. Unknown Heirs of Warbington v. First Cmty. Bank, 2011 Ark. 280, 383 S.W.3d 384. Arbitration is simply a matter of contract between parties. Ruth R. Remmel Revocable Trust v. Regions Fin. Corp., 369 Ark. 392, 255 S.W.3d 453 (2007). The issue of whether a dispute should be submitted to arbitration is a matter of contract construction, and we look to the language of the contract that contains the agreement to arbitrate and apply state-law principles. Tyson Foods, Inc. v. Archer, 356 Ark. 136, 147 S.W.3d 681 (2004).
BDO argues that it was error to deny its amended motion to compel arbitration because (1) SSW Holding’s claim of fraud in the inducement must be resolved by the arbitrator and not the courts; (2) SSW Holding may not avoid arbitration due to alleged unconscionability; and (3) all of SSW Holding’s claims falls within the scope of the parties broad arbitration provisions. To resolve these arguments, we reframe the issues as (1) whether New York law or the FAA governs the enforcement of the arbitration provision in the 2001 Consulting Agreement; (2) whether any of the claims raised by SSW Holding in its complaint are subject to arbitration; and (3) whether SSW Holding’s assertion of unconscionability and fraud renders the arbitration provisions in the 2001 and 2003 consulting agreements unenforceable.
17III. New York Law or the FAA
Because arbitration is a matter of contract between the parties, it is a way to resolve those disputes — but only those disputes — that the parties have agreed to submit to arbitration. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). The FAA merely provides a forum to resolve private disputes when the parties have agreed to use such a forum. Danner v. MBNA Am. Bank, N.A., 369 Ark. 435, 255 S.W.3d 863 (2007) (citing MCI Telecomm. Corp. v. Exalon Indus., Inc., 138 F.3d 426 (1st Cir.1998)). The FAA requires the enforcement of an arbitration agreement upon proof (1) that a written agreement to arbitrate exists, and (2) that the written agreement is contained within a contract that involves commerce. 9 U.S.C. § 2. Neither party disputes that there is a written agreement to arbitrate and that the contract involves commerce.
BDO argues that the FAA governs the question of arbitrability. Specifically, BDO contends that while the arbitration provision in the 2001 Consulting Agreement states New York law applies, it does not contain the specific “enforcement” language necessary to trigger enforcement pursuant to New York law; therefore, the FAA applies. SSW Holding counters that the arbitration clause choice-of-law provision explicitly states that any “dispute, controversy or claim shall be settled by arbitration in accordance with the laws of the State of New York,” and that no special language is necessary. The import of whether New York |sIaw governs the enforcement of the arbitration provision in this case is that under New York law, unlike the FAA, the issue of arbitrability is for the court to decide. See Smith Barney, Harris Upham & Co. v. Luckie, 85 N.Y.2d 193, 623 N.Y.S.2d 800, 647 N.E.2d 1308 (1995) (Under New York statutory and case law, the court reviewing the motion to compel arbitration determines whether the parties made a valid agreement to arbitrate, and if so, whether there has been compliance with the agreement.); see also CPLR § 7503(a).
BDO cites Diamond Waterproofing Systems, Inc. v. 55 Liberty Owners Corp., 4 N.Y.3d 247, 793 N.Y.S.2d 831, 826 N.E.2d 802 (2005), to support its proposition. There, New York’s highest court considered whether New York law or the FAA governed an arbitration clause where the parties agreed to submit to arbitration any claim arising out of or related to their contract. The written agreement also stated that it would be governed by the place where the project was located, and it was undisputed that the place of the project was New York. Diamond Waterproofing held that the FAA controlled because the arbitration clause in question did not evince an intent to have New York law govern the agreement’s enforcement, the court said that
[a] choice of law provision, which states that New York law shall govern both “the agreement and its enforcement,” adopts as “binding New York’s rule that threshold Statute of Limitations questions are for the courts.” In the absence of more critical language concerning enforcement, however, all controversies, ... are subject to arbitration.
Id. at 807 (emphasis in original) (internal citations omitted).
BDO also cites to All Metro Health Care Services, Inc. v. Edwards, 25 Misc.3d 863, 884 N.Y.S.2d 648 (N.Y.Sup.Ct.2009). Relying on Diamond Waterproofing, the All Metro Health court held that there was substantial authority under the FAA that where the parties have not provided for New York law to govern the enforcement of their agreement, it was for the arbitrator to Rdecide an issue going to the arbi- trability of the claim. In determining an arbitration clause did not contain the proper enforcement language and therefore, New York law did not apply, the court said “[w]hile the Stock Purchase Agreement contained a choice of law provision stating that the ‘arbitration shall be held in accordance with the laws of the State of New York,’ this provision does not state that New York law shall govern both the agreement and its enforcement, and is therefore not sufficient to express an intention to have the court, rather than the arbitrator, determine a procedural issue.” Id. at 653.
The arbitration clause in the 2001 Consulting Agreement at issue here states “If any dispute, controversy or claim arises in connection with the performance or breach of this agreement ... then such dispute, controversy or claim shall be settled by arbitration in accordance with the laws of the State of New York.” The “enforcement” language necessary under New York law is absent. Therefore, based on the clear holdings of Diamond Waterproofing and All Metro Health Care Services, we conclude that the FAA applies to whether arbitration is decided by the court or an arbitrator. See 9 U.S.C. § 2 (2009) (stating FAA applies to any written agreement to arbitrate “a contract evidencing a transaction involving commerce”). Because the FAA governs the arbitration provision in the 2001 Consulting Agreement, we reverse the circuit court’s finding that New York law governs.
IV. Claims Within Scope of Arbitration Provision
We have determined that the FAA governs the 2001 Consulting Agreement and the parties agree that the FAA governs the 2003 Consulting Agreement. We now determine whether SSW Holding’s claims fall within the scope of the parties’ arbitration agreements. |inThe FAA provides,
If any suit or proceeding is brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.
9 U.S.C. § 3. The FAA is a congressional statement of a liberal policy favoring arbitration agreements. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration, and any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. Id. When an arbitration clause is broad and there is a dispute as to whether a matter is arbitrable, all reasonable doubt should be resolved in favor of arbitration. AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). In Arkansas, as a matter of public policy, arbitration is strongly favored by courts as a less expensive and more expeditious means of settling litigation and relieving docket congestion. Showmethemoney Check Cashiers, Inc. v. Williams, 342 Ark. 112, 27 S.W.3d 361 (2000). Even though under Arkansas law certain matters are not arbitrable regardless of the language used in an arbitration agreement, we recognize that “[t]he Federal Arbitration Act and the laws of other jurisdictions do not restrict the scope of arbitration as we do in this state.” Id. at 119, 27 S.W.3d at 365.
BDO asserts that both of the arbitration provisions cover “any dispute, controversy or claim arising] in connection with the performance or breach of this agreement,” and that|nSSW Holding’s claims are closely connected to the parties’ Consulting Agreements. In contrast, SSW Holding contends that BDO intentionally omitted the DDS from the scope of the services to be rendered in the Consulting Agreements, and because the claims in the complaint arise from the DDS, they are not within the scope of the arbitration provisions. As further proof that the claims do not fall within the arbitration provisions, SSW Holding posits that each Consulting Agreement “specifically states that it does not apply to ‘investment’ advice and services.”
While SSW Holding correctly notes that the agreements specifically state BDO is not in the business of providing investment advice or services, we agree with BDO that SSW Holding’s claims directly relate to the DDS, which involve tax-planning advice. Both Consulting Agreements have a section heading entitled “Services” which state:
2001 Consulting Agreement: Services
(a) During the term, BDO agrees to provide the following consulting services to the Client (the “Services”): consulting services in conjunction with the sale of equity interest(s) in certain entities, including assistance in determining the overall effects of potential sales price(s) and allocations thereof, assisting the Client and/or the Client’s advisors in structuring the transaction(s) to attain the most beneficial tax results, and assisting with certain income tax, estate tax, personal financial planning and other financial aspects of various anticipated investment activities. BDO is not in the business of providing investment or legal advice or related services, thus, none of the services to be rendered by BDO to Client can or will include investment or legal advice and should not be considered as investment or legal advice. Client acknowledges and represents that it will, and is, not relying upon BDO for investment or legal advice or related services.
2003 Consulting Agreement: Services
(a) During the Term, BDO agrees to provide the following tax consulting services to the Client (the “Services”): tax consulting services in conjunction with certain income tax, and other financial aspects of various anticipated investment activities. These tax | ^consulting services will also include assistance with the tax ramifications of various hedging, interest rate swaps and related financial derivative transactions that the Client is contemplating. BDO is not in the business of providing investment or legal advice (other than with respect to tax matters) or related services, thus, none of the services to be rendered by BDO to Client can or will include investment or legal advice (other than with respect to tax matters) and should not be considered as investment or legal advice. Client acknowledges and represents that it will, and is, not relying upon BDO for investment or legal advice or related services.
In the complaint, SSW Holding seeks compensation “against their professional advisors for damages arising from a tax-advantaged investment strategy involving investments in distressed debt that [SSW Holding] entered into and utilized on their federal tax returns for the 2001-2005 tax years.” We do not agree that the limiting language under the sections entitled “services” is dispositive of whether the claims fall within the scope of the matters to be arbitrated. The services that BDO agreed to furnish, and apparently did furnish in the form of the DDS, involve matters SSW Holding presents in its complaint. Resolv ing this issue under the FAA, any doubt that we might have regarding whether the claims in the complaint are- within the scope of the matters the parties agreed to arbitrate, we resolve in favor of arbitration.
V. Defenses to Arbitration
The FAA was enacted in 1925 in response to widespread judicial hostility to arbitration agreements. See Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008). The Supreme Court has described 9 U.S.C. § 2, the primary substantive provision of the act, as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24,103 S.Ct. 927, 74 L.Ed.2d 765 (1983), and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson, 561 U.S. -, -, 130 S.Ct. 2772, 2776, 177 L.Ed.2d 403 (2010). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees ofLeland Stanford Junior University, 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989).
The final phrase of section 2, however, permits arbitration agreements to be declared unenforceable “upon such grounds as exist at law or in equity for the revocation of any contract.” This permits agreements to arbitrate to be invalidated by “generally applicable contract defenses, such as fraud, duress, or unconscionability,” but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue. Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996); see also Perry v. Thomas, 482 U.S. 483, 492-93 n. 9, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987).
Having determined SSW Holding’s claims fall within the scope of the arbitration provisions, we must determine whether SSW Holding’s defenses of procedural and substantive unconscionability and fraud invalidate, or render unenforceable, the arbitration provisions. Before the circuit court, SSW Holding challenged the 2001 and 2008 Consulting Agreements based upon procedural and substantive un-conscionability and challenged the 2001 Consulting Agreement based upon fraud. We are obliged to analyze the unconsciona-bility claims under both New York and Michigan state law, but only New York state law for the fraud claim. Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995) (choice-of-law provision supplies that state’s substantive law principles).
114A. Unconscionability
Under New York law, a contract provision is unconscionable when it is grossly unreasonable or unconscionable in light of the mores and business practices of the time and place, making it unenforceable according to its literal terms. Gillman v. Chase Manhattan Bank, N.A., 73 N.Y.2d 1, 537 N.Y.S.2d 787, 534 N.E.2d 824 (1988). Generally, a determination of unconscionability requires a showing that the contract was procedurally and substantively unconscionable when made. Id. Likewise, under Michigan law, for a contract provision to be considered unconscionable, both procedural and substantive unconscionability must be present. Liparoto Constr., Inc. v. Gen. Shale Brick, Inc., 284 Mich.App. 25, 772 N.W.2d 801 (2009).
1. Procedural Unconscionability
Under both New York and Michigan laws, the procedural unconscion- ability requires an examination of the contract-formation process and the alleged lack of meaningful choice by one party coupled with unreasonably favorable terms to the other party. Gillman, supra; Liparoto Constr., supra. SSW Holding argues that the arbitration clauses violate public policy because they were part of a conspiracy to commit civil and criminal fraud. Additionally, SSW Holding contends that it “had absolutely no input as to the language of the arbitration provisions,” that BDO designed in a fraudulent manner to conceal its wrongful conduct, and that BDO never discussed the provisions with it. Further, SSW Holding asserts that BDO presented the DDS as a package deal and that SSW Holding had to enter into the Consulting Agreements to be able to get the promised “significant investment and tax benefits.”
SSW Holding’s allegation that BDO made numerous false representations inducing 11sthem to enter into the arbitration provision, are not persuasive. Although the complaint contains an isolated reference to the arbitration provisions being procured through fraud, the overwhelming majority of the factual allegations in the ninety-seven page complaint focus on the overall grand scheme in the formation of the Consulting Agreements. This type of allegation falls short of what is required to prove procedural unconscionability regarding the arbitration clause. Such a claim is proper for an arbitrator to decide. See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967) (holding if the claim is fraud in the inducement of the arbitration clause itself — an issue that goes to the making of the agreement to arbitrate — the federal court may proceed to adjudicate it; otherwise, claims involving the contract generally should be decided by the arbitrator); see also Campaniello Imports, Ltd. v. Saporiti Italia, S.p.A., 117 F.3d 655, 667 (2d Cir.1997) (case properly sent to arbitration when there was no fraud or misrepresentation directly relating to arbitration clause); Kowalewski v. Samandarow, 590 F.Supp.2d 477, 487 (S.D.N.Y.2008) (holding a challenge of unconscionability to the whole contract, as opposed to the arbitration provision specifically, is “an arbi-trable matter not properly considered by the court”).
Because the circuit court found that the arbitration provisions in the 2001 and 2003 Consulting Agreements were unenforceable and invalid due to procedural uncon-scionability, we reverse.
2. Substantive Unconscionability
Under both New York and Michigan laws, a contract’s terms are substantively unconscionable when they are unreasonably favorable to the party against whom 11fiunconscionability is claimed. See Desiderio v. Nat’l Ass’n of Sec. Dealers, Inc., 191 F.3d 198 (2d Cir. 1999); Matter of Friedman, 64 A.D.2d 70, 407 N.Y.S.2d 999 (N.Y. App. Div. 1978); Liparoto Constr., supra. By agreeing to arbitrate, a party does not forego his substantive rights, he simply agrees to submit to an arbitral, rather than a judicial forum. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614,105 S.Ct. 3346, 87 L.Ed.2d 444 (1985).
SSW Holding asserts that substantive unconscionability exists in this case due to the impact on it of two provisions in the Consulting Agreements. Those provisions are that no pre-hearing discovery shall be permitted unless specifically authorized by the arbitration panel, and any award shall not include punitive damages.
SSW Holding argues that it is unduly burdened by not being permitted discovery because the information needed to prove its claims is within the control of BDO, whereas BDO does not need any discovery from SSW Holding. However, the provisions do not exclude the right to discovery, they simply require either party to get permission from the arbitration panel. Also, limitations on discovery in the arbitration process do not invalidate a contract. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991); Stewart v. Paul, Hastings, Janofsky & Walker, LLP, 201 F.Supp.2d 291 (S.D.N.Y.2002). We also reject the contention that the inability to recover punitive damages invalidates an arbitration provision. Rush v. Oppenheimer & Co., Inc., 638 F.Supp. 872 (S.D.N.Y.1986); Pierson v. Dean, Witter, Reynolds, Inc., 742 F.2d 334 (7th Cir.1984); and Surman v. Merrill Lynch, Pierce, Fenner & Smith, 733 F.2d 59 (8th Cir.1984).
Because the circuit court found that the arbitration provisions in the 2001 and 2003 117Consulting Agreements were unenforceable and invalid due to substantive uncon-scionability, we reverse.
B. Fraud
Alleging fraud, SSW Holding asserts that BDO and others made numerous knowingly false affirmative representations and intentional omissions of material facts in order to get substantial fees. While SSW Holding lists sixty instances of actions and inactions constituting fraud, the allegations of fraud are directed at the 2001 Consulting Agreement as a whole, as opposed to the arbitration clause. SSW Holding concludes that it never would have hired BDO but for these intentional, material misrepresentations. Before the circuit court, SSW Holding sought invalidation based upon fraud of the arbitration provision in the 2001 Consulting Agreement.
If a claim of fraudulent inducement relates to the contract generally, and the contract contains an arbitration clause, the language of the FAA provides that the dispute must be adjudicated by the arbitrator. Prima Paint, supra. In Buckeye Check Cashing, Inc. v. Cardegna, the Court found: “First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract. Second, unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance. Third, this arbitration law applies in state as well as federal courts.” 546 U.S. 440, 445-46, 126 S.Ct. 1204, 163 L.Ed.2d 1038. Here, SSW Holding’s fraud claim attacks the validity of the 2001 Consulting Agreement as a whole and not specifically the arbitration clause. Therefore, under Buckeye, the arbitrator, not the court, determines the issue. Because the trial court found fraud | ^invalidated and made unenforceable the arbitration provision in the 2001 Consulting Agreement, we reverse.
Reversed and remanded.
DANIELSON, J., not participating.
. The additional parties named were Paul Shanbrom; Gramercy Advisors, LLC; Gram-ercy Capital Recovery Fund II, LLC; Gramer-cy Capital Recovery Fund A, LLC; Jay Johnston; Sidley Austin Brown & Wood, LLP a/k/a Brown & Wood, LLP; Raymond J. Ruble; and De Castro, West, Chodorow, Glick-field & Nass, Inc.
. BDO’s first motion to compel arbitration and stay the action was filed in federal court.
. The parties’ argument regarding the 2001 Consulting Agreement is limited to whether New York law or the FAA applies to the arbitration provision. No argument is made that Arkansas law governs the arbitrability of disputes allegedly arising out of the 2001 Consulting Agreement. | [
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ROBERT J. GLADWIN, Judge.
| Appellant Village Ventures Realty appeals the October 28, 2010 judgment rendered in Garland County Circuit Court benefiting appellee Edward Allen Cross. Appellant sets forth four issues for this court’s consideration, contending that (1) the trial court clearly erred by granting a judgment in favor of appellee without any admissible evidence introduced to support such an award; (2) the trial court’s award was, in essence, a contempt fine, which the trial court lacked authority and evidence to grant; (3) the trial court clearly erred in granting a default judgment against appellant; and (4) the trial court erred by failing to grant appellant’s motion to set aside and vacate the default judgment. We affirm the trial court’s order.
|2I. Statement of Facts
Appellee purchased property from appellant, a land developer. As an inducement to the sale, appellant gave the following representation in a written affidavit, signed by appellant’s corporate secretary, Gary Coleman:
I, the undersigned, do hereby agree to complete the roads in Mill Creek North to county specifications. All improvements to bring roads to county specifications will be made at my expense. The roads will meet county requirements including width, culvert, gravel, etc. The projection [sic] completion date is estimated to be on or before September 30, 1999.
Appellee filed suit for breach of contract and damages alleging that appellant had failed to perform its obligations. After almost two years, the parties consented to an October 7, 2008 agreed order in which appellant acknowledged and agreed to perform its obligations to maintain the roads at issue and to bring them to Garland County specifications. Appellant also agreed that any violation of the agreed order would be punishable as contempt of court.
Appellee filed a motion for contempt on November 12, 2008, and the trial court set the hearing for December 15, 2008. After a continuance was granted at the request of appellant, the matter came on for hearing on February 12, 2009. After hearing testimony concerning appellee’s allegations of appellant’s failure to perform its obligations, the trial judge called counsel into chambers, where the parties reached an agreement. Pursuant to that agreement, the trial court appointed County Judge Larry Williams as special master pursuant to Rule 53 of the Arkansas Rules of Civil Procedure (2009), to determine the condition of the roads at issue and the status of repairs, if any. The February 23, 2009 order provided:
If procedures are not initiated and attempted within ... ninety (90) days, per County specifications, the Court will hold Defendant in Contempt and award Plaintiff a [¡¡monetary damage amount payable by the Defendant in a sum required to hire the road work done in order to comply with said County specifications. This [monetary] sum will be treated as a Judgment as against Defendant and allowed to be collected as such under Arkansas law.
County Judge Williams submitted his report on May 8, 2009, finding that,
little or no maintenance has been done ... a bridge washed out during the recent flooding ... [t]he road has had little or no gravel added in recent months ... several of its culverts are rusting out ... [t]he road is even in worse condition due to the recent rains and difficult to navigate as a result.
Appellee filed another contempt motion on August 18, 2009, alleging that appellant had failed to remedy the road conditions. After a hearing, the trial court ordered on December 3, 2009, that it would accept affidavit evidence as to the cost of necessary work on the roads and bridges, and gave both parties an opportunity to submit such affidavits within thirty days of the hearing. The order further provides:
After receipt and review, this Court will render Judgment awarding Plaintiff a monetary damage amount payable by the Defendant in a sum required to hire said road(s)/bridge(s) work to be done in a manner to comply with said County specifications. This monitory [sic] sum will be treated as a Judgment as against Defendant and allowed to be collected as such under Arkansas law.
Appellee timely submitted two affidavits with attached bids — one for bridge work and the other for road work. Appellant never submitted any evidence in rebuttal, and made no objection to the evidence submitted by appellee pursuant to the trial court’s order. On September 21, 2010, the trial court announced its ruling in a letter to counsel for both parties. In that ruling, the trial court found damages in favor of appellee for the amount bid on the roadwork portion of the work, but made no award for the bridge-work portion.
|4On October 28, 2010, the trial court rendered judgment for appellee in conformance with its letter ruling of September 21, 2010. Appellant filed its notice of appeal on November 24, 2010. In its appeal, appellant asserts that the trial court was without authority to grant a judgment in appellee’s favor and that there are five problems with the trial court’s final order: (1) appellee never requested damages and never put on any evidence to establish damages; (2) there was never a finding that appellant failed to comply with the agreed order, which required it to maintain the gravel roads per county specifications; (3) the order does not designate how the trial court determined the damages; (4) appellant was never provided an opportunity to contest appellee’s affidavits, either through evidence of its own or by cross-examination; and (5) the order does not require appellee to use the judgment obtained to construct, maintain, and repair the road. These problems, along -with ap-pellee’s contentions, are addressed within appellant’s points on appeal.
II. Lack of Evidentiary Hearing
Appellant first argues that the trial court was clearly erroneous in granting a judgment in favor of appellee, arguing that no admissible evidence was introduced to support such an award. Appellant contends that it was not given an opportunity to have a hearing on the issues raised in the affidavit submitted by appellee. Citing Blaylock v. Blaylock, 2011 Ark. App. 3, 2011 WL 51465, appellant claims that the trial court must hold an evidentiary hearing and cannot accept documents attached to letter briefs as evidence.
In Blaylock, supra, we held that the trial court erred in issuing a ruling without an evidentiary hearing when interpreting the parties’ divorce settlement. Id. There, the trial Rcourt had failed to hold an evi-dentiary hearing on the merits of the parties’ petitions; yet, it made factual findings, presumably based on some exhibits that were appended to a letter brief. Id. We held that the letter briefs did not satisfy the requirements of a summary-judgment motion as specified by Arkansas Rule of Civil Procedure 56(c) (2010). Id. Additionally, we held that the trial court erred in making findings of material fact without an adversai'ial hearing because its particular ruling therein required it to de termine the admissibility and weight to be afforded certain documentary evidence. Id.
Appellant claims that it, likewise, was never provided with an opportunity to contest the information contained in the affidavit that formed the basis for the judgment, either by introducing its own evidence or through cross-examination. It argues that the bid relied on by the trial court was for a paved road, and was thus an inflated bid. It maintains that there has never been a requirement that the road at issue be paved and that it was not allowed an opportunity to be heard. Finally, appellant contends that the affidavits provided were hearsay under Rule 801 of the Arkansas Rules of Evidence (2011).
Appellee counters that the judgment was based on competent evidence including the findings of the master and the affidavits duly submitted through the process agreed to by appellant. Appellant objected to neither the master’s report nor the admissibility of the affidavits. Thus, appellee claims that the issue is not preserved, and we agree. See City of Helena v. Chrestman, 17 Ark.App. 235, 707 S.W.2d 338 (1986).
IfiHI. Contempt
Appellant next argues that the trial court’s award was a contempt fine, which the trial court lacked authority to grant. It cites Omni Holding and Development Corp. v. 3D.S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004), which distinguishes between civil and criminal contempt and holds that the defendant was held in civil contempt, which is designed to coerce compliance with the court’s order. Id. In contrast, criminal contempt carries an unconditional penalty, and the contempt cannot be purged. Id.
In the instant case, appellant argues that neither civil nor criminal contempt took place. It claims that compliance with the trial court’s agreed order to maintain the roadways will not free it of its obligation to pay $178,544.78 directly to appellee. Appellant also asserts that there was no finding of contempt in this matter. Further, it contends that even if a finding of contempt had been made, the court-ordered amount of damages was not remedial, because it was not stated as a fine and did not allow appellant to avoid payment upon completion of the required tasks in the agreed order, and it was not punitive, because appellant was not directed to pay the amounts to the court itself. See Omni Holding, supra.
Appellee maintains that the circuit court’s ruling — awarding damages to restore the roads to the condition in which they should have been had appellant complied with its agreements and orders in the case — was wholly appropriate. Appellant agreed that any failure to comply with the agreed order could be punished by contempt. Further, appellant agreed to the appointment of the master who determined that appellant had failed to comply. 17Finally, appellant agreed to the procedure by which estimates of the cost necessary to bring the property to the agreed condition would be submitted.
Appellee contends that C.R.T., Inc. v. Brown, 269 Ark. 114, 602 S.W.2d 409 (1980), is particularly applicable. There, the Arkansas Supreme Court upheld the trial court’s award of damages based on an estimate of an environmental clean-up business. Id. In contrast, appellant claims that reliance on C.R.T. is misplaced. First, appellant argues that there was an adversarial hearing in C.R.T., wherein the parties had the opportunity to present evidence and cross-examine witnesses. Second, appellant contends that the judgment in C.R.T. was based on evidence of actual damages suffered by virtue of the defen dant’s contempt. In the instant case, appellant argues that there was no adversarial hearing regarding the issue of damages. Moreover, appellant maintains that appel-lee has never asserted that he suffered damages as a result of the alleged breach of the original agreed order. However, we do not find appellant’s distinctions helpful, in that it was given an opportunity to present its own affidavits, but chose not to do so. Further, appellant agreed that contempt would be a remedy for failure to maintain the roads pursuant to the agreement and orders.
Our standard of review for civil contempt is whether the finding of the circuit court is clearly against the preponderance of the evidence. See Gatlin v. Gatlin, 806 Ark. 146, 811 S.W.2d 761 (1991). Here, the trial court’s ruling falls within the civil-contempt category. Had appellant complied with the trial court’s orders to maintain the roads, it could have avoided the judgment. We affirm the trial court’s order of contempt, holding that the trial court’s finding of contempt is not clearly against the preponderance of the evidence.
| «IV. Default Judgment
Appellant next claims that the trial court was clearly erroneous in granting a default judgment against it. First, appellant asserts that it was not afforded an opportunity to respond to appellee’s motion for default judgment. Second, appellant argues that the trial court granted damages to appellee without holding an evidentiary hearing, which is contrary to Arkansas Rule of Civil Procedure 55 (2011). Appellant contends that Rule 55 requires three-days’ notice be provided to a defaulting party who has entered an appearance and that it was not given notice. Appellant claims that, even though it was given an opportunity to file an affidavit and failed to do so, it had no indication from the prior orders that the trial court would not require a hearing to determine the authenticity and accuracy of the affidavits supplied by appellee. Appellant also argues that the judgment creates no condition on the use of the money. It asserts that appellee is effectively provided a windfall and is not required under the judgment to rebuild, repair, or maintain the roads at issue.
The trial court committed no reversible error by granting the judgment against appellant. We recognize that the title of the judgment should not have been “default judgment” because an answer had been filed. However, all pleadings should be liberally construed as to do substantial justice. See Ark. R. Civ. P. 8 (2011); see also Ark. R. Civ. P. 61 (2011). Finally, appellant’s arguments are not warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law. See Ark. R. Civ. P. 11 (2011). Appellant cites no authority to support its complaint that the judgment creates no condition on the use of the money. Accordingly, we affirm on this point.
bV. Motion to Set Aside Default Judgment
Appellant argues that the trial court erred by failing to grant its motion to set aside the default judgment, contending that the documents upon which the trial court relied were fraudulently submitted because the bids were inflated. Appellant claims that the bids were inflated because they were for the construction of an asphalt road, as opposed to gravel. It asserts that the trial court should have set aside the judgment pursuant to Arkansas Rules of Civil Procedure 55(c)(l)-(4) (2011) and 60(c)(4) (2011). Appellant contends that the inflated price of the work contained in the affidavit amounts to a fraud upon the trial court and that, based on the fraud alone, this court should set aside the default judgment.
Appellee argues that submission of evidence to which appellant did not object, and with which it only now disagrees, falls short of justifying appellant’s allegations of fraud. We hold that appellant’s arguments regarding fraud are without merit. Appellant had an opportunity to submit its own affidavits, but chose not to do so. Further, appellant agreed that the trial court would choose among the affidavits in determining the judgment. Appellant also agreed that the trial court would award “Plaintiff a monetary damage amount payable by the Defendant in a sum required to hire said road(s)/bridge(s) work to be done in a manner to comply with said County specifications.” This agreement was made after appellant responded to a contempt motion on August 27, 2009, arguing that it had not been provided guidelines for maintenance of county roads.
Affirmed.
VAUGHT, C.J., and MARTIN, J„ agree. | [
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RITA W. GRUBER, Judge.
11 Garritt S. Mason was tried before a jury in the Circuit Court of Garland County for the unlawful practice of chiropractic medicine. Dennis Hendrix, a private investigator, testified that the Chiropractic Examiners Board obtained his services to gather information about the Alphabiotics Center in Hot Springs; that he presented himself at the clinic, requesting treatment for shoulder and neck pain; and that Mason, after a lengthy discussion of the benefits of alphabiotics, said that he was able to relieve head and neck pain by certain procedures. Hendrix testified that he was required to sign a membership agreement and pay a $20 membership fee; that he lay on a table and Mason examined him; and that Mason performed several maneuvers on him, pulling his head slightly and rapidly twisting it to one side and then the other. Mason was convicted, was fined $5000, and was required to pay court costs of $170.
Acting pro se on appeal, as he did at trial, Mason raises three points. First, he contends |2that he was not able to exercise his due-process rights because he was not allowed to present his “association rights” defense to the jury. He contends in his second point that Detective Mike Lydon of the Hot Springs Police Department, who arrested him for unlawful chiropractic practice, lacked jurisdiction and authority because he was not properly sworn pursuant to art. 19, § 20 of the Arkansas Constitution. Third, Mason contends that several of his constitutional rights were violated by the Arkansas Chiropractic Board and by Dennis Hendrix. We affirm.
Points I and III
The State correctly notes that the first and third points pertain to the same basic issues. We agree with the State that Mason’s due-process argument has no merit and that his constitutional argument is not preserved for appellate review.
Mason argues that the trial court violated his First Amendment rights and denied him due process by not permitting him to present his association-rights defense. This defense is based on his belief that his right to freedom of association, right to privacy, and right of private contract — given to him by the First and Fourteenth Amendments — supersede the Arkansas statute criminalizing unlawful chiropractic practice. See Ark.Code Ann. § 17-81-303 (Repl.2010).
Mason did not file a motion challenging the statute’s constitutionality or notify the attorney general of his constitutional challenge, nor did he present legal authority to the trial |scourt supporting his position. Two days before trial, at the 8:30 a.m. pretrial hearing, he failed to make his constitutional argument. At 1:36 p.m. the same day, he filed with the clerk-proposed Jury Instruction No. 2, which for the first time mentioned the concept of “a 1st and 14th Private Membership Association.” The proposed instruction was never served on the prosecuting attorney. On the morning of trial, the following colloquy took place in chambers:
The COURT: [Y]our instructions kinda indicated to me some things that ... you may be trying to — or intended to talk about. You mentioned a couple of constitutional amendments. I assume that’s what you mean by the First and Fourteenth?
Mason: Yes, Ma’am.
The Court: Have you notified the Attorney General to be here? Do you intend to question the United States Constitution?
Mason: Well, I don’t question the United States Constitution, but that is the basis for what we have drawn up our association papers on and that’s the— that is the reference.
The Court: What does that have to do with this charge?
Mason: Well, the charge against me is unlicensed chiropractic, but the issue as far as the reason why I’m bringing this up today is because of the fact that my rights have been infringed upon because what I do in the privacy of the membership association is in the private domain and not in the public realm which is not subject to federal or state jurisdiction to a point of substantive evil, as I understand it.
The Court: What does that [substantive evil] mean?
Mason: Well, it’s a threshold matter that’s been established. If the investigator’s office determines that there is a cause or someone |4is performing something that is mala in se as opposed to mala, prohibita within the association something that’s a crime in and of itself. You know you couldn’t obviously form an association based on murder or some other crime that is like I said a crime itself as opposed to a crime that is prohibited by law. For example—
The circuit court stopped Mason at this point and explained to him that the constitutional argument was a legal issue for the court to decide, not a factual issue to be decided by the jury. The court noted that Mason had not previously brought his legal issue to the court, notified the prosecution of his intent to make a constitutional or legal argument, or asked for a ruling on a legal argument of that nature. Mason confirmed his understanding that he could not argue to the jury “the legal issue of private versus public or First or Fourteenth Amendment rights or any legal argument.” The court granted the prosecutor’s oral motion in limine to prevent Mason from arguing to the jury that a binding private contract overrides the criminal statute.
In Raymond v. State, 354 Ark. 157, 118 S.W.3d 567 (2003), the circuit court ruled against Raymond on his constitutional challenge to Ark.Code Ann. § 5-71-228 (Repl.1997) — the obstruction of shooting, hunting, fishing, or trapping activities. Raymond contended on appeal that the statute was unconstitutional due to vagueness and overbreadth, issues that our supreme court found were not preserved for review:
In his motion to dismiss, Raymond summarily stated that § 5-71-228 violated his First Amendment rights to free speech under both the federal and state constitutions. No citation to authority was provided, other than simply a quotation of clauses from both constitutions. Nor was any brief filed in support. Additionally, when prompted by the court for argument on the motion during closing arguments, counsel for Raymond merely stated that what Raymond did was not illegal and that where a constitutional right and privilege were in competition, the constitutional right takes priority. Not|Bonly did Raymond fail to cite any authority to the circuit court, but he failed to mention the terms “overbroad” or “void for vagueness.” Hence, there was no development of his claims relating to vagueness and over-breadth before the circuit court.
This court is well aware of the fact that ... the circuit court did rule on the issues of vagueness and over-breadth. ... [HJowever, ... the circuit court did not have the benefit of development of the law on these two pivotal issues. What Raymond now presents to this court on appeal, in the form of legal briefs, is a far cry from what the circuit court had at its disposal. Indeed, ... Raymond never mentioned vagueness or overbreadth, much less developed an argument on either, to the circuit court, and the State was equally reticent on these legal points.
Raymond, 354 Ark. at 167-68, 118 S.W.3d at 574.
Even when the issue is constitutional in nature, an argument is not preserved on appeal unless the appellant raised and made the argument at trial and obtained a ruling on it; nor will a particular theory be addressed on appeal if it was not presented below. Id. at 162, 118 S.W.3d at 572. The burden of providing a record sufficient to demonstrate error is upon the appellant. Id. at 163, 118 S.W.3d at 572.
As in Raymond, what Mason presents on appeal is a far cry from what the trial court had at its disposal. He failed to make a motion or bring up his argument before trial — only vaguely referencing constitutional issues in proposed jury instructions; failed to inform the attorney general, the trial court, or the prosecutor of his argument before trial had begun; did not cite authority to support his position; did not fully make his argument on the record; and failed to obtain a ruling. The trial court essentially denied his proposed jury instruction, a ruling that he does not appeal.
Moreover, when the constitutionality of a statute is challenged, the attorney general of this state must be notified and is entitled to be heard; this notification assures a fully | (¡developed adversary case on the constitutional issue. Ark.Code Ann. § 16 — lll—106(b) (Repl.2006); see Landers v. Jameson, 355 Ark. 163, 174, 132 S.W.3d 741, 748 (2003); Raymond, supra. No such notification was given in this case.
Finally, to the extent that Mason’s argument is a challenge to the exclusion of the evidence of the contract signed by Hendrix, the issue is not preserved because the contract was not proffered. Opposing counsel objected to its introduction, and the following colloquy ensued:
Ms. Lawrence: I think that goes much further than our motion in limine and I think our request was that we would not go into the contract because we think it’s confusing for the jury. Civil versus criminal is a matter of law for the court, not the jury. We think it’s confusing, and furthermore, we’ve never been provided that.
The Court.- I’m not gonna allow it. You had an opportunity at pretrial to bring forth any documents that you were gonna try to present in the case to the State and you did not do so. Not only that, after looking at it, it appears to go into the same issues that we took up' in the motion in limine.
[S]o other than that then, we’re not gonna go into the whole membership.
In summary, Mason received due process at trial, the circuit court did not err by denying him the opportunity to present his “association rights” defense, and his constitutional argument is not preserved for our review.
Point II
Mason contends that his conviction should be reversed because the arresting officer, | yDetective Mike Lydon of the Hot Springs Police Department, was not properly sworn pursuant to art. 19, § 20 of the Arkansas Constitution:
Senators and Representatives, and all judicial and executive, State and county officers, and all other officers, both civil and military, before entering on the duties of their respective offices, shall take and subscribe to the following oath of affirmation: “I, _, do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of Arkansas, and that I will faithfully discharge the duties of the office of_, upon which I am now about to enter.”
Mason argues that Lydon’s failure to take and file the oath of office means that he was not a legal de jure or de facto officer and that all of his actions are a nullity. Mason further argues that this failure affected Lydon’s right to act in the capacity of police officer, detective, or arresting officer; that the essential element of “willfulness” was not alleged in the indictment, making it defective and resulting in a lack of jurisdiction; and that Lydon’s investigation of him was fraudulent, with false arrest and false imprisonment.
We agree with the State that Det. Ly-don and unidentified persons at investigative and state agencies whose authority Mason attacks were at the very least de facto officials, i.e., “who by some color of right” were in possession of their offices and were performing their duties “with public acquiescence.” E.g., Bell v. State, 334 Ark. 285, 300, 973 S.W.2d 806, 814 (1998). As such, any attack against their authority must be by direct attack in a separately filed action, not a collateral attack in a criminal prosecution. E.g., id. at 301, 973 S.W.2d at 815. Here, Mason filed no such action, and he cannot make a collateral attack on their authority in the present case.
Even if the attack could be made in this action, the record does not show that Mason |smade his argument to the circuit court or received a ruling on any portion of it. Issues raised for the first time on appeal, even constitutional ones, will not be considered because the trial court never had an opportunity to rule on them. London v. State, 354 Ark. 313, 320,125 S.W.3d 813, 817 (2003). An appellant must obtain a ruling on an argument to preserve the matter for this court’s review, and the appellant bears the burden of providing a record sufficient to demonstrate error. Wallace v. State, 2009 Ark. 90, at 14, 302 S.W.3d 580, 589. Because Mason did not make his argument below or obtain a ruling on it, it cannot be reached on appeal.
Affirmed.
PITTMAN and HARRISON, JJ., agree.
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M. MICHAEL KINARD, Judge.
| TAppeIlant, Rhonda Russell, acting individually and as the representative of the estate of Larry Wayne Russell Sr., appeals from the order of the circuit court granting summary judgment in favor of appel-lees, Northeast Texas Land and Timber (NTLT) and Perry Steitler. We affirm the order of the circuit court.
Larry Wayne Russell Sr. was killed on August 18, 2006, while working at the Domtar Paper Mill in Ashdown. Mr. Russell was killed when he was caught between a front-end loader and a logging truck owned and operated by B.J. Jetton. Jetton testified in his deposition that the accident occurred when the brakes on his truck failed, causing it to move and trap Mr. Russell between the truck and the front-end loader. Jetton further testified that he had not had brakes fail on the truck in “a good while” and that he had not had any work | adone on the truck for a “year or better” prior to the accident.
Jetton hauled the wood to the Domtar mill at the request of Clemente “Speedy” Martinez. Martinez contacted Jetton and gave him the number to give to the mill when he delivered the wood. Martinez received the number via an agreement he had with NTLT, which is owned by Perry Steitler. NTLT is a timber broker that enters into agreements with others to sell timber to mills using NTLT’s contract number, which gives the user of the number access to unload timber at the mill. The agreement between Martinez and NTLT was memorialized in a document titled “Gatewood Purchase Agreement.” Under the agreement, Martinez agreed to sell and deliver materials under NTLT’s contract information. The agreement, which specified that Martinez was acting as an independent vendor, also required Martinez to purchase and maintain general-liability insurance. Perry Steitler testified at his deposition that he had previously revoked Martinez’s authority to deliver timber under the contract due to lapses in Martinez’s insurance and Martinez’s association with an individual of whom Steitler disapproved.
Following the accident that resulted in the death of Mr. Russell, appellant filed a wrongful-death action against NTLT and Jetton. The complaint was later amended to include Perry Steider as a defendant. The complaint alleged that appellees were liable both directly and vicariously for negligence on the theories of negligent en-trustment, negligent hiring, negligent training and/or negligent supervision. On October 10, 2007, appellees filed |sa motion for summary judgment. Following a hearing on the motion, the trial court granted the motion and dismissed the complaint against appellees with prejudice in an order filed March 24, 2008. This timely appeal followed.
Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Sykes v. Williams, 373 Ark. 236, 283 S.W.3d 209 (2008). Summary judgment should be denied if, under the evidence, reasonable minds might reach different conclusions from the undisputed facts. Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Once the moving party has established a prima facie case for summary judgment, the opposing party is required to meet proof with proof and demonstrate the existence of a disputed material fact. Kearney v. City of Little Rock, 2009 Ark. App. 125, 302 S.W.3d 629.
Appellant argues that the trial court erred in granting summary judgment in favor of appellees. Regarding appellant’s direct-liability claim, appellant cites Ozan Lumber Co. v. McNeely, 214 Ark. 657, 217 S.W.2d 341 (1949), for the premise that an employer has a duty to select a skilled and competent contractor, and the employer is liable for the negligent or wrongful acts of an independent contractor where he knew his character for negligence, recklessness, or incompetency at the time he employed him. Although this statement of the [Jaw is correct, see Stoltze v. Arks. Valley Elec. Coop. Corp., 354 Ark. 601, 127 S.W.3d 466 (2003), we hold on the record before us that the trial court properly granted summary judgment on the direct-liability claim.
In the instant case, appellant failed to meet proof with proof and demonstrate the existence of a material issue of fact as required by the Arkansas Supreme Court in summary-judgment cases. Couch v. Farmers Ins. Co., Inc., 375 Ark. 255, 289 S.W.3d 909 (2008); Gray v. Mitchell, 373 Ark. 560, 285 S.W.3d 222 (2008). Appellant has produced no proof that appellees had any knowledge of any “character for negligence, recklessness, or incompetency” on the part of either Martinez or Jetton. In support of her argument to the contrary, appellant points to the fact that Martinez was uninsured for periods of time, that Martinez failed to attend safety classes required by appellees, and that after the accident, Jetton’s truck was determined by the Arkansas Highway Police to have been unsafe. Martinez’s failures to obtain insurance or attend some safety classes do not demonstrate, in and of themselves, a character for negligence, recklessness, or incompetency. Appellant produced no evidence of any prior incidents of negligence or recklessness in which Martinez was involved. There is also no evidence that appellees were aware of the condition of Jetton’s truck prior to the accident or that appellees were aware of Jetton at all prior to the accident.
We also hold on the record before us that the trial court properly granted summary judgment on the vicarious-liability claim. Ordinarily, one employing an independent |ficontractor is not liable for the contractor’s negligence committed in the performance of the contracted work. Shamlin v. Quadrangle Enters., Inc., 101 Ark.App. 164, 272 S.W.3d 128 (2008). An independent contractor is one who, exercising an independent employment, contracts to do work according to his own methods and without being subject to the control of the employer, except as to the results of the work. Howard v. Dallas Morning News, Inc., 324 Ark. 91, 918 S.W.2d 178 (1996). The right to . control, not the actual control, determines whether one is a servant or an independent contractor. Id.
Appellant argues that the facts of this case could give rise to the conclusion that Martinez was acting as an employee of appellees, thus subjecting appellees to vicarious liability for Jetton’s alleged negligence. We disagree. Appellees had no direct contractual relationship at all with Jetton. As for Martinez, according to the purchase agreement, the sole extent of appellees’ ability to control Martinez’s operation with regard to the fulfillment of the agreement was the requirement that Martinez carry insurance. As the trial court correctly pointed out in the order granting the motion to dismiss, this is insufficient to make Martinez an employee as opposed to an independent contractor. The only additional requirement imposed on Martinez outside of the contract was a requirement that he attend safety classes and receive certain certifications. As with the requirement that Martinez obtain insurance, the safety class and certification requirement is insufficient to make Martinez an employee of appellees. Appellees had no right under the agreement, as written or modified through conduct by the parties, to dictate to Martinez the method by which he obtained or delivered the timber to the mill. Appellant emphasizes that NTLT had revoked Martinez’s permission | (¡to deliver timber based on a lapse in insurance and Martinez’s association with a third party that NTLT felt was improper. These undisputed facts do not change the legal analysis. They do not show, nor do they tend to show, that NTLT could or did control the particulars of how Martinez hauled the timber. Clearly, Martinez was allowed, under the agreement, to perform the contracted work according to his own methods without being subject to the control of appellees. There was no evidence presented to indicate that Martinez was acting as anything other than an independent contractor in his relationship with appellees, and appellees are therefore not subject to a claim of negligence for actions undertaken by Martinez.
Affirmed.
VAUGHT, C.J., and GLADWIN, MARSHALL, HENRY, and BROWN, JJ„ agree.
ROBBINS, J., concurs in part and dissents in part.
PITTMAN and HART, JJ., dissent.
. Martinez was never joined as a defendant.
. Jetton did not file a motion for summary judgment; however, the trial court attached to its order granting summary judgment a Rule 54(b) certificate, making the order final as to the parties to this appeal.
. Martinez testified at his deposition that he was not sure whether he had liability insurance at the time of the accident. | [
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ROBERT L. BROWN, Justice.
I, The appellants in this case are people who had lawsuits filed against them in an effort to recover debts allegedly owed by them to certain creditors. These underlying lawsuits were brought by the appellee, Hosto & Buchan, PLLC (“H&B”), a law firm, on behalf of various clients. According to the appellants, H&B filed suit against appellant William G. Born on October 3, 2008, on behalf of Atlantic Credit & Finance 8 (“Atlantic Credit”); appellant Barbara Johnson in March 2007 on behalf of First Community and Collecting Bank, N.A. (“First Community”); appellant Billy W. Nabours on October 31, 2007, on behalf of Capital One Bank (“Capital One”); appellant Cindy Miller on October 8, 2008, on behalf of Atlantic [¡.Credit; and appellant Nathan Scoggins on March 5, 2009, on behalf of Capital One. The appellants will be referred to throughout the opinion as the Born debtors.
On April 13, 2009, the Born debtors filed a Second Amended and Substituted Complaint (“the complaint”) against H&B. In the complaint, they sought to bring a class action against H&B for eight causes of action: (1) violations of the Fair Debt Collection Practices Act (“FDCPA”), codified at 15 U.S.C. § 1962, et seq.; (2) abuse of process; (3) violations of the Arkansas Deceptive Trade Practices Act (“ADTPA”), codified at Ark.Code Ann. § 4-88-101 et seq.; (4) civil conspiracy; (5) fraud and misrepresentation; (6) constructive fraud; (7) negligence; and (8) defamation.
On May 4, 2009, H&B moved to dismiss the complaint under Arkansas Rule of Civil Procedure 12(b)(6) and filed an answer as well. In its motion, H&B claimed that the complaint should be dismissed without prejudice on multiple grounds. H&B urged, as its overarching defense, that it was immune from suit under Arkansas Code Annotated section 16-22-310, which provides that attorneys “shall not be liable to persons.not in privity of contract ... for civil damages resulting from acts, omissions, decisions, or other conduct in connection with professional services performed by the person, partnership, or | ^corporation-” According to H&B, all claims other than actual fraud or intentional torts, which are expressly exempted from section 16-22-310, and claims under the FDCPA were barred by the attorney-immunity statute.
H&B’s motion to dismiss also maintained that res judicata and Arkansas Rule of Civil Procedure 12(b)(8) barred the claims because the issues raised by the Born debtors could have, and should have, been raised in the underlying complaints. H&B further urged that the Born debtors’ argument that H&B was required to be licensed by the state board of collection agencies was incorrect, even though it conceded that it was deemed a debt collector under the FDCPA. As a final point, H&B asserted that appellant Born did not have standing to bring suit against it because he was not the proper defendant, by his own assertion, in the underlying complaint.
The motion to dismiss made many additional arguments with respect to the specific causes of action raised by the plaintiffs. On May 21, 2009, the Born debtors responded. In their response, they first claimed that H&B was not entitled to immunity under section 16-22-810 because it was not acting as an attorney; that is, it was not rendering professional services. Rather, they contended that H&B operated as a debt collector or as a collection agency, and they answered H&B’s specific arguments made in its motion.
The circuit judge held a hearing on H&B’s motion on July 27, 2009. After hearing arguments from the attorneys, he announced that he was granting the motion to dismiss based on Rule 12(b)(6). The judge further stated that while the facts in the pleadings, if true, may |4be grounds for sanctions under Arkansas Rule of Civil Procedure 11, attorneys’ fees, and ethics complaints, he concluded that no cause of action against H&B existed for actions taken as the professional representative. The judge acknowledged the Born debtors’ allegation that H&B acted not as an attorney but as a debt collector, but he determined that the actions alleged in the complaint were all done in H&B’s capacity as a law firm.
I. Abuse of Discretion and Rule 12(b)(6)
In reviewing a circuit judge’s decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. See, e.g., Dollarway Patrons far Better Schools v. Morehead, 2010 Ark. 133, 361 S.W.3d 274. In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Id. However, it is |fialso true that our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Ark. R. Civ. P. 8(a)(1); see also Doe v. Weiss, 2010 Ark. 150, 2010 WL 1258216. Finally, our standard of review for the granting of a motion to dismiss is whether the circuit judge abused his or her discretion. Doe v. Weiss, 2010 Ark. 150, 2010 WL 1253216.
A. Section 16-22-310 Generally
The Born debtors maintain on appeal that section 16-22-310 does not provide immunity to H&B in this case. They make multiple arguments on this point.
According to section 16-22-310,
(a) No person licensed to practice law in Arkansas and no partnership or corporation of Arkansas licensed attorneys or any of its employees, partners, members, officers, or shareholders shall be liable to persons not in privity of contract with the person, partnership, or corporation for civil damages resulting from acts, omissions, decisions, or other conduct in connection with professional services performed by the person, partnership, or corporation, except for:
(1) Acts, omissions, decisions, or conduct that constitutes fraud or intentional misrepresentations....
Ark.Code Ann. § 16-22-310 (Supp.2009) (“the immunity statute”). This court has made it clear that the immunity statute protects attorneys from civil liability from those not in privity of contract with them for actions taken during the course of their employment as attorneys. See, e.g., Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002). We have held that the statute’s plain language provides that immunity and limits it to suits based on conduct in connection with professional services rendered by the attorney. See, e.g., id.; see also Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001) (claim for negligent hiring and supervision not protected by the immunity statute); Almand v. Benton County, 145 B.R. 608 (W.D.Ark. 1992) (interpreting section 16-22-310 not to apply to intentional torts like abuse of process). Claims for fraud and intentional misrepresentations are exempted by the express terms of the statute. See Ark. Code Ann. § 16-22-310(a)(l).
In Fleming v. Cox Law Firm, this court recently held that, while fraud is excepted from the immunity statute, the complaint must include more than “conclu-sory allegations” because otherwise the attorney would improperly be liable “merely upon the act of filing” an improper pleading. 363 Ark. 17, 210 S.W.3d 866 (2005). The Fleming court expressed its concern that to subject attorneys to liability for negligent filings would undermine the attorney’s duty of care to his or her client and would impede attorneys from “zealously represent[ing] their clients without the threat of suit from third parties compromising that representation.” Id. at 22, 210 S.W.3d at 869.
In the instant case, despite the Born debtors’ contention that H&B operates, in part, as a debt-collection agency and should not benefit from the immunity statute, the circuit judge properly dismissed the abuse of process, civil conspiracy, constructive fraud, and negligence claims based on section 16-22-310. The actions the Born debtors maintain give rise to these claims involved H&B’s professional legal representation on behalf of its debtjcollection7 clients. For example, these debtors do not bring their claims based on H&B’s actions in collecting debts via its website. Rather, their claims are based on H&B’s actions in filing corn- plaints against them. The circuit judge did not err in granting H&B’s motion to dismiss on these claims.
The Born debtors, however, go further and raise some individual arguments with respect to their specific causes of action. Yet, it is clear to this court that each of these arguments is an attempt to circumvent the clear intent of the immunity statute. We do note, as the circuit judge observed in the hearing on the motion to dismiss, that the Born debtors could seek sanctions under Arkansas Rule of Civil Procedure 11 or report H&B to the Supreme Court Committee on Professional Conduct, if they believed H&B was practicing law inappropriately.
B. Abuse of Process
With regard to their abuse-of-process claim, the Born debtors specifically allege that the immunity statute does not apply because H&B’s actions constituted intentional misconduct. They cite this court to Almand v. Benton County, 145 B.R. 608 (W.D.Ark.1992), in support of this contention. In Almand, the federal district court concluded that section 16-22-310 did not apply to intentional actions and that a claim of abuse of process could lie against an attorney. There, a jury found the attorney for a bank liable for abuse of process where he allegedly made false representations to a trial court and caused an order of | ^delivery to be executed against the plaintiffs property even though the plaintiff was in the midst of Chapter 11 bankruptcy proceedings. Id. at 617.
To state a claim for abuse of process, a plaintiff must show the following: (1) a legal motion was set in motion in proper form, even with probable cause and ultimate success; (2) the procedure was perverted to accomplish an ulterior purpose for which it was not designed; and (3) a willful act is perpetrated in the use of process which is not proper in the regular conduct of proceedings. South Ark. Petroleum Co. v. Schiesser, 343 Ark. 492, 36 S.W.3d 317 (2001).
Assuming, however, that there are circumstances in which an attorney could be liable for abuse of process, the Born debtors in the instant case have failed to state a claim. Their allegations are based on the assertion that H&B filed the underlying lawsuits in order to coerce the payment of debts that were not owed. Yet, despite any defects in the procedure surrounding the filing of the underlying complaints or in the complaints themselves, the appellants do not contend that H&B filed them for any ulterior purpose other than to collect on unpaid debts.
We conclude that it would pervert the purpose of the immunity statute to allow a plaintiff to bring an abuse-of-process claim against an attorney where that attorney, acting on behalf of his or her client, files a lawsuit that eventually is barred by the statute of limitations or is otherwise deficient. As we noted in Fleming v. Cox Law Firm, the mere act of fifing suit | flagainst a third party should not give rise to attorney liability. 363 Ark. at 22, 210 S.W.3d at 869.
C. Civil Conspiracy
To prove a claim for civil conspiracy, one must show “a combination of two or more persons to accomplish a purpose that is unlawful or oppressive or to accomplish some purpose, not in and of itself unlawful, oppressive or immoral, by unlawful, oppressive or immoral means, to the injury of another”. See, e.g., Dodson v. Allstate Ins. Co., 345 Ark. 430, 445, 47 S.W.3d 866, 876 (2001). The complaint alleged that H&B is liable for civil conspiracy because it agreed to assist its clients and took numerous steps with them to violate the Arkansas Deceptive Trade Practices Act.
H&B relies on Dodson v. Allstate Insurance Co. for the proposition that a civil conspiracy cannot exist between a principal and an agent. Id. (no civil conspiracy between a corporation and its agents). In addition, H&B cites this court to a persuasive federal case in support of its assertion that the Born debtors should not be able to bring a civil-conspiracy claim under these circumstances. See Heffeman v. Hunter, 189 F.3d 405 (3d Cir.1999). In Heffeman, a plaintiff sought damages against an attorney under the anti-conspiracy sections of the Civil Rights Act of 1871, codified at 42 U.S.C. section 1985(2). The Third Circuit Court of Appeals extended the holding in its cases barring liability for conspiracy between corporations 110and their agents and announced a “ban on conspiracies in the attorney-client context.” Id. at 413.
We adopt the reasoning of the Heffeman court and hold that, generally, there can be no civil conspiracy between an attorney and his client for actions undertaken in the furtherance of the legal representation.
D. Constructive Fraud
Constructive fraud is defined as a breach of a legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others. See, e.g., Knight v. Day, 343 Ark. 402, 405, 36 S.W.3d 300, 303 (2001). As opposed to actual fraud, constructive fraud does not include the elements of actual dishonesty or intent to deceive. Id.
The Born debtors contend that H&B had a duty, as a debt collector, not to use deceptive, false, or misleading representations. They further contend that the Fair Debt Collection Practices Act creates a duty on the part of H&B that gives rise to a constructive-fraud claim. H&B responds that the immunity statute bars the constructive-fraud claim because it owed no legal or equitable duty to the Born debtors. In Wiseman v. Batchelor, this court affirmed the dismissal of a constructive-fraud claim against an attorney on grounds that “it could discern in the case ... no legal or equitable duty owed” by the attorney to the opposing party. 315 Ark. 85, 89, 864 S.W.2d 248, 250 (1993). Instead, this court observed |nthat the defendant attorney owed a duty to his client and held that “[t]o create a duty in an attorney which flows both to the client and to the opposing party seems to be untenable and in diametric conflict.” Id. at 89-90, 864 S.W.2d at 250.
It is clear, as a result, that the Born debtors failed to state a claim for constructive fraud because H&B owed no legal or equitable duty to them, and that the claim asserted was properly dismissed.
E. Negligence
It appears to be undisputed that any claim for simple negligence is barred by the immunity statute. The Born debtors contend, nevertheless, that their claims for negligent hiring, supervision, and training are exempted from the immunity statute. In their brief in response to the motion to dismiss, they directed the circuit court to Nielsen v. Berger-Nielsen in support of this contention. 347 Ark. 996, 69 S.W.3d 414 (2002). According to H&B, the negligence claim is barred by the immunity statute and, alternatively, the Born debtors failed to state a claim on which relief could be granted because it owed them no duty.
The Born debtors are correct that this court has exempted claims for negligent hiring and supervision from the im munity statute under certain circumstances. See Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001); see also Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002) (citing Madden v. Aid-rich). However, an employer’s liability for negligent hiring “rests upon proof that the employer knew or, through the exercise of ordinary care, 112should have known that the employee’s conduct would subject third parties to an unreasonable risk of harm.” Madden, 346 Ark. at 415, 58 S.W.3d at 350. In the Madden case, for example, the employer attorney “admitted that she was concerned that [the employee attorney] might have been taking fees from clients and not sharing them with the firm” and “expressed concerns that he was taking money from clients and not providing any services for them.” Id.
In the instant case, the complaint alleged that H&B proximately caused damages to the Born debtors by “failing to properly control and supervise its agents, servants, and employees; failing to properly train its agents, servants, and employees; negligently hiring and supervising its agents, servants, and employees; and failing to prevent its agents, servants, and employees from violating Federal and Arkansas laws.” No further factual allegations are made. These conclusory statements are not sufficient under the Arkansas Rules of Civil Procedure, which identify Arkansas as a fact-pleading state. See Ark. R. Civ. P. 8(a)(1); see also DeSoto Gathering Co., LLC v. Smallwood, 2010 Ark. 5, 362 S.W.3d 298. For that reason, the circuit judge did not err in granting H&B’s motion to dismiss on the negligence claim.
F. Fraud
On appeal, the Born debtors contend that the circuit judge erred in dismissing their fraud claim because (1) fraud is clearly exempted from the immunity statute, and (2) they “alleged several misrepresentations of material fact.” These debtors specifically contend that j1sH&B made a false representation by sending settlement notices to them that listed “Hosto, Buchan, Prater & Lawrence, PLLC” as its name. They also urge that H&B materially misrepresented to them that the amounts alleged to be owed in the underlying lawsuits were lawfully owing. Finally, they claim that it was a misrepresentation of material fact for H&B to represent that its clients were properly before each court because its clients were not registered with the Arkansas Secretary of State, as required under the Wingo Act in order to bring suit in Arkansas. See Ark.Code Ann. § 4-27-1502(a) (A foreign corporation transacting business in this state without a certificate of authority may not maintain a proceeding in any court in this state until it obtains a certificate of authority.).
To establish a claim for fraud, a plaintiff must show (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 on the representation; (4) justifiable reliance on the representation; and (5) damage suffered as a result of the reliance. See, e.g., Knight v. Day, 343 Ark. 402, 405, 36 S.W.3d 300, 303 (2001); see also DePriest v. AstraZeneca Pharm., 2009 Ark. 547, 351 S.W.3d 168. Furthermore, Rule 9(b) of the Arkansas Rules of Civil Procedure re quires the circumstance of fraud to be pled with particularity. Ark. R. Civ. P. 9(b) (2009).
|MIn the case before us, the complaint is wholly insufficient with respect to providing particular factual allegations of knowledge of falsity, intent to induce action or inaction in reliance on the representation, justifiable reliance on the representation, and damages. On the contrary, the complaint makes conclusory statements with respect to these elements and fails to comply with Rule 9(b)’s requirement that it state the circumstances constituting fraud with particularity. The circuit judge did not err in dismissing the fraud claims.
G. Arkansas Deceptive Trade Practices Act
The Born debtors also contend that the circuit judge erred in dismissing their claims under the ADTPA. According to the appellants, H&B violated the ADTPA, and specifically Arkansas Code Annotated section 4 — 88—118(f), by using “unconscionable, false, or deceptive act[s] or deceptive act[s] or practice[s] in business, commerce, or trade.” H&B’s response is that, under Preston v. Stoops, 373 Ark. 591, 594, 285 S.W.3d 606, 609 (2008), the ADTPA does not apply to attorneys engaged in the practice of law. According to the Born debtors, Preston is inapposite because it involved an allegation of the unauthorized practice of law, not violations by a licensed attorney engaged in debt collection under the ADTPA.
The circuit judge correctly dismissed this claim. While Preston did involve a claim regarding the unauthorized practice of law, this court unequivocally said that “the ADTPA does not apply to the practice of law.” Id. at 594, 285 S.W.3d at 609. In so holding, this court noted that “any attempt by the General Assembly to control the practice of law would 115be a violation of the separation-of-powers doctrine” because “[oversight and control of the practice of law is under the exclusive authority of the judiciary.” Id. We affirm on this point as well.
II. Fair Debt Collection Practices Act
Regarding the FDCPA claims, the appellants contend that the circuit judge erred in granting H&B’s motion to dismiss because H&B is not immune from these claims under the immunity statute, and the complaint stated a claim. H&B does not argue on appeal that it is immune under the immunity statute from the FDCPA. Rather, H&B generally contends that dismissal of the FDCPA claims was proper because the complaint failed to state a claim under the Act.
According to the United States Code, the FDCPA was enacted “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692. An FDCPA claim may be brought in “any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurred.” 15 U.S.C. § 11fi1692k; see also Itri v. Equibank, N.A., 318 Pa.Super. 268, 464 A.2d 1336 (1983) (interpreting section 1692k to provide concurrent jurisdiction in federal and state courts for FDCPA claims).
In the complaint, the Born debtors contended that “pursuant to 15 U.S.C. § 1692, et seq., a debt collector may not utilize impermissible means to collect debts.” The complaint referred to an Eighth Circuit Court of Appeals case for the proposition that impermissible debt-collection practices include “harassing, oppressive or abusive conduct; false, deceptive or misleading representations; and unfair or unconscionable collection methods.” Freyermuth v. Credit Bur. Servs., Inc., 248 F.3d 767 (8th Cir.2001) (citing 15 U.S.C. §§ 1692d-f). The Freyermuth case cites three specific provisions of the FDCPA, sections 1692d-f. Section 1692d deals with harassment and abuse, section 1692e prohibits false or misleading representations, and section 1692f governs unfair practices. Other than this reference to the Act through its citation to Freyermuth v. Credit Bureau Services, the complaint does not specify the precise provisions of the FDCPA that H&B allegedly violated.
It is especially difficult to review some of the Born debtors’ arguments because they repeatedly contend that H&B’s actions “must be combined and viewed as a pattern and practice which demonstrated a violation of the FDCPA.” And yet, they adduce no authority for that proposition, nor does our review of the FDCPA statutes reveal any cause of action for engaging in a “pattern and practice.”
The specific FDCPA claims pled in the complaint are that (1) H&B knew or should have known that some of the underlying claims were time barred; (2) the underlying |17compIaints were inadequate; and (3) the settlement notices encouraged individuals to make payments on claims that were time-barred; failed to communicate that H&B was the attorney for the creditor and debt collector; discouraged the appellants from seeking outside counsel by stating that they could avoid “appearing in Court or filing an Answer” by contacting H&B; and bore a fictitious name that would cause the least sophisticated consumer to believe that the communication was from an attorney but was sent without any meaningful review by an attorney.
A. Statute of Limitations Claims
One of the principal arguments that the Born debtors make is that it was a violation of the FDCPA for H&B to bring the underlying complaints against appellants Born, Johnson, and Nabours when they were barred by the applicable statute of limitations. H&B maintains, on the other hand, that the statute of limitations had not run on these claims because the causes of action arose out of a written contract to which a five-year statute of limitations applies. See Ark.Code Ann. § 16-56-115 (Repl.2005). The Bom debtors counter this and contend that the three-year statute of limitations applies because H&B failed to attach a copy of a written contract to the complaints brought by the creditors. Id. § 16-56-105(1) (all Inactions founded on a nonwritten contract must be brought within three years). They contend that the party asserting the existence of a written contract has the burden of proving it.
Federal case law reveals that it is widely accepted that bringing litigation or threatening to bring litigation to collect a debt outside the applicable statute of limitations can give rise to a cause of action under the FDCPA. See, e.g., Freyermuth v. Credit Bur. Servs., Inc., 248 F.3d 767, 771 (8th Cir.2001) (In the absence of a threat of litigation or actual litigation, no violation of the FDCPA where a debt collector attempts to collect on a potentially time-barred debt that is otherwise valid.); Goins v. JBC & Assoc., P.C., 352 F.Supp.2d 262, 272 (D.Conn.2005) (summary judgment in favor of plaintiff where debt collector threatened to sue to collect a time-barred debt); Kimber v. Fed. Fin. Corp., 668 F.Supp. 1480, 1487 (M.DAla. E.Div.1987) (unfair and unconscionable for a debt collector to file a lawsuit on a debt that appears to be time-barred, without the debt collector having first determined after reasonable inquiry that the limitations period has been or should have been tolled); but see Simmons v. Miller, 970 F.Supp. 661, 665 (S.D.Ind.1997) (no FDCPA violation where the debt collector did not knowingly bring suit on a time-barred claim) (emphasis added).
As noted later in the opinion, the FDCPA claims of debtors Johnson and Nabours are time-barred under the FDCPA’s statute of limitations. That leaves the statute-of-limitations claim of debtor Born. Born’s FDCPA claim was based on the allegation that the underlying complaint was time-barred. However, the statute of limitations had not yet run on the underlying complaint because it is undisputed that the debt arose from a credit card contract, |13which is subject to the five-year statute of limitations. See In re Pettingill, 403 B.R. 624 (E.D.Ark.2009). We conclude that Born’s FDCPA claim against debtor H&B was likewise properly dismissed for failure to state a claim.
B. Procedural Deficiencies
The Born debtors also urge that H&B violated the FDCPA in the following ways: (1) by filing the underlying suits on behalf of clients that were not authorized to do business in Arkansas under Arkansas Code Annotated section 4-27-1502(a) (Repl.2001) (“the Wingo Act allegations”), and (2) by violating Ark. R. Civ. P. 10(d) and 17(a) because the “Affidavit of Debt and Verified Bill of Particulars” attached to the underlying complaints were not sworn to by an agent or employee of a proper plaintiff or original creditor. H&B responds that there was no violation of the Wingo Act because its clients, as debt collectors, were not required to obtain a certificate to do business in Arkansas and that any violation of the Arkansas Rules of Civil Procedure do not give rise to a claim under the FDCPA.
knit is disputed at this stage whether the Wingo Act was violated. We conclude, though, that it is unnecessary to resolve the conflict because the Born debtors fail to make any argument or cite any authority for the proposition that a violation of the Wingo Act gives rise to a cause of action under the FDCPA. To the extent they contend that this alleged violation is part of a pattern and practice, as already discussed, they cite no authority for that proposition. This court has repeatedly held that it will not address arguments that lack development and citation to authority. See, e.g., Koch v. Adams, 2010 Ark. 131, at 6-7, 361 S.W.3d 817, 821.
It is likewise clear that general violations of the Arkansas Rules of Civil Procedure do not necessarily give rise to a claim under the FDCPA. See Manlapaz v. Unifund CCR Partners, No. 08 C 6524, 2009 WL 3015166 (N.D.Ill.E.Div. Sept. 15, 2009) (state procedural rule violations are independent from FDCPA considerations; the FDCPA is not to be used simply as a mechanism for enforcing state law); Higgins v. Capitol Credit Servs., Inc., 762 F.Supp. 1128 (D.Del.1991) (FDCPA claim not the proper forum to challenge state court procedures). In the instant case, the Born debtors have failed to cite this court to any case in which a violation of state procedural rules gave rise to a cause of action under the FDCPA. 121 See, e.g., Koch v. Adams, 2010 Ark. 131, 361 S.W.3d 817 (This court does not address arguments that lack proper citation to authority.)-
The circuit judge did not err in granting H&B’s motion to dismiss on this point.
C. Settlement Notices
The Born debtors next contend that H&B violated the FDCPA by sending settlement notices to them. The complaint, though, does not link these notices specifically to any provision of the FDCPA, and the Born debtors’ response to H&B’s motion to dismiss indicates that they are “deceptive as part of a larger scheme.” As already discussed, any pattern-or-practice argument fails as a matter of law because the Born debtors have not shown that the FDCPA entitled them to relief on such grounds.
To the extent they contend that the settlement notices violate the FDCPA because they include misrepresentations, the claim also fails under Arkansas Rule of Civil Procedure 12(b)(6). The settlement notices read as follows:
PLEASE NOTE:
You have been sued. If you would like to arrange to pay. the debt, please call our law firm at 800-892-1460. This may avoid the necessity of you appearing in Court or filing an Answer. When calling, please reference our. file number, which is found on the top of Court papers.
Thank you for your cooperation.
This is an attempt to collect a consumer debt and any information obtained will be used for that purpose. This communication is from a debt collector.
[aThe Born debtors argue that this notice violated the FDCPA by (1) encouraging the appellants to make payments that are barred by the statute of limitations; (2) failing to communicate that H&B is an attorney; (3) discouraging the appellants from obtaining separate legal counsel by stating that by contacting H&B, the appellants “may avoid the necessity” of appearing in court or filing an Answer; and (4) bearing a fictitious name.
In determining whether a communication by a debt collector is false, deceptive, or misleading under the FDCPA, we are obliged to view the communication through the eyes of the “unsophisticated debtor.” See, e.g., Morrison v. Hosto, Buchan, Prater & Lawrence, PLLC, No. 5-.09CV00146JLH, 2009 WL 3010917 (E.D.Ark.2009). In Morrison v. Hosto, Buchan, Prater & Lawrence, PLLC, the federal judge dismissed a similar claim brought on behalf of the Born debtors. In the federal case, the only FDCPA claim brought related to the settlement notices, and the judge held that “[t]he complaint does not allege, nor do the plaintiffs argue, that any statement in the note attached to the summons and complaint was false.” Id. In the case at hand, as well, the Born debtors have not directed this court to any false statement in the settlement notice.
The circuit judge did not err in dismissing the FDCPA claim on this point because the settlement notice did not contain any false statement, and, more importantly, the Born debtors fail to illuminate how the settlement notice violated any specific provision of the FDCPA.
I23D. Scoggins Telephone Call
Appellant Scoggins appears to argue that when he called the number listed on the settlement notice, an employee of H&B told him there was no legal basis for failing to pay the claim and also neglected to inform him that he should seek independent legal counsel.
Taking the second argument first, Scoggins has failed to cite to any provision in the FDCPA or to any other authority to suggest that, under the FDCPA, H&B was obligated to inform debtors that they should seek independent legal advice. This argument has no merit. With regard to the first point, Scoggins has failed to allege which provision of the FDCPA was violated by this alleged statement from an H&B employee and has further failed to develop this argument by citation to authority. See, e.g., Koch v. Adams, 2010 Ark. 131, 361 S.W.3d 817. We thus affirm on this point.
E. FDCPA Statute of Limitations
With regard to appellants Johnson and Nabours, H&B urges that their FDCPA claims are barred by the one-year statute of limitations. 15 U.S.C. § 1692k. The underlying complaint against Johnson was filed in March 2007, and the Nabours complaint was filed on October 31, 2007. The original putative class action complaint was filed in the instant case l^on February 6, 2009. Thus, depending on when the statute of limitations began to run, it would appear that Johnson’s and Nabours’s FDCPA claims are time barred.
H&B argues that the statute of limitations under the FDCPA begins to run either on the date the lawsuit is filed or on the date the complaint is served on the defendant. H&B contends that, under either approach, the Johnson and Nabours claims are time-barred. The Born debtors respond that whether the statute had run is a question of fact and asks this court to “adopt a view that the collection of any amounts as a result of any violation of the FDCPA also begins the running of a new limitations period.” They cite no authority for this proposition, and we decline the invitation to construe the limitations statute in this vein.
As H&B correctly notes, courts take two approaches in determining when the statute of limitations begins to run on an FDCPA claim arising out of the filing of a lawsuit. See Schaffhauser v. Citibank (S.D.) N.A., 340 Fed.Appx. 128 (3d Cir. 2009) (per curiam) (“[Cjourts are split as to when the FDCPA’s one-year statute of limitations begins to run: some have held that such claims accrue upon filing the underlying collection action, see Naas v. Stolman, 130 F.3d 892, 893 (9th Cir.1997), while others use the date on which the purported debtor was served with the complaint. See Johnson v. Riddle, 305 F.3d 1107, 1113 (10th Cir.2002).”). Since Johnson’s and Nabours’s FDCPA claims were time-barred under either approach, we affirm the dismissal of the FDCPA claims brought by these two debtors.
¡^Because we affirm, it is unnecessary to address H&B’s additional claims regarding res judicata and Arkansas Rule of Civil Procedure 12(b)(8). Furthermore, the Born debtors elected to appeal the dismissal order of the circuit judge, and that order has now been affirmed. Accordingly, the Born debtors have waived the right to plead further, and the circuit judge’s order is modified to dismissal with prejudice. See, e.g., Sluder v. Steak & Ale of Little Rock, 368 Ark. 293, 245 S.W.3d 115 (2006); Servewell Plumbing, LLC v. Summit Contractors, Inc., 362 Ark. 598, 210 S.W.3d 101 (2005).
Affirmed as modified.
CORBIN, J., not participating.
. The complaint stated it was bringing claims on behalf of the Born debtors and "on behalf of all other similarly situated citizens of Arkansas.” While the parties addressed the merits of this lawsuit as a class action in their pleadings before the circuit judge, the Bom debtors did not move for class certification, the judge did not rule on the matter, and the parties do not argue the point on appeal. Thus, at this stage, the only issue on appeal is whether the circuit judge erred in granting H&B’s motion to dismiss the complaint based on Arkansas Rule of Civil Procedure 12(b)(6).
. On July 24, 2009, three days before the hearing, the Born debtors filed a Notice of Filing and attached three exhibits. They were (1) Exhibit A — an order of dismissal without prejudice from the Pope County Circuit Court, dismissing appellant Miller's counterclaim against Atlantic Credit in her underlying action; (2) Exhibit B — a dismissal order without prejudice from the Pope County Circuit Court, dismissing Capital One’s underlying complaint against appellant Nab-ours; and (3) Exhibit C — an order of dismissal without prejudice from the Johnson County Circuit Court, dismissing appellant Bom’s counterclaims against Atlantic Credit in his underlying action.
These exhibits do not require this court to convert H&B’s 12(b)(6) motion to one for summary judgment for two reasons: (1) at the end of the July 27, 2009 hearing, H&B’s attorney raised the issue of the voluntary dismissals, and the circuit judge responded "that is not factually before me” and (2) the circuit judge’s order states that it is "[bjased on the pleadings, arguments of counsel, and applicable law.” It is thus clear the circuit judge did not rely on the exhibits filed on July 24, 2009, in making his ruling.
. The judge also dismissed the defamation claim, but the appellants have abandoned that claim on appeal.
. In addition to these alleged misrepresentations, the Bom debtors argued below that it was a misrepresentation for H&B to include on the settlement notices a statement that contacting H&B may avoid the necessity for the appellants to file an answer in the underlying lawsuit.
. The United States Supreme Court has made it expressly clear that the FDCPA applies to "attorneys who 'regularly' engage in consumer-debt-collection activity, even when that activity consists of litigation.” Heintz v. Jenkins, 514 U.S. 291, 299, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995).
. The complaint does not allege that the underlying complaints against Miller and Scog-gins were time-barred.
. In their brief before this court, the appellants also argue that H&B filed suit against Born when he was not the proper debtor and that H&B operated a debt-collection agency without obtaining a license as required by Ark.Code Ann. § 17-24-101 et seq. However, these statements were not clearly alleged in the complaint. Furthermore, as discussed in the Wingo Act violations context, the appellants have made no argument regarding how any violation of Arkansas’s state-license requirements might violate the FDCPA.
. According to H&B, its clients were not required to register with the Secretary of State because they qualified under the exception in section 4 — 27—1501(b)(1) because they were "securing or collecting debts or enforcing mortgages and security interests in property securing the debts.” The Born debtors respond that the exception relates to those collecting secured debts and that it does not apply to a company that is in the regular business of debt collection.
. The date of the class action complaint was set out in H&B’s motion to dismiss and is not contested by the Bom debtors. | [
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RITA W. GRUBER, Judge.
11 Greg Hays appeals the order of the Washington County Circuit Court, Juvenile Division, that adjudicated his son dependent-neglected. The adjudication was based upon the court’s finding that the child was at substantial risk of serious harm as a result of neglect and appellant’s unfitness as a parent. Appellant raises four points on appeal: (1) there was insufficient evidence to support the court’s finding of dependency-neglect; (2) the court abused its discretion in overruling appellant’s hearsay objection; (3) the court erred in denying his motions for a directed verdict; and (4) the court erred in denying his motion to dismiss for lack of subject-matter jurisdiction. We affirm.
Appellant and Pamela Hays were divorced in 2007 by order of the Washington County Circuit Court, Domestic Division. Ms. Hays was awarded custody of their son, their only child, and appellant was granted the court’s standard visitation. The visitation schedule included launsupervised, overnight visitations on Tuesdays, every other weekend, and alternating holidays. The proceedings in the present case began on March 10, 2009, when the Department of Human Services (DHS) filed a petition for emergency custody in the Washington County Circuit Court, Juvenile Division.
In its petition, DHS asked the court to adjudicate the Hayses’ son dependent-neglected because of substantial risk of serious harm as defined by Ark.Code Ann. § 9-27-303. An affidavit of facts supported DHS’s allegations of inadequate supervision and mental injury. Those facts included a January 30, 2009 telephoned 911 report of inadequate supervision, based upon appellant’s alleged intoxication while parked in his car with the child; DHS’s subsequent investigation and true finding for inadequate supervision based upon concerns about appellant’s drinking problems; and the opinion of the child’s therapist that the child had suffered mental injury from appellant, who had taken no reasonable action to minimize mental injury resulting from the divorce but had caused additional harm by forcing the child to discuss uncomfortable situations and placing him in harmful situations. DHS, recommending only supervised visitation between appellant and son, requested suspension of unsupervised visits until services could be provided.
The juvenile court’s April 24, 2009 adjudication of dependency-neglect was based upon the court’s findings that appellant had failed to supervise the juvenile due to drinking, had caused him mental and physical injury due to alcohol abuse, and was an unfit parent because of alcohol abuse. The order required appellant to attend AA meetings at least twice weekly, to undergo psychiatric evaluation, and to participate in any counseling recommended by the psychiatrist. lsThe order further required both appellant and Ms. Hays to refrain from using alcohol; to maintain clean, safe homes for themselves and their son; and to demonstrate the ability to protect the child and keep him safe from harm. Appellant’s telephone conversations with the child and appellee were restricted, only supervised visitation was allowed, and appellant was warned that termination of his parental rights could result should he fail to correct conditions.
Witnesses at the adjudication hearing included Ms. Hays; police officer Stacey Younkin; Karen Scott, a social worker and the child’s therapist; case worker Lori Suntken; appellant; and Fayetteville Country Club’s golf pro, William Agler. Much of their testimony focused on appellant’s visitation, Ms. Hays’s telephone call to 911, and the child’s behavior and therapy sessions after his parents’ divorce. Appellant’s regular visitation schedule was every other weekend, one mid-week night, and alternating holidays. Appellant sometimes kept his son at other times, and they participated in scouting and golfing activities together. The child began counseling sessions with Scott about a year and a half before the adjudication hearing, and at Ms. Hays’s instigation.
Documentary evidence and testimony revealed that Ms. Hays telephoned 911 to report inadequate supervision the afternoon of January 30, 2009. She alleged that appellant was intoxicated while the child was in his car. Officer Younkin was dispatched to the reported location, a Harp’s parking lot, but was unable to find the father and son. Soon afterward Ms. Hays again phoned 911, and the officer was sent to make a welfare check on the child.
Officer Younkin testified that she was dispatched to appellant’s home about an hour after failing to find him in the car. Through the glass door at the front entrance, she saw appellant Land his son watching television. She knocked on the door and made contact with them. She observed that appellant was unsteady on his feet and his breath had a strong odor of intoxicants. She said that his speech was slurred, and his eyes were bloodshot and watery. He told her that his son was going to bed after they watched television and that they were home for the rest of the night. When she asked the child if he was okay, he replied that he had just finished making dinner and eating. She observed that the house was clean and that the child was ready for bed. Although she believed appellant to be intoxicated and was concerned about his “intoxicated state,” she felt that the child’s basic needs were taken care of, he was in no imminent danger, and he was safe for the night. The officer took no further action.
According to Ms. Hays’s testimony, she approached appellant’s parked car at Harp’s after seeing that he and their son were sitting in it. She could tell that appellant had been drinking because his eyes were red, his head was “bobbing,” and she smelled alcohol when he eventually rolled down the window in response to her requests. She asked him what was going on, and he said that he and their son were “just straightening things out.” The boy looked down, with his mouth open, and Ms. Hays told him he needed to get out of the car. She attempted to reach inside the window to unlock the doors, but appellant rolled up the window on her arm. He put the car in drive, she pulled her arm out of the window, he drove away and “flipped her off,” and she called 911. The next day, after spending the night with appellant, the child acted as if everything was fine and did not want to talk about the incident.
Ms. Hays testified that the child had told her about finding empty bottles in the garbage and knowing where appellant hid wine. The boy also told her that he “could’ve died” at times, | .¡including November 2008 when appellant had been drinking and hit a tree with their golf cart while they were on the country club golf course. She said that she had told the child to telephone her if he ever felt unsafe, but he had said he was afraid to call her.
Ms. Hays said that she did not tell appellant until November 2007 about their child’s therapy, that she had not told the child not to tell him, and that she thought this was in the child’s best interest and had paid for the sessions without asking appellant to do so. She said that appellant’s use of alcohol was one reason for the divorce. She did not believe that he would refrain from confronting their son about his counseling sessions or what was said in the courtroom. She believed that appellant had been drunk in the parking lot and that he had called the house while intoxicated since then. She was concerned about their son’s safety and did not believe the situation would correct itself.
Karen Scott testified that the child’s presenting problems at counseling were “extreme anger and acting out.” The issues after the divorce were his parents not getting along, his anger at school, and other problems in the classroom. Scott said that the boy had shown “a lot of big stress and anger in his play therapy” in recent months before the hearing and had begun talking about his father’s drinking. He had shown that he was “hurt and sad” since the parking-lot incident in January and talked about hitting a tree in a golf cart, “thinking that his father had been drinking while driving the golf cart.” She said she had been concerned in the months before the hearing about visitation.
It was Scott’s opinion that the child was stressed when he was with his father. She said that the child had talked about appellant’s anger, and she had concerns about their relationship. | (¡Regarding the DHS investigator’s allegation of mental injury, Scott observed:
[T]he mental seems to be he behaves very well at father’s, doesn’t give an indication apparently to his father that he is upset. He does tell me that he tells his father to stop drinking, but I don’t know if he does or not. But his social relationships are not good. And that shows up when a child is upset and stressed. His school performance has improved, but he doesn’t seem to know how to be with his peers, and he’s angry all the time.
Scott testified that, at the time of the hearing, the child had been showing extreme anger and sadness. His statements about his father sounded like those of a protective parent, and recently he had seemed interested in figuring out his dad’s drinking and how he could help. Scott stated that appellant’s questioning his son about the therapy seemed to upset him and that she thought he was frightened when he talked. In a January 23, 2009 counseling session, he lay in the fetal position and drew a picture of his father drinking. The picture showed a man with a very angry face, holding a half-empty bottle, with “whisky” written on his legs, arms, and torso. The child said the man was his father, but he did not want to talk more about it. Scott testified that in a February 24, 2009 letter she had submitted for the DHS investigation, she concluded that the child had been subjected to emotional abuse.
Finally, Scott testified that appellant had recently come to her, had seemed genuine, and had said he would not drink in front of his son and would like to come to therapy to work things out. The child had told Scott, however, that he refused to have either parent come, and it was Scott’s opinion that it was not currently in the child’s best interest to have either parent participate in counseling with him.
Caseworker Lori Suntken testified that DCFS (Division of Children and Family Services) 17recommended supervised visitation and a drug-and-alcohol assessment for appellant. She recommended that the assessor be fully advised about appellant’s alcohol use and problems. She said that, rather than having DHS’s restricted visitation, it would be beneficial if a mutual family friend or Arkansas Visitation Exchange could supervise because this would allow golf and other activities that were important to the child.
Appellant testified that he had had nothing to drink before parking at Harp’s, when he and his son had been talking about the therapy. Appellant said he might have had one drink afterward at home but did not drink when driving because of having “enough experience with DWIs.” Disputing Officer Younkin’s statement that the child was ready for bed at appellant’s home and had made dinner, appellant said that the officer came before shower time and that he and his son had made spaghetti together. He denied that he had been drinking when the golf cart hit “a sapling,” explaining that the accident occurred when he reached for his cell phone. He said that he had damaged the cart later in the same round of golf, breaking the axle when driving off the cart path while watching his son hit a shot. He admitted that he had to pay for the damage, but he noted that his club bill did not show “bar sales liquor” on the date of the accident.
Appellant testified that, despite having a past drinking problem, he no longer did. He admitted not stopping entirely, could give no date that he had “licked the problem,” and admitted that since September or October 2008 he had been barred from having alcohol at the country club. He admitted having four or five DWIs, the last being in February 2006. He testified that he had not gotten a drug-and-alcohol assessment and that he had last had alcohol |stwo or three nights before the hearing. He admitted consuming alcohol in his son’s presence and telephoning Ms. Hays while intoxicated, but he denied drinking to excess or pouring a drink in front of the child. He said that he was self-employed and had to account to no one at any certain time on a workday.
Appellant said that until sometime in 2008 he had no idea his son was in therapy, that he asked Ms. Hays and their son about it but could not even find out the name of the therapist, and that he wished he had been involved in the therapy because it obviously pertained to him. He expressed his doubts about Ms. Hays’s motives in not asking him to pay for the therapy or filing it under insurance. Under questioning by the court, appellant said he had no good answer for failing to quit drinking for his son’s sake. He said that he didn’t realize until meeting with his son’s therapist the “major problem” the child had about his father’s drinking. Appellant told the court that he “didn’t see that having a drink or two was gonna hurt anything.”
Bill Agler, the country club’s golf pro and appellant’s friend of forty years, testified as a rebuttal witness. He voiced his belief that appellant had an alcohol problem that needed “to be addressed ... for the protection of his son.” Agler said that he had investigated the incident of appellant’s hitting the tree. Agler said that appellant was staggering to get to another cart delivered to him by one of Agler’s employees and that, in Agler’s “guess,” the staggering was due to intoxication. Agler admitted that he himself had not observed appellant at the scene of the accident.
|9jSufficiency of the Evidence
The appellate court reviews findings in dependency-neglect proceedings de novo but will not reverse the trial judge’s findings unless they are clearly erroneous. Porter v. Ark. Dep’t of Health & Human Servs., 874 Ark. 177, 286 S.W.3d 686 (2008). 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. With regard to testimonial evidence, the appellate court gives a high degree of deference to the circuit court, which is in a far superior position to observe the parties before it, and we defer to the trial judge’s evaluation of the credibility of witnesses. See Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 215, 40 S.W.3d 286, 292-93 (2001); Crawford v. Ark. Dep’t of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). Consequently, unless determined to be clearly erroneous, a trial court’s finding will be left undisturbed on appeal. Porter, 374 Ark. at 183, 286 S.W.3d at 692. Moreover, on de novo review, the appellate court will reverse only on grounds properly argued by the appellant. See, e.g., Country Gentleman, Inc. v. Harkey, 263 Ark. 580, 569 S.W.2d 649 (1978).
A dependency-neglected juvenile is any juvenile “at substantial risk of serious harm as a result of neglect or parental unfitness.” Ark.Code Ann. § 9-27-303(18)(A) (Repl.2008). Under subsection (36)(A), neglect includes a parent’s acts or omissions that constitute “[f]ailure to take reasonable action to protect the juvenile.” Among such failures are a parent’s
(iii) Failure to take reasonable action to protect the juvenile from abandonment, abuse, sexual abuse, sexual exploitation, neglect, or parental unfitness when the existence of this |lflcondition was known or should have been known;
(iv) Failure or irremediable inability to provide for the essential and necessary physical, mental, or emotional needs of the juvenile, including failure to provide a shelter that does not pose a risk to the health or safety of the juvenile;
(vi) Failure, although able, to assume responsibility for the care and custody of the juvenile or to participate in a plan to assume the responsibility; or
(vii) Failure to appropriately supervise the juvenile that results in the juvenile’s being left alone at an inappropriate age or in inappropriate circumstances, creating a dangerous situation or a situation that puts the juvenile at risk of harm.
We address appellant’s first and third points together. In the first point, he contends that there was insufficient evidence to support the court’s finding of dependency-neglect, arguing that there was insufficient evidence to support the allegations of inadequate supervision due to concerns about his drinking problems and that he did not take reasonable action to minimize the degree of mental injury resulting from the divorce. In the third point, appellant contends that the circuit court erred in denying his motions for a directed verdict because DHS did not show circumstances that rose to a level of dependency-neglect under our statute. Under both contentions, he argues that mental injury is not a ground for dependency-neglect in Arkansas law, and that mental injury from the child’s being stressed and angry at the divorce and his parents’ bickering, or as a result of his father’s drinking alcohol, cannot show statutory dependency-neglect. He additionally argues that even if mental injury were an element of dependency-neglect, he lacked knowledge for over a year that his child was seeing a therapist.
Under the facts of this case, statutory grounds existed for the adjudication of Independency-neglect. There was ample evidence that appellant abused alcohol, drank before driving his automobile with his son as a passenger, and drank before wrecking a golf cart in which his son was riding. Appellant acknowledged that he had not stopped drinking at the time of the hearing and had no good reason for not doing so, and it was the opinion of the child’s therapist that appellant’s drinking caused the child stress and negative behaviors, that the child demonstrated signs of emotional abuse, and that he suffered mental injury caused by appellant. In view of the evidence as summarized above, we have no hesitancy in finding the evidence sufficient to support the circuit court’s adjudication that the child was dependent-neglected because appellant failed to supervise due to drinking, caused his son mental and physical injury due to alcohol abuse, and was an unfit parent because of the alcohol abuse.
Appellant raised a hearsay objection to Agler’s testimony about appellant’s staggering when the replacement cart was brought to him by one of Agler’s employees. Noting that Agler did not observe appellant, appellant argued that the statement of the employee was not reduced to writing and did not fall within the business-records exception to hearsay. After allowing Agler to lay a foundation for the testimony, the circuit court overruled the objection.
The business-records exception to excluded-hearsay evidence is set forth in Ark. R. Evid. 803(6):
Records of Regularly Conducted Business Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate 112lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
The circuit court is given wide discretion to determine that a business record lacks trustworthiness so as to be inadmissible under the business-records exception to the hearsay rule. Wildwood Contractors v. Thompson-Holloway Real Estate Agency, 17 Ark.App. 169, 705 S.W.2d 897 (1986).
Here, Agler testified that his duty as the club’s golf pro was to present to the club manager a document of Agler’s investigation and to make a conclusion regarding appellant’s responsibility for damage. He testified that he had determined that appellant should not have been driving the cart because of intoxication, but that an employee of his had actually seen appellant at the time of the accident. The circuit court allowed the testimony after ruling that Agler’s position, duties, investigation, and job description constituted a proper foundation for the business-records exception. No evidence was presented to the court, however, of a memorandum, report, record, or data compilation of the golf pro’s report and conclusions, and portions of Agler’s testimony, such as appellant’s staggering, were hearsay because they were not his own observations. Therefore the court abused its discretion in allowing the intoxication testimony under the business-records exception to hearsay evidence.
We will not reverse a trial court’s evidentiary ruling, however, without a demonstration of prejudice. Schmidt v. Stearman, 98 Ark.App. 167, 253 S.W.3d 35 (2007). Here, appellant has failed to show any prejudice concerning the circuit court’s ruling. The testimony of Ms. Hays, Officer Younkin, the child’s therapist, and his caseworker, coupled with appellant’s DWI11sconvictions and his admissions about use of alcohol, were more than sufficient to substantiate findings that appellant’s neglect and parental unfitness arose from alcohol abuse and had a negative effect on the child. Thus, appellant suffered no actual prejudice by Agler’s testimony, and its admission was harmless.
Jurisdiction
Arkansas Code Annotate section 9-27-306(a)(l) (Repl.2008) grants juvenile courts exclusive original jurisdiction of proceedings in which a juvenile is alleged to be dependency-neglected. See also Nance v. Ark. Dep’t of Human Servs., 316 Ark. 43, 870 S.W.2d 721 (1994), decision clarified on denial of rehearing, 316 Ark. 43, 873 S.W.2d 812 (1994) (holding that juvenile court, having found child to be dependent or neglected, had authority to change custody of child to father even though father’s petition to modify custody order from divorce decree was not transferred to juvenile court). The juvenile court’s transfer-of-custody order supersedes any existing court order and remains in full force and effect until a subsequent order of custody is entered by a court of competent jurisdiction. Id.; Ark.Code Ann. § 9-27-384(a)(2)(A) & (b) (Repl. 2008). Thus, there is no merit to appellant’s contention that the circuit court lacked jurisdiction to address visitation between appellant and his son.
Affirmed.
ROBBINS and KINARD, JJ., agree. | [
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DAVID M. GLOVER, Judge.
| jWith the exception of one issue, the Workers’ Compensation Commission affirmed and adopted the Administrative Law Judge’s opinion denying appellant, Charles Johnson, additional medical treatment and temporary-total-disability benefits from December 5, 2006, to a date yet to be determined. The Commission reversed the ALJ’s determination that Johnson had not proved that he was a full-time employee and therefore his average weekly wage should be based on his actual hours worked instead of a thirty-seven- and-one-half-hour workweek. The Commission found instead that Johnson’s average weekly wage should be based on a full-time workweek pursuant to Ark.Code Ann. § ll-9-518(a)(l) (Repl.2002). Johnson appeals, arguing that the Commission’s decision denying him additional medical treatment and temporary-total-disability benefits |¡>is not supported by substantial evidence. Appellees cross-appeal, arguing that the Commission’s decision to base Johnson’s wage-rate on a full-time workweek is not supported by substantial evidence. We affirm on direct appeal and cross-appeal.
Standard of Review
This court set forth its well-settled standard of review in workers’ compensation cases in Neal v. Sparks Regional Medical Center, 104 Ark.App. 97, 101-02, 289 S.W.3d 163, 167 (2008) (citations omitted):
When reviewing a decision of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and af firm that decision if it is supported by substantial evidence. 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. Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission’s decision displays a substantial basis for the denial of relief. A substantial basis exists if fair-minded persons could reach the same conclusion when considering the same facts.
Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission, and when there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Cedar Chem. Co. v. Knight, 372 Ark. 283, 273 S.W.3d 473 (2008). The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Id.
| actual Background
On September 11, 2006, Johnson, while working as a driver for Abilities Unlimited, was involved in a motor-vehicle accident. Johnson was thrown around the cab of the truck, but he believed he was okay immediately after the accident and did not seek medical treatment at that time; however, he began to experience lower-back pain that night. Johnson was seen by Dr. Rodney Griffin on September 13, 2006. Dr. Griffin took an x-ray, noting, “Disc spaces are normal. No bony abnormalities. Straightening of the lordotic curve suggestive of paraspinous muscle spasms.” Dr. Griffin diagnosed Johnson with low-back strain and prescribed medication and physical therapy. On October 30, 2006, Dr. Griffin returned Johnson to work with a one-week restriction of no heavy lifting, then returning to regular duty.
Johnson began treating with Dr. Rob Butler, a chiropractor, on November 6, 2006, and continued treatment until November 29, 2006. On November 30, 2006, he underwent an MRI of the lumbar spine, which indicated a small broad-based protrusion at L5-S1. Dr. Butler attempted to refer Johnson to Dr. Reza Shahim for a neurological exam, but the workers’ compensation carrier would not approve the referral.
Johnson returned to Dr. Griffin on December 7, 2006. At that time, Dr. Griffin also recommended a neurological consultation, but also returned Johnson to work with a ten-pound lifting restriction. In his office note of that date, Dr. Griffin noted that the MRI demonstrated a bulging at L5-S1 without significant pressure.
14Johnson was seen by Dr. Steven Cath-ey for an independent medical examination on January 18, 2007. Dr. Cathey noted that the November 30, 2006 MRI was entirely negative; he stated that, although the MRI suggested a small disc protrusion at L5-S1 and that there was some mild degenerative disc disease at L5-S1, there was certainly no sign of disc herniation or nerve-root compression and that the changes on the MRI clearly preexisted the motor-vehicle accident of September 2006. Dr. Cathey believed that Johnson had suffered a musculoskeletal strain in the motor-vehicle accident. Likewise, he was of the opinion that there was no indication for neurological intervention because Johnson had a normal neurological exam and a normal MRI scan, and there was nothing further needed in the way of treatment. Dr. Cathey also found that Johnson had reached maximum medical improvement.
Johnson asked for and received a change of authorized-treating physician to Dr. Shailesh Vora. Dr. Vora ordered a second MRI, which was performed on November 26, 2007; it showed an L5-S1 disc posterior herniation with impingement of the neural foramina bilaterally and straightening of the lumbar-spinal curvature. Dr. Vora prescribed medications and took Johnson off work until January 15, 2008. It was Dr. Vora’s opinion that Johnson needed to undergo a nerve conduction/EMG of the lower extremities, low-back physical therapy, a TENS unit, cortisone injections, and an epidural in the low back. Johnson was seen by Dr. Vora again on January 14, 2008, at which time Dr. Vora continued medications and recommended the same tests and treatment. Dr. Vora took Johnson off work until April 1, 2008.
^Through deposition, Dr. Vora testified that the findings on the November 2007 MRI appeared to be a worsening of the problems found in the 2006 MRI; that it was the same problem — only more severe. It was Dr. Vora’s opinion that Johnson would be unable to perform job duties eight hours per day without symptomolo-gy-
Dr. Cathey was given an opportunity to review Dr. Vora’s deposition and clinic notes. In a letter dated April 12, 2008, Dr. Cathey stood by his opinion that the November 30, 2006 MRI was negative. While there was some mild degenerative-disc disease, he saw no structural abnormalities that could be related to the September 11, 2006 motor-vehicle accident. It was Dr. Cathey’s opinion that, if there had not been a new injury, and if the MRI scan was unchanged from the initial study, he saw no indication for any of the treatment options or testing being suggested by Dr. Vora. Dr. Cathey stated that if there was a new injury with new structural abnormalities in Johnson’s low back, he would defer to Dr. Vora’s more recent evaluation; but at the time he examined Johnson in January 2007, he did not see an indication for additional treatment or testing.
At the hearing, Johnson testified that when he presented his light-duty, ten-pound lifting restriction on December 8, 2006, to Abilities Unlimited, he was told that if he could not drive the truck, which was the job he was hired for, there was no place for him. However Sandra Marler, the executive director of Abilities Unlimited, testified in direct contravention of Johnson’s testimony, stating that she offered Johnson a job running a baler that would be within his work restrictions because she would provide him assistance with the lifting portion of the job; however, Johnson refused the job.
|(J. Direct Appeal
A. Denial of Additional Medical Treatment
Employers are required to provide such medical treatment in connection ■with a compensable injury as is reasonably necessary. Wal-Mart Stores, Inc. v. Brown, 82 Ark.App. 600, 120 S.W.3d 153 (2003). What constitutes reasonable and necessary medical treatment is a question of fact for the Commission. Wackenhut Corp. v. Jones, 73 Ark.App. 158, 40 S.W.3d 333 (2001).
Johnson argues that the treatment and testing suggested by Dr. Vora is reasonable and necessary, and that the Commission erred in adopting the ALJ’s opinion that such additional treatment was for a condition that was not causally related to the compensable back injury. He argues that Dr. Cathey’s opinion that the 2006 MRI was normal is an error of fact because the MRI clearly stated that there was a finding of a small broad-based protrusion at the L5-S1 level, and that Dr. Griffin noted that there was “significant pressure” at L5-S1.
Dr. Cathey’s clinic note of January 18, 2007, noted both a small disc protrusion and very mild degenerative-disc disease at L5-S1; however, he stated that the changes shown on the November 2006 MRI clearly preexisted the September 2006 accident. Johnson is mistaken when he asserts that Dr. Griffin noted “significant pressure” at L5-S1. As appellees point out, the phrase “significant pressure” is preceded by the symbol “s,” which means “without.” Dorland’s Illustrated Medical Dictionary, 2149 (31st ed., 2007). Therefore, Dr. Griffin’s clinical note did not contradict Dr. Cathey’s findings.
|7The ALJ found that Dr. Vora’s testimony established by a preponderance of the evidence that the November 2007 MRI detected a herniated disc with left-Sl nerve-root impingement. However, the ALJ also found credible Dr. Cathey’s January 2007 evaluation in which Dr. Cathey determined that Johnson had suffered only a musculoskeletal injury in the 2006 motor-vehicle accident. The ALJ found that Dr. Cathey’s January 2007 examination, unlike Dr. Vora’s September 2007 examination, detected no sign of lumbar radiculopathy or other neurological abnormality, and that Dr. Vora detected a new abnormality on the 2007 MRI that was not present on the 2006 MRI.
In this case, the ALJ simply found that Dr. Cathey’s determination, that there were no neurological abnormalities on the 2006 MRI, was credible, and that while there was a new abnormality on the 2007 MRI, Johnson had failed to causally connect that abnormality to his compensable injury. The Commission affirmed and adopted this finding. The Commission was entitled to find Dr. Cathey’s opinion credible and give it more weight in arriving at this decision.
B. Denial of Temporary-Total-Disability Benefits
Temporary-total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Neal, supra. However, Arkansas Code Annotated section 11-9-526 (Repl.2002), provides, “If any injured employee refuses employment suitable to his or her capacity offered to or procured for him or her, he or |sshe shall not be entitled to any compensation during the continuance of the refusal, unless in the opinion of the Workers’ Compensation Commission, the refusal is justifiable.”
Dr. Griffin took Johnson off work on December 5, 2006, and returned him to light-duty work on December 8, 2006, with a ten-pound lifting restriction. Johnson and Sandra Marler gave contradictory testimony surrounding whether Johnson was offered a job within his restrictions.
While he admitted that Abilities Unlimited had accommodated his work restrictions in the past, Johnson testified that Marler did not offer to accommodate his ten-pound lifting restriction in December 2006 by offering to have someone help him lift the paper into the baler. However, Marler testified that she offered to give Johnson helpers to lift the paper and put it into the baler, and that all that was left for Johnson to do was to close the baler door and push a button. Marler testified that Johnson told her that he could not do that job.
The ALJ determined that Marler’s testimony was credible that she had offered Johnson a job within his restrictions but that he had refused the job, that such refusal was unjustified, and that such refusal barred his claim for temporary-total-disability benefits. The Commission affirmed and adopted these findings. Here, we have a swearing match with diametrically opposed testimony. Marler’s testimony was determined to be the credible evidence. We are bound by the Commission’s credibility decisions; therefore, there is substantial evidence to deny Johnson’s claim for temporary-total-disability benefits on the basis that he refused suitable employment.
IfllL Cross-Appeal
On cross-appeal, appellees argue that the Commission erred in determining that there was substantial evidence that Johnson’s wage rate should be calculated on a full-time workweek. The ALJ found that Johnson’s average weekly wage should be determined based on the number of hours he actually worked before the injury instead of the thirty-seven and one-half hours he worked during some but not all weeks. In reversing this finding, the Commission stated, “The Full Commission finds that the claimant’s average weekly wage should be based on a full-time workweek pursuant to Ark.Code Ann. § 11 — 9— 518(a)(1).” That statutory subsection provides, “Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident and in no case shall be computed on less than a full-time workweek in the employment.”
Here, Johnson testified that although he was at work forty hours per week, he did not get paid for his thirty-minute lunch break, so he worked thirty-seven and one-half hours per week. While admitting there were weeks that he did not work that many hours, Johnson said that the reasons were because he was taking his girlfriend to the doctor or going to the dentist or the eye-doctor. No one disputed this testimony. Although there were weeks in which Johnson did not work thirty-seven and one-half hours, he testified that this was his normal workweek. The statute clearly mandates that in no case shall compensation be computed on less than a full-time workweek; therefore, we find no |10error in the Commission’s decision to base Johnson’s benefits on a thirty-seven-and-one-half-hour workweek, which was a full workweek for him.
Affirmed on direct appeal and cross-appeal.
VAUGHT, C.J., and MARSHALL, J., agree. | [
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JIM HANNAH, Chief Justice.
|, Appellant Quapaw Care and Rehabilitation appeals an order of the Pulaski County Circuit Court dismissing its petition for judicial review of a decision of the Arkansas Health Services Permit Commission. Quapaw contends that the circuit court erred in finding that Arkansas Code Annotated sections 20-8-108 (Repl.2005) and 25-15-207 (Repl.2002), when read together, prohibit Quapaw from seeking judicial review of the Commission’s decision on the validity and applicability of a rule. We dismiss the appeal.
The Commission has been given broad authority by the General Assembly to manage health facilities and services in the state. See Ark.Code Ann. § 20-8-103. Pursuant to section 20-8-103, the Commission is charged with evaluating the availability and adequacy of health facilities and health services as they relate to long-term care facilities and home health care service agencies. Ark.Code Ann. § 20-8-103(a). The Commission develops | ¡.policies and adopts criteria, including time limitations, to be utilized by the Health Services Permit Agency in the review of applications and the issuing of permits of approval for a long-term care facility or a home health care service agency. See Ark.Code Ann. § 20-8-103(d).
The Agency is an “independent agency under the supervision and control of the Governor.” Ark.Code Ann. § 20-8-104(a) (Repl.2005). The Agency is charged with reviewing and processing applications for permits of approval and is required to approve or deny the application within ninety days from the date the application is deemed complete and submitted for review. Ark.Code Ann. § 20-8-104(c).
In August 2007, Spring Valley Holdings, LLC, applied to the Agency for a permit of approval for purposes of constructing a nursing home in Garland County, Arkansas, to be called Spring Valley Health and Rehabilitation. In a letter submitted September 28, 2007, Quapaw opposed Spring Valley’s application. Quapaw stated that the basis of its opposition was that the Agency’s creation of a “beds in transition” column in the bed-need chart amounted to a rule change and was, thus, subject to the Administrative Procedure Act (APA). Specifically, Quapaw asserted that the Agency had failed to comply with the APA because it did not publish the rule change or provide an opportunity for comment. Spring Valley responded and contended, among other things, that the change in the bed-need chart did not constitute a rule change and was not subject to the APA. Nonetheless, on October 22, 2007, the Agency granted Spring Valley’s permit of approval and entered its |aFindings of Fact, Conclusions of Law, and Order. Quapaw appealed the Agency’s decision to the Commission, stating that its primary ground for appeal was the invalidity of a rule. On December 13, 2007, the Commission held a hearing on Quapav/s appeal of the Agency decision. Again, there was a dispute regarding whether the change in the bed-need chart constituted a rule change. Ultimately, the Commission affirmed the Agency’s issuance of the permit of approval to Spring Valley.
Subsequently, on January 14, 2008, Qua-paw filed a petition for judicial review, asserting that the basis of the petition was a challenge to the validity and applicability of a rule. The Commission moved to dismiss Quapaw’s petition based on lack of jurisdiction. Quapaw responded, contending that it had standing to seek judicial review pursuant to Arkansas Code Annotated section 25-15-212 (Repl.2002) of the APA. On February 22, 2008, Quapaw filed an amended petition for judicial review and declaratory judgment on the issue of the validity and applicability of the rule at issue, and the Commission again filed a motion to dismiss for lack of jurisdiction.
On July 18, 2008, the circuit court held a hearing on the Commission’s motion to dismiss. The Commission contended that section 20-8-103(g)(2) provides an absolute bar to an appeal of a Commission decision granting a permit of approval and that a declaratory judgment action under 25-15-207 is the only avenue of relief for a person seeking to challenge the validity or applicability of a rule used by the Commission. Quapaw asserted that interpreting section 20-8-103(g)(2) to deny a person the right to judicial review of the Commission’s decision on the validity or applicability of a rule improperly inserts a restriction into the statute that the legislature did not explicitly include.
The circuit court concluded that when sections 25-15-207 and 20-8-103(g)(2) are read together, section 20-8-103 prohibits any appeal with regard to the validity and application of a rule. The circuit court further concluded that Quapaw could proceed with its petition for declaratory judgment to seek prospective relief as to the validity and future applicability of the rule in question. Accordingly, the circuit court entered an order on August 28, 2008, dismissing Quapaw’s amended petition for judicial review and permitting the declaratory judgment action to proceed. Quapaw moved to dismiss its declaratory judgment action without prejudice, and the circuit court granted the motion. Quapaw now appeals the dismissal of its petition for judicial review. Quapaw contends that the circuit court erred in dismissing its petition for judicial review under the APA because when read together and without improperly inserting restrictions into the statutes, sections 20-8-103 and 25-15-207 do not bar a party from seeking judicial review of the Commission’s decision on the validity and applicability of a rule.
|sWe are unable to address Quapaw’s argument on appeal because it failed to obtain a ruling at the administrative level regarding whether the change in the bed-need chart constituted a rule change. Quapaw contended before the circuit court that it was attempting to challenge the validity and applicability of a rule by way of petition for judicial review. The record reflects that Quapaw stated in its letter of opposition to the Agency and argued at the Commission hearing that by changing the bed-need chart for nursing homes and implementing a “beds in transition” column, the Agency made a rule change and was thus required to comply with the APA. Spring Valley asserted at the Commission hearing that on two prior occasions, the Commission had ruled that the implementation of the “beds in transition” chart was not a rule change. Counsel for the Commission was present at the hearing and stated that the Commission had previously determined that the creation of the “beds in transition” column was not a rule change. Presumably, the Commission’s decision on this issue had been appealed to the circuit court, because counsel for the Commission stated that the Commission’s prior decision was “still in court, pending.” At the conclusion of the hearing, the Commission voted to uphold the Agency decision issuing the permit of approval. Neither the Agency nor the Commission made a ruling concerning whether the creation of the “beds in transition” column constituted a rule change. It follows that neither the Agency nor the Commission made a specific decision regarding the validity or applicability of a rule.
The circuit court was correct in dismissing the petition for judicial review, albeit for 16the wrong reason. Without a ruling concerning whether the change in the bed-need chart constituted a rule change and without a decision regarding the validity or applicability of a rule, the circuit court had nothing to review and, consequently, there is nothing for this court to review. The issue presented to the circuit court— whether, when read together, sections 20-8-108 and 25-15-207 prohibit Quapaw from seeking judicial review on the Commission’s decision on the validity and applicability of a rule — was not ripe for the circuit court’s review. Likewise, the issue is not ripe for this court’s review. Any discussion or analysis by this court would be premature and constitute an advisory opinion, which this court will not issue. See, e.g., Ark. River Educ. Servs. v. Modacure, 371 Ark. 466, 267 S.W.3d 595 (2007). As such, we are unable to consider Qua-paw’s appeal.
Appeal dismissed.
. Section 20-8-103(g)(2) provides: "Neither a competitor of a successful applicant for a permit of approval nor any other party shall have the right to appeal the commission's decision to grant a permit of approval.”
. Section 25-15-207 provides, in relevant part: "The validity or applicability of a rule may be determined in an action for declaratory judgment if it is alleged that the rule, or its threatened application, injures or threatens to injure the plaintiff in his person, business, or property.” See Ark.Code Ann. § 25-15-207(a). | [
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ROBERT J. GLADWIN, Chief Judge.
|, Levi Johnson appeals the July 16, 2013 order of the Faulkner County Circuit Court denying his contempt motion and request for attorney’s fees and forbidding contact between the parties’ child, MGJ, and the paternal step-grandfather. Johnson contends that the trial court erred by forbidding contact with the paternal step-grandfather because there was no pleading making such a request and no evidence presented. We reverse.
The parties were divorced by decree filed November 15, 2012, and by agreed order of the same date, appellee Heather Johnson Cheatham was granted custody of MGJ, born April 26, 2010, and Johnson was granted visitation. No restrictions regarding the step-grandfather were included in either order.
Johnson filed a contempt petition on January 23, 2013, alleging, among other claims, that Cheatham had refused to allow visitation since she had filed a petition for order of protection against MGJ’s step-grandfather, Raul Salas. In her response, Cheatham admitted |2to filing an order of protection against Salas and refusing visitation. She asserted that she was also forced to file an order of protection against the paternal grandmother due to a sexual allegation made by the child against Salas. She claimed that it was Johnson’s “lack of care and concern about the sexual allegations” that concerned her about the child’s well being in Johnson’s care.
At the March 7, 2013 hearing on the contempt petition, Cheatham testified that Johnson had missed three weeks of visitation because she would not allow it, although she had not filed anything to amend visitation. She said that she kept MGJ away from Johnson because she felt that the child was not safe with him, as she did not trust him to keep MGJ from his mother and Salas. She claimed that when she received the letter in which Johnson reassured her that he would not have MGJ around his mother or Salas, she allowed visitation to resume.
She explained that she obtained an order of protection against Johnson’s mother and Salas, but was not able to obtain an order against Johnson “because there was no allegation that Mr. Johnson did anything sexually toward her. The allegation was against his step-father.” She testified that during their marriage, the parties did not allow their daughter to be around Salas because they felt he was abusive to Johnson’s mother. She admitted that since Johnson’s letter of assurance that he would protect the child, visitation had resumed and lsshe did not have any other concerns about her daughter when she was with Johnson. A final hearing on the petition for order of protection had not yet been held.
Johnson testified that he missed three weekends of visitation and asked that he be allowed to make up the lost visitation time. He said that since he filed the contempt motion, he had been allowed to resume visitation, and he asked for his attorney’s fees. On cross-examination, he testified that if his daughter had been mo lested by Salas, it was while she was in his own care. He claimed that he did not remember if he had prevented their daughter from visiting his mother and Salas while he and Cheatham were married. He said that his mother was not abused, that he never heard that she had been abused, and that he never made the statement that he would “whoop [Salas’s] ass if [he] got the chance.” He admitted that during their marriage, Cheatham would never allow their daughter to be around his mother and Salas.
The trial court ordered that over the following sixty days, Johnson would be allowed to make up the missed visitation with his daughter. The court took the issue of contempt |4under advisement and stated, “I have not made a decision about the validity of the allegations against Mr. Johnson’s mother and step-father, but I believe that Ms. Cheatham believes them.” The court further reasoned:
I realize the order of protection is not in this case, but until that issue is resolved, I am going to incorporate certain aspects of that order into my order in this case to this extent: I direct that Mr. Salas is not to be around the child. I am going to allow Ms. Salas to have visitation with her granddaughter. I am going to provide that that visitation be supervised, and I charge Mr. Johnson with the responsibility for seeing to it that when his mother is busy with the child, that Mr. Salas not be anywhere around, and that he supervises that visitation. While the allegations are being addressed in the proper forum, I am telling the two parents to do what both of them are smart enough to do ... The problem with Mr. Johnson’s mother having visitation is based on the concern that she will not adequately protect her and keep Mr. Salas away from her.
These findings were memorialized in an order filed April 17, 2013.
At the review hearing held on June 17, 2013, counsel for Johnson explained that they were meeting to determine whether Cheatham was going to be found in contempt and ordered to pay attorney’s fees. He said that the Arkansas State Police had found that the, allegations against Salas were unsubstantiated and that the order of protection had been dismissed. He argued that his client’s contempt petition and the question of attorney’s fees were the only things pending before the trial court, as Johnson had not filed any pleading seeking modification of visitation as to Johnson’s mother or Salas.
Counsel for Cheatham responded,
The court heard other evidence of abuse at the last hearing and made the decision that the grandmother’s visitation would be supervised and that Mr. Salas could not be around the child. We are asking that that remain the same. Mr. Salas is a step-grandparent, and Ms. Johnson [Cheatham] has protected her child.
IsCounsel for Johnson- responded that there was no petition in front of the court and no evidence of the allegation of abuse. He continued,
We are here because Ms. Johnson [Cheatham], instead of filing a petition, just on her own didn’t allow Mr. Johnson to have visitation. There are ways to do that, and if she thought that there was an emergency, she should have filed a petition. If we hadn’t filed a petition for contempt, Mr. Johnson still probably wouldn’t be getting visitation. That is why we are here — a petition for contempt. There is nothing before the court that there was any sexual abuse by the step-grandfather, except argument.
Counsel for Cheatham argued that the trial court’s authority to grant the relief she requested was based on its plenary powers to protect the child, regardless of whether a specific petition had been filed. She claimed that her client responded to the petition and presented evidence of why the child was not allowed to go for visitation. She requested that Salas have no contact with the child.
The trial court explained that it would review its notes to make certain that it had not presumed some facts that were not supported by evidence before issuing its final order. By order filed July 16, 2013, the trial court found that Cheatham was not in contempt because her denial of Johnson’s visitation was reasonable’ and justifiable. Johnson’s request for attorney’s fees was denied. The order states:
5. The Court finds, after reviewing the testimony presented at the previous hearing, judging the credibility of the witnesses and weighing their testimony that it would be in the best interests of the minor child to forbid any contact between the minor child and the paternal step grandfather.
6. The Court finds that the paternal grandmother can have unsupervised visitation with the minor child; but, is prohibited from taking the child any where around or near the paternal step grandfather.
From this order, Johnson filed a timely notice of appeal.
IfiChild-visitation cases are reviewed de novo on the record and will not be overturned unless clearly erroneous. Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009). Johnson’s sole point on appeal is that the trial court erred by forbidding contact between MGJ and Salas because Cheatham did not file a petition to modify visitation and there was an absence of evidence presented on the issue.
Cheatham responds that the trial court had a duty to exercise its plenary power to impose a restriction on Johnson’s visitation when the issue was raised by his motion for contempt and the evidence showed a change of circumstances that it was in the child’s best interest to restrict contact with Salas. Stinson v. Stinson, 203 Ark. 888, 159 S.W.2d 446 (1942).
She contends that the trial court maintains continuing jurisdiction over visitation and may modify or vacate those orders at any time when it becomes aware of a change in circumstances or of facts not known to it at the time of the initial order. Meins v. Meins, 93 Ark.App. 292, 218 S.W.3d 366 (2005) (where issue of visitation was heard based on a contempt motion seeking restricted visitation). She also cites Arkansas Rule of Civil Procedure 15 (2013), arguing that when an issue is before the court, though not specifically requested in a pleading, the trial court may deem the pleadings amended even after the trial is concluded.
Cheatham cites Brown v. Ashcraft, 101 Ark.App. 217, 272 S.W.3d 859 (2008), where the father filed a contempt petition against the mother alleging that she had refused to allow him visitation. The circuit court denied the petition, but removed a condition in a previous visitation order requiring that the father be present during his visitation with the child and |7not be absent for extended periods of time or overnight. Brown, supra. On appeal, our supreme court held that the trial court’s removal of a condition in a previous visitation order was consistent with the court’s continuing responsibility in visitation matters. Id. We note that in Brown, 'supra, the supreme court held that the issue of modification was tried by consent because the mother never objected at trial or on appeal that the modification was entered without petition nor that consideration of the modification was improper. Id. at 219-20, 272 S.W.Bd at 861-62.
Nevertheless, Cheatham urges that the instant case is similar to Brown, supra, in that the only issue before the trial court here was the reasonableness of Cheat-ham’s restriction of visitation because of Johnson’s delegation of his supervisory duties to the step-grandfather. She contends that the trial court found that this delegation was a change of circumstances and found that her request for continued restriction of the paternal step-grandfather’s contact with the minor child was in the child’s best interest. She argues that evidence of a material change of circumstances was before the trial court, as Johnson testified that, if the child had been molested by his step-father, it was while she was in Johnson’s custody. Cheatham testified that she and Johnson had not allowed the child to go to her grandmother’s home during their marriage. She also said that the restrictions were based on their knowledge of the step-grandfather’s abusiveness. On the other hand, Johnson testified that he did not recall whether he had allowed their daughter to be around his mother and Salas. Cheatham points to our deference to the superior position of the trial court to view and judge the credibility of the witnesses, Nichols v. Teer, 2014 Ark. App. 132, 432 S.W.3d 151, and urges us to affirm.
Is Johnson discusses James v. James, 52 Ark.App. 29, 914 S.W.2d 773 (1996), where relief was granted to the appellant’s former wife, even though she had not filed a pleading asking for relief. Johnson distinguishes the instant case, arguing that the trial court here went beyond the parties’ divorce decree and addressed issues that were not raised by the pleadings or tried by express or implied consent of the parties. He insists that no evidence as to any restrictions on visitation was presented to the trial court for the purpose of restricting visitation. He argues that the evidence presented was only considered by the trial court for the purpose of considering what Cheatham believed when she refused to allow the court-ordered visitation in its determination of whether to hold her in contempt. Thus, he contends that he had no notice that restrictions would be placed on his visitation. He argues that if he had been given notice, he would have called witnesses whose testimony would address the allegations of abuse.
We agree that there was a lack of evidence presented to the trial court for visitation to be modified. There was no testimony regarding the allegations against the step-grandparent, no testimony regarding the alleged investigation by the Arkansas State Police, and no opportunity for Johnson to submit evidence on the issue of visitation modification. Accordingly, we reverse the trial court’s order modifying visitation as it was clearly against the preponderance of the evidence.
Reversed.
GLOVER and HIXSON, JJ„ agree.
. Johnson's attorney objected to testimony regarding what took place before the divorce based on res judicata and irrelevancy, as there was "no order in place denying him visitation.” The trial court ruled that the testimony was admitted for the purpose of determining what Cheatham believed or was thinking when she violated the court order, not for the truth of the matter asserted.
. Johnson’s attorney objected, stating, "I understand the Court's ruling on that. It is completely irrelevant. What we are here for today are orders of the Court.” After hearing argument, the trial court ruled that, because the issue before the court was contempt, what the parties believed was relevant. The trial court stated,
Again, the testimony that I am hearing goes to allegations of numerous bad acts. I am not taking that evidence as probative that any of those acts took place. I am taking the testimony of the witnesses for the purpose of showing what they reasonably believed and based on my opportunities to observe the witnesses, I’m making a determination as to their credibility with regard to what they believe. So for the purpose of giving the Court information that is relevant to the ultimate determination, I am going to overrule the objection and allow the question for the limited purposes that I have outlined. | [
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COURTNEY HUDSON GOODSON, Associate Justice.
_JjA jury in Pulaski County found appellant Antonio L. Williams guilty of capital murder for which he received a sentence of life in prison without the possibility of parole. The jury also found that appellant employed a firearm as a means of committing the offense and enhanced his sentence by seven years pursuant to Arkansas Code Annotated section 16-90-120(a) (Supp. 2013). For reversal, appellant contends that the circuit court erred by refusing to suppress the in-court identification of witness Torrece Graydon and by denying his motion for mistrial due to improper remarks made by the prosecutor during closing argument. We affirm on both issues.
Factual Background
Because appellant does not challenge the sufficiency of the evidence against him, only a brief recitation of the facts is necessary. On the evening of December 28, 2011, Kelvin Lott Shelton and his girlfriend, Torrece Graydon, left their apartment in North Little Rock and Rdrove to Little Rock in a Jeep Grand Cherokee that they had borrowed from Graydon’s sister. According to Graydon, the purpose of this outing was for Shelton to sell marijuana to someone Shelton referred to as “Big Mike,” who was otherwise known as Michael Williams, appellant’s brother. After receiving directions, Shelton drove to the area of 15th and Jones Streets and parked near the curb behind a black Chrysler 300. In describing what occurred next, Graydon stated that two men exited the Chrysler and entered the back seat of the Jeep. She testified that Shelton showed the marijuana to the two men, who then wanted to obtain the approval of their “bro” for the purchase. Graydon said that the two men reentered the Chrysler and that, after a few minutes, the two men and another man emerged from the Chrysler. The third man, whom Graydon later identified as appellant, then entered the back seat of the Jeep, while the others remained standing outside. She testified that appellant leaned forward between the front seats in the area of the console, shoved her with his arm, put a gun to Shelton’s head and said, “Give me what you got. Give it up.” Graydon said that she unfastened her seat belt, got out of the car, and ran. While fleeing, she heard gunshots.
After hiding under a car for a time, Graydon found refuge in a man’s home, and she called the police. Officer Debra Atkisson responded to the call, and she and Graydon set out to locate the Jeep. They found the vehicle, which had crashed into a pole at Jones and 14th Streets. Atkisson found Shelton dead inside the Jeep. The autopsy revealed that he had died of a single gunshot wound to the back.
On the night of the murder, other than knowing the moniker “Big Mike,” Graydon could not identify any of the assailants, but she described the man with the gun as being 5’ 7" |stall and weighing 160 pounds and said that he was wearing a “do-rag.” Graydon telephoned a detective on January 3, 2012, and advised that she remembered that one of the suspects had facial scars from having been burned. Based on additional information received from Shelton’s sister, Akeya Shelton, the police developed appellant and his brother Michael as suspects in the murder. Both appellant and Michael bear scars on their faces resulting from a fire that occurred when they were children. Detective Kevin Simpson prepared two photo arrays for Graydon to view. One of the them contained a photograph of appellant, while the other included one of Michael. On January 4, 2012, Graydon identified appellant in the photo array as the man who had held a gun to Shelton’s head. She also identified Michael from the photospread as one of the other men, but she later recanted that allegation after seeing Michael at a court appearance and realizing that, because of his large size, he was not one of the men she had encountered that night.
The police acquired a video from a surveillance camera located near the crime scene that depicted the movements of the Jeep and the Chrysler 300, and the persons riding in the Chrysler, shortly before and after the Jeep struck the pole. Also at trial, Sherice Williams, appellant’s sister, confirmed in her testimony that appellant drove a black Chrysler 300. During a search, the police found appellant’s wallet and a soda can inside the vehicle. Testing revealed that appellant could not be excluded as a contributor of DNA found in the soda can. Crime-scene specialists also collected pieces of plastic from a taillight at the scene. One of the taillights on the Chrysler 300 was broken, and the pieces found in the street were a perfect |4forensic match to the Chrysler’s taillight. When appellant was arrested, he told the police that he was 5'7" tall and weighed 160 pounds. The State also introduced into evidence two phone calls made by appellant from jail. In one of them, he discussed paying Graydon $1,000 to change her story. In another, appellant stated that Michael was not present when Shelton was killed.
Based on the evidence, the jury found appellant guilty of capital murder. The State had waived the death penalty and, therefore, appellant received a sentence of life in prison without parole, plus the seven-year enhancement for committing the offense with a firearm. This appeal followed.
Suppression of In-Court Identification
Prior to trial, appellant moved to suppress Graydon’s identification of him from the photospread, as well as her identification of him at trial. He argued that the photo lineup was unduly suggestive because his was the only photograph of a male who had facial scarring and who was wearing a knit cap. He thus contended that Graydon’s identification of him from the photo array was inadmissible and that the pretrial identification tainted any subsequent identification of him at trial. After a hearing, the circuit court agreed with appellant’s argument that the photo array was impermissibly suggestive and suppressed evidence of that lineup. However, the circuit court denied appellant’s request to preclude Graydon’s in-court identification of him at trial. Appellant argues on appeal that the circuit court erred because the net effect of the ruling was of no benefit to him because it was necessary for him to use 15the suggestiveness of the pho-tospread to attack Graydon’s identification of him as the perpetrator at trial.
This court has held that a pretrial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the culprit. Ray v. State, 2009 Ark. 521, 357 S.W.3d 872; Fields v. State, 349 Ark. 122, 76 S.W.3d 868 (2002). Even if prior identifications may have been improper or suggestive, an in-court identification will not be suppressed if indicia of reliability are found to independently exist. Tester v. State, 342 Ark. 549, 30 S.W.3d 99 (2000); Burnett v. State, 302 Ark. 279, 790 S.W.2d 137 (1990). Thus, reliability is the linchpin in determining the admissibility of identification testimony. Mezquita v. State, 354 Ark. 433, 125 S.W.3d 161 (2003); Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). In determining reliability, the following factors are considered: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (8) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pretrial identification procedure. Mezquita, supra; Kimble v. State, 331 Ark. 155, 959 S.W.2d 43 (1998). The conclusion to be drawn from these factors is dependent on the totality of the circumstances. Tester, supra.
It is for the trial court to determine if there are sufficient aspects of reliability present |fim an identification to permit its use as evidence. Milholland v. State, 319 Ark. 604, 893 S.W.2d 327 (1995). It is then for the jury to decide what weight that identification testimony should be given. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). We do not reverse a ruling on the admissibility of identification unless it is clearly erroneous, and we will not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of misidentification. Tester, supra (citing Chenowith v. State, 321 Ark. 522, 905 S.W.2d 838 (1995)).
In this case, the circuit court found that the pretrial identification was overly suggestive but nonetheless concluded that the in-court identification should not be suppressed. We are unable to say that the circuit court’s ruling is clearly erroneous. Graydon viewed the assailant in the close confines of a vehicle. Graydon testified that the dome light came on when appellant entered the vehicle, and she said that appellant was positioned near her face when he leaned over the console. She accurately described appellant’s build at the outset and later recalled seeing distinctive scarring in the area around his mouth. Graydon testified that she was 100 percent certain that appellant was the man with the gun. Although Graydon initially, but mistakenly, identified Michael as one of the assailants, she never wavered in her conviction that appellant was the man with the gun. Finally, Graydon selected the photo of appellant in the lineup one week after the murder. Considering the totality of the circumstances, we perceive no substantial likelihood of misidentification and hold that the circuit court did not err in determining that Graydon’s identification was reliable.
17At trial, the State introduced into evidence recordings of two telephone calls made by appellant while he was in jail. In closing argument, appellant’s counsel pointed out that the two calls were among hundreds of calls made by appellant during his incarceration. In his final closing remarks, the prosecutor stated:
You heard defense counsel talking about the calls. Right? And that we chose to play two calls out of what, 1500, a thousand, whatever? How many calls did Defense play? Not a single one. If this man is an innocent man and 1500 phone calls to mom, don’t you think in one of those other calls he would have said I didn’t have anything to do with this? I’m not anywhere around there. I don’t have anything. I’m an innocent man. I’m being framed. Any kind of number of reasons. Not one single phone call did they play exonerating this man. And if he’s been in jail that long and he’s calling mom that often, at some point he’s gonna say, mom—
At this point, appellant’s counsel interposed an objection and moved for a mistrial, arguing that the prosecutor’s comments were improper because the rules of evidence did not allow him to introduce appellant’s own statements captured in the recordings. The circuit court agreed with appellant’s argument but denied the motion for mistrial. At appellant’s request, the circuit court admonished the jury by saying,
Ladies and gentlemen, regarding the prosecutor’s argument that Mr. James could introduce something in evidence, that is incorrect, and the jury will 1 fignore that remark.
Appellant argues on appeal that the circuit court erred in denying his motion for mistrial. We have made it clear, however, that a mistrial is a drastic remedy that should only be granted when justice cannot be served by continuing at trial. Johnson v. State, 2013 Ark. 494, 430 S.W.3d 755. The circuit court has the sound discretion to decide whether to grant a mistrial, and this decision will not be overturned absent a showing of abuse or upon manifest prejudice to the complaining party. Jones v. State, 2012 Ark. 38, 388 S.W.3d 411. Additionally, even where a remark is improper, the circuit court may deny the mistrial motion and cure any prejudice by admonishing the jury to disregard the remark. Green v. State, 2013 Ark. 497, 430 S.W.3d 729. An admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. Tucker v. State, 2011 Ark. 144, 381 S.W.3d 1.
In the instant case, the circuit court sustained appellant’s objection and admonished the jury to disregard the prosecutor’s incorrect statements. We are convinced that the circuit court’s admonition was sufficient to cure any possible prejudice stemming from the prosecutor’s remarks. Accordingly, we find no abuse of discretion in the court’s refusal to declare a mistrial.
^Arkansas Supreme Court Rule b-8(i)
In the instant case, appellant received a sentence of life in prison without parole. Pursuant to Arkansas Supreme Court Rule 4 — 3(i) (2013), the record has been reviewed for all objections, motions, and requests that were decided adversely to appellant, and no prejudicial error has been found.
Affirmed.
. Self-serving hearsay statements of innocence by a defendant have long been considered inadmissible. Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977); Brockwell v. State, 260 Ark. 807, 545 S.W.2d 60 (1976). The rule excluding self-serving declarations is a part of the hearsay rule, and its purpose is to prevent the manufacturing of evidence. Toney v. Raines, 224 Ark. 692, 275 S.W.2d 771 (1955); see also Ark. R. Evid. 801(d)(2)(i) (2013).
. To the extent that appellant argues that the prosecutor’s comments touched on his right not to testify under the Fifth Amendment, we simply note that this argument was not raised at trial. We will not consider arguments that are raised for the first time on appeal. Lard v. State, 2014 Ark. 1, 431 S.W.3d 249. | [
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ROBERT J. GLADWIN, Chief Judge.
|,Appellants Troy Russell Johnson, Deborah M.Johnson, Brett Johnson, and Rusty Johnson (Johnsons) own certain property adjacent to appellees Henk de Kros, Anna Maria Petra van Heteren, Bart Marinus de Kroes, Carolina de Kroes, Lilliance E.B. van Heteren, and Krovest Plantation B.V., d/b/a Riverbend Plantation (Riverbend). The Johnsons appeal the Pulaski County Circuit Court’s order granting Riverbend summary judgment, 12permanently enjoining the Johnsons from trespassing on Riv-erbend’s property. On appeal, the John-sons argue that the circuit court erred by (1) granting the injunction, and (2) disallowing the United States of America to be named as a party to this action via a third-party complaint. We affirm.
I. Statement of Facts
Riverbend filed its complaint against the Johnsons on January 12, 2012, seeking to enjoin them from trespassing onto its property — a pond — to hunt and fish. Riv-erbend owns property to the north of the Johnsons’ property, and the parties share a common boundary line. Riverbend alleged that the Johnsons executed an easement (Pond Easement) to the U.S. that permits the overflow of water from River-bend, north of the Johnson property, onto the Johnson property, should that event occur. Riverbend claimed that the Pond Easement did not grant to the Johnsons any right to go onto Riverbend, and the easement did not grant the Johnsons any right to cross the boundary line onto Riv-erbend. Further, Riverbend claimed that the Johnsons had represented to others that the Pond Easement granted them the right to trespass on Riverbend property and to authorize third parties to do so as well. Riverbend sought to enjoin the Johnsons from trespassing and restitution for all the sums the Johnsons received from charges to third parties for hunting and fishing on Riverbend property.
|sThe Johnsons answered, claiming that Riverbend’s complaint should be dismissed for failure to join a necessary party, the U.S., because it had the superior right and title to water and wildlife on the land based on an easement. The “Warranty Easement Deed,” signed by Riverbend in exchange for around $1.5 million, places Riverbend’s property into a Wetlands Reserve Program (WRP) by the U.S. Department of Agriculture (USDA). Based on the Warranty Easement Deed between Riverbend and the U.S., the Johnsons claim that the water and wildlife on the property are now in the public domain, and all members of the public have a right to access the waters to hunt the wildlife.
The Warranty Easement Deed, signed by Riverbend as grantor and the U.S. as grantee, reserves to Riverbend the following:
A. Title. Record Title, along with the Landowner’s right to convey, transfer, and otherwise alienate title to these reserved rights.
B. Quiet Enjoyment. The right of quiet enjoyment of the rights reserved on the easement area.
C. Control of Access. The right to prevent trespass and control access by the general public.
D. Recreational Uses. The right to undeveloped recreational uses, including hunting and fishing, and including leasing of such rights for economic gain, pursuant to applicable State and Federal regulations that may be in effect at the time.
E. Subsurface Resources. The right to oil, gas, minerals, and geothermal resources underlying the easement area
Riverbend filed a motion for summary judgment on March 1, 2012, alleging that it had posted “no hunting” and “no fishing” signs on its property. Yet, despite the postings, the Johnsons and their invitees had trespassed and continued to trespass on Riverbend’s land |4under the mistaken belief that the Warranty Easement Deed converted the land for public use. River-bend sought an injunction and an accounting for all sums received by the Johnsons from payments charged to persons for hunting on Riverbend’s property without permission.
The Johnsons filed a motion for leave to file a third-party complaint against the U.S., and Riverbend objected. On May 14, 2012, the Johnsons filed an amended answer and counterclaim against Riverbend for trespass, establishment of a boundary, nuisance, declaration of a public-use easement, and defamation. On that same date, the Johnsons filed a preliminary response to Riverbend’s motion for summary judgment, arguing that the U.S. controlled the property subject to the Warranty Easement Deed. In the memorandum in support of their response, the Johnsons expound on the flood project and contend that the water area is connected to, and accessible from, the Arkansas River, which is a navigable river under the complete control of the Army Corps of Engineers. The Johnsons contend, thus, that the “pond” at issue is part and parcel of a federally recognized navigable stream and part of the public domain, not subject to private restrictions on its use.
In support of their argument for summary judgment, Riverbend filed an affidavit by Mark Tidwell, a USDA employee who was area coordinator for the WRP for twelve years and is currently a consultant on wetland restoration and management. He stated that a WRP easement does not establish land or a body of water for recreational use by the general public. Its purpose is to restore, manage, maintain, and enhance the functional values of wetlands and other lands. Tidwell was involved in the planning and development of the WRP project onJjjRiverbend’s property and was familiar with the Warranty Easement Deed. He stated that Riverbend had the right to control access to the WRP easement area on its property, and that the Warranty Easement Deed did not grant to the U.S. the right to control access to the WRP easement area on Riverbend’s property. Tidwell also stated that water from the Arkansas River flows onto the River-bend WRP easement area through a flood-gated pipe under the Arkansas River Levee when the river reaches flood stage. He stated that a boat cannot access the Arkansas River from the Riverbend WRP easement area, and a boat cannot pass through the flood-gated pipe under the levee.
The Johnsons filed an affidavit by Deborah Johnson, who stated that Tidwell’s testimony contradicts what he and other government representatives had told her regarding the right to use the property at issue. She claimed, “We were expressly told by representatives of the federal government, including its attorney, that we would have the full use of the entire water so long as we used our own property to access the ‘pond.’” She stated that the only consideration they received for the Pond Easement was use of the entire pond.
After a hearing where the circuit court heard argument from counsel for both parties, an amended order was filed on June 28, 2012, in which the circuit court denied the Johnsons’ motion to file a third-party complaint, held in abeyance Riverbend’s motion for summary judgment for ninety days to allow the parties to conduct discovery, and entered a |fitemporary restraining order directing the parties to abide by the boundary line as designated by the boundary markers on the Johnsons’ survey.
On November 2, 2012, the Johnsons amended their counterclaim to include an adverse-possession and/or boundary-by-acquiescence claim against Riverbend. Riv-erbend filed a motion to dismiss the amended counterclaim, arguing that the Johnsons’ claims were moot due to the circuit court’s granting of their motion for summary judgment and based on failure to state facts upon which relief could be granted. At the conclusion of a hearing held on November 2, 2012, the circuit court ruled from the bench that it would “continue the injunction from [the Johnsons] getting on [Riverbend’s] property and letting anybody else get on the water.” The circuit court also stated that it would “pass this thing for sixty days and let y’all come back here and have a hearing on whether there’s some type of adverse possession claim.”
The precedent prepared by Riverbend’s counsel was objected to by counsel for the Johnsons, and no order had been filed reflecting the circuit court’s ruling by May 16, 2013, when the parties met for a hearing. The Johnsons explained that they had filed suit against the federal government in federal district court, and they were hesitant to agree to any precedent that might restrict their claims in that case.
|7On May 28, 2013, the Johnsons filed a motion for summary judgment, asking the circuit court to recognize the existing fence line that separates the parties’ boundaries as the boundary line during the pendency of these claims. Riverbend objected.
On June 13, 2013, the circuit court issued its order finding that the Warranty Easement Deed did not “open for use [Riv-erbend’s property] as a recreation area by the general public or the [Johnsons] for any reason.” The adverse-possession claim was held in abeyance, and the court permanently enjoined both parties from going onto the other’s property. The Johnsons filed a timely interlocutory appeal, and this appeal followed.
II. Standard of Review
Our supreme court has set forth the following standard of review with regard to motions for summary judgment:
Our standard of review for summary judgment cases is well established. Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. We no longer refer to summary judgment as a drastic remedy and now simply regard it as one of the tools in a trial court’s efficiency arsenal. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Moreover, if a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence.
Harvest Rice, Inc. v. Fritz & Mertice Lehman Elevator & Dryer, Inc., 365 Ark. 573, 575-76, 231 S.W.3d 720, 723 (2006) (citations omitted). The standard is whether the evidence is sufficient to raise a factual issue, not whether the evidence is sufficient to compel a conclusion. Wagner v. Gen. Motors Corp., 370 Ark. 268, 258 S.W.3d 749 (2007).
We are also reviewing the issuance of an injunction. Equity matters, including the granting of an injunction, are reviewed de novo on appeal. Brown v. SEECO, Inc., 316 Ark. 336, 871 S.W.2d 580 (1994). However, the granting of an injunction rests within the sound discretion of the trial court, id., and we will not reverse unless the trial court has abused its discretion. Doe v. Ark. Dep’t of Human Servs., 357 Ark. 413, 182 S.W.3d 107 (2004).
III. Injunction
The Johnsons argue that the circuit court erred in granting Riverbend an injunction prohibiting the Johnsons and others from utilizing a wildlife-management “pond” constructed and paid for with taxpayer funds. The Johnsons claim that the Warranty Easement Deed gives Riverbend control over who may access the water habitat from their land. However, it does not prohibit a member of the general public from accessing the water habitat from the Johnsons’ property and then traversing the surface of the water to all other areas of the water habitat. The Johnsons contend that they were told “by the government” that they could use the water habitat at issue so long as they had gained entry to it at a location that was authorized. The Johnsons cite the recreational-navigation doctrine, which is described in State v. McIlroy, 268 Ark. 227, 595 S.W.2d 659 (1980), where our supreme |flcourt addressed the issue of the Mulberry River’s navigability as it passed through Mcllroy’s property. The court acknowledged navi gability based on commercial use and also stated:
There is no doubt that the segment of the Mulberry River that is involved in this lawsuit can be used for a substantial portion of the year for recreational purposes. Consequently, we hold that it is navigable at that place with all the incidental rights of that determination.
Id. at 237, 595 S.W.2d at 665. The John-sons also cite Arkansas River Rights Committee v. Echubby Lake Hunting Club, 83 Ark.App. 276, 126 S.W.3d 738 (2003), for the same proposition. The Johnsons conclude their argument that the circuit court erred in granting the injunction by claiming that the “natural water and wildlife rights” are owned by the U.S. by virtue of the easement, and the pond and surrounding areas are part and parcel of a federal program for the general good of the country, not solely to benefit an individual landowner.
Riverbend argues that the circuit court properly granted its motion for summary judgment and was correct to permanently enjoin the Johnsons from entering onto Riverbend’s property. Its argument is based on the Warranty Easement Deed’s language as recited above, specifically reserving to Riverbend the sole right to prevent trespass and to control access. There is nothing ambiguous or uncertain about the language of the easement.
Riverbend also claims that the easement area does not include a navigable waterway. The Johnsons’ claim that the easement area is now in the public domain is directly contradicted by the language of the Warranty Easement Deed. The cases cited by the Johnsons are distinguishable from the case at issue. In Mcllroy, supra, the Mulberry River was at issue, and in Eehubby Lake Hunting Club, supra, areas were covered by water year round as the result of a dam. Riverbend contends that the Johnsons’ assertion — anytime there is | ^standing water on the easement area, the body of water becomes a navigable stream — is without merit and contrary to Arkansas law. We agree. An owner of part of the bed of a nonnavigable stream has ownership and control of that part of the surface of the stream that lies above the portion of the bed of the stream owned by them. Medlock v. Galbreath, 208 Ark. 681,187 S.W.2d 545 (1945).
We also agree with Riverbend’s contention that the Johnsons failed to meet proof with proof in order to avoid summary judgment. Riverbend placed in evidence the affidavits, the surveys, the Warranty Easement Deed, and the Pond Easement. The Johnsons did not provide any proof to refute Riverbend’s proof. In her affidavit, Deborah Johnson makes statements that contradict statements made by Tidwell. However, her statements, despite any issue of credibility, have no impact on the rights reserved by Riverbend in the Warranty Easement Deed. Accordingly, we affirm.
II. Third-Party Claim against U.S.
The Johnsons argue that the circuit court erred in refusing to allow them to bring in the federal government as a necessary party to this action. We do not address the Johnsons’ argument because their notice of appeal did not include the order denying the motion to file a third-party complaint. Rule 3(e) of the Arkansas Rules of Appellate Procedure-Civil (2013) provides that a notice of appeal shall, among other things, “designate the judgment, decree, order, or part thereof appealed from.” The order denying the Johnsons’ motion to name the U.S. in a third-party complaint was filed on June 25, 2012, and amended on June 28, 2012. The notice of appeal designates the order ap pealed from was filed June 13, 2013, |nand contains the injunction that allows this court to assume jurisdiction. Ark. R.App. P.-Civ. 2(a)(6). Pursuant to Rule 3, a notice of appeal must designate the judgment or order appealed from, and an order not mentioned in the notice of appeal is not properly before an appellate court. See Lindsey v. Green, 2010 Ark. 118, 369 S.W.3d 1.
Affirmed.
GLOVER and HIXSON, JJ., agree.
. The record spells de Kros two ways: de Kros and de Kroes.
. This order also enjoins Riverbend from going on to the Johnsons’ property and was subject to any change in the boundary line between the parties’ property that might result from the Johnsons’ adverse possession claim, which is still pending in the circuit court.
.An appeal may be taken from an interlocutory order by which an injunction is granted. Ark. R.App. P. — Civ. 2(a)(6) (2013).
. Even though the Johnsons contend that the circuit court denied their motion for leave to file a third-party complaint based on sovereign immunity, the circuit court’s order, as amended, does not reflect the court’s basis for such ruling. | [
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KENNETH S. HIXSON, Judge.
1 jAfter a Pulaski County Circuit Court bench trial, appellant David Keith Adams was convicted of residential burglary, first-degree terroristic threatening, third-degree domestic battery, and first-degree interference with emergency communications. Adams was found to be subject to an enhancement due to his status as a habitual felon and was sentenced to concurrent prison terms totaling 180 months. Adams raises three arguments on appeal: (1) that there is insufficient evidence to support his conviction for terroristic threatening; (2) that there is insufficient evidence to support his conviction for interference with emergency communications; and (3) that the trial court did not have statutory authority to enhance his sentence, nor did it have sufficient evidence that the prior felony conviction was appellant’s. We affirm.
| aThe method of challenging the sufficiency of the State’s evidence to support a conviction in a bench trial is by a motion to dismiss in the manner prescribed by Arkansas Rule of Criminal Procedure 33.1(b) and (c). On appeal of a challenge to the sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the verdict. Barron-Gonzalez v. State, 2013 Ark. App. 120, 426 S.W.3d 508. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. 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. For circumstantial evidence to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. Any credibility determinations, and the resolution of any conflicts in the evidence, are for the finder of fact, not our court on appeal. Purdie v. State, 2010 Ark. App. 658, 379 S.W.3d 541.
Criminal intent can seldom be proved by direct evidence and must usually be inferred from the circumstances. Hoodenpyle v. State, 2013 Ark. App. 375, 428 S.W.3d 547. The finder of fact need not lay aside its common sense in evaluating the ordinary affairs of life and may consider and give weight to any false, improbable, or contradictory statements made by the defendant to explain suspicious circumstances when determining criminal knowledge and intent. Id. A person acts “purposefully” with respect to his conduct or a result of his conduct when it is the person’s conscious object to engage in conduct of that nature or to cause the result. Ark. Code Ann. § 5-2-202(1) (Repl.2006). A person acts “knowingly” with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that |snature or that such circumstances exist, and a person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that the conduct will cause the result. Ark. Code Ann. § 5-2-202(2) (Repl.2006).
These charges were filed in response to an incident at Karen Roark’s home on West Dixon Road in Little Rock late in the afternoon on August 31, 2012. Karen and appellant were in a long-term romantic relationship that Karen said had come to an end about two weeks prior to this incident. Appellant’s attorney characterized their relationship as tumultuous. In short, Karen testified that appellant broke into her home, physically assaulted her, took her cell phone away and destroyed it while she was on the phone with 911, and threatened that if she had summoned the police, he would kill her. Appellant does not argue on appeal that the evidence was insufficient to sustain his convictions for residential burglary and domestic battery. Appellant challenges the State’s proof of his mens rea, or level of intent, with regard to terroristic threatening and interference with emergency communications.
Viewing the evidence and all inferences in the light most favorable to the State, the evidence establishes the following. On the day in question, appellant had called Karen 270 times and had sent 100 texts, the contents of which Karen described as “very obscene and vulgar.” After her work day ended at a medical facility in Little Rock, Karen drove home, went inside, and locked her door. Shortly thereafter, appellant pulled into her driveway, blocked her car, and approached the door, banging on it and yelling at Karen to talk to him.
Karen told him, through the locked door, that she did not want to talk and asked him to leave, but he continued to yell at her through the door. Karen retreated to her bathroom Rand locked herself in it, taking her cell phone with her. Moments later, she heard her back door “splintering” and appellant entering the house, coming toward the bathroom. Karen called 911 for help.
Appellant broke the bathroom door off the frame and hinges to get to her, grabbing and bruising her left arm, pushing her down the hallway, and ultimately taking her cell phone away and slamming it on the counter to break it. She said that the cell phone battery and smart card “flew away.” She said that when she tried to escape by going outside, appellant grabbed her by the hair and ordered her back inside, pushing her down onto the door jamb, which “skinned” her hand.
Karen testified that during the incident, which lasted only a few minutes, appellant made threats and kept telling her to hang up while she was on the phone with 911. Karen specifically recalled appellant telling her more than once that “if that’s the cops, I will kill you.” She said he also told her that he “should have finished me off when he had the chance,” referring to another domestic incident between them.
Law enforcement authorities took photographs of Karen and her home, which were admitted into evidence. The photographs substantiate bruising to her arm and a bloody scrape to her hand. The photographs of the damage to the home depicted the back door with splintering, warping, a broken chain-lock, and dislodged screws, as well as her bathroom door with a broken frame and hinges. Karen testified that she called 911 because she was “scared to death.” She described appellant as “very upset,” “yelling,” and “just out of hand ... with the things that he said and the harassment that I had been receiving.”
| ^Appellant testified in his own defense, stating that he went to check on Karen’s welfare because she had not returned his calls and that he did not think that they were broken up, although he had admittedly called her “a nasty whore” and other names in text messages. Appellant said he drove to her house from his home in Bauxite, Arkansas, expecting her to be home from work. He said he also went there to use her dumpster to dispose of a bag of his trash.
Appellant admittedly broke into the trailer but described the trailer’s back door and bathroom door as flimsy. Appellant testified that Karen was the one who threw her cell phone down after she “got an attitude,” that he never touched her or her cell phone that day, that he did not know she was on the phone with 911, and that he never threatened to kill her then or any other time. Appellant explained the bruise on her arm as having resulted from their recent consensual sexual encounter three to four days prior to this incident. In response to questioning, appellant estimated himself to be about eleven inches taller and 100 pounds heavier than Karen.
The trial judge found appellant guilty on all four criminal counts at the conclusion of the bench trial, noting that credibility of the witnesses was key to his decision. The trial judge found appellant’s explanations unbelievable and inconsistent with the evidence presented by the State.
On the charge of terroristic threatening, appellant attacks Karen’s credibility, contends that her testimony was inconsistent about when the alleged threats were made, and that even | fiif appellant did make a threat to kill Karen, “he did not say so in a way or at a time that would show he intended to fill her with intense fright.” We disagree.
As charged in this case, the State bore the burden to prove that appellant acted with the purpose of terrorizing Karen and threatened to cause death or serious physical injury or substantial property damage to Karen. Ark.Code Ann. § 5-13-301(a)(1)(A) (Repl.2013). The statute requires that the defendant intend to fill the victim with intense fright. Knight v. State, 25 Ark.App. 353, 758 S.W.2d 12 (1988). We note that a terroristic threat need not be explicit or verbal. Johnson v. State, 2013 Ark. App. 271, 2013 WL 1776688. There is no requirement that the recipient of the threat actually be terrorized, although the record indicates that Karen obviously felt terrorized, nor must it be shown that the accused has the immediate ability to carry out the threat. Lowry v. State, 364 Ark. 6, 216 S.W.3d 101 (2005). What is prohibited is the communication of a threat with the purpose of terrorizing another person. Id.
The State contends that appellant did not make this specific argument to the trial court, but that even if his argument is preserved, it lacks merit. We hold that even on the merits appellant is not persuasive, and we affirm his conviction for first-degree terroristic threatening.
This case turned on the credibility of the witnesses. Any inconsistencies in Karen’s testimony were for the trial court to resolve. Viewed most favorably to the State, the |7evidence established that appellant broke into Karen’s home, broke into the bathroom where she had retreated, physically assaulted her, took her cell phone away and broke it, and threatened more than once that if she had called the police, he would kill her. These comments were made in the midst of a domestic-battery situation. This was more than just angry banter. See Cash v. State, 2011 Ark. App. 493, 2011 WL 3837042. These are circumstances from which the trier of fact could reasonably conclude that appellant acted with the purpose to terrorize Karen, and these were precisely the type of terroristic threats that the statute was designed to punish. Compare Lasker v. State, 2009 Ark. App. 591, 2009 WL 2958383.
With regard to first-degree interference with emergency communications, Ark. Code Ann. § 5-60-124(a) (Supp.2013) requires proof that the defendant “knowingly displaces, damages, or disables another person’s telephone or other communication device with the purpose of defeating the other person’s ability to request with good cause emergency assistance from a law enforcement agency, medical facility, or other government agency or entity that provides emergency assistance.” This statute establishing this misdemeanor crime was enacted in the 2007 legislative session, Act 162. Appellant argues, as he did at the trial court level, that the evidence was insufficient to establish appellant’s knowledge that Karen was attempting to contact emergency assistance, even if he did take her phone away and break it. We hold that the State’s evidence was sufficient to support the reasonable inference that appellant acted knowingly with regard to interfering with Karen’s call to 911. Karen’s testimony and the circumstances of this domestic disturbance permit such a reasonable inference of appellant’s knowledge and purpose.
^Lastly, appellant challenges the trial court’s authority to enhance his sentence, arguing that the relevant statute permits only a jury to do this, and furthermore, that the State failed to sufficiently identify appellant as the same person on the certified copy of the prior convictions. We affirm.
Appellant begins his argument by challenging the trial judge’s authority to enhance his sentence at all, contending that Arkansas Code Annotated section 5-4-502 permits only a jury, not a trial judge, to do so. We disagree. Our supreme court addressed this concern in State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993). Appellant acknowledges that the supreme court holding is related to this issue, but he argues that it is not controlling. We disagree with him.
In Freeman, the defendant argued that Arkansas Code Annotated section 5-4-502 is inapplicable in bench trials because the habitual sentencing procedure therein refers only to a jury, and not the trial court in a bench trial. The supreme court held:
Under [Freeman’s] construction, he could possibly avoid the habitual sentence enhancement provisions merely by asking for a bench trial, but he would subject himself to such enhancement provisions if he demanded a trial by jury. No such Hobson’s choice was intended by the General Assembly’s passage of these statutory provisions.
Id. at 36, 846 S.W.2d at 661. We can discern no meaningful distinction, and we are bound by our supreme court’s interpretation of this state’s statutes.
Moving to the sufficiency of the evidence of the prior convictions, the State bears the burden to prove a defendant’s prior convictions for purposes of the habitual-offender statute. Williams v. State, 304 Ark. 279, 801 S.W.2d 296 (1990). According to Arkansas Code ] ^Annotated section 5^4-504 (Repl.2006), proof of a previous felony conviction to establish habitual status “may be proved by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant was convicted or found guilty,” and one statutorily-approved method is presentation of a certified copy of the prior conviction. The test on appeal is whether there is substantial evidence that the defendant was convicted of the felonies in question. Gipson v. State, 2013 Ark. App. 651, 2013 WL 5964649.
At the sentencing hearing, the State presented a certified copy of a 1985 felony conviction from the Pulaski County Circuit Court for David K. Adams, identified as a white male (the same race as appellant) with the same date of birth as appellant, October 31, 1962. Appellant contends that this did not suffice to establish that the prior conviction belonged to appellant, and not someone else. We hold that there is substantial evidence to support the trial judge’s conclusion that this conviction was appellant’s. Compare Gip-son, supra (holding that full name “Otis Delotis Gipson” even without birth date was sufficient identifying information for purposes of establishing prior felony conviction). See also Walters v. State, 286 Ark. 166, 690 S.W.2d 122 (1985); Leggins v. State, 267 Ark. 293, 590 S.W.2d 22 (1979) (discussing requirement of similarity of name on prior conviction).
Affirmed.
GLADWIN, C.J., and GLOVER, J., agree.
. The motion for dismissal recited the entire statute, which includes the purposeful intent requirement, and then asserted that his purported threat was not sufficient to sustain a guilty verdict. The State responded that appellant's behavior, in context, showed his purposeful intent. The trial court denied the motion to dismiss. | [
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JIM HANNAH, Chief Justice.
| Appellant, the Arkansas Department of Human Services (“DHS”), appeals from an order of the Arkansas County Circuit Court reversing and remanding DHS’s decision that appellee, Gordon Pierce, was ineligible for Medicaid benefits. The circuit court ruled that retirement accounts owned by appellee’s spouse, Martha Pierce, should not have counted in the determination of Gordon’s eligibility for long-term-care Medicaid benefits. DHS appealed to the Arkansas Court of Appeals, which recommended certification of the appeal to this court because it involves an issue of first impression and substantial public interest. This court accepted certification, and our jurisdiction is proper pursuant to Arkansas Supreme Court Rule 1-2(d)(2) (2013). We hold that a spouses’s individual retirement account (“IRA”) and 401 (k) may be countable resources under the Medicare Catastrophic Coverage Act of 1988, 42 U.S.C. § 1396r-5. Therefore, we reverse and remand the circuit court’s order.
| .This case requires the court to interpret the “spousal impoverishment” provisions of the Medicare Catastrophic Coverage Act of 1988 (the “MCCA”), 42 U.S.C. § 1396r-5, “a complex set of instructions made part of the federal Medicaid statute.” Wis. Dep’t of Health & Family Servs. v. Blumer, 534 U.S. 473, 477,122 S.Ct. 962, 151 L.Ed.2d 935 (2002). Medicaid was enacted in 1965 as Title XIX of the Social Security Act, and the “federal Medicaid program provides funding to States that reimburse needy persons for the cost of medical care.” Id. at 479, 122 S.Ct. 962. “ ‘Each participating State devel ops a plan containing reasonable standards ... for determining eligibility for and the extent of medical assistance,’ within boundaries set by the Medicaid |sstatute and the Secretary of Health and Human Services.” Id. (quoting Schweiker v. Gray Panthers, 453 U.S. 34, 36, 101 S.Ct. 2633, 69 L.Ed.2d 460 (1981)); 42 U.S.C. § 1396a(a)(17). “In formulating those standards, States must ‘provide for taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant.’ ” Blumer, 534 U.S. at 479, 122 S.Ct. 962 (emphasis in original) (citing § 1396a(a)(17)(B)). “[S]tate methodologies for determining eligibility must be ‘no more restrictive’ than the federal methodology that would be employed under the supplemental security income [SSI] program.” Geston v. Anderson, 729 F.3d 1077, 1079 (8th Cir.2013); 42 U.S.C. § 1396a(a)(10)(C)(i). “A State’s methodology is considered ‘no more restrictive’ if ‘additional individuals may be eligible for medical assistance and no individuals who are otherwise eligible are made ineligible for such assistance.’ ” Geston, 729 F.3d at 1079; § 1396a(r)(2)(B).
“Because spouses typically possess assets and income jointly and bear financial responsibility for each other, Medicaid eligibility determinations for married applicants have resisted simple solutions.” Blumer, 534 U.S. at 479, 122 S.Ct. 962. Prior to the enactment of the MCCA, when one spouse entered a nursing home (or other institution) and applied for Medicaid, each spouse was treated as a separate household. See H.R.Rep. No. 100-105(11) (1987), reprinted in 1988 U.S.C.C.A.N., 1987 WL 61566, at *66. Income, such as Social Security checks, pensions, and interests or dividends from investments, were considered to belong to the spouse whose name was on the instrument conveying the funds. Id. Thus, when the husband, for example, entered a nursing home and the couple’s pension check had only the husband’s name on it, all of that income was attributed to him when determining Medicaid, | ¿leaving the wife destitute. Id. Conversely, if the wife entered the nursing home, because none of the income was considered hers, the husband was under no obligation under federal law to contribute any income toward the cost of her care. Id.
The rule for attribution of resources was basically the same as that for attributing income. Id. Generally, in the month following institutionalization, resources to which a spouse had unrestricted access, such as a joint savings account, were considered available to that spouse for eligibility purposes. Id. On the other hand, assets held solely by the community spouse were, after the first month, considered to belong to her, and she had no obligation under federal law to contribute any amount of such resources toward the costs of care of the institutionalized spouse. Id. at *66-67. Thus, before the enactment of the MCCA, “[m]any community spouses were left destitute by the drain on the couple’s assets necessary to qualify the institutionalized spouse for Medicaid and by the diminution of the couple’s income posteligibility to reduce the amount payable by Medicaid for institutional care. Conversely, couples with ample means could qualify for assistance when their assets were held solely in the community spouse’s name.” Blumer, 534 U.S. at 480, 122 S.Ct. 962 (internal citation omitted).
In the MCCA, Congress sought to end the “pauperization” of the community spouse “by assuring that the community spouse has a sufficient — but not excessive — amount of income and resources available ... while ... [the institutionalized spouse] is in a nursing home at Medicaid expense.” H.R.Rep. No. 100-105(11), at *65. (Emphasis added.) In addition, “Congress intended to close the loophole where a couple could shelter resources in the |5community spouse’s name while the institutionalized spouse received Medicaid.” Johnson v. Guhl, 91 F.Supp.2d 754, 761 (D.N.J.2000).
“To achieve those goals, the MCCA requires that at the time of institutionalization, a ‘snapshot’ of the total value of the couple’s resources owned by either the institutionalized or community spouse is inventoried or assessed.” Id.; 42 U.S.C. § 1396r-5(c)(l)(A). The couple’s resources are divided into countable and exempt assets and one-half of the total value of the resources “to the extent either the institutionalized spouse or the community spouse has an ownership interest” is considered a spousal share. 42 U.S.C. § 1396r-5(c)(l)(A). To avoid impoverishment of the community spouse, the community spouse is allowed a “community spouse resource allowance” of the couple’s assets. 42 U.S.C. § 1396r-5(f)(2).
The Arkansas Department of Human Services Medical Services Policy Manual defines the “community spouse resource allowance” (“CSRA”) as the maximum amount of the institutionalized spouse’s resources which may be transferred to the community spouse or to another for the sole benefit of the community spouse. Ark. Admin. Code 016.20.1-3337.1. Arkansas’s “community spouse maximum resources” (“CSMR”) is the total amount of resources which may be considered available to the community spouse; this amount includes resources held solely by the community spouse (in which the institutionalized spouse has no ownership interest) and the CSRA. Id. At the time of the application, all resources held by either the institutionalized spouse or the community spouse shall be considered available to the institutionalized spouse to the extent that the resources exceed the CSMR. Ark. Admin. Code 016.20.1-3337.4.
pin the instant case, Gordon was admitted to a long-term-care facility on July 29, 2010, at which time he had been married to, and living in the same home with, Martha for forty-six years. Hoping Gordon’s medical condition would improve, Martha did not apply for Medicaid assistance until December 29, 2011. As part of the application process, the Pierces indicated that they had, inter alia, two retirement accounts. The retirement accounts consisted of an IRA and a 401 (k), and both accounts were in Martha’s name only. As of the date of the Medicaid application, Martha’s IRA account had a balance of $325,245.92, and her 401(k) had a balance of $27,300.13. When calculating the couple’s total available resources, a DHS caseworker included these two retirement accounts and found that the total amount of resources held by Gordon and Martha at the time of the application was $858,550.38, and that the CSMR was $109,560; therefore, the value of countable resources for Gordon’s application was $248,990.38. Because the maximum amount of resources the applicant may have and still be eligible for nursing-home-care benefits is $2,000, the caseworker denied Gordon’s application.
Gordon appealed the denial of his application. In his brief and in oral arguments before a DHS hearing officer, Gordon’s attorney contended that federal law exempted Martha’s retirement accounts in calculating Gordon’s resources for purposes of Medicaid eligibility. The hearing officer disagreed, finding that DHS had acted correctly when it ^determined that Martha’s IRA and 401 (k) accounts were countable resources and not subject to an exclusion. Gordon then filed a petition for judicial review with the circuit court. The circuit court reversed and remanded, concluding that, based on the briefs and arguments of counsel and the holding and discussion in Keip v. Wisconsin Department of Health & Family Services, 232 Wis.2d 380, 606 N.W.2d 543 (1999), DHS should not have counted against Gordon’s Medicaid eligibility the retirement accounts owned by Martha.
Review of administrative agency decisions, by both the circuit court and the appellate court, is limited in scope. E.g., Ark. State Highway & Transp. Dep’t v. Lamar Advantage Holding Co., 2011 Ark. 195, at 4, 381 S.W.3d 787, 790. The standard of review to be used by both the circuit court and the appellate court is whether there is substantial evidence to support the agency’s findings. Id., 381 S.W.3d at 790. The appellate court’s review is directed, not toward the circuit court, but toward the decision of the agency, because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. Id., 381 S.W.3d at 790. When reviewing such decisions, we uphold them if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. Id., 381 S.W.3d at 790. We review issues of statutory interpretation de novo; however, the interpretation placed on a statute or regulation by an agency or department charged with its administration is entitled to great deference and should not be overturned unless clearly wrong. Id., 381 S.W.3d at 790.
The only issue on appeal is whether, under federal law, retirement accounts owned |sby a community spouse may be countable resources when determining Medicaid eligibility for an institutionalized spouse. MCCA provides as follows:
(a) Special treatment for institutionalized spouses
(1) Supersedes other provisions In determining the eligibility for medical assistance of an institutionalized spouse (as defined in subsection (h)(1) of this section), the provisions of this section supersede any other provision of this subchapter (including sections 1396a(a)(17) and 1396a(f) of this title) which is inconsistent with them.
(3) Does not affect certain determinations
Except as this section specifically provides, this section does not apply to—
(A) the determination of what constitutes income or resources, or
(B) the methodology and standards for determining and evaluating income and resources.
42 U.S.C. § 1396r — 5(a)(1), (3).
MCCA also specifically provides that the term “resources” does not include resources excluded under 42 U.S.C. § 1382b(a) or (d) or resources that would be excluded under § 1382b(a)(2)(A) but for the limitation on total value described in that section. 42 U.S.C. § 1396r-5(c)(5). Section 1382b(a) and (d) specifically excludes, inter alia, the home, household goods, personal effects, an automobile not in excess of an amount determined to be reasonable by the Commissioner, funds set aside for burial expenses, and “other property which is so essential to the means of self-support of such individual (and such spouse) as to warrant its exclusion, as determined in accordance with and subject to limitations prescribed 19by the Commissioner of Social Security....”
MCCA does not specifically exclude IRAs or 401(k)s. Likewise, the Arkansas regulation does not specifically exclude IRAs or 401(k)s. See Ark. Admin. Code 016.20.1-3332.3 (stating that the following items of personal property qualify for special exclusion when specific conditions are met: (1) automobile, (2) life insurance policies, (3) household goods and personal effects, (4) income producing and non-home property, (5) burial spaces and funds; (6) SSI or SSA retroactive payments; and (7) funds from a class-action settlement from the case of Susan Walker v. Bayer Corp.). Rather, the Arkansas regulation states that resource items which do not meet conditions for exclusion will be included with countable resources. Id.
DHS contends that, because the MCCA and the Arkansas regulation do not specifically exclude IRAs and 401(k)s from the eligibility determination, the circuit court erred in concluding that Martha’s retirement accounts were not countable resources. Gordon acknowledges that there is no specific exclusion under the MCCA or the Arkansas regulation, but he contends that because the MCCA is part of the Medicaid Act, this court should look at the Medicaid — eligibility requirements when determining whether resources are countable. Specifically, he contends that, pursuant to the “no more restrictive” provision of the Medicaid Act, a state’s standards for determining an applicant’s Medicaid eligibility may be no more restrictive than the eligibility requirements for SSI. Gordon maintains that, under the SSI guidelines, Martha’s retirement accounts would have been excluded from an SSI— eligibility determination; therefore, he contends that the accounts must be excluded from | ina Medicaid-eligibility determination. Gordon cites 20 C.F.R.
§ 416.1202(a), which provides, in relevant part:
Married individual. In the case of an individual who is living with a person not eligible [for SSI benefits] and who is considered to be the husband or wife of such individual ..., such individual’s resources shall be deemed to include any resources, not otherwise excluded under this subpart, of such spouse whether or not such resources are available to such individual. In addition to the exclusions listed in § 416.1210, we also exclude the following items:
(1) Pension funds that the ineligible spouse may have. Pension funds are defined as funds held in individual retirement accounts (IRA), as described by the Internal Revenue Code, or in work-related pension plans (including such plans for self-employed persons, sometimes referred to as Keogh plans).
(Emphasis added.)
DHS, citing Houghton v. Reinertson, 382 F.3d 1162 (10th Cir.2004), responds that the MCCA renders the “no more restrictive” provision inapplicable. In Houghton, the State of Colorado revised its Medicaid-eligibility guidelines used to calculate a married couple’s resources when a spouse enters a nursing home and changed the way it classified self-funded retirement accounts such as IRAs, 401 (k)s, and 403(b)s. Id. at 1166. Prior to the revision, Colorado did not classify self-funded retirement accounts held by the community spouse as “resources” available to support the institutionalized spouse. Id. Then, Colorado began classifying those retirement accounts as countable resources. Id. Plaintiffs challenged the revision, contending that the new rule violated federal law because it was more restrictive than the provisions for determining SSI eligibility. Id. at 1170-71. The Houghton court rejected this argument, stating,
We agree that the Medicaid Act’s eligibility requirements (and therefore the MCCA’s eligibility requirements unless otherwise explicitly noted) must be no more restrictive | T1than the SSI eligibility requirements, but the SSI provides no guidance on the issue raised here. Notably, § 416.1202(a) applies only when an SSI applicant is living with his or her spouse. By definition, an institutionalized spouse and a community spouse in the Medicaid context do not live together. We therefore conclude that neither the SSI, nor its corresponding guidelines, address the eligibility requirements where one spouse is institutionalized.
Id. at 1171 (emphasis in original).
The Supreme Court of New Jersey reached a similar conclusion in Mistrick v. Division of Medical Assistance & Health Services, 154 N.J. 158, 712 A.2d 188 (1998), another case relied on by DHS. Even though the New Jersey Medicaid regulations did not specifically exclude a community spouse’s pension plans and IRAs from the eligibility determination, the New Jersey Superior Court, Appellate Division, held that pension plans and IRAs were required to be excluded from the determination because of the “no more restrictive” methodology provision. Id. at 192. The New Jersey Supreme Court reversed:
MCCA provides that it supersedes any other provision that is inconsistent with it. 42 U.S.C.A. § 1396r-5(a)(l). MCCA further indicates that the term “resources” does not include those items excluded from the definition of “resources” pursuant to 42 U.S.C.A. §' 1382b(a) and (d). 42 U.S.C.A. § 1396r-5(c)(5). Those subsections do not exclude IRAs or pension plans from the determination of “resources.” However, the SSI regulation, 20 C.F.R. § 416.1202, excludes for purposes of determining SSI eligibility IRAs owned by an SSI-ineligible spouse living in the same household. On two grounds, however, we conclude that reliance on that SSI regulation is misplaced.
First, the regulation does not apply generally in determining SSI eligibility, but applies only to exclude IRAs owned by ineligible spouses of SSI-eligible individuals living in the same household. Its narrow application, therefore, does not render the exclusion of IRAs in that specific circumstance a benchmark for determination of eligibility in the case of medically needy or optionally categori- • cally needy applications.
Second, even assuming the regulation excluding IRAs for purposes of SSI eligibility had a broader scope, we find the methodology used in that regulation in applicable here because we conclude that the “no more restrictive” provision is superseded by MCCA. MCCA explicitly provides that it supersedes any provision | iathat is inconsistent with it. For purposes of determining medically needy or optionally categorically needy eligibility, application of a methodology “no more restrictive” than the SSI methodology set forth in 20 C.F.R. § 416.1202, which excludes IRAs, would clearly be inconsistent with MCCA, which specifies by reference to 42 U.S.C.A. 1382b(a) and (d) what items are excluded from the determination of resources, without excluding IRAs. In that context, the conclusion is inescapable that MCCA supersedes the “no more restrictive” provision. See 42 U.S.C.A. §§ 1396a(a)(10)(C)(i)(III), 1396a(r)(2)(A). Thus, MCCA requires the inclusion of the community spouse’s IRA in the determination of the institutionalized spouse’s resources.
The legislative history of MCCA supports our conclusion. The Senate amendment to the House bill proposed an additional provision concerning the treatment of resources that would have excluded “resources that are necessary to produce income that is available to the community spouse or the family allowance.” H.R. Conf. Rep. No. 100-661, at 263 (1988), reprinted in 1988 U.S.C.C.A.N. 923, 1041. However, the conference agreement “[did] not exclude from countable resources those assets necessary to produce income available to the community spouse or the family allowance.” 1988 U.S.C.C.A.N. at 1043. Instead, the agreement provided that “either the institutionalized or the community spouse may request a fair hearing as to whether the community spouse resource allowance is adequate to generate sufficient income to raise the community spouse’s income to the minimum monthly maintenance needs allowance.” Ibid. We are confident that had Congress intended MCCA to exclude resources necessary to produce income, such as IRAs, the proposed exclusion would have been adopted.
We repeat that the SSI regulation relied on by respondent, 20 C.F.R. § 416.1202, applies only to a spouse eligible for SSI benefits who is living with his or her ineligible spouse. Respondent contends that she and her husband were living together at the time of their resource assessment; the Division contends that they were not. MCCA provides that the “snapshot” assessment of a couple’s resources and of the community spouse’s share is computed “as of the beginning of the first continuous period of institutionalization ... of the institutionalized spouse.” 42 U.S.C.A. § 1396r-5(c)(l). An institutionalized spouse is “an individual who ... is in a medical institution or nursing facility ... and is married to a spouse who is not in a medical institution or nursing facility.” 42 U.S.C.A. § 1396r-5(h)(l). Therefore, by definition an institutionalized spouse cannot be living with a community spouse. However, we note that the dispute between the parties concerning whether the Mistricks were living together is academic. The question is not whether the SSI regulation concerning spouses who live together actually applied, but whether MCCA superseded the “no more restrictive methodology” provision. Whether the Mistricks were living together at the time of their resource assessment is of no import because liswe conclude that the “no more restrictive” provision is inconsistent with and therefore is superseded by MCCA.
Mistrick, 712 A.2d at 196-97 (alteration in original).
The Ohio Court of Appeals concurred, holding that a spouse’s IRA is a countable resource under the MCCA and rejecting the argument that the “no more restrictive” provision barred inclusion of an IRA. See Martin v. Ohio Dep’t of Human Servs., 130 Ohio App.3d 512, 720 N.E.2d 576 (1998), abrogated on other grounds by Pack v. Osborn, 117 Ohio St.3d 14, 881 N.E.2d 237 (2008). The Martin court explained:
As the New Jersey Supreme Court noted, the provision of the MCCA establishing that it supersedes conflicting provisions of the federal code indicates that the MCCA establishes a separate method of evaluating resources for Medicaid eligibility for institutionalized spouses. The method established is generally much more lenient in the exclusion of resources than SSI standards. To the extent that the MCCA is less lenient, it was intended to remedy prior inequities between married couples created by different recognition of whether assets were held in the name of one spouse or the other. A rule that would exclude an IRA held by the community spouse would only revitalize this old distinction by treating that couple more leniently than one in which the institutionalized spouse held the IRA. We are not troubled, therefore, that the MCCA might consider a resource available that is excluded under SSI standards.
Id. at 583; accord Mannix v. Ohio Dep’t of Human Servs., 134 Ohio App.3d 594, 731 N.E.2d 1154 (1999) (rejecting argument that exclusion of IRA was mandated by 20 C.F.R. § 416.1202(a)).
For his part, Gordon urges this court to follow Keip, 606 N.W.2d 543, and hold that the “no more restrictive” provision mandates that a community spouse’s retirement accounts cannot be included as a countable resource when determining an institutionalized spouse’s Medicaid eligibility. In Keip, Walter Keip entered a nursing home on October 17, 1996, returned to his home before Christmas that year, and was readmitted to the nursing home on April 23, 1997. Id. at 545. In June 1997, Walter’s wife, Caryl Keip, began the medical-1 assistanceu (“MA”) application process on Walter’s behalf. Id. Caryl learned that the Wisconsin Department of Health and Family Services (“WDHFS”) intended to count her IRA as an asset in determining Walter’s eligibility for MA and that the inclusion would render him ineligible. Id. To accelerate Walter’s eligibility date, Ca-ryl used about half of the funds in her IRA to purchase an irrevocable fixed annuity. Id. This type of annuity did not count as an asset for MA eligibility purposes. Id. Walter qualified for MA as of August 1997, but WDHFS denied him benefits for the period prior to that month. Id.
The Wisconsin Court of Appeals determined that WDHFS erred in interpreting the federal spousal-impoverishment provisions to require the inclusion of a community spouse’s IRA when determining the MA eligibility of the institutionalized spouse. Id. The court rejected WDHFS’s argument that Congress intended the resource exclusions enumerated in the spousal-impoverishment provisions of the MCCA to supplant rather than supplement the resource exclusions applicable in SSI-eligibility determinations. Id. at 550. The court concluded that the SSI regulation at 20 C.F.R. § 416.1202(a) excluded Caryl’s IRA, noting that under applicable MA eligibility criteria, the Keips were considered to have been living together at the time of Walter’s first institutionalization in October 1996, notwithstanding his temporary absence for care and treatment. Id. In addition, the court pointed out that WDHFS’s decision to include Caryl’s IRA when determining Walter’s eligibility was not based on guidance in the MA Hand book, Wisconsin’s medical-assistance manual, because the MA Handbook’s appendix regarding “spousal impoverishment” specifically stated: “Don’t count the following assets: ... All assets not counted in determining SSI-related MA Ineligibility.” Id. at 549. Thus, the court noted that WDHFS’s decision to include Caryl’s IRA as a countable resource for Medicaid eligibility was inconsistent with the guidelines stated in the MA Handbook and that the MA Handbook “strongly implie[d] that the department had previously concluded that an asset of either spouse excluded under federal SSI-eligibility regulations must also be excluded when determining MA eligibility under the spousal impoverishment provisions.” Id.
DHS contends that Gordon’s reliance on Keip is misplaced because Arkansas does not have a provision in its regulation similar to the one in Wisconsin’s medical-assistance manual that instructed personnel to exclude from consideration for medical-assistance eligibility any assets that were excluded in determining SSI eligibility. Moreover, DHS contends that, unlike Wisconsin, Arkansas has adopted the approach that all assets available to an individual are considered countable resources unless specifically excluded by policy. See Ark. Admin Code 016.20.1-3882.3 (stating that resource items which do not meet conditions for exclusion will be included with countable resources). According to DHS, this method for counting resources is consistent with the public policy of the State of Arkansas, as stated, in relevant part, in Arkansas Code Annotated section 20-77-101(a) (Repl.2001):
It is the intent of the General Assembly that the Medicaid medical assistance program administered by the Department of Human Services is intended to be supplemental to other potential sources of payment which are or may be available to pay for the costs of medical care delivered to residents of this state. To ensure that the appropriated funds are available to meet the needs of those residents, it is hereby declared the public policy of the State of Arkansas that the program is the payor of last resort to supplement and not supplant other sources which are or may be available to any individual^]
Finally, DHS contends that Congress, in enacting the MCCA, intended to leave to 17(jthe states the determination of whether retirement accounts are countable resources. DHS again points to the Hough-ton case, in which the Tenth Circuit concluded that,
unless an asset is specifically mentioned by the MCCA, the classification of that asset for eligibility purposes depends on the federal Medicaid Act’s treatment of that asset. Applying this rule to retirement accounts, we conclude that Congress did not explicitly exclude retirement accounts when defining resources. Rather, we conclude that Congress neither foreclosed nor mandated a particular classification for retirement accounts.
Houghton, 382 F.3d at 1171.
After reviewing the legislative history of the MCCA and studying the persuasive authority cited by the parties in this case, we conclude that the circuit court erred in finding that DHS was not permitted to count against Gordon the retirement accounts owned by Martha. Although the Medicaid Act’s eligibility requirements (and therefore the MCCA’s eligibility requirements unless otherwise noted) must be no more restrictive than the SSI eligibility requirements, the regulation at 20 C.F.R. § 416.1202(a) provides no guidance when one spouse is institutionalized. See Houghton, 382 F.3d at 1171 (noting that § 416.1202(a) applies only when an SSI applicant is living with his or her spouse). Moreover, even assuming the SSI regulation did provide some guidance, the MCCA supersedes any provision that is inconsistent with it. Therefore, the “no more restrictive” provision is inapplicable in this case. While we do not agree with the Mistrick court that the MCCA requires the inclusion of the community spouse’s IRA in the determination of the institutionalized spouse’s resources, see 712 A.2d at 197, we do agree with DHS’s assertion that Congress has left it to each state to determine whether to include retirement accounts in the computation of a couple’s resources. See Houghton, 382 F.3d at 1173 (“By not taking 117a clear position on the status of retirement accounts, Congress intended, through cooperative federalism, to leave resolution of this complicated matter to the states.”). We conclude that DHS’s policy of considering as countable resources a community spouse’s retirement accounts does not violate federal law.
Reversed and remanded.
HOOFMAN, J., dissents.
. As noted by the Missouri Court of Appeals, Language in the federal Medicaid law and in the statutes and regulations of states that participate in the Medicaid program has been characterized, inter alia, as (1) a “virtually impenetrable 'Serbonian bog,’ " Ross v. Giardi, 237 Conn. 550, 680 A.2d 113, 116-17 (Sup.1996), (2) “almost unintelligible to the uninitiated,” Friedman v. Berger, 547 F.2d 724, 727 n. 7 (2d Cir.1976), and (3) an “aggravated assault on the English language, resistant to attempts to understand it.” Friedman v. Berger, 409 F.Supp. 1225, 1225-26 (S.D.N.Y.1976).
Maples v. Dep’t of Soc. Servs., 11 S.W.3d 869, 873 n. 5 (Mo.Ct.App.2000).
. If a state participates in Medicaid, it must provide coverage to the "categorically needy.” 42 U.S.C. § 1396(a)(10)(A) (Supp. II 1982). These are persons eligible for cash assistance under either the Aid for Dependent Children program or the Supplemental Security Income program. See Atkins v. Rivera, 477 U.S. 154, 157, 106 S.Ct. 2456, 91 L.Ed.2d 131 (1986). Congress has also enacted an optional program for the "working poor” who are deemed "medically needy.” Ramsey v. Dep’t of Human Servs., 301 Ark. 285, 287, 783 S.W.2d 361, 362 (1990). The “medically needy” become eligible for Medicaid benefits when their income and assets are reduced by incurred medical expenses that reduce their income and assets below certain established levels. Id., 783 S.W.2d at 362. This then puts them in roughly the same position as the "categorically needy.” Id., 783 S.W.2d at 362. Arkansas has elected to include this optional plan under its State Medicaid Plan. Id., 783 S.W.2d at 362.
. Pursuant to DHS's long-term-care resource-eligibility worksheet, if the total resources are under $21,912, the community spouse gets all. If the total resources are $21,912 to $43,824, the community spouse gets $21,912. If the total resources are $43,824 to $219,120, the community spouse gets one-half If the total resources are over $219,120 the community spouse gets $109,560. | [
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KAREN R. BAKER, Judge.
11Appellant Jerry Turley appeals from an order requiring him to relinquish forty-five acres of land after making more than eleven years of installment payments to appellees Gerald Staley, Billie Staley, and Randy Rice. For the reasons explained below, we reverse and remand.
On July 7, 1995, Gerald and Billie Staley contracted to sell forty-five acres of wooded, undeveloped property to Jerry Turley for $65,250. Turley made a $6525 down payment and promised to pay the remaining $58,575, plus interest, in 180 monthly installments of $578.29. Turley also agreed to pay property taxes within thirty days after presentation of a bill by the Staleys. The contract provided that the installment payments were due on the first of each month, with late charges for overdue payments of more than ten days. It also provided that Uthere would be no penalty for prepayment of the principal; that the proceeds from any timber cut from the property would be paid to the Staleys and applied to the principal balance of Turley’s debt; and that, upon payment of all installments and taxes, the Staleys would convey the deed to Turley. In addition, the contract contained the following relevant clause:
(e) Time of Essence. Time is of the essence of this AGREEMENT, and if BUYER defaults in payment of any installments of principal or interest for a period of thirty (80) days or fails to pay any taxes or assessments when due, SELLERS, at their sole option, may either declare the entire debt with interest due and payable or rescind this AGREEMENT, and in the event of rescission all moneys paid by BUYER shall be taken and retained by SELLERS not as a penalty but as rent of the property, and the relationship of the parties thereafter shall be that of landlord and tenant at a rental of [$578.29] per month; and thereupon SELLERS after notice may demand possession of the property and BUYER agrees to sur render immediately peaceable possession. No delay in the exercise of the options herein shall be construed as a waiver of such right, but the same may be exercised at any subsequent time....
Just over a year into the contract, Tur-ley (through his father, Danny Rothstein) began making untimely payments. The late payments became a regular feature of the parties’ dealings — Turley frequently fell several months behind, then made two, three, or four payments at once, along with late fees, to become current.
Gerald and Billie Staley divorced in 2001 or 2002, and the court awarded Billie all the installment payments for approximately four years. The decree required Billie to notify Gerald if Turley was more than ten days late on a payment, and required Gerald to make the payment to Billie if Turley missed a third payment. According to Gerald, this provision could have been placed in the decree because of Tur-ley’s history of late payments.
lain 2004, Billie Staley filed for Chapter 7 bankruptcy, and Turley began making all payments due her to bankruptcy trustee Randy Rice. Thereafter, Rice also accepted late payments from Turley in March and December 2005.
By mid-2006, Gerald Staley began receiving half of each installment payment under the terms of the divorce decree. At that time, Turley once again fell several months in arrears. However, Turley caught up on the payments and additionally paid Gerald $7,706.95 from proceeds of a timber sale, which Gerald applied to the “end balance,” by shortening the payoff date to April 2009. As of October 2006, Turley was again several months behind on his payments, to both Gerald Staley and Randy Rice. On October 2, 2006, Rice sent the following letter to Turley:
As you know, you have failed to make your monthly payment on the real property that is due for the last three (3) months. This constitutes a breach of contract in accordance with your agreement.
This is notice to you of my intent to take immediate possession of the property. I am therefore demanding that you officially turn over this property to me, as trustee, for liquidation. I am requesting that this be done on or before October 15, 2006. If you have not turned over the property to me by that date, I will file papers with the Court asking that the Court [order] you to turn over the property and that you be ordered to vacate.
A few days after receiving Rice’s letter, Turley remitted to Rice and to Gerald Staley sufficient payments to bring him current through the month of October. On October 9, 2006, Rice wrote the following letter to Turley:
This is to confirm our conversation on October 6, 2006, whereby I agreed to allow you to catch up the payments that you are in arrears on the real property. You acknowledged that you did receive my earlier letter dated October 2, 2006. You also | confirmed that all payments due to Mr. Staley had been forwarded to him. I only agreed to allowing you to catch up your payments because you stated that you were mailing a payment to me in the amount of $867.44. This amount is equal to one-half of the payment due for the months of June, July and August 2006. You informed me that you mailed the other one-half payment to Mr. Gerald Staley already for this period of time. This payment was supposed to be placed in the mail on October 6, 2006.
Additionally, we agreed that, upon receipt of this letter, you would immediately mail a payment in the amount of $578.29 to me. This amount is equal to one-half payment of your regular note for the months of September and October 2006. Finally, you were instructed to mail one-half of all future payments to my address until such time as I notified you in writing that this process should stop....
You stated to me that Mr. Staley had instructed you to mail him the full payment for the next fourteen (14) months. DO NOT DO THAT. You will not be given credit for Mrs. Staley’s payment if you follow that procedure. Also, I will proceed to foreclose on this property if these payments are not received promptly. I have advised Mr. Staley of my demand to you. Furthermore, I am sending a copy of this letter to him and to Mrs. Staley so that they will both know exactly what I have instructed you to do with the portions of funds that are supposed to be received by the bankruptcy estate....
Thereafter, Turley made no further payments on the contract. By February 2007, he was again three months in arrears with another due date approaching.
In late January or early February 2007, Gerald Staley sent Turley an undated letter, stating that he had spoken with Danny Rothstein in the last week of January and that Rothstein had promised to bring the payments up to date but had not done so. Staley told Turley the following:
I am [obligated] by the divorce decree that these payments be made on time to Billie Staley and myself and simply cannot tolerate the way these payments are being made anymore.
|fiIf Billie and I do not have in our hands by Monday, February 12,2007 payments to bring your account current (four months) plus [accumulated] late charges ... without any further notice, I will turn this contract over to an attorney for legal action.
This is final notice on this matter with the intended [sic] to collect a debt.
Turley did not forward the payments, and Staley wrote to him again on February 15, 2007, stating that the four-month arrearage was “not acceptable” and that “due to the payment history on this contract and other points of interest, I no longer wish to carry this note.” Staley declared the contract “terminated and forfeited,” and he gave Turley until March 20, 2007, to vacate the premises. Rice wrote to Turley on March 5, 2007, stating that he would join in Staley’s effort to retake the property.
According to Turley, he tried to contact Rice and Gerald Staley in February to pay off the contract in full, but they did not return his calls. As a result, Turley sued Rice and the Staleys on March 20, 2007, to quiet title to the property and to inter-plead $14,698.17, which he contended was the balance due on the land sale. Rice answered that Turley was in default on the contract and counterclaimed for Turley’s eviction. Turley responded that the parties to the contract had acquiesced to his late payments as a course of dealing; that Rice had no standing to evict him from the property; and that a default judgment should be entered against the Staleys because they failed to answer his complaint. The court refused to enter a default judgment and did not rule on the issue of Rice’s standing. Later in the proceedings, Gerald Staley filed a complaint seeking possession of the property based on Tur-ley’s failure to make | ^payments when due. The court treated Staley’s pleading as a counterclaim, and the issues were thus joined for trial.
During the bench trial, Gerald Staley testified that he had attempted to work with Turley over the years and had al lowed Turley to make late payments. However, Staley said that he never told Turley that he would always make those arrangements. He said that he was constantly negotiating with Turley during the course of the contract and that he finally got “fed up” and wanted his land back. According to Staley, he spoke with Danny Rothstein in February 2007 about Roth-stein’s desire to pay off the balance, but Staley said that he had engaged in those types of payoff discussions from “day one.” He said that, when Turley began calling him after the February 15, 2007 letter, he did not answer Turley’s calls. Staley also testified that he had sent tax statements to Turley but that Turley had failed to pay 2005 and 2006 taxes, causing Staley to have to pay them.
Danny Rothstein testified that he knew that the installment payments were due on the first of the month and that he was aware of the Staleys’ options under the contract. He also said that Mrs. Staley had told him that she needed to receive her payments on time and that she was depending on those funds. However, Rothstein said that he typically made some payments on time while making others two to four .months at a time, due to his seasonal work as a swimming-pool contractor. According to him, Gerald Staley told him that this “wasn’t a problem.” Rothstein also testified that he contacted Staley in January or February 2007 to 17tell him he would have the payoff amount in two or three weeks. However, he said, by the time he obtained the funds, Staley had already sent the February 15, 2007 letter.
Jerry Turley testified that he was aware that payments under the installment contract were delinquent after thirty days and that the contract contained an option for repossession by the Staleys. He also said that he had previously mentioned a possible payoff of the contract to Randy Rice and that Rice had told him that payments needed to be “kept up” until he could make the payoff. Turley said that he tried, unsuccessfully, to contact Rice and Gerald Staley about paying off the contract in February 2007, and he provided cell-phone records of several calls he had made to them between February 16 and 21, 2007. However, he said that he did not have the payoff money until the middle of February, and he acknowledged that his calls to Rice and Staley were made after Staley’s February 15, 2007 letter.
Billie Staley testified that she had requested timely payments from Danny Rothstein. She stated that she never indicated that it was acceptable for the payments to be late and that she never waived any rights under the contract.
Following the hearing, the court denied Turley’s petition to quiet title, granted Rice’s counterclaim for eviction, and granted Gerald Staley’s complaint for possession. The court ordered Turley to immediately return the property to Rice and the Staleys and ordered a refund of all real-estate taxes that Turley had paid. Turley now appeals and argues (1) that Rice did not have standing to evict him, (2) that the circuit court erred in refusing to enter a default judgment against the Staleys, (3) that Rice and the Staleys modified the land-sale ^contract by accepting late payments, (4) that equity abhors a forfeiture, and (5) that he was entitled to file a quiet-title action to assert his rights in the property.
I. Standing
Turley argues first that bankruptcy trustee Randy Rice did not have standing to evict him because Rice did not have possession of, or title to, the real property. Turley’s argument appears to be based on Rice’s admission below that the land itself was not “in receivership,” which Turley interpreted to mean was not part of the bankruptcy estate.
Questions of standing are matters of law, and we review them de novo on appeal. See Bibbs v. Comm. Bank of Benton, 375 Ark. 150, 289 S.W.Sd 393 (2008). However, in this instance, we cannot reach the merits of Turley’s argument. Though he raised the issue of standing below, he did not obtain a ruling from the circuit judge as to whether Rice had standing. It was Turley’s burden to bring the issue to the trial court’s attention for a ruling. Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987). Questions left unresolved are waived and may not be relied upon on appeal. Id.; see also Quapaw Cent. Bus. Imp. Dist. v. Bond-Kinman, Inc., 315 Ark. 703, 870 S.W.2d 390 (1994); Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986) (refusing to consider the issue of standing where the appellant did not obtain a ruling at the trial level). We therefore decline to address Turley’s standing argument.
IflH. Default Judgment
Next, Turley argues that the circuit court should have granted a default judgment against Gerald and Billie Staley because they did not answer his complaint. It is undisputed that Gerald and Billie Staley were served with Turley’s petition and that they did not file a timely answer. However, their codefendant, Randy Rice, did file a timely answer.
Arkansas has long recognized the common-defense doctrine, in which the answer of one defendant inures to the benefit of his codefendants. See Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002). In determining whether the common-defense doctrine is applicable, we focus on whether the answer of the non-defaulting defendant states a defense that is common to all defendants. Id. A defense that applies equally to the other defendants, or even a general denial of the allegations in the complaint, may constitute a common defense. See Sutter v. Payne, 337 Ark. 330, 989 S.W.2d 887 (1999). In the present case, Randy Rice answered that Turley did not have the right to quiet title in the property; that Turley had no legal title; that Turley was in default on his payments under the land-sale contract; and that Turley had been notified of an intent to retake possession of the land. These are the same defenses applicable to the Staleys, and we see no reason why Rice’s answer should not inure to their benefit under the common-defense doctrine. We therefore cannot say that the circuit court abused its discretion in denying a default judgment. See Brooks v. Farmers Bank & Trust Co., 101 Ark. App. 359, 276 S.W.3d 727 (2008) (citing the abuse-of-discretion standard in reviewing a circuit court’s decision to deny a default judgment).
| i nIII & IV. Course of Dealing and Forfeiture
Turley argues that he was not in breach of the land-sale contract because the parties modified the contract terms through a course of dealing by accepting late payments. He also argues that the trial court’s direction that he relinquish the property to Rice and the Staleys after having made over eleven years of payments violates the maxim that equity abhors a forfeiture. Turley’s arguments are well taken.
A seller may waive his right to compliance with the terms of the contract where he has established a course of dealing by accepting late payments from the buyer. See Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998). The waiver remains in effect until such time as the seller notifies the buyer that the seller will no longer accept late payments and will henceforth require strict compliance with the contract. Id.; see also Mercedes-Benz Credit Corp. v. Morgan, 312 Ark. 225, 850 S.W.2d 297 (1993); Duncan v. Malcomb, 234 Ark. 146, 351 S.W.2d 419 (1961). Waiver is a question of fact, and we will not set aside a trial judge’s finding of fact unless it is clearly erroneous. Bright v. Gass, 38 Ark.App. 71, 831 S.W.2d 149 (1992). A finding is clearly erroneous when, although there is evidence to support it, we are left with the firm conviction that a mistake has been committed. See Powhatan Cemetery, Inc. v. Colbert, 104 Ark.App. 290, 292 S.W.3d 302 (2009).
We firmly believe that a mistake occurred in this case. Between 1996 and 2006, the Staleys accepted late payments with regularity and without repercussions to Turley, despite their contractual right to insist on the full balance due or to rescind the agreement. Similarly, 11 , bankruptcy trustee Randy Rice accepted late payments from Turley in 2005 and 2006 with no consequence to Turley other than late fees. This conduct clearly established a course of dealing at variance with the terms of the contract, and under the holdings in Ford Motor Credit, Mercedes-Benz Credit Corp., and Duncan, supra, Rice and the Staleys waived their right to the contractual remedies for late payments. They could have reinvigorated the contract by notifying Turley that they would no longer accept late payments and that they would henceforth demand strict compliance with the contract’s payment terms. But on this requirement, Rice and the Staleys fell short.
Such notice to Turley, if it can be said to exist in this case, could only be found in Rice’s October 2006 letters or Gerald Sta-ley’s February 2007 letters. However, as we read the letters, they did not bring home to Turley, prior to the declaration of default, that the course of dealing that had persisted for ten years was at an end and that the contract would thereafter be strictly enforced. Rice’s first letter charged Turley with breach of contract and threatened repossession based on Tur-ley’s overdue payments. Yet, within days of writing the letter, Rice accepted Tur-ley’s late payments. Rice’s second letter mentions the possibility of foreclosure. But that threat appears to have been directed at the possibility that Turley might have made a full month’s payment to Gerald Staley rather than splitting it between Staley and Rice. Simply put, Rice’s letters did not clearly inform Turley that the parties would no longer accept late payments and that the terms of the contract would be strictly adhered to from then on. Likewise, Gerald Staley’s letters to Turley, while they expressed dissatisfaction with | ^Turley’s payment arrearage, did not abandon the parties’ ten-year course of dealing and inform Turley of a reinstatement of contractual terms in a manner sufficient to retreat from such a lengthy practice. See Mercedes-Benz Credit Corp., supra.
Furthermore, we base our decision not just on Rice’s and the Staleys’ failure to renounce from their waiver, but also on the inequity of the forfeiture in this case. Forfeitures are not favorites of our law, and equity will sometimes offer relief against a forfeiture. See Little Rock Granite Co. v. Shall, 59 Ark. 405, 27 S.W. 562 (1894); Taylor v. Eagle Ridge Dev., LLC, 71 Ark.App. 309, 29 S.W.3d 767 (2000). In this case, Turley made his last installment payment in October 2006. By that point he had paid, on the original fifteen-year, $65,250 contract, a down payment of $6525; over eleven years of monthly installments; and an additional $7,706.95 from timber sales, all of which would have allowed him to pay off the contract with a final installment in April 2009. In March 2007, Turley interpleaded the amount he believed would pay off the contract in full. Yet, the court required him to forfeit both the land and the thousands of dollars in payments that had been accepted by Rice and the Staleys, without regard to whether the payments were late. Given the Staleys’ long history of accepting late payments, the length of time over which Turley made the payments, and the ready presence of payoff funds by virtue of Turley’s interpleader, forfeiture could have and should have been fairly and equitably avoided in this case.
We would be remiss if we did not acknowledge that the land-sale contract in this case contains what is commonly referred to as a nonwaiver clause, even though the parties devote 11sno significant discussion to this topic in their briefs. The contract provides that “[n]o delay in the exercise of the options herein shall be construed as a waiver of such right, but the same may be exercised at any subsequent time.... ” While a non-waiver clause may be upheld, see Interstate Business Men’s Accident Ass’n v. Greene, 132 Ark. 546, 201 S.W. 799 (1918), we must also consider, and weigh equally, the full force and effect of the parties’ conduct under the circumstances of this case. As our supreme court recognized in Berry v. Crawford, 237 Ark. 380, 383, 373 S.W.2d 129, 131 (1963) (emphasis added) (omitting internal citations):
Parties may enter into a valid contract relative to the sale of land whereby they may provide that time of payment shall be of the essence of the contract, so that the failure to promptly pay will work a forfeiture. But the final effect of such an agreement will depend on the actual intention of the parties, as evinced by their acts and conduct; and such a breach of the contract as would work a forfeiture may be waived or acquiesced in. The law will strictly enforce the agreement of the parties as they have made it; but, in order to find out the scope and true effect of such agreement, it mil not only look into the written contract which is evidence of their agreement, but it will also look into their acts and conduct in the carrying out of the agreement, in order to fully determine their true intent. It is a well settled principle that equity abhors a forfeiture, and that it will relieve against a forfeiture when the same has either expressly or by conduct been waived.
Y. Quiet Title
For the above-stated reasons, we reverse and remand the circuit court’s order directing Turley to turn the land over to Rice and the Staleys. We anticipate that, upon remand, the court will determine the amount owed by Turley to pay off the contract, as there is some dispute on this subject. We further anticipate that the court will accept Turley’s interpleader of that amount, then resolve the question of how to divide it among the appellees, at which point Turley’s title in the land may be quieted.
114Reversed and remanded.
PITTMAN and KINARD, JJ., agree. | [
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RITA W. GRUBER, Judge.
| Appellants Phillip Anderson and Mark A. Stephens were tried by a jury and were convicted of second-degree forgery. Anderson was sentenced to serve a term of sixty months’ imprisonment in the Arkansas Department of Correction, and Stephens was sentenced to thirty-six months. Each appellant challenges the sufficiency of the evidence to support his conviction. Anderson raises two additional points, contending that the trial court erred in denying his motion to suppress evidence and abused its discretion in admitting certain testimony under Arkansas Rule of Evidence 404(b). We affirm.
Corporal Dennis Overton of the Arkansas State Police testified at trial that on August 13, 2008, he stopped an eastbound, high-end-model rental car with California tags just past Interstate 30’s 100-mile marker because it was impeding the flow of traffic in the inside lane. He testified as follows regarding the stop, his own observations, and subsequent events that pled to forgery charges being brought against both appellants.
Appellant Stephens, who was driving the car, and appellant Anderson, his passenger, presented Overton California identification cards in their own names, but they had no valid driver’s licenses to show him. Each man appeared to be nervous. Over-ton asked Stephens to step out and meet him behind the car, where Overton could talk to him away from Anderson. Stephens told him he was visiting his mother in Hope and was going to Little Rock to shop and eat. Overton went back to the car, and Anderson gave him basically the same explanation about shopping in Little Rock. Overton asked Anderson why he was so well dressed while Stephens was only casually dressed, and Anderson replied that he had attended church that morning. Because the day was Tuesday, Overton thought the answer unusual.
Overton explained to the men that because there was no one present with a valid driver’s license, state police policy required that their car be towed from the interstate. He called for a tow truck, had Anderson and Stephens stand in separate places on the highway’s shoulder, and performed an inventory search of the car.
The glove box in front of Anderson’s passenger seat contained an empty wallet and all its contents, apparently dumped out; there was no identification but some of the contents indicated that the wallet belonged to Anderson. Overton found checks “laid out ... almost like a deck of cards” on top of an open duffel bag in the trunk. They were printed on perforated paper and were grouped according to the name of each account-holder: Thomas |sBell, Marc Woodyard, and David Roth. Each account displayed an account number and a California address. Stephens told the officer that the checks in the trunk were his, that he had printed them on his Home Depot computer, and that nothing was wrong with those activities.
Overton, remembering that Anderson’s wallet had been dumped into the glove box, noticed him pacing nervously behind the patrol car. This behavior led Overton to believe that Anderson probably had a form of identification matching that on some of the checks. Overton approached him and asked if he had “any kind of other identity on him, or if he was armed, or carrying any kind of narcotics.” Anderson replied in the negative. Overton asked for permission “to search his person for any of those items,” and Anderson agreed.
Overton performed a brief pat-down, checking Anderson’s pockets, and asked him to take off his shoes. Anderson pulled off his left shoe and dumped it out. Then he took off his right shoe but simply left it on the ground. Overton found in it a California driver’s license and a Discover card, both apparently fake, in the name Marc Woodyard, and showing identical California addresses. The photograph on the driver’s license, however, was of Anderson. The checks from the shoe appeared to use the same logo and same paper as those in the car’s trunk. All the checks at issue were introduced into evidence through Overton’s testimony.
Overton was able later to determine from checking the Discover card’s authenticity that it indeed was invalid. He testified that he also received from California copies of 1 ¿Anderson's and Stephens’s driver’s licenses, which he examined before bringing them to trial. He testified that the people shown on the licenses were the same men being tried in the courtroom. He also testified that he had compared Anderson’s photograph with the Woodyard license formerly in Anderson’s possession and determined them “the same.”
Nancy Hollis, vice president for investigative services at Bank of America, Arkansas, testified as follows about her fraud investigation of some of the checks at issue. Roth had two accounts with the bank, withdrawals had been made from each, and Roth made police reports of the withdrawals. Although the Roth checks that Hollis investigated showed a valid name, their address was not valid, and he had reported to the bank fraudulent activity. Three unauthorized electronic-cash withdrawals had taken place on the account — one at Bank of America’s Geyer Springs branch in Little Rock, another at the Levy branch in North Little Rock, and the last at the main bank in Mt. Pleasant, Texas.
Hollis explained that if a teller is convinced that a person who presents two pieces of identification and a valid account number is indeed the holder of the account, the person’s withdrawal transaction on the account can be completed. Two withdrawals were made on the same day on accounts bearing Roth’s name: one for $1500 at the Levy branch, and one for $3500 at Geyer Springs. A California driver’s license and a Discover card were used as proof of identity in the Levy withdrawal; an Arkansas driver’s license and a Discover card were used at Geyer Springs. A $3600 withdrawal occurred three days later at Mt. Pleasant.
It appeared to Hollis that Anderson was the person depicted in surveillance-camera 1 «¡photographs made at the Mt. Pleasant and Geyer Springs branches. The Geyer Springs photographs were made on August 19, 2008, at the time when a withdrawal on David Roth’s account occurred there; the Mt. Pleasant withdrawal, however, occurred on August 22, 2008. Hollis was unable to obtain photographs from cameras at the Levy branch by the time of trial.
Hollis testified that all of the checks Stephens and Anderson had possessed bore the same Sandpiper logo.- The logo also appeared on a separate Roth check that was under her investigation: she did not know whether it had been reported as a fraudulent transaction, where it had been cashed, or whether Roth had been notified of it. Hollis could validate only one of two account numbers that were shown on Marc Woodyard checks in the possession of Stephens and Anderson. They also had possessed checks showing Thomas Bell as the account holder, but the true account holder of the checks’ account number was actually Thomas Ebel; his address in California was different than the one shown, and he had reported to Bank of America some unauthorized activity on the account. Finally, there were two different account numbers on the Marc Woodyard checks that Stephens and Anderson had possessed; Hollis recognized only one account as legitimate, and there was report of no fraudulent activity on it.
Substantial Evidence to Support Appellants’ Convictions
Arkansas Code Annotated § 5-37-201(a) (Supp.2009) states that “[a] person forges a written instrument if, with purpose to defraud, the person makes, completes, alters, counterfeits, possesses, or utters any written instrument that purports to be or is calculated to |fibecome or to represent if completed the act of a person who did not authorize that act.” Forgery of a check constitutes second-degree forgery. Ark. Code Ann. § 5 — 87—201(c)(1) (Supp.2009).
At the close of the State’s case, both appellants moved for directed verdicts on the basis that there was no proof that their possession of checks and a credit card was unauthorized or that they intended to defraud anyone. The motions were denied. Neither appellant presented evidence in his own behalf.
A direeted-verdict motion is a challenge to the sufficiency of the evidence. Taylor v. State, 77 Ark.App. 144, 72 S.W.3d 882 (2002). When the sufficiency of the evidence is challenged, we consider only the evidence that supports the verdict, viewing the evidence in the light most favorable to the State. The conviction will be affirmed if it is supported by substantial evidence, which is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Spight v. State, 101 Ark.App. 400, 278 S.W.3d 599 (2008). Because intent is seldom shown by direct evidence and usually must be inferred from the circumstances surrounding the crime, jurors are allowed to draw upon their common knowledge and experience to infer it from the circumstances. Id. Because of the obvious difficulty in ascertaining a defendant’s intent, a presumption exists that a person intends the natural and probable consequences of his or her acts. Id.
Appellants rely upon Arkansas cases reversing forgery convictions to argue that the State was required to present the account owners’ testimony that they had not authorized appellants |7to possess and use their checks and credit card. In Johnson v. State, 236 Ark. 917, 370 S.W.2d 610 (1963), a handwriting expert’s testimony constituted competent evidence that Johnson had signed the account holder’s name on his check, but there was no evidence that he had not authorized Johnson to sign it. Likewise, in Askew v. State, 280 Ark. 304, 657 S.W.2d 540 (1983), the State presented no evidence that the signature was unauthorized. Those two cases are distinguishable from the present one, and they do not support the arguments now presented to us.
Stephens and Anderson argue that there was neither proof that they lacked authorization to possess forged items nor proof that they possessed the items for the purpose of defrauding the respective account holders. We do not agree. First, Roth and Ebel’s reports of fraudulent activity on their accounts showed that Anderson was not authorized to access Roth’s account and did so for the purpose of defrauding him. There were photographs and receipts showing that Anderson made three withdrawals from Roth’s account within days of his arrest in Arkansas for forgery. Appellants possessed not only checks bearing the names of Roth, Ebel, and Woodyard, but also a Discover card and driver’s license in Woodyard’s name, the license bearing Anderson’s picture. Roth could not have authorized appellants to possess a fake driver’s license. Further, proof that Anderson used a Discover card and driver’s license when representing himself to be Roth suggests that the items bore Roth’s name and Anderson’s photograph. Finally, Stephens drove the car in which the fake checks and other documents were located, and he told Corporal Overton that the checks were his and he had |sprinted them.
Neither do we find merit to an argument by Anderson that no fraudulent transactions occurred in Hot Spring County. Section 5-37-201(a) provides that merely possessing the forged items is sufficient to prove forgery. Thus, the circuit court properly denied a directed verdict for each appellant.
Anderson’s Motion to Suppress Evidence
Anderson filed a pretrial motion to suppress evidence obtained by illegal search. The trial court conducted a suppression hearing, at which Overton testified essentially as he did at trial. Anderson argued that he had committed no offense to justify being searched, that the request to remove his shoes was beyond the scope of a pat-down search, and that the search of the car was illegal. The trial court denied the motion to suppress, ruling that Overton reasonably suspected criminal activity based upon his own observations, that Anderson freely consented to the search of his person, and that Anderson lacked standing to contest the search of the car.
In reviewing a circuit court’s denial of a motion to suppress evidence, 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. Baird v. State, 357 Ark. 508, 182 S.W.3d 136 (2004). The credibility of witnesses who testify at a suppression hearing is for the trial judge to determine, and the appellate court defers |9to that determination. Id.
Anderson argues on appeal only that he consented to nothing more than a pat-down search and that Corporal Overton’s request that Anderson remove his shoes exceeded the scope of his consent. Anderson relies upon the holding of Howe v. State, 72 Ark.App. 466, 39 S.W.3d 467 (2001), that the seizure of a “hard ball” subsequently shown to be tin foil wrapped around methamphetamine exceeded the scope of an officer’s pat-down search for weapons. Here, however, nothing suggests that Anderson attempted to limit the scope of the search or that Overton represented to him that its purpose was to check for weapons. The search was not a pat-down for officer safety but was for the purpose of determining if Anderson possessed anything related to the checks in the trunk of the car. Moreover, Overton suspected that something was amiss based upon what he had seen and on Anderson’s nervous behavior. The Fourth Amendment is not implicated when a person voluntarily consents to a search of his person, and it is not even necessary that the officer have probable cause or reasonable suspicion to request consent for the search. E.g., Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993); see also Welch v. State, 364 Ark. 324, 219 S.W.3d 156 (2005). Here, the circuit court correctly found that the search was proper and did not exceed the scope of consent based upon the purpose of the search, and we affirm the denial of Anderson’s motion to suppress.
Admission of Evidence of Anderson’s Subsequent Acts and Photos under Rule J,0f(b)
The circuit court overruled Anderson’s objections before and during trial to Ms. [ inHollis’s testimony about his actions of making electronic transfers from Roth’s account days after his Arkansas arrest and to surveillance photographs that appeared to show him as the person making those transactions at banks in Geyer Springs and Mt. Pleasant. The court ruled at the conclusion of the pretrial hearing that the records Hollis relied upon were the kind she normally relied upon in conducting bank business and making her decisions, and that her testimony about the fraudulent transactions was proper under Ark. R. Evid. 404(b) (2009).
Under Ark. R. Evid. 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove character, but the evidence may be admissible for such purposes as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The rule applies to evidence of prior and subsequent bad acts. Fitting v. State, 94 Ark. App. 283, 229 S.W.3d 568 (2006). Trial courts are afforded wide discretion in evidentiary rulings; specifically, a trial court’s ruling on issues relating to the admission of evidence under Rules 401, 403, and 404(b) is entitled to great weight and will not be reversed absent an abuse of discretion. Id.
Here, there was evidence that, within days of Anderson’s arrest and his possession of a Discover card and driver’s license in Woodyard’s name, someone went to three Bank of America locations to withdraw money from Roth’s account, using as identification a California driver’s license and Discover card bearing his name. Surveillance photographs at two of the locations apparently showed Anderson to be the person, a determination that the jury could have made by comparing the photos with his actual person. The car in which |nAnderson was riding contained checks bearing Woodyard’s and Roth’s name, and Roth had reported fraudulent action on his account. The circuit court properly admitted the disputed evidence under Rule 404(b) to show Anderson’s motive, intent, plan, and knowledge. Because it was relevant for those purposes, its prejudicial effect did not outweigh its probative value.
Affirmed.
MARSHALL and HENRY, JJ., agree. | [
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PAUL E. DANIELSON, Justice.
liAppellants William Kistner and William Kistner, Jr., appeal the order of the Pulaski County Circuit Court granting appellee Integrated Distribution, Inc.’s motion for summary judgment. The Kistners argue on appeal that the circuit court erred in granting summary judgment in favor of Integrated Distribution. We disagree and affirm the order of the circuit court.
On March 14, 2003, Integrated, an authorized motor carrier, entered into a motor-vehicle lease and operating agreement with Lyman Hinson, president of Tuffer Enterprises, Inc., an Arkansas corporation and owner of a commercial truck. The agreement indicated that Lyman Hinson was an independent contractor who would provide equipment and drivers to Integrated to complete a job.
l;On October 19, 2003, the Kistners were traveling east on Interstate 40 in North Little Rock, Arkansas, when their vehicle was struck from behind by George Cupples, the driver who had been hired to haul trailers owned by Integrated per the agreement between Integrated and Hinson. As a result of the accident, the Kistners’ vehicle was destroyed, and the Kistners sustained multiple injuries. On September 12, 2008, the Kistners filed a complaint against Cupples, Tuffer, and Integrated, alleging that Cupples’s negligence was the proximate cause of the accident and that both Tuffer and Integrated were also responsible for that negligence as his employers.
Integrated answered the complaint and then filed a motion for summary judgment on January 1, 2009. In its motion for summary judgment, Integrated asserted that it was not liable for the actions of Cupples because the agreement between Integrated and Hinson established an independent-contractor relationship and Cupples was not an employee of Integrated. Furthermore, Integrated argued that, at the time of the accident, Cupples was not performing any service for Integrated as he was operating the truck without a trailer attached (also known as “bobtail-ing”). The Kistners responded and filed their own summary-judgment motion.
The circuit court held a hearing on May 4, 2009, on the cross-motions for summary judgment. On May 6, 2009, the circuit court entered its order granting summary judgment |Rin favor of Integrated and denying the Kistners’ motion for summary judgment. The Kistners timely appealed, and we now turn to the merits of their argument.
The Kistners contend that the circuit court erred in granting summary judgment in favor of Integrated because feder al law preempts state common-law defenses, that drivers of leased vehicles are “statutory employees” as a matter of law, and that, even under traditional notions of common law, Integrated is vicariously liable for the acts of Cupples. Integrated avers that employment status is to be determined under state law; that drivers of leased vehicles are no longer considered statutory employees; that Cupples, per the agreement and the established independent-contractor relationship, was not an employee of Integrated at the time of the accident; and that, even were a court to determine Cupples was an employee of Integrated, he was acting outside the scope of the agreement at the time of the accident.
Summary judgment may only be granted when there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. See K.C. Props, of Nw. Ark., Inc. v. Lowell Inv. Partners, LLC, 373 Ark. 14, 280 S.W.3d 1 (2008). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. See id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. See id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences |4against the moving party. See id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. See id.
The Kistners first argue that federal law, along with the regulatory framework of the Federal Motor Carrier Safety Administration (FMCSA), preempts state-law concepts of respondeat superior in the instant case and controls the determination of the employment status of Cupples. The FMCSA has specific written lease requirements for a lease made between an authorized carrier and the owner of the equipment. See 49 C.F.R. § 376.12. In compliance with the requirements, the lease in the instant case provided, among other things, that “[Integrated] shall have exclusive possession, control, and use of Equipment and shall assume complete responsibility for its operation during this Agreement.” See 49 C.F.R. § 376.12(c)(1). However, as Integrated argues in its brief, the regulations were amended in 1992 to include the following clarification:
Nothing in the provisions required by paragraph (c)(1) of this section is intended to affect whether the lessor or driver provided by the lessor is an independent contractor or an employee of the authorized carrier lessee. An independent contractor relationship may exist when a carrier lessee complies with 49 U.S.C. 14102 and attendant administrative requirements.
49 C.F.R. § 376.12(c)(4).
While the Kistners ask this court to conclude that drivers of leased trucks are “statutory employees” of the authorized motor carriers-lessees, the legal authority they cite all date back R prior to the 1992 amendment. Specifically, they cite Simmons v. King, 478 F.2d 857 (5th Cir.1973) as the leading case for this analysis. However, the Simmons court specifically held that
[sjince under the lease [the carrier-lessee] assumed exclusive possession, control, and use of the vehicle and responsibility to the public then [the driver] became his statutory employee, and as such [the carrier-lessee] was vicariously liable as a matter of law for the negligence of the [driver].
478 F.2d 857, 867 (emphasis added). The Simmons court was clearly relying on the exact language that section 376.12(c)(4) now specifically instructs should not affect whether the driver provided by the lessor is an independent contractor or an employee of the authorized carrier-lessee. In light of the 1992 amendment, it seems clear that the “statutory employee” interpretation of the regulation that was used in the past is no longer a proper interpretation. See Bays v. Summitt Trucking, LLC, 691 F.Supp.2d 725 (WD.Ky.2010) (quoting Penn v. Va. Int’l Terminals, Inc., 819 F.Supp. 514, 523 (E.D.Va.1993)) (finding that the 1992 amendment renders older cases that held lessee-carriers strictly liable for owner-operators’ negligence “a misrepresentation of the regulation”).
We now turn to our state law for guidance. Integrated argues, as it did below, that the agreement between it and Tuffer and/or Lyman Hinson established an independent-contractor relationship with Tuffer and/or Lyman Hinson and his drivers, which included Cupples. There is no fixed formula for determining whether a person is an employee or an independent contractor; thus, the determination must be made based on the particular facts of each ease. See Ark. Transit Homes, Inc. v. Aetna Life & Cas., 341 Ark. 317, 16 S.W.3d 5451 n(2000). The following factors are to be considered in determining whether one is an employee or independent contractor:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.
Dickens v. Farm Bureau Mut. Ins. Co., 315 Ark. 514, 517, 868 S.W.2d 476, 477-78 (1994) (citing Blankenship v. Overholt, 301 Ark. 476, 786 S.W.2d 814 (1990) (citing Restatement (Second) of Agency § 220)).
We have long held that an independent contractor is one who contracts to do a job according to his own method and without being subject to the control of the other party, except as to the result of the work. See Ark. Transit Homes, supra; Johnson Timber Corp. v. Sturdivant, 295 Ark. 622, 752 S.W.2d 241 (1988); Moore v. Phillips, 197 Ark. 131, 120 S.W.2d 722 (1938); W.H. Moore Lumber Co. v. Starrett, 170 Ark. 92, 279 S.W. 4 (1926). The governing distinction is that if control of the work reserved by the employer is control not only of the result, but also of the means and manner of the performance, then the relation of |7master and servant necessarily follows. But if control of the means be lacking, and the employer does not undertake to direct the manner in which the employee shall work in the discharge of his duties, then the relation of independent contractor exists. See Ark. Transit Homes, supra (citing Massey v. Poteau Trucking Co., 221 Ark. 589, 254 S.W.2d 959 (1953)). The right to control is the principal factor in determining whether one is an employee or an independent contractor. See id. It is the right to control, not the actual control, that determines the relationship. See id. (citing Taylor v. Gill, 326 Ark. 1040, 934 S.W.2d 919 (1996)).
The agreement in the instant case listed Lyman Hinson as an independent contractor. He is referred to as “Contractor” in the agreement, and Integrated is referred to as “IDI.” Aside from the language complying with 49 C.F.R. § 376.12(c)(1), the agreement also contained the following pertinent language:
1. EQUIPMENT: Contractor represents that he has title to, or exclusive use of, or lawful possession plus registration and license in his name of the Equipment identified in the attached Statement of Lease and Receipt for Equipment, and Contractor further represents and warrants that the Equipment is in good, safe and efficient operating condition as required by law and by good practices and shall be so maintained at Contractor’s expense. Contractor shall provide Equipment and qualified drivers who have been approved by IDI.
9. COSTS OF OPERATION: Except as otherwise provided herein, Contractor shall pay all costs of operation including but not limited to the items listed in this paragraph
(c) Taxes, assessments, premiums and other payments due by reason of the payment |sby Contractor of wages or other earnings to his employees
(f) Deadhead and bobtail liability and property damage while the Equipment is not being operated in the service of IDI
17. INSURANCE AND CLAIMS: IDI maintains public liability and property damage insurance coverage while Contractor is operating under IDI dispatch.
(a) Contractor shall maintain no fault, uninsured motorist coverage required by individual states. If IDI has not been qualified as being self-insured, then Contractor authorizes IDI to reject no fault, uninsured motorist and underin-sured motorist coverage from IDI’s insurance policy.
(b) Contractor shall maintain a public liability and property damage insurance policy for operation of the Equipment other than under dispatch with an IDI load. This insurance policy shall have a combined single limit of not less than $1,000,000.00 for injury to persons or for damage to property in any one occurrence. This insurance policy shall apply whenever the Equipment is operating either “bobtail” or “deadhead,” and shall name IDI as an additional insured, and shall provide for waiver of underwriter’s subrogation rights against all insureds, and shall be primary with respect to all insureds. As used in this subparagraph, operating “bobtail” means without a trailer attached.... Contractor acknowledges that Contractor shall be solely responsible for any loss in excess of this insurance policy limit.
18. INDEMNITY: Contractor shall defend, indemnify and hold harmless IDI from claims, losses, damages, expenses, attorney’s fees, actions and claims for injury to or death of persons and damage to property arising out of or in connection with operations hereunder. ...
19. WORKER’S COMPENSATION: This Agreement is intended by the parties to create an independent-contractor relationship and not an employer-employee relationship. Neither Contractor nor Contractor’s employees or agents or any individual providing any service to Contractor is entitled to worker’s Compensation coverage or benefits from IDI. Contractor will provide, prior to commencing operations, a Certificate of Insurance acceptable to IDI for self-employment, including | ¡¡evidence of occupational accident coverage for Contractor and evidence of workers compensation insurance coverage for Contractor’s employees, and further providing that 30 day advance written notice of cancellation or modification of the policy shall be given to IDI. Upon receipt of notice of cancellation or modification, IDI may, at its sole discretion, make premium payments to continue the coverage and deduct such payments from settlements or reserve fund or terminate this Agreement.
24. UNAUTHORIZED USE OF EQUIPMENT: If Contractor operates Equipment in any manner varying from regulations, or beyond the scope of the operating authority of IDI, or for any other purpose not permitted by this Agreement, then this Agreement, except those provisions relating to indemnification of IDI by contractor, will, at IDI’s option, be deemed terminated as of the time that such unauthorized use occurred.
26. CONTRACTOR RELATIONSHIPS: In recognition of the independent-contractor relationship which exists between the parties, the parties acknowledge that Contractor has the right to determine the manner and means of performing all haulage hereunder, provided, however, that when a load is accepted by Contractor, the haulage will be performed in compliance with laws and regulations and in accordance with the requirements of the shipper and consignee. The parties acknowledge that their respective acts and omissions in their performances under this Agreement are only to be construed, received and acted upon by the other in the context of the independent-contractor relationship provided for herein.
Additionally, “Addendum A” to the agreement again specified that “Contractor provides: Bob Tail/Unlading Insurance and O/A or Workers Compensation Insurance.”
It is clear from the agreement that the intent of both parties was to create an independent-contractor relationship. Tuf-fer was to provide Integrated with qualified drivers, pay for the majority of operating costs, and specifically recognized its independent-contractor relationship. In addition to the agreement, Integrated also submitted with its summaryjjudgmentin motion an affidavit of Mike Moon, Vice President of Human Resources at Wagner Industries, for which Integrated was a wholly owned subsidiary at the time of the accident at issue here. Moon indicated that Integrated did not authorize Tuffer or its drivers to accept money on its behalf; Integrated paid Tuffer directly for the work performed and not its drivers; Integrated did not control the routing of trucks, but paid by miles; Integrated owned the trailers to be hauled by Tuffer and did not pay for the maintenance or repair of the equipment owned by Tuffer; Tuffer was to provide workers’ compensation benefits for its drivers; and, Integrated provided a removable sign that included its Department of Transportation identification number for use while its loads were being hauled rather than requiring Tuffer to paint or maintain any other identification on its trucks. Moon’s affidavit supports Integrated’s contentions that Tuffer, along with its driver, was an independent contractor and that Integrated did not have the “right to control” the substantive performance of the contract.
This holding is consistent with a holding of an Arkansas federal district court in Brown v. Truck Connections Int’l, Inc., 526 F.Supp.2d 920 (E.D.Ark.2007). In Brown, Penske Truck Leasing Company contracted with Truck Connections International (TCI) to transport the Penske-owned vehicles. See id. After a fatal collision, suit was brought against Penske, TCI, and the two drivers. See id. The court found that Penske had no right to control the specific conduct of TCI; that although the contract required TCI carry insurance and to deliver the Penske trucks in accordance with Penske’s delivery schedule, such terms are standard in that |ntype of contract; and that Penske does not designate how TCI is to transport the trucks, specifically, the route to take, or the drivers to employ. See id. Accordingly, the court held that Penske did not have the “right to control” how TCI transported Penske’s trucks and there was no genuine issue as to whether TCI was an independent contractor or an employee. See id. Therefore, Penske was not held liable for the allegedly negligent acts of the drivers hired by TCI. See id.
Integrated, much like the relationship between Penske and TCI in Brown, supra, did not control how Tuffer was to haul its trailers or the routes they were to take, as that was the substantive performance for which Integrated contracted. In addition, the agreement certainly establishes that Integrated was most definitely not in control when Tuffer’s drivers were “bobtailing.” As noted in the agreement, bobtailing means operating without a trailer attached. Per the agreement, under costs of the operation, Tuffer was to pay for “bobtail liability and property damage while the Equipment [was] not being operated in the service of IDI.” At the time of the accident, Cupples was no longer hauling a load for Integrated. He was operating the truck without a trailer attached; he was “bobtailing.” Therefore, per the agreement, Cupples was no longer operating in the service of Integrated.
For these reasons, we conclude that summary judgment in favor of Integrated was proper, and we affirm the order of the circuit court.
Affirmed.
. The original complaint was filed on December 2, 2005; however, it was dismissed without prejudice on October 1, 2007.
. The FMCSA adopted the rules and regulations that had been promulgated by the former Interstate Commerce Commission. | [
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