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James R. Cooper, Judge.
The appellant was arrested and charged with theft by receiving. At the time of his arrest the appellant had in his possession an Apple He computer. The computer had been stolen from Reed Elementary School in Dumas, Arkansas. After a jury trial, the appellant was found guilty of misdemeanor theft by receiving, sentenced to one year in the county jail and fined one thousand dollars. The appellant argues three points for reversal, one of which we find has merit. We agree that the lack of notice of the trial date and the trial court’s refusal to grant a continuance deprived the appellant of his right to effective counsel. Therefore, we reverse and remand for a new trial.
The appellant first argues that the trial court erred in denying his motion for a directed verdict at the close of the state’s case in chief. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Armstrong v. State, 12 Ark. App. 143, 671 S.W.2d 772 (1984). As required by the Arkansas Supreme Court’s decision in Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), we must first consider the appellant’s contention that the evidence was insufficient to support his conviction. Reviewing the evidence, including possibly inadmissible evidence, in the light most favorable to the appellee, we will affirm if the verdict is supported by substantial evidence. Biniores v. State, 16 Ark. App. 275, 701 S.W.2d 385 (1985); Harris v. State, supra. Substantial evidence must be of sufficient force and character to compel a conclusion one way or the other with reasonable certainty. It must induce the mind to go beyond mere suspicion or conjecture. Harris v. State, supra; Jones v. State, 11 Ark. App. 129, 668 S.W.2d 30 (1984).
In summary, the testimony reveals that, acting on a tip, the Dumas Police Department interrogated Rufus Watson about the theft of the computer. Watson indicated that a friend of his, Larry Randolph, may have been involved in the theft. Watson agreed to attempt to purchase the computer from Randolph while wearing a body mike. Randolph indicated that he had pawned the computer to the appellant. Watson then agreed to attempt to purchase the computer from the appellant while wearing the body mike. While in the appellant’s home Watson saw the computer sitting on the dining table.
Two police officers then went to the appellant’s home and told him that they believed he had the stolen computer. At first the appellant denied it, but then admitted that he had it and he consented to a search. The serial number on the computer retrieved from the appellant matched the serial number supplied by the school’s principal. Donald Moore, one of the police officers, testified that the computer was sitting on top of a newspaper which contained an article offering a reward for the return of the computer.
At trial, Randolph was granted immunity, and he admitted stealing the computer from the school. He stated that he hid it in the trunk of a car at a salvage yard. Randolph stated that he then approached the appellant about the computer, explaining that he had traded a three wheeler for it. Randolph stated that he “pawned” the computer to the appellant for $100.00. Randolph testified that the appellant accompanied him to a salvage yard to get the computer.
Under Ark. Stat. Ann. § 41-2206(1) (Repl. 1977), a person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen, or having good reason to believe it was stolen. The unexplained possession or control by a person of recently stolen property, or the acquisition by a person of property for a consideration known to be far below its reasonable value, gives rise to a presumption that he knows or believes that the property was stolen. Ark. Stat. Ann. §§ 41-2206(3) and 41-110(5) (Repl. 1977).
The testimony that the appellant gave Randolph only one hundred dollars for a computer valued at one thousand dollars and the fact that the appellant accompanied Randolph to the salvage yard to retrieve the computer supports the jury’s finding that the appellant knew or had reason to believe that the computer was stolen. Therefore, we hold that there was sufficient evidence to support the verdict.
Immediately before the trial, the appellant requested a continuance, explaining to the trial court that he had received notice of the time and date of trial three or four days previously, and that his attorney did not have sufficient time to prepare for the trial. The trial court denied the motion, and the trial began immediately thereafter. The appellant argues that this lack of notice and denial of a continuance effectively denied him his right to effective assistance of counsel and prejudiced him. We agree with the appellant’s contention.
The question of a continuance is within the discretion of the trial judge. Golden v. State, 265 Ark. 99, 576 S.W.2d 955 (1979). The burden is on the appellant to show that there has been an abuse of discretion. Thorne v. State, 269 Ark. 556, 601 S.W.2d 886 (1980). In each situation this Court must look at the particular circumstances of the case at bar and the issue must be decided on a case by case basis. Thorne, supra; Tyler v. State, 265 Ark. 822, 581 S.W.2d 328 (1979). Therefore, it is necessary to examine all of the surrounding facts and circumstances of this case.
The appellant made his first appearance on June 11, 1985. At that time he informed the court that he did not have the funds to hire an attorney, but he planned to sell his house to raise the necessary funds. Plea and arraignment was set for September 9, 1985. On September 9, the court entered an order setting plea and arraignment for October 16,1985. The docket sheet shows that on October 16, 1985, the appellant appeared pro se and the matter was continued on request of the appellant. According to the state, the appellant was told to return on November 25,1985, with an attorney. The appellant testified that he did not remember being told to return. The appellant did not appear for the November hearing and testified that he had no knowledge of the hearing until the day before the trial. The docket sheet does not reflect that the appellant did not appear nor was there a bench warrant issued. The appellant also stated that for all previous hearings he had either been served notice by the sheriffs deputy, or he received notices in the mail.
The trial date was set in November for January 22, 1986. Notice was given to the sheriffs office to be personally served; however, the sheriffs deputy testified that he was unable to find the appellant. The sheriff’s deputy stated that previously he had served the appellant at the appellant’s business. However, in this case, he attempted seven to ten times to serve the appellant there, but each time he went the business was locked up with the appellant’s truck parked outside. He stated that he asked one of the appellant’s neighbors about the appellant’s whereabouts and was told that the appellant had sold his house and moved. The deputy did not attempt to talk to any other neighbors or to contact the new owners of the home.
Employees of both the sheriffs office and the Circuit Clerk’s office admitted that no attempt had been made to mail notice to the appellant. Although the appellant did not notify either the court or sheriffs office about his move he had made arrangements with the post office to have his mail forwarded.
Sometime, in the first two weeks of January, notice was mailed to the appellant’s attorney and the surety on the appellant’s bond. Larry Dunklin was listed on the bond as the appellant’s attorney, but, according to the docket sheet, there was no attorney of record. Mr. Dunklin contacted the Clerk’s office and informed them that he had not been retained as the appellant’s attorney. (Mr. Dunklin, however, did represent the appellant at trial.) The appellant was notified of the trial date by the surety on his bond.
The appellant testified that he called the sheriffs office to find out when his trial was, after talking with the surety. A secretary with the sheriffs office confirmed that on either Thursday or Friday, January 16 or 17,1986, the appellant called and she told him the trial was to be on Wednesday, January 22, 1986.
The appellant testified that he had not hired his attorney until January 22,1986, because in the past he had gotten notice through the mail and was waiting for the notice to come. Although he sold his house in either late November or early December, he waited for the notice to hire his attorney. He stated that he had talked earlier with Mr. Dunklin about representing him, but that he did not have the money to pay an attorney until after the house was sold, and no contract for the attorney’s services was made until January 22.
Notice of a trial must be given sufficiently early to allow the defendant to prepare and present a defense. Collier v. State, 20 Ark. 36 (1859). The state attempts to distinguish Collier on the basis that notice was not given to either Collier or his attorney. We find the distinction to be without merit, because, although Dunklin received notice, he was not the appellant’s attorney at the time.
This case is similar to U.S. v. Evans, 569 F. 2d 209 (8th Cir.1978). In Evans, the defendant was left without counsel due to the fact that he received conflicting notices of the trial date and his affidavit of indigency in support of a request for an attorney had been misplaced. An attorney was appointed for the defendant on a Friday and the trial was held the following Monday. The court, noting the breakdown in the management of the court calendar as a cause of the defendant’s attorney not being appointed until the eve of trial, found that the district court should have granted a continuance. We find in this case and under these circumstances that the trial court abused its discretion when it refused the appellant’s request for a continuance.
The appellant in this case argues that if he had more time he could have called witnesses who would testify that he was in the habit of loaning money and receiving property as collateral for the loan. This testimony would tend to rebut the presumption that the appellant knew the computer was stolen because he paid substantially less than its value. We decline to consider the appellant’s other allegations of error because they were not presented to the trial court. Russell & Davis v. State, 262 Ark. 447, 559 S.W.2d 7 (1977).
Citing Ark. Stat. Ann. § 27-1403 (Repl. 1977), the state argues that we should not consider the absence of witnesses in determining prejudice because appellant did not provide the names of the witnesses nor affidavits of facts. However, that statute provides that this is required if requested by the opposite party. There is no indication in the record that the state made such a request.
The appellant’s last argument concerns the immunity granted to Randolph. He contends that it was error for the immunity to be granted in the presence of the jury. We need not address this issue because it is unlikely to arise at another trial, since Randolph already has been granted immunity.
Reversed and remanded.
Corbin, C.J., and Coulson, J., agree. | [
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George K. Cracraft, Judge.
Mid-State Homes, Inc., appeals from an order of the chancery court of Miller County granting alternative relief to Annie B. Beverly against it for breach of a contract for the sale of realty. We reach none of the points advanced for reversal because we conclude that the order appealed from was not an appealable one.
Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure provides that an appeal may be taken only from a final judgment or decree by a trial court. To be final, an order must be of such a nature as to not only decide the rights of the parties but also to put the court’s directive into execution, ending the litigation or a separable part of it. Festinger v. Kantor, 264 Ark. 275, 571 S.W.2d 82 (1978); Morgan v. Morgan, 8 Ark. App. 346, 652 S.W.2d 57 (1983). The rule that an order must be final to be appealable is a jurisdictional one which this court is obligated to raise even when the parties do not do so. Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984); Morgan v. Morgan, supra.
Here, the parties entered into a contract for the sale of real estate in 1981. The appellee brought this action contending that, due to the fraud and negligent misrepresentations by the appellant as to the state of the title, the contract should be rescinded. The appellant answered, denying those allegations, and counterclaimed for foreclosure of appellee’s interest under the contract, alleging various breaches of the conditions of the contract on her part. The chancellor found that the appellant was guilty of breach of contract and, as a result of the breach, appellee had the option of either reinstating the agreement and bringing her payments current or rescinding the contract and being refunded the amounts paid toward the purchase price. In the decree, the chancellor made findings as to the amounts due appellant in the event the appellee elected to reinstate the contract and the amount which would be due to the appellee if she elected rescission. The decree ordered and adjudged that:
[I]f [appellee] elects to exercise this option that certain Agreement for Deed dated November 15, 1981, will be reinstated and the first of the remaining monthly installments due under the terms of said agreement shall be payable on or before March 10, 1986.
If the [appellee] elects not to exercise the option provided by this judgment, it is hereby ordered, adjudged and decreed by the Court that after the application of all off-sets to which the [appellant] is entitled, the [appellee] Annie Beverly shall have judgment against the [appellant], Mid-State Homes, Inc., in the amount of [$3,357.14] together with costs of suit and interest thereon. . . .
By this decree, the court has not provided specific relief which may be immediately enforced. The relief to be granted is conditioned upon the action of the appellee. The record does not show that she has made such an election or, if she did, which of the two remedies she elected. As a general rule a conditional judgment, order, or decree, the finality of which depends upon certain contingencies which may or may not occur, is not final for the purposes of appeal. See 4 C.J.S. Appeal and Error, § 96 (1957). We conclude that where a chancery decree grants alternative relief at the election of one of the parties the order is not appealable. Since no final appealable order has been entered in this case, the appeal is dismissed and the case remanded.
Cooper and Mayfield, JJ., agree. | [
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Donald L. Corbin, Chief Judge.
This case comes to us from the Circuit Court of Sebastian County. Appellants, the Lindsey family trust, James E. Lindsey, Trustee, and Giles A. Sexton, M.D., appeal the trial court’s grant of a motion for summary judgment. We reverse and remand.
This appeal raises the question of whether a motion for summary judgment was improperly granted on the basis of the Automatic Stay provision of the United States Bankruptcy Code, 11 U.S.C. § 362(a)(2) (1986). Appellees, Billy J. Cauthron, Sebastian County Sheriff, and his surety, Western Surety Company, argued below, and the trial court agreed, that the automatic stay provision relieves a sheriff from making the return of a writ of execution, issued and delivered to his office, once he has received notice that the judgment-debtor has filed his petition in bankruptcy.
On May 10, 1984, appellants recovered judgment against Ken Morris, d/b/a Ken Print, in the Circuit Court of Sebastian County, for the total sum of $9,964, bearing 10% interest per annum. This judgment was docketed and entered on May 10, 1984. On May 29, 1984, a writ of execution was issued by the Sebastian County Circuit Clerk against Ken Morris, which was duly delivered on that day to the Sebastian County Sheriff, directing him to execute and levy upon Morris’s personal property. The date for the return of the writ of execution by the sheriff was to be on or before July 28, 1984. On July 19, 1984, Ken Morris, d/b/a Ken Print, filed for bankruptcy. As of August 6, 1984, there was no record with the Sebastian County Circuit Clerk of the sheriff filing a return of the writ of execution issued against Morris.
Upon learning of the sheriffs failure to file the return, appellants made formal demand upon the sheriff to make full payment of their judgment, as provided by Ark. Stat. Ann. § 29-208 (Repl. 1979), for the failure to file the return. The sheriff refused appellants’ demand and appellants then filed their complaint at law with the Sebastian County Circuit Court seeking recovery from the sheriff and his surety, Western Surety Company.
Before the scheduled trial of the case, appellees filed a motion for summary judgment, which was heard on October 4, 1985. The trial court granted appellees’ motion and dismissed appellants’ complaint.
Appellants argue two points for reversal on appeal: (1) The trial court erred when it improperly granted appellees’ motion for summary judgment as there existed a genuine issue of material fact for trial; and, (2) the automatic stay provision of the United States Bankruptcy Code does not relieve a sheriff from his duty of filing a return on a writ of execution within the time required by Arkansas law once the sheriff receives notice that a judgment-debtor has filed a petition in bankruptcy.
The trial court made these specific findings: That the petition filed with the Bankruptcy Court by Kenneth Lee Morris, d/b/a Ken Print, operated as an automatic stay of all process and all pending actions against the debtor and the debtor’s assets, that the issuance and service of the writ of execution is an attempt by the creditors to seize assets of the debtor, and that such activity is automatically stayed since the assets and the debtor are under the exclusive jurisdiction of the Bankruptcy Court.
The pertinent sections of 11 U.S.C. § 362 provide as follows:
§ 362. Automatic stay
Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970 (15 U.S.C. § 78eee(a)(3)), operates as a stay, applicable to all entities, of —
(2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title;
(6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title;
Ark. Stat. Ann. § 30-431 (Repl. 1979) provides that all executions shall be returnable in sixty days from their date. Ark. Stat. Ann. § 29-208 provides that judgments shall be rendered for the plaintiffs against the sheriff where there was a failure to return an execution, in the amount of the judgment on which it was issued, including all the costs and 10% per centum thereon.
Basically, appellants’ argument is that the return of the writ of execution must be completed by the sheriff’s office, notwith standing the fact that no seizable property of the judgment debtor is located within the jurisdiction of the sheriff. Appellants cite Atkinson v. Heer & Co., 44 Ark. 174 (1884), which held that, in a proceeding by a judgment creditor against a sheriff and his securities for failure to return an execution, it is no defense that the debtor in the execution was insolvent and that the plaintiff was, therefore, not damaged, nor that the deputy sheriff indorsed a return upon the execution, and went to the clerk’s office to file it, but the clerk was absent and he was afterwards prevented by his official duties from returning to the clerk’s office. In Atkinson the judgment creditor was awarded the amount of the judgment.
In 555, Inc. v. Barlow, 3 Ark. App. 139, 623 S.W.2d 843 (1981), this court quoted the language of the Arkansas Supreme Court in Smith v. Drake, 174 Ark. 715, 297 S.W.2d 817 (1927), which cited Atkinson and defined “return” in the following manner: A return on a writ of execution is the short official statement of the officer, indorsed thereon or attached thereto, of what he has done in obedience to the mandate of the writ or of the reason why he has done nothing.
The sheriff admitted on the stand that the procedure in cases of this type is to file the return on the writ of execution, making a note that it is not collectable because the debtor has filed in bankruptcy court. The sheriff testified that the notation was made on this particular return and it was placed in a stack to go to the clerk’s office. However, the clerk’s office did not have a record of receiving the return within the sixty-day period allowed by the statute. We hold that the automatic stay provision of the bankruptcy code does not relieve the sheriff of the statutory duty to file a return within 60 days. The filing of the return is a ministerial act and it does not change the debtor’s position. To relieve the sheriff of the duty to file the return would create chaos in the clerk’s files. The statute requires a return be filed within 60 days, even where the return merely states that the sheriff did not act against the debtor because the debtor has filed in bankruptcy court. This requirement is essential to the efficient administration of justice.
The Arkansas Supreme Court held in Smith v. Drake, 174 Ark. 715, 297 S.W.2d 817 (1927), that the return of execution consists of the two acts of writing out the statements on the writ or on an attached paper, and the filing. The mere writing out of the statement, the court held, is not sufficient without filing it, and vice versa, the mere filing of the writ with no statement is not a return. E.g., 555, Inc. v. Barlow, 3 Ark. App. 139, 623 S.W.2d 843 (1981).
There is a genuine issue of fact to be determined in this case and the trial court’s action in granting the motion for summary judgment constitutes error. Therefore, we reverse the trial court’s decision and remand this case for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Cracraft and Jennings, JJ., agree. | [
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John E. Jennings, Judge.
Mr. and Mrs. Campbell were divorced in 1982, and later that year, the chancellor ordered that the marital home be sold at private sale within a reasonable time, and if the parties were unable to agree on a private sale, the court would order the home sold at public auction. The house, located in Mena, has three bedrooms, a swimming pool, and four-car garage. In 1985, the wife petitioned to have it sold at public sale, and later that year, with both husband and wife present, the house was sold at public sale for $5,000.00 to the husband. It appears to have been worth more than $40,000.00.
At the hearing on confirmation of the sale, the husband testified that $5,000.00 was a fair price for the house. The wife testified that it was last listed at $49,500.00. The notice of public sale, published in the Mena newspaper, described the property as a lot, without mention of the house.
The chancellor declined to confirm the sale, stating that he could not sleep at night if he did. The basis of his holding was the grossly inadequate price obtained, together with the inadequate notice of sale. He expressly found no fraud.
On appeal, the husband argues that, in the absence of fraud, the chancellor should have confirmed the sale, despite the inadequate price obtained.
These general rules governing the confirmation of judicial sales may be distilled from the cases:
1. Judicial sales are not to be treated lightly, and to give them a certain desired stability, the court should not refuse to confirm a sale for mere inadequacy of price. Keirs v. Mt. Comfort Enterprises, Inc., 266 Ark. 523, 587 S.W.2d 8 (1979); Fleming v. Southland Life Insurance Co., 263 Ark. 272, 564 S.W.2d 216 (1978).
2. When great inadequacy of price is shown, equity will seize upon slight circumstances to go along with the inadequacy of price and justify a refusal to confirm the sale. See Mulkey v. White, 219 Ark. 441, 242 S.W.2d 836 (1951); Stevenson v. Gault, 131 Ark. 397, 199 S.W. 112 (1917). This rule applies even in the absence of fraud or misconduct on the part of the purchaser. National Savings and Loan Association v. Beasley, 185 Ark. 759, 49 S.W.2d 610 (1932); Chapin v. Quisenberry, 138 Ark. 68, 210 S.W. 341 (1919).
3. If the inadequacy of price is so great as to shock the conscience of the court, the court will refuse to confirm the sale even in the absence of other circumstances. See George v. Norwood, 77 Ark. 216, 91 S.W. 557 (1905); Colonial & United States Mortgage Co. v. Sweet, 65 Ark. 152, 45 S.W. 60 (1898).
4. In judicial sales the court is the vendor, and in the exercise of sound judicial discretion, it may confirm or refuse to confirm a sale made under its order. Mulkey, supra; Summars v. Wilson, 205 Ark. 923, 171 S.W.2d 944 (1943).
5. On appeal, in determining whether the chancellor abused his discretion, we do not substitute our decision for that of the trial court but merely review the case to see whether the decision was within the latitude of the decisions that the court could make in a case like the one being reviewed. Fleming, supra; Robbins v. Guy, 244 Ark. 590, 426 S.W.2d 393 (1968).
In the case at bar, the chancellor declined to confirm the sale because of the gross inadequacy of price coupled with the inadequate notice of sale. Under the facts in this case, we cannot say that his refusal to confirm the sale constitutes an abuse of discretion.
Affirmed.
Corbin, C.J., and Cracraft, J., agree. | [
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Melvin Mayfield, Judge.
Appellant, Arkansas Electric Energy Consumers (AEEC), brings this appeal from an order of the Arkansas Public Service Commission (PSC) setting rates for the six classes of customers served by Arkansas Power and Light Company (AP&L). The proceedings arise out of an AP&L rate case in which the parties agreed to the company’s revenue requirement resulting from its allocation of a portion of the costs of the Grand Gulf nuclear power plant in Mississippi. As a part of that settlement, the cost allocation and rate-design issues among the customer classes of AP&L were transferred to a separate PSC docket for hearings. It is from the Commission’s decision in that matter that this appeal was filed.
The appellant contends that the use of what are known as “risk multipliers” in this case is arbitrary, unreasonable, not based on substantial evidence, and discriminatory, all in violation of Ark. Stat. Ann. Section 73-207 (Repl. 1979). Appellant also claims that the use of risk multipliers, as a general proposition, is an impermissible rate-making practice. In addition, the appellant argues that the Attorney General’s participation in this proceeding was beyond his lawful authority. We affirm the Commission in all respects.
The PSC is an appellee and defends its order in this case. AP&L has intervened to support the PSC, claiming that its relations with its customers could be damaged if appellant prevails, even though the company would not see a change in its total revenues. The Attorney General has filed a brief supporting the PSC and contending that his participation in this matter is within his statutory authority.
Upon review in this court, the findings of fact of the Public Service Commission shall be conclusive if supported by substantial evidence. Walnut Hill Telephone Co. v. Arkansas Public Service Commission, 17 Ark. App. 259, 709 S,W.2d 96 (1986); Ark. Stat. Ann. Section 73-229.1 (Supp. 1985). In Southwestern Bell Telephone Co. v. Arkansas Public Service Commission, 18 Ark. App. 260, 265, 715 S.W.2d 451 (1986), we said:
On appeal, we must give due regard to the limitations on the scope of judicial review and to the expertise of the Commission. We may not pass upon the wisdom of the Commission’s actions and must defer to the expertise of the Commission, which derives its ratemaking authority from the Arkansas General Assembly. However, judicial review is not a mere formality, and it is our task to determine whether there has been an arbitrary or unwarranted abuse of the Commission’s discretion, although considerable judicial restraint should be observed in finding such an abuse. It is not for this court to advise the Commission how to discharge its functions in arriving at findings of fact or in exercising its discretion. The question of reasonableness of the actions of the Commission relates only to its findings of fact and to a determination of whether its actions were arbitrary. (Citation omitted.)
And in Southwestern Bell Telephone Co. v. Arkansas Public Service Commission, 19 Ark. App. 322, 327, 720 S.W.2d 924 (1986), we said:
The Commission is free, within its statutory authority, to make the pragmatic adjustments which may be called for by particular circumstances. No public utility has a vested right to any particular method of valuation or rate of return, and the Commission has wide discretion in choosing its approach to rate regulation. Generally, this Court is not concerned with the methodology used by the Commission in arriving at the result as long as the Commission’s action is based on substantial evidence. It is the result reached, not the method employed or the theory, which primarily controls. Our inquiry is concluded if the Commission’s decision is supported by substantial evidence and the total effect of the rate order is not unjust, unreasonable, unlawful or discriminatory. (Citations omitted.)
Furthermore, Ark. Stat. Ann. Section 73-207 (Repl. 1979) provides as follows:
No public utility shall, as to rates or services, make or grant any unreasonable preference or advantage to any corporation or person or subject any corporation or person to any unreasonable prejudice or disadvantage. No public utility shall establish or maintain any unreasonable difference as to rates or services either as between localities or as between classes of service. . . . The Department [Commission] may determine any question of fact arising under this section.
The Arkansas Supreme Court has said that this statute does not prohibit differences in rates, but only prohibits rate differences that are unreasonable. See Wilson v. Arkansas Public Service Commission, 278 Ark. 591, 648 S.W.2d 63 (1983).
When the parties settled the cost of the Grand Gulf rate case and the settlement was accepted by the PSC in September of 1985, it was agreed that, until issues of rate design and cost allocation could be resolved, the resulting rate increase would be apportioned among all customer classes in accordance with existing rates, so that each customer class would receive a proportionate increase. In other words, the status quo with respect to calculation of rates was maintained pending the outcome of this docket. After hearings in this matter, the Commission was not persuaded that the status quo should be changed and left the interim rates intact as permanent rates.
The parties agree that a risk multiplier is defined as a ratio of a customer class’s rate of return to the overall rate of return allowed the utility by the regulatory agency. The average risk multiplier weighted for all customer classes is 1.0, because 1.0 multiplied by the utility’s overall rate of return is exactly equal to the utility’s overall rate of return, no more and no less. Any customer class with a risk multiplier in excess of 1.0 would, in effect, be paying a higher proportional rate of return in its overall electric rate than would a customer class with a risk multiplier of less than 1.0.
The Commission’s opinion traces the history of its use of rate of return or risk multipliers (the terms are used interchangeably), in fixing rates to be charged by AP&L in Arkansas. The opinion points out that these multipliers are related to the overall cost of capital necessary to furnish electricity to the various classes of AP&L’s customer. The multipliers attempt to quantify the relative risk of customer classes as compared to each other and to adjust upward or downward the rates a customer class pays as a result of its own relative risk. It is also pointed out that the Commission has recognized risk differentials among customer classes and has adopted higher risk multipliers for industrial and commercial classes and lower risk multipliers for residential customers. In this case, an expert witness for the appellant testified that those who argue for risk multipliers state that industrial customers are greater risks and, therefore, should pay a greater return on equity. However, because of the inherent problems involved with the measurement of those risks, the Commission stated it has pursued a general policy of “gradual” movement toward equality of risk multipliers, i.e., to move all risk multipliers toward 1.0. The record indicates that some progress has been made in this regard, although the appellant does not believe it has been meaningful or significant and contends that any risk multiplier other than 1.0 is unlawful.
We do not agree that the use of a risk or rate of return multiplier of any number other than 1.0 is unlawful per se. Appellant’s expert witness testified that, although some jurisdictions have eliminated these multipliers, four of the five states he had testified in still use them. While rates that are unduly or unreasonably discriminatory are unlawful, the appellant has cited no authority holding that risk multipliers are unlawful per se, and a number of cases cited in the PSC brief have approved rate differentials that would fall within the definition of such multipliers.
For example, in Arkansas Louisiana Gas Co. v. Corporation Commission, 558 P.2d 376 (Okla. 1976), the Supreme Court of Oklahoma affirmed an order that apportioned the largest part of a rate increase to the utility’s industrial and high volume customers. The Commission’s order found that the cost-of-service rationale no longer reflected the true value of service to customers and based its decision upon an intrinsic value-of-service rationale. This shift in rationale was based upon the desire to protect residential rate payers from more than a fair share of the rate increase, the desire to channel greater quantities of natural gas reserves to “human needs,” and to discourage inefficient and wasteful consumption where alternative fuels could be substituted. In Apartment House Council of Metropolitan Washington, Inc. v. Public Service Commission, 332 A.2d 53 (D.C. 1975), the court affirmed an electric power company’s rate increase. The Commission had held that certain “low usage customers” should not be required to “bear the burden of significant rate increases.” An association of apartment house owners appealed on the basis that the differentials among classes lacked substantial eviden-tiary support. The court said it was “not necessary that differences in rate of return be specifically and quantitatively supported by customer class cost considerations.” It also said that evidentiary support for the Commission’s conclusion appeared in its finding that there was value in “preserving historic usage patterns,” and the court relied upon the Supreme Court’s statement in Colorado Interstate Gas Co. v. Federal Power Commission, 324 U.S. 581 (1945) that:
Allocation of costs is not a matter for the slide-rule. It involves judgment on a myriad of facts. It has no claim to an exact science.
Id. at 589. See also United States Steel Corp. v. Pennsylvania Public Utility Commission, 456 A.2d 686 (Pa. Commw. 1983), where the court agreed with the Commission that a cost-of-service study is merely one tool that may be used in rate-design determinations, and that noncost factors such as the ability of various classes to pay, ability to pass on the utility costs, and the value of service could also be taken into consideration.
As to whether the rates fixed in the instant case are unreasonable, it should be remembered that the Commission was concerned with the allocation of AP&L’s rate-increase requirement that resulted from the Grand Gulf settlement. Rate of return or risk multipliers had been used in fixing the rates already in place, and the rates necessary under the settlement were simply increased proportionally. The utility was in favor of this action because it was not convinced that any compelling reason existed which justified a shift in rate responsibility from one class of customers to another. It also felt that the resulting instability of any such change should be avoided.
The appellant, however, opposed any use of multipliers, and its expert witness recommended that they be abolished over a period of two or three years even though large rate changes would result. On the other hand, the PSC’s expert witness testified that the rate of return or risk multipliers for the appellant’s customer class was reasonably close to 1.0. He also said, given the cost-of-service analysis available, he did not think the multiplier was unreasonable.
The Commission also had evidence before it that industrial customers are more elastic in their demands than residential customers and more likely to reduce consumption, adopt alternate technology, or simply leave the AP&L system in response to rising costs of electricity. It is obvious, and the Commission noted, that loss of use from a single industrial customer is more likely to be greater than that created by even many residential customers. Based upon the record before it, the Commission found that an equal percentage increase to all customer classes, of the rates already in force, was “in the public interest.” It also declined to establish a specific timetable for the eradication of risk multipliers but stated it would continue to address this issue on a case by case basis, in a manner consistent with its stated policy of gradual movement of all multipliers toward 1.0.
It is agreed that the expert witnesses faced a problem not found in most rate cases: a normal “cost-of-service” study assigning to the various customer classes their respective allocations of a utility’s cost-of-service was not available. The task of cost allocation was therefore magnified, regardless of the particular methodology employed. In a normal rate case, risk multipliers can be viewed as an end result or, at the very least, can be easily calculated after the parties have finished arguing over which cost allocation methodology should be employed. The only cost-of-service study available in this case, for reasons not entirely clear in the record, had to be updated by the expert witnesses based upon what they believed to be reasonable assumptions in order to make their estimates current. It is not apparent that the expert witnesses even agreed with each other as to these assumptions.
Steven Baron, appellant’s expert witness, testified that for the Residential class of customers the risk multiplier was 0.83 and for the Large General Service class (composed of AEEC’s members) the risk multiplier was 1.23. Dr. Keith Berry, a PSC staff witness, used a different methodology from Baron and calculated the Residential class’s risk multiplier at about 0.96 and the Large General Service’s risk multiplier at 1.07. The Commission adopted Dr. Berry’s approach and found that the risk multipliers were “reasonably close to one.” In addition, the Commission found that the risk multiplier for the Large General Service class was approximately 1.0 if an adjustment was made for the Large Power Special Class (which is composed of one customer: Reynolds Metals).
From our review of the voluminous record, we conclude that the Commission’s decision in this case should be affirmed. The law discussed above clearly shows that there is ample authority for a rate-making agency to establish different rates for different classes of customers. Different rates are certainly related to the cost of service but, as the above cases hold, that concept involves a “myriad of facts” and other considerations are also proper. Those cases involved several considerations that are involved in this case, either in the same or similar form, and which the Commission specifically considered. We are, of course, not concerned with the methodology used by the Commission as long as it is based on substantial evidence and does not result in rates that are unlawful or unreasonable.
This case is not one in which the Commission has misapplied a particular formula about which there is no argument among the expert witnesses before it, a practice against which we warned in Southwestern Bell Telephone Co. v. Arkansas Public Service Commission, 19 Ark. App. 322, 720 S.W.2d 924 (1986). Instead, the Commission in this case made a decision in regard to the allocation of costs among different customer classes based upon the evidence before it, and we find that action to be supported by substantial evidence and that it does not result in rates that are unlawful or unreasonable.
Finally, appellant argues that the Attorney General’s participation in this case was beyond his lawful authority as specified in Act 39 of 1981, First Extraordinary Session. That Act provides in pertinent part as follows:
SECTION 4. The Consumer Utilities Rate Advocacy Division shall represent the State, its subdivisions and all classes of Arkansas utility rate payers ....
The Attorney General claims he is acting within his authority and that his position has been consistent with the interests of all rate payers and not any one class or classes in particular. The General Assembly charged the office of the Attorney General to represent all classes of rate payers in rate cases before the Public Service Commission. Simply because appellant perceives that representation to be inconsistent with its own position does not mean the Attorney General has ignored his legislative mandate. If the situation were as appellant represents, the Attorney General could be effectively foreclosed from any participation whatsoever when any particular customer class perceived an inconsistency with its own position. Of necessity, the Attorney General must assert some position besides absolute neutrality in complying with the requirements of Act 39. Therefore, we do not agree with appellant’s second point.
The decision of the Commission is affirmed in all respects.
Affirmed.
AEEC is a voluntary association of industrial customers of Arkansas Power & Light Company and represents about one-third of total AP&L consumption. AEEC’s members are: A.O. Smith, Acme Brick, Aluminum Company of America, Archer Daniels Midland, Banquet Foods, Cargill, Inc., Columbian Chemical Company, Conagra Frozen Foods, Cooper Tire & Rubber Co., Ethyl Corporation, Great Lakes Chemical Corporation, Halstead Metal Products, International Paper Company, Lion Oil Company, Macmillan Petroleum Products, Mid-America Packaging, Inc., Producers Rice Mill, Quincy Soybean Company, Razorback Steel, Rlceland Foods, Superwood Corporation, Tyson Foods/Tastybird Foods, U.S. Vanadium Corporation, Viskase Corporation, and Weyerhaesuer Company.
Sometimes called “rate of return multipliers.”
Those classes are: Residential, Small General Service, Large General Service, Large Power Service, Large Power Special, and Miscellaneous (Lighting).
At least four methodologies were mentioned in the record: Average and Excess Demand, Average and Peak Demand, Coincident Peak, and Probability of Dispatch! | [
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Melvin Mayfield, Judge.
Appellant, Arthur S. Felix, appeals a decision of the Sebastian County Circuit Court revoking his suspended sentence. On November 2, 1984, appellant pleaded guilty to a charge of forgery, and imposition of sentence was suspended for three years on the condition that he make restitution in the amount of $74.19 and pay a fine of $250.00 plus costs.
A petition to revoke was filed on September 17, 1985, alleging appellant had failed to make any payment on his fine, still owed $4.19 on his restitution, and had committed the offense of rape, all in violation of the terms of his suspended sentence. Although a hearing on the petition was held on November 8, 1985, the court took the case under advisement and it was not until April 8,1986, that the appellant’s suspended sentence was revoked and he was sentenced to serve five years in the Arkansas Department of Correction.
At the initial hearing, appellant’s wife testified that her two and a half year old daughter by a previous marriage had complained to her and to others that appellant had “licked her in the vaginal area.” In addition, two Fort Smith police officers testified that they had interviewed the child and she had told them essentially the same story. A deputy sheriff also testified that the Sebastian County Sheriff’s records showed that appellant had made no payments on his fine.
Appellant testified, admitting that he still owed $4.19 on his restitution, but contending he had sent a $100.00 money order to the circuit clerk’s office as payment on his $250.00 fine and it was never returned to him. However, the court’s judgment suspending imposition of sentence required that the fine be paid to the sheriff’s office and the deputy sheriff said he did not know of anyone ever trying to make payment of a fine to the clerk’s office. He also said if they did, he would think the clerk would send it to the sheriff’s office. Appellant also denied having ever touched his stepdaughter in an improper manner.
On appeal, appellant first argues the judgment of the trial court was contrary to the preponderance of the evidence. He argues that there is no evidence of penetration, an essential element of rape; that the state’s case was based entirely on hearsay; and that the state’s witnesses were totally unbelievable.
In a hearing to revoke, the burden is upon the state to prove the violation of a condition of the suspended sentence, and on appellate review, the trial court’s findings are upheld unless they are clearly against a preponderance of the evidence. Cavin v. State, 11 Ark. App. 294, 669 S.W.2d 508 (1984); Pearson v. State, 262 Ark. 513, 558 S.W.2d 149 (1977). A determination of preponderance of the evidence turns heavily on questions of credibility and weight to be given the testimony and in that respect we defer to the superior position of the trial court. Hoffman v. State, 289 Ark. 184, 711 S.W.2d 151 (1986). Furthermore, the rules of evidence are not applicable in revocation proceedings. Lockett v. State, 271 Ark. 860, 611 S.W.2d 500 (1981); Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979); Fitzpatrick v. State, 7 Ark. App. 246, 647 S.W.2d 480 (1983); Ark. R. Evid. Rule 1101(b)(3) (Repl. 1979).
Even if the evidence did not establish penetration, it was clearly sufficient to establish the lesser included offense of sexual abuse in the first degree as set out in Ark. Stat. Ann. § 41-1808(l)(c) (Repl. 1977). The court’s judgment suspending imposition of sentence was also conditioned upon “good behavior” and the evidence was sufficient for the court to find that this condition was violated.
Furthermore, the evidence was also sufficient to establish that appellant had failed inexcusably to completely make restitution and to pay the fine and court costs which were also conditions of his suspended sentence. The case of Bearden v. Georgia, 461 U.S. 660 (1983), requires that a court, when considering revocation for failure to pay a fine, must consider whether the failure was willful or due to inability regardless of bona fide efforts to pay. In the instant case, the evidence supports a finding that appellant willfully failed to pay. He testified that he had held several jobs after being placed on a suspended sentence. He quit one job at a truck stop because he “just couldn’t handle that walking around with an apron on, so I quit. . . .’’After that, he worked laying a waterline for $4.00 an hour. He also testified that when he and his wife married he had saved about $300.00. In addition, Mrs. Felix testified that she had suggested to appellant that they break up because he “wouldn’t work.”
We cannot say that the court’s finding that appellant had violated the conditions of the court’s judgment suspending imposition of sentence was clearly against the preponderance of the evidence.
Appellant also argues that the petition to revoke should have been dismissed because the judgment of the court was not rendered within sixty days of his arrest. Ark. Stat. Ann. § 41-1209(2) (Repl. 1977) provides, however, that the hearingmusi be held within this time and appellant concedes this provision was complied with. The purpose of this requirement is to assure that a defendant is not detained in jail for an unreasonable time awaiting his revocation hearing. Boone v. State, 270 Ark. 83, 603 S.W.2d 410 (1980). Appellant cites no authority in support of his argument that judgment must be given within sixty days and we know of none. Nor do we know of any reason why it would be an abuse of discretion for the trial court to take the matter under consideration for a period of time as was done in this case. Furthermore, we fail to see how appellant was prejudiced by this delay in judgment since he was given full credit for jail time served.
Affirmed.
Cracraft and Jennings, JJ., agree. | [
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James R. Cooper, Judge.
The appellant was charged with being a felon in possession of a firearm and possession of a controlled substance with intent to distribute. He was sentenced to one year in prison on the firearms charge and fined $4,000.00, and a term of ten years confinement and a fine of $10,000.00 on the drug charge. A petition to confiscate $10,872.70 was granted by the trial court in a hearing at the close of the trial on the drug charges. We granted a motion to consolidate these cases on appeal.
The appellant makes several arguments regarding the validity of the search warrant. The State concedes that the warrant was invalid because it is the same warrant that we found invalid in a companion case. Ulrich v. State, 19 Ark. App. 62, 716 S.W.2d 777 (1986). Because the search warrant was defective, we find that the trial court erred when it refused to grant the appellant’s motion to suppress the evidence seized pursuant to the warrant.
The State also concedes that there was insufficient evidence to convict the appellant of the firearms possession charge. The gun was found in the home occupied by both the appellant and his wife. There was no evidence at trial that the appellant was in possession of the firearm. Where there is joint occupancy of premises, mere occupancy is insufficient to convict one of possession of contraband unless there are additional factors linking the appellant with the contraband. Blair v. State, 16 Ark. App. 1, 696 S.W.2d 755 (1985). Therefore, the appellant’s conviction on this charge must be reversed and dismissed.
The appellant also argued, in both cases, that he was denied his right to a speedy trial. However, in his reply brief the appellant states that he does “not seek a ruling on the speedy trial question if a new trial is to be granted.” Because this case is being reversed and remanded on the drug charge, we find that the appellant has waived his argument on the speedy trial issue.
The only argument that must be addressed is the appellant’s argument that the funds were improperly confiscated. It is the appellant’s contention that because the money was found while the police were searching his home under the authority of an invalid search warrant the money could not be confiscated, at least where the only evidence was obtained pursuant to the invalid warrant. We agree.
Arkansas Statutes Annotated § 82-2629(a)(6) (Supp. 1985) provides that when money is found in close proximity to drug manufacturing paraphernalia, then a presumption arises that the money is also forfeitable. This statute also sets out a procedure for seizing the property. A law enforcement agent may seize property upon process issued by any circuit court having jurisdiction over the property on petition filed by the prosecuting attorney. Ark. Stat. Ann. § 82-2629(b) (Supp. 1985). Seizure without process may be made if the seizure is incident to an arrest or search under a search warrant. Ark. Stat. Ann. § 82-2629(b)(1) (Supp. 1985). In the case of Little Rock Police Department v. One 1977 Lincoln Continental Mark V, 265 Ark. 512, 580 S.W.2d 451 (1979), the Arkansas Supreme Court affirmed a chancellor’s order that a car in which 3.14 pounds of marijuana had been found was improperly seized and could not be forfeited. The Court found that the police did not have probable cause to search the car and that the driver had not consented to the search. In the case at bar, the search warrant was invalid because there was no probable cause and, following Sands, supra, we hold that the money found in the appellant’s home cannot be forfeited as property seized or discovered pursuant to the execution of the warrant.
We find no merit to the State’s arguments that the 1981 amendments to this law and subsequent case law have overruled Sands. In both of the cases cited to us by the State, Limon v. State, 285 Ark. 166, 685 S.W.2d 515 (1985), and Reddin v. State, 15 Ark. App. 399, 695 S.W.2d 394 (1985), it is clearly pointed out that the searches were lawful. The State argues that a forfeiture is an in rent civil proceeding, independent of the criminal charge and that the exclusionary rule does not apply. However, this case does not turn on whether the evidence of the seizure can be admitted into evidence, but upon whether the initial seizure was lawful. Here it clearly was not. In conclusion, we do not mean to imply that the money may not be subject to forfeiture on another basis. We only hold that it is not forfeitable as a fruit of the invalid warrant.
Reversed and dismissed in part and reversed and remanded in part.
Cracraft and Mayfield, JJ., agree. | [
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Melvin Mayfield, Judge.
Appellant, Janie Day, and appellee, John Day, were married on November 23, 1962, and separated on February 1, 1978. At the time of separation, they lived in Pontiac, Michigan. Appellant then moved to Arkansas and appellee moved to North Carolina. On July 11, 1984, appellant filed a suit for divorce in Arkansas. Appellee was not served until September 27, and on October 10, he filed a pro se answer to the complaint. Appellant’s attorney filed a response to appellee’s answer, and appellee filed a pro se reply. In both the answer and the reply, the appellee contended that at the time of separation the parties had, by agreement, divided all their marital property.
On November 20, 1984, notice was mailed to appellee advising him that a hearing would be held in the case on December 19,1984. Appellee did not appear at that hearing and a judgment was entered on January 11,1985, granting appellant a divorce and equally dividing the property of the parties, including appellee’s retirement pension from General Motors.
On February 8, 1985, an Arkansas attorney filed a motion for the appellee alleging that the judgment should be set aside because appellee only received notice that a “hearing” would be held and did not know this would be a full trial of all issues. The trial court heard the motion on February 21, 1985, and on that date the judgment of January 11,1985, was set aside and a new trial granted. The second trial was held on July 24,1985, and on August 14,1985, a judgment was filed again granting appellant a divorce but holding that the parties had entered into a “loose” oral property settlement agreement at the time of their separation and that appellant was entitled to no additional property. It is from that judgment that appellant appeals.
We first point out that even though both appellant and appellee treat the December 19, 1984, judgment as a default judgment, we held in Peter v. Peter, 10 Ark. App. 292, 663 S.W.2d 744 (1984), that once a defendant has filed an answer contesting the plaintiffs grounds for divorce, the defendant’s failure to appear at trial does not constitute abandonment of the suit. Therefore, since appellee had filed an answer in this case, albeit pro se, his failure to appear for the hearing did not constitute an abandonment and any judgment entered against him would not be a default judgment.
The appellant contends, however, that the trial court erred in setting aside the judgment against appellee. She maintains that, since the appellee admitted he was notified of the time and place of the hearing, his failure to appear was the result of his own negligence and lack of due diligence. She also contends that he failed to show a meritorious defense and that this is required for the granting of a new trial. Unfortunately, we are unable to consider this argument on its merits because a timely appeal of the order granting the new trial was not filed.
Rules of Appellate Procedure, Rule 2(a)(3) provides that an appeal may be taken from a circuit, chancery, or probate court to the Arkansas Supreme Court from an order which grants or refuses a new trial. This is a final and appealable order. See DeClerk v. Tribble, 276 Ark. 316, 637 S.W.2d 526 (1982). In Etcherson v. Hamil, 131 Ark. 87, 198 S.W. 520 (1917), where an order granting a new trial was not appealed, the court said:
Appellants had the right to prosecute an appeal from the order of the court granting a new trial and to have had then a review of the question he now presents. He did not do so, however, but elected rather to try again the issues before another jury, and he is now bound by his election.
Id. at 90. See also Bush, Receiver v. Barksdale, 122 Ark. 262, 183 S.W. 171 (1916).
In the instant case, appellant chose not to appeal the order granting appellee a new trial but to submit to the jurisdiction of the chancery court for another trial on the issues. She is, therefore, bound by that election and is now limited on this appeal to a consideration of the issues decided at the subsequent trial.
In that regard, appellant argues that the trial court erred in finding that the parties entered into a “loose” oral property settlement agreement in 1978 and in refusing to grant her an interest in the marital property of the parties. Appellee testified that, just before the separation, he and appellant sold their jointly owned home in Michigan and divided the proceeds equally. He said they also agreed that appellant would get the 1976 Cadillac Eldorado and any furniture she wanted, but would pay her own credit card accounts. In return, he was to get all the General Motors stock and his retirement pension but would pay the $4,000.00 loan at the credit union.
Appellant denied they had any agreement but admitted that she had left Michigan with the Cadillac, which was free and clear of debt, all the furniture she wanted, and sixty-seven shares of General Motors stock. She also admitted receiving one-half the proceeds from the sale of the house in Michigan.
The chancellor held that the property settlement was made when the parties separated in 1978 and that they had “lived under” it since that time. He then granted appellant the divorce, ordered appellee to continue to carry medical and dental insurance on appellant and their son, as they had agreed, and held all their property had been disposed of pursuant to their agreement. This allowed the appellant to keep the certificates for the General Motors stock she took with her, and, as the parties’ son was living with appellee, the decree made no provision for child support.
Cases on appeal from the chancery court are tried de novo but we do not reverse unless the findings of the trial judge are clearly against the preponderance of the evidence, giving due deference to the trial judge’s superior position to determine the credibility of the witnesses, and the weight to be given to their testimony. Stover v. Stover, 287 Ark. 116, 696 S.W.2d 750 (1985); Norman v. Norman, 268 Ark. 842, 596 S.W.2d 361 (Ark. App. 1980); ARCP Rule 52(a). After a careful review of the record, we cannot say the chancellor’s decision in this case was clearly erroneous.
Affirmed.
Corbin, C.J., and Cracraft, J., agree. | [
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Beth Gladden Coulson, Judge.
This appeal from the chancery court of Pulaski County raises three points for reversal. First, appellant contends that the trial court declared that Perkins v. Perkins, 15 Ark. App. 82, 690 S.W.2d 356 (1985) holds that the use of the Family Support Chart is mandatory in all circumstances unless there is evidence of disability or other unusual circumstances and that such holding is erroneous. Second, appellant contends that the court’s finding of a change in circumstances sufficient to justify imposing an obligation of support on her is erroneous. Third, appellant contends that the court’s award of support is an “effective retaliation” against her for seeking to enforce visitation rights. We do not agree with appellant, and the decision of the chancellor is affirmed.
As to the first point, we do not agree that the trial court declared that Perkins, supra, holds that the use of the Family Support Chart is mandatory. Clearly, this is not what Perkins stands for. After hearing the evidence, the chancellor entered an order stating:
The application of the Family Support Chart to provide predictability, certainty and perceived fairness to each non-custodial parent making the same net income is deemed in this case to be directed by Perkins v. Perkins, 15 Ark. App. 82 (1985); therefore the amount of the support prescribed by the Chart is found to be appropriate. [Emphasis added.]
The use of the Family Support Chart is authorized by Ark. Stat. Ann. § 34-1211 (Supp. 1985). Subsection (A) states:
When a Decree shall be entered, the Court shall make such Order touching the . . . care of the child and children, if there be any, as from the circumstances of the party and nature of the case shall be reasonable. In determining a reasonable amount of support to be paid by the noncustodial parent, the Court shall refer to the most recent revision of the Family Support Chart found in the Domestic Relations Handbook published by the Arkansas Bar Association and may use such in determining the amount of support to be ordered.
It cannot be stated strongly enough that the Family Support Chart is to be used as a guide and is not intended to be binding. There are no instances in which this court has stated that the chart is mandatory. On the contrary, in Perkins we cited Guffin v. Guffin, 5 Ark. App. 83, 632 S.W.2d 446 (1982); and Barnhard v. Barnhard, 252 Ark. 167, 477 S.W.2d 845 (1972) which held that the court should consider the needs of the child, the assets of each parent, their respective ages, earning capacities, incomes and indebtedness, state of health, future prospects and other factors.
When Guffin and Barnhard are read in conjunction with Perkins, it becomes evident that the Family Support Chart is clearly not to be anything but a guide or tool. Indeed, no mathematical formula could ever be arbitrarily applied to such a family problem as the amount of support a parent will pay for a minor child.
To declare that the Perkins case or Ark. Stat. Ann. § 34-1211 effectively eliminates the necessity of the need for equity, or a chancellor in child support cases, is utterly without foundation. The Perkins case and the statute both set out that the Chart is a guide for the Court to use in making its award. In this case, as in all cases, the chancellor had the opportunity to hear the evidence and testimony and if, as in this case, there is no reason to apply a figure other than as set out in the Family Support Chart, and if that figure is a reasonable and appropriate figure as the chancery court determined, then that award of support is not an abuse of discretion. A chancellor’s finding as to child support will not be disturbed on appeal unless it is shown that the chancellor abused his discretion. Perkins, supra; Mitchell v. Mitchell, 2 Ark. App. 75, 616 S.W.2d 753 (1981). It is stretching matters to state that Perkins demands application of the chart provisions except in unusual circumstances, and we do not find that the court abused its discretion in this case in awarding support based upon the Family Support Chart.
Second, appellant argues that appellee failed to show a sufficient change in the circumstances to justify the court’s award of child support, relying upon Glover v. Glover, 268 Ark. 506, 598 S.W.2d 736 (1980). Four years prior to the proceedings giving rise to this appeal, the parties agreed that appellant would not pay support to appellee for the support of the parties’ son, and an order was entered reflecting their agreement. After appellant commenced the present proceeding to clarify and enforce her visitation rights, appellee moved for an award of support. The evidence showed that the parties’ child was attending private school and that his needs had increased as he had gotten older. Based upon a review of the evidence, it is clear that the needs of the child had increased after the parties’ agreement to forego support on the part of appellant four years earlier. There was evidence as to both parties’ means and income, and there was no showing that appellant was incapable of paying support for her son.
While we review chancery cases de novo on appeal, the findings of the chancellor will not be reversed unless clearly against a preponderance of the evidence. Since the question of a preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the superior position of the chancellor in this regard. Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981). Our review of the evidence does not reveal that the finding of the chancellor was clearly erroneous or that the amount set as child support constituted an abuse of discretion.
For her third point for reversal, appellant contends that the granting of support by the court somehow constituted a retaliatory measure against her for seeking to enforce her visitation rights. We find no evidence to this effect. Appellant received exactly what she requested, that is, a definite determination of her rights of visitation. Simply because the court found that the circumstances warranted an award of support cannot be said to constitute retaliation. The matter of whether to award support is, as noted above, a matter within the sound discretion of the trial court, and there is no showing in this case of an abuse of that discretion or that findings of the court were clearly erroneous or against a preponderance of the evidence. The decision is therefore affirmed.
Affirmed.
Cracraft and Jennings, JJ., agree. | [
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James R. Cooper, Judge.
The appellant in this child custody case challenges the jurisdiction of an Arkansas chancery court to grant custody of the parties’ minor child to the appellee. We agree that the chancery court lacked jurisdiction to make the child custody determination, and we reverse.
The appellant is a citizen of Great Britain and a resident alien in the United States. The parties met in England while the appellee, an enlisted man in the United States Air Force, was stationed at RAF Fairford. They were married in Blytheville, Arkansas, on August 19,1980. The day after they were married, the parties left for Denver, Colorado, where they resided for approximately two years. Andrew Fletcher, the parties’ son, was born in Colorado in 1981. In December, 1982, the parties moved from Denver to Springfield, Virginia, and lived there until they separated in October, 1983. A petition for divorce was filed in March, 1984, in the Circuit Court of Fairfax County, Virginia. In a separate action in the Juvenile and Domestic Relations Court of Fairfax County, Virginia, the parties were awarded joint custody of Andrew, with physical custody of the child with the appellee.
The parties reconciled in November, 1984, and lived together at Boling Air Force Base in Washington, D.C. However, they separated again on January 15, 1985, and the appellant moved to Manassas, Virginia. On January 29,1985, the appellant obtained a temporary restraining order from the Superior Court of the District of Columbia to prevent the appellee from removing the child from that court’s jurisdiction. On February 4,1985, the District of Columbia court issued a preliminary injunction ordering the appellee to return Andrew to the Washington, D.C. metropolitan area. However, before the appellee was served with these orders he and the child had departed for Stuttgart, Germany, the appellee’s new duty station.
In May, 1985, the appellee filed a petition for divorce in the chancery court of Craighead County, Arkansas, alleging that he was a permanent resident of Monette, Arkansas. The appellant was served with a summons in Manassas, Virginia, but she filed no answer and did not appear. The appellee and his brother, Royal Fletcher, testified by deposition; a divorce was granted and the appellee was awarded custody of Andrew. From that decision, comes this appeal. For reversal, the appellant contends that the chancery court lacked jurisdiction to order a change in custody.
At a hearing on the appellant’s motion to vacate and set aside the decree, the appellant testified that she had never lived in Arkansas, that she and the appellee had never established a marital domicile in Arkansas, and that her child was born in Colorado and had never lived in Arkansas. She further testified that the appellee had not resided in Arkansas at any time from the date of their marriage in 1980 to the time of the hearing, and that the appellee and Andrew were not in Arkansas when the divorce decree was rendered, but rather were in Stuttgart, Germany.
The jurisdiction of Arkansas courts to make child custody determinations is governed by Ark. Stat. Ann. § 34-2703 (Supp. 1985), which provides in pertinent part that a court has jurisdiction if:
(a)(1) this State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six (6) months before commencement of the proceeding ... or
(2) it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one [1] contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
(3) the child is physically present in this State [and an emergency exists] ... or
(4)(i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
Subsection (a)(1) of this statute does not provide a basis for the exercise of jurisdiction under the circumstances presented in the case at bar, because Arkansas is not now and never has been Andrew’s “home state,” defined in Ark. Stat. Ann. § 34-2702(5) as the state in which the child has resided with one parent, both parents, or a person acting as a parent for at least six months immediately preceding the time involved. Neither is subsection (a)(3) applicable, because Andrew was not physically present in Arkansas at the time that the court purported to exercise jurisdiction.
The appellee argues that jurisdiction to order a grant of custody existed under subsection (a)(2), which provides that jurisdiction may be exercised if it is in the best interest of the child that the court do so, because the child and at least one of the parents have a significant connection with Arkansas, and because there exists in Arkansas substantial evidence concerning the child’s welfare and personal relationships. Ark. Stat. Ann. § 34-2703(a)(2). We do not agree that Andrew has a significant connection to Arkansas. It is undisputed that Andrew was born in Colorado and has never resided in Arkansas. Moreover, there is no evidence of record to suggest that Andrew has ever so much as visited Arkansas. The extent of Andrew’s connection to Arkansas is that his father, a career military man, claims Arkansas as his permanent residence, and that some of Andrew’s paternal relatives reside in Arkansas. In light of the undisputed evidence that Andrew’s father has not resided in Arkansas since before Andrew was born, we think that the “significant connection” required by the statute is lacking.
Nor does the record show that there exists in Arkansas substantial evidence concerning Andrew’s welfare and personal relationships, required by subsection (a)(2)(h) as a prerequisite to the exercise of jurisdiction. The only Arkansas source of evidence concerning Andrew’s welfare and relationships was the deposition of the appellee’s brother, Royal Fletcher, and this evidence was limited to his statement that the appellee “is a wonderful father and has great love and affection for Andrew.” Under the circumstances presented here, where the child has no significant connection to Arkansas and where evidence of his welfare and personal relationships is all but absent, subsection (a)(2) does not provide a basis for the exercise of jurisdiction.
Neither are we convinced that the chancery court had jurisdiction under subsection (a)(4). This is not a case in which another state has declined to exercise jurisdiction on the ground that Arkansas would be a more appropriate forum for a determination of custody. To the contrary, an action involving Andrew’s custody was filed in Virginia in 1984, and another in the District of Columbia only a few months before the appellee filed his petition in the case at bar. Both Virginia and the District of Columbia had been marital domiciles of the parties, and Andrew had resided in both locales. We do not doubt that either Virginia, the District of Columbia, or both could exercise jurisdiction under the prerequisites substantially in accordance with paragraphs (1), (2) or (3) of Ark. Stat. Ann. § 34-2703. We therefore hold that there was no basis for the trial court’s exercise of jurisdiction under § 34-2703 in the case at bar, and we reverse.
Reversed.
Coulson and Mayfield, JJ., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from a decision of the Arkansas Workers’ Compensation Commission. The appellee sustained an on-the-job injury in June of 1973. Her medical bills were paid and she received weekly benefits until the end of August 1983. After a hearing in November 1983, the appellee was found to be permanently and totally disabled. That decision was not appealed and there is no controversy about the payment of that award.
In June of 1984, the appellee requested that she be furnished daily nursing care and a hearing on that request was held on August 8,1984. On July 8,1985, almost a year after the hearing, the administrative law judge filed an opinion finding that the appellee was entitled to home nursing services for eight hours per day, seven days per week. The opinion directed that these services be furnished at the hourly rate of $3.35 and provided that they could be performed by the appellee’s husband.
No appeal was taken from the award granted in the opinion filed on July 8, 1985, but on September 12, 1985, an amended opinion was filed by the law judge and the appellant did file a notice of appeal from that action. The amended opinion stated that “the opinion filed July 8th, 1985, is hereby modified to include said nursing services beginning on August 8th, 1984, and continuing through a date yet to be determined.” The full Commission affirmed and adopted the decision of the administrative law judge “filed September 12, 1985.”
On appeal to this court the appellant first argues that “there is no substantial evidence to support an award of nursing benefits eight hours a day, seven days a week.” While the appellee meets that argument on the merits, she first argues that the point is not properly before us since there was no appeal from the opinion filed July 8, 1985, and it therefore became a final order. The appellant’s only response to this contention is that it was not deemed necessary to appeal the July 8 order since it made a “prospective” award of nursing benefits and the need for those services could have been re-evaluated in a couple of months, but the amended opinion encompassed more than a year of benefits for which the appellant was made liable without any opportunity for additional inquiry. Thus, the appellant says, the merits of the need for the nursing services should be open for review in this appeal.
Ark. Stat. Ann. § 81-1325(a) (Supp. 1985) provides that an order or award of an administrative law judge becomes final unless a petition for review by the full Commission is filed within 30 days from the receipt of the order or award. There is no contention in this case that the appellant ever filed a petition for a review of the opinion filed by the law judge on July 8,1985. Thus, that opinion became a final order or award and the “amended opinion” filed on September 12,1985, could not amend the July 8, 1985, opinion for at least three reasons.
First, the law judge did not have the authority to reopen or modify the July decision after the 30 days to appeal that decision had expired. Morrison v. Tyson Foods, Inc., 11 Ark. App. 161, 668 S.W.2d 47 (1984). Second, although the September 1985 opinion stated it was the law judge’s intention that the July 1985 opinion “should be retroactive effective August 8th, 1984,” a nunc pro tunc order may not be used to accomplish something that should have been done but was not done. Fitzjarrald v. Fitzjarrald, 233 Ark. 328, 344 S.W.2d 584 (1961); Harrison v. Bradford, 9 Ark. App. 156, 655 S.W.2d 466 (1983). Third, the award of nursing benefits made in the July 8, 1985, order was based upon the conditions that existed at the time of the hearing on August 8, 1984. Surely the appellant would not be required to furnish nursing services if conditions should change so that the services needed on August 8,1984, are no longer needed. To hold that the “amended opinion” necessarily requires the payment for nursing services for the period from the date of the hearing on August 8, 1984, to the issuance of the “amended opinion” on September 12, 1985, would obviously foreclose the appellant’s right to show that conditions had changed so that the nursing services were no longer needed during some or all of that period.
We, therefore, hold that the “amended opinion” of September 12,1985, did not change the opinion filed on July 8, 1985, since the July opinion was a final opinion. The July opinion requires the appellant to furnish the nursing services set out for as long as those services are reasonably necessary; however, the appellant has the right to show that those services are no longer reasonably necessary or that they have not been reasonably necessary during some or all of the period since the hearing on August 8,1984. The Commission erred in affirming and adopting the opinion filed by the law judge on September 12, 1985. That decision is reversed and this matter is remanded for any necessary action not inconsistent with this opinion.
Reversed and remanded. | [
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James R. Cooper, Judge.
This is an appeal from a decision by the Workers’ Compensation Commission which held that the appellee’s claim for additional benefits was not barred by the statute of limitations. We affirm.
On July 7,1981, the appellee was injured when he came into contact with a power line. The appellant accepted the claim as compensable and paid all medical bills and temporary total disability for thirty-five weeks. On April 8, 1982, the appellee’s physician, Dr. Earl Peeples, assigned the appellee permanent disability ratings of forty-one percent to the left finger, two percent to the left lower extremity and ten percent to the body as a whole. These benefits were paid by the appellant on a bi-weekly basis from April 22, 1982, through June 29, 1983. On April 19, 1983, the appellee was treated by a dentist who repaired several broken fillings. These charges were also paid by the appellant.
The appellee filed an A-7 form with the Commission on December 16,1982. No hearing was requested and no action was taken. Thirteen months after the appellee had received his last benefit payment the appellee filed a second A-7. A hearing was held in October, 1985, and the administrative law judge found that the appellee’s claim for additional benefits was barred by the statute of limitations as set out in Ark. Stat. Ann. § 81-1318(b) (Repl. 1976). The Commission reversed and found that the appellee’s A-7 filed in December, 1982, tolled the statute of limitations.
On appeal, the appellant argues that the Commission erred when it found that the appellee’s claim for additional benefits was not barred by the statute of limitations. We disagree with the appellant’s argument.
Arkansas Statutes Annotated § 81-1318(b) (Repl. 1976) provides in part:
In cases where the compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one [1] year from the date of the last payment of compensation, or two [2] years from the date of the injury, whichever is greater.
Thus, the A-7 filed thirteen months after the last payment of compensation is clearly outside the statute of limitations. However, the A-7 form filed in December, 1982, will toll the running of the statute if that filing constituted a request for additional benefits. See, Sisney v. Leisure Lodges, Inc., 17 Ark. App. 96, 704 S.W.2d 173 (1986); Bledsoe v. Georgia-Pacific Corp., 12 Ark. App. 293, 675 S.W.2d 849 (1984). We find that it did.
In Sisney, supra, we held that the claimant’s timely filing for rehabilitation benefits and additional permanent disability payments also tolled the statute for her later requested additional medical benefits. In that case we stated:
To draw distinctions between, on the one hand, additional rehabilitation and permanent disability benefits, and on the other, additional medical benefits, as the Commission majority has done, is to invoke a measure of precision uncalled for by the broad language of the statute and unsupported by the case law of this state.
Sisney, 17 Ark. App. at 99, 704 S.W.2d at 175.
The same reasoning can be applied to the case at bar. The appellee filed his claim of December, 198 2, on a standardized form used by the Commission. The appellee checked the form in a manner indicating that he was claiming attorney fees, medical expenses, temporary total disability, and permanent disability benefits. In light of the fact that the appellee engaged an attorney and filed a claim almost one and one-half years after the appellant had begun paying benefits, the only reasonable assumption to make is that this claim was for benefits over and above what he was already receiving. The appellee should not be barred merely because the word “additional” was not used.
We do not agree with the appellant’s contention that the case of Petit Jean Air Service v. Wilson, 251 Ark. 871, 475 S.W.2d 871 (1972), is controlling. In that case the claimant fell and injured his back on April 30, 1968. A claim for that injury was filed with the Commission. On July 3, 1968, the claimant again fell, broke his ankle and suffered an additional injury to his back. He then filed another claim with the Commission. Later, on September 22,1969, the insurance carrier made a final lump-sum payment. Thirteen months after this last compensation payment, the claimant filed a claim for additional benefits. The claimant maintained that the filing of his original claims tolled Ark. Stat. Ann. § 81 -1318 (b), much as the filing of a complaint in a court of law tolls limitation statutes, and that therefore his failure to file for additional benefits within the one year statutory period was not fatal to his claim. The court rejected the argument, pointing out that such claims, uncontroverted and original, were not analogous to complaints in lawsuits which by their nature were almost always contested. In the case at bar there was no original filing because the appellant accepted the injury as compensable. It would be putting form over substance to say that the claim filed more than seventeen months after the commencement of benefits was an original claim and not a claim for additional benefits.
We hold that, under the standard established in Sisney v. Leisure Lodges, Inc., supra, the Commission did not err in holding that the appellee’s claim for additional benefits was not barred by the statute of limitations.
Affirmed.
Coulson and Mayfield, JJ., agree. | [
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George K. Cracraft, Judge.
Mattie Lee Bonner appeals from an order of the chancery court of Van Burén County reforming a deed executed by her to Ronald D. Sikes and Bonita Sikes. We agree that the chancellor erred and remand the case for further proceedings.
Appellant was the owner of a five-acre tract of land. In 1978 she conveyed one acre, described by metes and bounds, to the appellees. The deed provided that access to appellees’ tract should be along the west line of the appellant’s larger tract.
Subsequent to the conveyance, appellees erected a dwelling on the one-acre tract, with its sewer lines placed on lands retained by appellant. Appellees did not use the access provided in the deed but used a route across the center of appellant’s land. In 1985 the appellant brought this action to enjoin appellees from using the roadway and to require them to make necessary repairs to stop the spilling of raw sewage onto the appellant’s property.
Appellees answered stating that the roadway should not be moved because it had been placed where it was at appellant’s request and that the appellees had established a prescriptive easement to its use. No further relief was requested by either party. The chancellor found that appellees had not acquired a prescriptive easement across appellant’s land and directed that the appellees use that access provided for in the deed. No appeal is taken from that portion of the decree.
There was testimony that the laying of the sewage line did create problems because the area in which it had been laid was wet. After heavy rains, the sewage seeped to the surface and created the problem. The appellees testified that they were aware that the sewer lines had not been placed on the land described in their deed but they had made some effort to rectify the situation.
The chancellor entered a decree, dated June 20, 1985, in which he found as follows:
A Grantee may not challenge a Grantor’s title. When one sells property it is assumed that such property is fit for the purpose sold. Applying these rules, it follows that the defendants’ property must have an adequate sewer system to be useful for the purpose sold. The deed from Plaintiff [appellant] to Defendants [appellees] should therefore be reformed to describe the land upon which the sewer system and field lines are located.
The decree further provided that some trained person should determine the land to be “taken” for a sewage system which complies with the laws of the State of Arkansas and a surveyor employed to describe that property by metes and bounds. It further directed the surveyor to lay out the roadway. The order provided that, if the parties could not agree upon persons to perform these services, the court would select such persons, and directed that after the preparation of all legal descriptions “an order shall be entered setting forth the correct legal description of the reformed property lines.” No notice of appeal from this order was filed.
Pursuant to the chancellor’s order of June 20, 1985, a surveyor’s report containing the specified descriptions was filed and approved by the court. On March 10, 1986, a decree was entered in which .35 acres of the lands described in the original deed were returned to the appellant and a different tract of .35 acres belonging to the appellant vested in the appellees. The decree also adequately described the access easement. Appellant filed a timely notice of appeal from this decree. We conclude that the chancellor erred in ordering reformation of the deed.
Reformation can be ordered only upon clear, convincing, and decisive evidence that a mutual mistake has been made in the drawing of an instrument, or that there has been a unilateral mistake accompanied by inequitable conduct on the part of the other party. Falls v. Utley, 281 Ark. 481, 665 S.W.2d 862 (1984). This equitable remedy is afforded to make an instrument correctly recite the agreements and undertakings of the parties made at the time of its execution. If, because of mutual mistake or unilateral mistake coupled with fraud or inequitable conduct, the document does not correctly state what the parties intended, it will be reformed. It is not a remedy permitting a court to rewrite a document so as to provide for something, for which the parties did not intend to provide, but one to make the writing reflect the agreement actually made.
Here there was not a scintilla of evidence that the deed did not correctly describe the lands agreed upon. Nor was it even alleged that the sewer lines were placed outside the description contained in the deed by mistake or fraud. The chancellor erred in his conclusion that reformation is a proper remedy where real estate is found to be unsuitable for the purpose for which it was purchased. Although there are implied warranties with regard to the sales of personal property, the rule of caveat emptor applies to a sale of real estate, and, with the exception of the sale of new housing by a vendor-builder, there is no implied warranty that real property is fit for any purpose. Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970).
Appellees finally contend that, since appellant did not file a notice of appeal from the chancellor’s order of June 20,1985, his notice filed within thirty days of the March 10,1986, decree was untimely. We conclude that the appellant’s notice of appeal was timely because the 1985 order was not an appealable one.
Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure provides that an appeal may be taken from a final judgment or decree of a trial court. It is well settled that, in order for a decree to be final, it must be of such a nature as to not only decide the rights of the parties, but to put the court’s directive into immediate execution, ending the litigation or a separable part of it. Morgan v. Morgan, 8 Ark. App. 346, 652 S.W.2d 57 (1983). An order merely announcing the court’s determination of the rights of the parties, but contemplating further judicial action, is not an appealable one. Festinger v. Kantor, 264 Ark. 275, 571 S.W.2d 82 (1978). The 1985 order clearly contemplated further judicial action, which was not taken until the court’s final order was entered on March 10, 1986. The only appealable order contained in the record was that of March 10,1986. Appellant’s notice of appeal was timely filed thereafter.
That portion of the decree ordering reformation is reversed and remanded. The decree is in all other respects affirmed.
Mayfield and Coulson, JJ., agree. | [
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Melvin Mayfield, Judge.
Appellant was convicted of possession of a controlled substance, cocaine, and sentenced as a habitual offender to twenty years in the Arkansas Department of Correction. On appeal, he contends his stop and detention were without proper cause, and he challenges the constitutionality of the strip search during which the cocaine was discovered.
In September of 1985, the Pine Bluff Police Department began the investigation of a purse-snatching incident. The purse had contained several items of expensive jewelry, and the officers uncovered evidence that the jewelry had been sold to a Little Rock man known as “Bo Peep” who drove a “tan-looking” Lincoln Continental. Eddie Lee Pride, one of several Little Rock men known by Little Rock police to drive a Lincoln and go by the nickname “Bo Peep,” was approached by Pine Bluff police and agreed to go there for questioning. After the interview, it was decided that he had no involvement in the incident under investigation and, as an officer was driving him back to Little Rock, Pride spotted a tan Lincoln automobile approaching Pine Bluff. Pride identified the driver as one of the other men from Little Rock known as “Bo Peep,” and the officer radioed this information back to headquarters and subsequently the Lincoln was stopped by Pine Bluff police. The driver, appellant, was very cooperative and told the officers that he had no driver’s license and had been drinking whiskey during the drive from Little Rock. Appellant was arrested and, because he was from out of town and did not have enough money with him to post a cash bond, he was taken to the police station for booking and incarceration.
As a routine jail policy when a suspect is being confined, appellant was subjected to a visual strip search as he removed his civilian clothing in preparation for putting on his jail uniform. The search involved an observation of appellant’s bare skin and an inspection of the clothing he removed. No body cavity search was conducted. As the appellant placed the clothing he removed in a bag, the police saw a small package in the bag, but the appellant grabbed it and swallowed it. Another package, however, was recovered from the bag and, according to a chemist from the State Crime Laboratory, the contents tested positive for cocaine. Appellant’s motion to suppress this evidence was denied by the trial court. On appeal he argues that this ruling was error.
Appellant first contends that the original stop of his automobile and his arrest were unconstitutional because the police did not have the proper cause to stop him. Several A.R.Cr.P. rules are pertinent. Rule 3.1 provides:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense. (Emphasis added.)
Rule 2.1 defines “reasonable suspicion” as:
a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.
Ark. Stat. Ann. § 43-435 (Repl. 1977) lists a number of factors to be considered in determining whether the officer had grounds to “reasonably suspect” someone, including any information received from third persons and whether or not the person is known to police.
These rules were examined by the Arkansas Supreme Court in Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982), in which Hot Springs police had stopped a man who matched the description of a suspect in a murder and assault which had just occurred in an adjacent county. The radio dispatch had described a white male and a late model maroon Ford Thunderbird. In approving the stop, the court stated:
The courts have used various terms to describe how much cause or suspicion is necessary or reasonable in order to stop a person or vehicle. The common thread which runs through the decisions makes it clear that the justification for the investigative stops depends upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating the person or vehicle may be involved in criminal activity.
275 Ark. at 80 (citations omitted).
Furthermore, A.R.Cr.P. Rule 2.2 authorizes officers to request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. This rule was relied on by the court in Baxter v. State, 274 Ark. 539, 626 S.W.2d 935 (1982). In that case a jewelry store near Kanis Park had just been robbed. A police officer stopped Baxter’s car to inquire whether he had seen any suspicious persons in the park. Observing Baxter’s nervousness, the officer decided to look into the car and there he discovered two men matching the description of the robbers. In affirming the conviction, the court stated:
Cases regarding the police authority to make investigatory stops based upon reasonable suspicion that a vehicle or a person is involved in criminal activity are inapplicable to the stop at issue here. . . .
Involved here is the question of the extent of permissible interruption a citizen must bear to accommodate a law enforcement officer who is investigating a crime. The practical necessities of law enforcement and the obvious fact that any person in society may approach any other person for purposes of requesting information make it clear the police have the authority to approach civilians.
There is nothing in the Constitution which prevents the police from addressing questions to any individual. . . . However, the approach of a citizen pursuant to a policeman’s investigative law enforcement function must be reasonable under the existent circumstances and requires a weighing of the government’s interest for the intrusion against the individual’s right to privacy and personal freedom. To be considered are the manner and intensity of the interference, the gravity of the crime involved, and the circumstances attending the encounter.
274 Ark. at 542-43 (citations omitted).
When the officer in the present case stopped appellant, he was aware that appellant had been identified as a suspect in a felony under investigation. Under the totality of the circumstances, we think the trial court could properly find that the officer had adequate reason to stop appellant’s vehicle under both rules 3.1 and 2.2.
Appellant also argues that the cocaine should have been suppressed because it was discovered during an unconstitutional strip search. Appellant first cites Richardson v. State, 288 Ark. 407, 706 S.W.2d 363 (1986), and cases cited therein, for the proposition that the search must have some relation to the nature and purpose of the arrest. That case involved a pretext arrest and appellant submits that this was also the case here. We do not think the evidence supports that conclusion. Appellant was arrested for drinking while driving and for driving without a valid license. There is nothing in the record to indicate that officers suspected appellant might be carrying contraband and arrested him on a pretext in order to conduct a search for contraband.
The search here was conducted pursuant to the authority granted by A.R.Cr.P. Rule 12.2, which provides:
An officer making an arrest and the authorized officials at the police station or other place of detention to which the accused is brought may conduct a search of the accused’s garments and personal effects ready to hand, the surface of his body, and the area within his immediate control.
According to 1 Ringel, Searches & Seizures, Arrests and Confessions, § 12.6(e) (2d ed. 1986), strip searches of arrestees are permitted, in spite of an inherent intrusiveness into a person’s privacy, in order to protect the safety of police officers, to maintain order in jails, and to disclose the fruit of a crime. Some courts condemn routine strip searches for traffic and other minor offenses, distinguishing the status of minor offenders from that of suspected felons. In Bell v. Wolfish, 441 U.S. 520 (1979), a civil case, the United States Supreme Court approved strip searches of prisoners after contact with visitors by “balancing the significant and legitimate security interests of the institution against the privacy interests of the inmates.” See 441 U.S. at 560.
Appellant relies on Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1983), Jones v. Edwards, 770 F.2d 739 (8th Cir. 1985), Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984), and John Does 1-100 v. Ninneman, 612 F.Supp. 1069 (D.C. Minn. 1985). These were all civil rights cases in which strip searches were held to be unconstitutional. However, in all of them, the arrest was for a misdemeanor, minor traffic offense, or some similar infraction not normally associated with drugs or weapons, and the person arrested had no prior arrest record. For example, Mrs. Giles was arrested because her vehicle registration had expired and she had several outstanding parking tickets; Jones was arrested for an animal leash law violation; Hill was stopped for driving with an expired automobile inspection sticker and arrested because of an outstanding warrant that had been withdrawn; in John Does 1-100, one person had been arrested for failure to appear at a child support hearing and one for driving after revocation of his driver’s license. Our research has revealed similar cases. See John Does 1-100 v. Boyd, 613 F.Supp. 1514 (D.C. Minn. 1985) (all were arrested for misdemeanors or minor offenses); Sala v. County of Suffolk, 604 F.2d 207 (2d Cir. 1979) (female plaintiff arrested for failure to respond to a court summons); Tinetti v. Wittke, 479 F.Supp. 486 (E.D. Wis. 1979) aff'd, 620 F.2d 160 (7th Cir. 1980) (per curiam) (female arrested for speeding); Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981), cert. denied sub nom. Clements v. Logan, 455 U.S. 942 (1982) (female attorney arrested for driving while intoxicated, strip search conducted in holding cell whose window blinds were either broken or open).
We find the above cases inapplicable to the situation at bar where the appellant, although arrested for two traffic offenses, was a suspect in a felony, and attempted at trial to have contraband discovered in a strip search suppressed. Even in a civil case, recovery was denied where the plaintiff had been arrested for felonious assault, was being confined in jail and would come into contact with the general jail population, the search was visual only and was conducted by a female attendant, and the search occurred only once and was conducted in private. See Dufrin v. Spreen, 712 F.2d 1084 (6th Cir. 1983). And in a criminal case, United States v. Duncan, 586 F.Supp. 1305 (W.D. Mich. 1984), the defendant, charged with numerous drug offenses, moved to suppress certain evidence seized in searches of his person, automobile and house. In regard to the strip search of his person, the court stated:
Assuming that defendant’s arrest was made pursuant to a valid warrant, the subsequent search of defendant’s person prior to his being placed in a jail cell was permissible. Whether justified as a search incident to arrest, United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973), United States v. Edwards, 415 U.S. 800, 807, 94 S.Ct. 1234, 1239, 39 L.Ed.2d 771 (1974), or as an inventory search of defendant’s personal effects prior to his being placed in a cell, Illinois v. Lafayette, _ U.S. _, 103 S.Ct. 2605, 2610, 77 L.Ed.2d 65 (1983), the search of defendant’s person at the county jail did not violate the Fourth Amendment. See also Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) holding that strip searches of pretrial detainees in a detention facility after each contact visit with a person from outside the institution does not violate the Fourth Amendment. Based on the foregoing, defendant’s motion to suppress the evidence obtained as a result of the search of his person is denied.
586 F. Supp. at 1311.
We are persuaded that the trial court did not err in refusing to suppress the evidence in the instant case. In deciding this issue, we also take into consideration the reason for the exclusionary rule, as stated in United States v. Leon, 468 U.S. 897 (1984), reh’g denied, 468 U.S. 1250.
The Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands, and an examination of its origin and purposes makes clear that the use of fruits of a past unlawful search or seizure “work[s] no new Fourth Amendment wrong.” . . . The wrong condemned by the Amendment is “fully accomplished” by the unlawful search or seizure itself, ibid., and the exclusionary rule is neither intended nor able to “cure the invasion of the defendant’s rights which he has already suffered.” . . . The rule thus operates as “a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” . . .
Whether the exclusionary sanction is appropriately imposed in a particular case, our decisions make clear, is “an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.”
468 U.S. at 906 (citations omitted).
Thus, even if we felt appellant’s constitutional rights were violated by the search conducted here, which we do not, we would still think it proper, under the circumstances of the instant case, to affirm the trial court’s refusal to grant appellant’s motion to suppress in this case where he was tried for a criminal offense.
Affirmed.
Cracraft and Jennings, JJ., agree. | [
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Beth Gladden Coulson, Judge.
The appellant, Charles Stephen Reeves, was convicted by jury verdict of possession of marijuana and possession of methamphetamine. Ark. Stat. Ann. § 82-2617 (Supp. 198 5). The court imposed concurrent sentences of one (1) year on the first count and three (3) years on the second count. A pretrial motion had been filed alleging that the stop and subsequent search of appellant’s vehicle was unreasonable and that all evidence seized should have been suppressed because the arresting officer lacked reasonable cause to stop the vehicle. The trial court denied the motion. On appeal, it is argued that the trial court erred in denying the motion and that our decision in Van Patten v. State, 16 Ark. App. 83, 697 S.W.2d 919 (1985), should govern. We disagree with the appellant and affirm the judgment.
On the night of September 21,1985, Officer Glen Redding of the Harrison Police Department heard a radio call advising officers to be on the lookout for a jeep — the driver of which was shooting fireworks out of the window of the vehicle and “was possibly DWI.” The radio dispatcher gave a license number and advised that the owner of the jeep was one Charles Stephen Reeves. In route to the police station, Officer Redding observed a jeep similar to the one that had been described on the radio call. The vehicle was about to exit from a parking lot onto the highway. As Officer Redding was aware that the suspect vehicle had not been located by other officers, he parked his unmarked car and waited for the jeep to pass so that the license number could be verified. The officer noticed that the driver took unusually long in pulling out onto the highway despite the lack of traffic. The license number matched the one broadcast over the radio. The officer then followed the jeep and noticed that it was proceeding extremely slow and was weaving occasionally, but that no traffic violations were committed. Based upon these observations, the officer determined that the driver might be under the influence of alcohol. The jeep pulled off the highway into a Holiday Inn parking lot, and the officer stopped to check the driver.
Officer Redding approached the jeep and asked the driver to exit the vehicle. He recognized the driver as one Charles Stephen Reeves and noticed that the appellant smelled of intoxicants and that his eyes were bloodshot. A paper cup approximately 1 /4 full of what appeared to be either bourbon or scotch was visible inside the jeep. When asked to produce identification, the appellant reached back into the vehicle to pick up a wallet. The officer saw the barrel of a rifle protruding from between the front seats and asked Mr. Reeves to step to the rear of the jeep in order to seclude him from the area of the weapon. He then ran a driver’s license check and waited for a back-up unit. When the back-up arrived, Officer Redding asked the second officer to give the appellant a field sobriety test. He also stated that there was a weapon in the vehicle and that he was going to secure it while the test was being administered.
Officer Redding reached inside the jeep to check the weapon and noticed a clear plastic baggie near the driver’s seat on the inside of the vehicle; the baggie contained a green leafy substance. Based upon the texture, odor, and appearance of the contents, the type of container, and Officer Redding’s experience, he immediately concluded that the substance was marijuana. The officer then checked the rifle to see if it was loaded and realized that it was a pellet gun. The officer replaced the gun but also saw some scales on the opposite seat. Shining his light into the jeep from the outside, the officer noticed a small unzippered change purse hanging from a bar on the inside of the jeep. Two small vials of a type normally associated with the transportation of methamphetamine were visible inside the purse. The appellant was then patted down for weapons and placed under arrest for possession of a controlled substance — marijuana. Upon the arrival of a third officer, an inventory search was conducted of the jeep’s contents. A list of the items taken during the inventory search was introduced at trial and includes such items as bottle rockets, the alleged marijuana, a loaded Ruger 357 Mag. revolver, and plastic bags and vials containing a white powder.
The Fourth Amendment to the Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” That protection extends to persons driving down the street. If the police stop a vehicle and detain its occupants, a seizure has occurred. Whenever practicable, the police are required to obtain advance judicial approval of searches and seizures through the warrant procedure. That process turns on the question of “probable cause.” However, it has been held that, consistent with the Fourth Amendment, the police may stop persons on the street or in their vehicles in the absence of either a warrant or probable cause under limited circumstances. Terry v. Ohio, 392 U.S. 1 (1968); United States v. Hensley, 469 U.S. 221 (1985); and Leopold v. State, 15 Ark. App. 292, 692 S.W.2d 780 (1985). One of those limited circumstances involves cases such as the present one — the investigatory stop.
In determining whether an investigatory stop has been made consistent with the mandates of the Fourth Amendment, we balance the nature and quality of the intrusion against the importance of the governmental interests alleged to justify that intrusion. Van Patten v. State, 16 Ark. App. 83, 697 S.W.2d 919 (1985). Where felonies or crimes involving a threat to public safety are concerned, the government’s interest in solving the crime and promptly detaining the suspect outweighs the individual’s right to be free from a brief stop and detention. That policy has been codified in Rule 3.1 of the Arkansas Rules of Criminal Procedure, which provides in part that:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. [Emphasis ours.]
In determining whether the officer’s suspicion was reasonable, A.R.Cr.P. Rule 2.1 provides the following definition:
“Reasonable suspicion” means a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.
The Arkansas Supreme Court has stated that “[t]he common thread which runs through the decisions makes it clear that the justification for the investigative stops depend [s] upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating the person or vehicle may be involved in criminal activity.” Hill v. State, 275 Ark. 71, 80, 628 S.W.2d 285, 288 (1982), cert. denied, 459 U.S. 882 (1982).
We first note that the radio dispatcher advised that the driver of the jeep was shooting fireworks out of the window of the vehicle and was possibly DWI. Our statutes make it a crime to operate a motor vehicle while intoxicated. Ark. Stat. Ann. § 75-2503 (Supp. 1985). It is also a crime to “ignite or discharge any permissible articles of fireworks within or throw the same from a motor vehicle while therein . . . .” Ark. Stat. Ann. § 82-1705 (Repl. 1976). That such conduct involves danger of injury to persons or property is obvious. Therefore, to the extent that our inquiry focuses on A.R.Cr.P. Rule 3.1, it is clear that the radio dispatcher alerted Officer Redding to the possibility that the driver of the suspect jeep might be committing misdemeanors involving danger of injury to persons or damage to property.
The question then becomes whether Officer Redding, under the totality of the circumstances, had such specific, particularized, and articulable reasons as would warrant his investigatory stop of the appellant’s vehicle for the activity specified in the radio dispatch. The dispatcher gave both the license number of the vehicle and the name of the owner, Charles Stephen Reeves. Officer Redding testified that after he verified the license number of the appellant’s jeep as matching the one broadcast, he followed the vehicle for about four blocks. The officer stated that based upon the manner in which the jeep had pulled out of the first parking lot, the slow rate of speed at which it proceeded, and the occasional weaving, the driver was probably under the influence of alcohol. The officer also testified that the Holiday Inn parking lot contained a drinking establishment and that, had he not approached the driver, “the officers arriving on the scene would not have seen him get out of the jeep or would not have been able to place the driver of the jeep.”
These facts, especially the observation of the appellant’s ability to drive and the verification of the license number, when viewed in light of the information provided in the radio dispatch, clearly amount to specific, particularized, and articulable reasons indicating that the person or vehicle may be involved in criminal activity. The appellant suggests that our decision in Van Patten v. State, supra, leads to the opposite conclusion. We disagree. Van Patten involved two separate radio dispatches; the first merely stating that there was “a loud party” disturbance, while the second indicated that the individual causing the disturbance may have left the scene in a brown jeep. The officer in that case stated that he had observed a jeep of that description in the vicinity of the disturbance, that the driver of the jeep was not committing any traffic violations, but that “he stopped the vehicle anyway.” Van Patten at 84. We pointed out that the officer “had no reason to suspect that a misdemeanor involving personal or property damage had been committed by the occupant.” (Emphasis ours.) Van Patten at 86. Those facts clearly distinguish the two cases, and we find that under the totality of the circumstances the investigatory stop in the present case was both reasonable and warranted.
However, our inquiry does not end with a finding that the investigatory stop was proper. The issue now becomes whether, consistent with the Fourth Amendment, Officer Redding had the right to enter the appellant’s jeep in order to examine the weapon. That act constituted a search — one which led not only to the inadvertent discovery of the marijuana but also to the subsequent arrest.
In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court upheld the validity of an officer’s investigatory “stop and frisk” because the officer feared that the suspects were armed and that they were about to engage in criminal activity. The Court stated that:
We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. Id. at 23.
The considerations announced in Terry, supra, are reflected in Rule 3.4 of the Arkansas Rules of Criminal Procedure, which provides:
If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer or some one designated by him may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the .officer or others.
The Supreme Court has subsequently had occasion to apply the same rationale to an investigatory stop involving an automobile. Michigan v. Long, 463 U.S. 1032 (1983). The similarity in facts between that case and the present, coupled with the discussion in Long, leads us to conclude that Officer Redding’s initial search of the appellant’s vehicle was clearly proper.
Long involved the investigatory stop of a vehicle that had been traveling erratically and had swerved off into a ditch. The occupant of the vehicle met the officers at the rear of his car but he had difficulty in responding to the officers’ requests for the vehicle registration and he “appeared to be under the influence of something.” After another request for the registration, the driver turned from the officers and began walking toward the open door of the vehicle. The officers followed the driver and both observed a large hunting knife on the floorboard of the driver’s side of the car. One officer shined his flashlight into the interior of the car “ ‘to search for other weapons’ ” and noticed something protruding from under the armrest on the front seat. He knelt in the vehicle, lifted the armrest, and then saw an open pouch on the front seat containing what he determined to be marijuana. The driver of the vehicle was arrested for possession of marijuana. Long at 1035-36.
The facts in Long led the Supreme Court to conclude that “the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief. . . that the suspect is dangerous and. . .may gain immediate control of weapons.” Long at 1049. The Court then noted that if while conducting a legitimate protective search of the interior of the vehicle the officer should discover contraband other than weapons, he cannot be required to ignore the contraband and “the Fourth Amendment does not require its suppression in such circumstances.” Long at 1050.
The appellant argues that the officer in the present case felt neither threatened nor had a reasonable suspicion that the appellant was dangerous. In Long, the lower court had determined that it was not reasonable for the officers to fear the driver because he was effectively under their control during the investigative stop and could not get access to any weapons that might have been located in the car. Also, the driver of the vehicle had not manifested a violent disposition. In reversing the state court’s decision, the Supreme Court stated that such suspects not only have the opportunity to break away from police control and retrieve a weapon from the vehicle, but also, if not placed under arrest, they would ultimately be able to reenter the vehicle and have access to any weapons inside. Long at 1052. Our reading of the record in this case reveals ample evidence that Officer Redding felt that the presence of the weapon constituted a threat and that, for his own safety and that of others nearby, it was necessary to secure the weapon while the appellant was being detained by the second officer.
In light of the holding in Michigan v. Long, we find that the appellant’s Fourth Amendment rights were not violated by the limited protective search conducted by Officer Redding. As noted in Long, the Fourth Amendment also presents no bar to use of the contraband which was discovered during the course of that search. That conclusion can be reached either on the direct language found in Long, or on the underlying theory that Officer Redding was lawfully present in the vehicle, the discovery of the bag containing the marijuana was inadvertent, and the incriminating nature of the material was immediately apparent. Coolidge v. New Hampshire, 403 U.S. 443 (1971), reh’g denied, 404 U.S. 874 (1971); Pruett v. State, 282 Ark. 304, 310, 669 S.W.2d 186, 190 (1984), cert. denied, 469 U.S. 963 (1984); and Wright v. State, 267 Ark. 264, 270-71, 590 S.W.2d 15, 20 (1979). That same “plain view” doctrine applies to the vials in the change purse. Texas v. Brown, 460 U.S. 730 (1983). We also note that the Supreme Court’s holding in Michigan v. Long was reaffirmed only recently. New York v. Class, _ U.S. _, 106 S.Ct. 960 (1986).
Having found that both the investigative stop and the limited protective search were reasonable, and that neither the marijuana nor the vials were the products of an illegal search, we turn to the evidence obtained during the subsequent inventory search of the jeep. Rule 12.6(b) of the Arkansas Rules of Criminal Procedure specifically provides that: “A vehicle im pounded in consequence of arrest, or retained in official custody for other good cause, may be searched at such times and to such extent as is reasonably necessary for safekeeping of the vehicle and its contents.” Our cases in this area clearly indicate that the inventory search in the present matter was both reasonable and authorized. Henderson v. State, 16 Ark. App. 225, 699 S.W.2d 419 (1985); and Colyer v. State, 9 Ark. App. 1, 652 S.W.2d 645 (1983).
Affirmed.
Cooper, J., agrees.
Corbin, C.J., concurring. | [
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George K. Cracraft, Judge.
William Wood, Jr., appeals from his conviction of the crime of manslaughter for which he was sentenced to five years in the Department of Correction. The appellant advances six points for reversal in which we find no merit.
On December 21,1984, the appellant’s vehicle collided with the rear of a truck driven by William Hunter with such force as to cause the truck to roll over a number of times on the highway and down an embankment into a tree. Hunter was killed in that accident. There was undisputed evidence from which the jury could find that the appellant was driving erratically, at an excessive rate of speed, and under the influence of alcohol at the time of the accident. The appellant does not contend that the verdict is not supported by substantial evidence, but argues that the trial court’s rulings on several evidentiary and procedural matters constituted prejudicial error.
The appellant first contends that the trial court erred in not dismissing the information because the State did not sufficiently prove the fact of Hunter’s death in the accident. The appellant’s argument is hinged on the fact that there was no autopsy or physician’s opinion on the fact of death. Neither autopsy nor medical evidence is necessarily required to establish the fact of death; it can be shown by strong and unequivocal evidence which leaves no ground for reasonable doubt. Where there is such evidence of death, its weight and sufficiency is for a jury to determine. Sims v. State, 258 Ark. 940, 530 S.W.2d 182 (1975). It has been said that the most satisfactory evidence of death is the testimony of those present when it happens or who, being acquainted with the deceased, have seen the body after life is extinct. Sims v. State, supra; Cavaness v. State, 43 Ark. 331 (1884).
No statute or decision has impaired the accuracy of these holdings. We find no merit in appellant’s argument that these decisions have been nullified by the subsequent enactment of Ark. Stat. Ann. §§ 83-357 — 358 (Supp. 1985). These statutes define when one is legally dead and require that “[a] determination of death shall be made in accordance with accepted medical standards.” These sections in no way change our case law. They are portions of acts dealing with vital statistics enacted to update earlier statutes concerning proper record keeping. They do not require that proof of death for the purposes of criminal prosecution be made only by autopsy evidence or by specific medical opinion.
Appellant next contends that the trial court erred in not giving a jury instruction on proof of death based upon those sections. We have already determined that such an instruction would not correctly state the law. Furthermore, the appellant did not prepare and proffer such an instruction as he wished the court to give. It is well established that one requesting a jury instruction must prepare and submit to the court a correct instruction and, where he fails to do so, he is in no position to argue on appeal that the request should have been granted. Coleman v. State, 12 Ark. App. 214, 671 S.W.2d 221 (1984).
Immediately after the accident, Officer Larry Mitchell noted that appellant’s speech was slurred, he was unsteady on his feet, and smelled of alcohol, and had him transported to the detention office in Searcy, Arkansas, for a breathalyzer test. Appellant’s vehicle was badly damaged and had become immobilized on the median of the divided highway. The police officer, determining that it was in an unauthorized place and created a danger, ordered a wrecker to remove the vehicle. Before the vehicle was removed, he inventoried the contents pursuant to Arkansas State Police policy and, among other things, found empty beer bottles and the butts and ashes of what appeared and were later determined to be marijuana cigarettes. The appellant argues that this inventory was a mere pretext for an investigative search and that the marijuana should therefore have been suppressed.
Rule 12.6(b) of the Arkansas Rules of Criminal Procedure provides that a vehicle retained in official custody for good cause may be searched at such time and to such an extent as is reasonably necessary for safekeeping of the vehicle and its contents. The officer testified that he was not conducting a “search” and had no suspicion that the vehicle contained contraband or controlled substances. He was simply performing a caretaking function required by his agency to protect the owner of the vehicle to be impounded. The appellant’s vehicle was in a median area, had been severely damaged in a serious accident, and was subject to being towed. The officer stated that he inventoried the contents thereof in a routine procedure required by the state police. The intent of a police officer is a question of fact and where, as here, there is nothing to contradict the officer’s testimony as to the purpose of his actions, deference must be given to the trial court’s finding. Colyer v. State, 9 Ark. App. 1, 652 S.W.2d 645 (1983). We agree with the State that, as the marijuana was lying in plain view and its nature was apparent to the officer, seizure of it would be justified under the so-called “plain view doctrine” as set forth in Heard v. State, 272 Ark. 140, 612 S.W.2d 312 (1981).
The appellant further argues that, even so, the evidence of the marijuana should not have been admitted because it was irrelevant and its probative value was substantially outweighed by the danger of unfair prejudice. We do not agree. Ark. Stat. Ann. § 41-1504( 1)(c) (Repl. 1977) provides that a person commits manslaughter if he recklessly causes the death of another person. The testimony of the drivers of the two vehicles following the appellant immediately before the accident indicated that the appellant was speeding and driving erratically. All who observed him at the scene of the crime indicated that he was unsteady on his feet, that his speech was slurred, and that he smelled of alcohol. There were empty beer cans in his vehicle and a breathalyzer test established that he was intoxicated. Furthermore, appellant admitted that he had smoked marijuana earlier that day. Rule 401 of the Arkansas Rules of Evidence defines relevant evidence as any evidence having the tendency to make the existence of any fact more or less probable than it would be without that evidence. The presence of the marijuana in his vehicle was clearly independently relevant to the issue of whether the appellant was acting recklessly.
Under A.R.E. Rule 403, relevant evidence should not be excluded unless its probative value is substantially outweighed by the danger of unfair prejudice. The balancing of probative value against prejudice is a matter left to the sound discretion of the trial judge and his decision on such a matter will not be reversed absent a manifest abuse of that discretion. Washington v. State, 6 Ark. App. 85, 638 S.W.2d 690 (1982). We cannot conclude in this case that the trial court abused its discretion in admitting the marijuana into evidence. The appellant does not argue in what way the evidence of the marijuana was unfairly prejudicial. However, in view of his confession to having smoked a marijuana cigarette earlier that day (to be discussed infra), there could have been little, if any, prejudice, and surely not the unfair prejudice of which the rule speaks. See Harmon v. State, 286 Ark. 184, 690 S.W.2d 125 (1985). As the evidence of the marijuana should have been received only for its relevance on the appellant’s mental state, a request for a limiting instruction should have been granted. However, no such request was made and failure for the court to so instruct in the absence of such a request is not error. Williams v. State, 276 Ark. 399, 635 S. W.2d 265 (1982).
Officer Mitchell testified that when he arrived at the scene he observed that the appellant was unsteady on his feet, had slurred speech, and appeared to be intoxicated. He read him his Miranda rights and stated that the appellant admitted that the vehicle in the median was his but did not say anything else and simply shook his head. The officer stated that, although the appellant did not request an attorney, he did not attempt to question him further. The appellant was then transported to a police station for a breathalyzer test. Three or four hours later, Sergeant J. R. Howard of the Arkansas State Police again advised the appellant of his rights, including his right to have an attorney present. The officer was not aware at that time that the appellant’s rights had previously been read to him at the scene of the accident. Howard stated that the appellant acknowledged that he understood his rights, signed a form stating that he was willing to answer questions without the presence of an attorney, and immediately gave a statement in which he admitted that he had “three stiff drinks” not too long before he left work and purchased a six-pack of beer en route home. He admitted that he had become drowsy and meant to pull over to the side of the road but had not. He stated that after the accident he tried to help revive the deceased but that “I knew he was dead.” The appellant admitted that he had enough marijuana with him that day for one cigarette and had smoked it at noon that day. The officer stated that at no time did the appellant mention to him that he either wanted an attorney or had requested one at any prior time. He stated that appellant was fully cooperative and that he gave his statement freely and voluntarily.
Appellant argues that his refusal to make a statement at the scene was a clear indication to the officers that he had not waived his right to remain silent and that, once he invoked his fifth amendment privilege, the police officers had no right to question him further. The renewed questioning after a suspect has invoked his right to remain silent which constitutes a violation of the Miranda principle has been dealt with by the United States Supreme Court in Michigan v. Mosley, 423 U.S. 96 (1975), and the Arkansas Supreme Court in Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986). In those cases, it was concluded that the admissibility of statements returned after a person in custody has once decided to remain silent depends upon whether his right to “cut off questioning” has been “scrupulously honored.” To scrupulously honor the appellant’s right to cut off questioning simply means that, once he has invoked his right to remain silent, his will to exercise that right should remain undisturbed. There must be no attempt to undermine his will, wear down his resistance, or force him to change his mind, and he must understand at all times that he is under no compulsion to respond to any interrogation. A determination of these questions will, of course, depend upon the facts of each case relative to the conduct of both the police officers and the appellant. Hatley v. State, supra.
The facts in this case are uniquely similar to those in Hatley. Here, Officer Howard testified that, between three and four hours after the fatal accident, he contacted the appellant and informed him of his Miranda rights. The appellant immediately indicated that he understood the explanation. The officer testified that he had made no effort to coerce the appellant and that, immediately after being informed of his rights, the appellant signed a form acknowledging that he understood his rights and that he freely and voluntarily gave the statement of his activities prior to the fatal accident. There was no evidence to the contrary. We cannot conclude that the appellant’s right, consistent with Michigan v. Mosley standards, to cease the interrogation was violated. There is nothing here to suggest that there were efforts to wear down his resistance or prevail upon him to change his mind with regard to the assertion of his rights. After he had been brought to the detention center, no attempt to question him was made for three to four hours, at which time he was asked if he wished to make a statement and he stated that he did. The period of time between his detention and second questioning was of sufficient length to produce more than a momentary lull before being approached the second time, and did not constitute “repeated questioning.” On the other hand, it was not so long as to produce an inference that his cooperation was the result of lengthy detention. We find no error.
Appellant finally argues that the trial court erred in not granting a mistrial following the testimony of Carl Max Johnson, an eyewitness to the incident. He testified extensively and adversely to the appellant about the events that he had observed. Shortly after the accident, Johnson was interviewed by State Trooper Leroy Davis, in which he gave a statement of what he had observed. There was a question as to whether the notes taken by the officer during that statement were signed by Johnson or not. In any event, the officer testified that those notes were simply taken for subsequent transcription and were incorporated into a written report which was furnished to the appellant prior to cross-examination as provided in Ark. Stat. Ann. § 43-2011.3 (Repl. 1977). Appellant argues that the original notes had not been furnished to him and that this was prejudicial and denied him the right of cross-examination.
In this case, both Trooper Davis and Johnson testified and the appellant was free to cross-examine them both fully. Johnson’s statement at the trial differed from that given at the scene only as to the point at which one event, which occurred after the accident, fit into the full sequence of events he had observed. The police officer testified that the notes taken of his interview with Johnson were not intended to be a statement but were for the purpose of incorporation into his report. He testified that handwritten notes taken at the scene were not maintained and were no longer in existence. The officer testified that he did not write down everything that was told him and that he used both his notes and memory in typing his report. He stated that he types all of his reports and then disposes of his handwritten notes because his handwriting is so poor. Under the circumstances of this case we cannot say that the failure to maintain the handwritten notes was of such prejudicial magnitude as to warrant so drastic a remedy, especially when it was shown that no prejudice resulted.
Affirmed.
Jennings and Mayfield, JJ., agree. | [
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George K. Cracraft, Judge.
The natural mother of the child adopted in these proceedings appeals from a summary judgment entered in the probate court of Pulaski County denying her petition to withdraw her consent to the adoption. She contends that the court erred in holding as a matter of law that she was not entitled to a hearing on the issue of whether her consent had been obtained by fraud, duress, or intimidation. We agree.
On January 17, 1986, the probate court of Pulaski County ordered that the child be adopted by the adoptive parents and thereafter be known and referred to as their legal child. It further ordered the Bureau of Vital Statistics to issue an amended birth certificate reflecting the adoptive parents as the natural mother and father of the adopted child. The order provided that the decree become final in six months. No subsequent hearing was required by the terms of the order.
In June of 1986, the natural mother filed a petition seeking to withdraw her consent. She alleged in her petition that at the time she signed the consent she had been intimidated and unduly influenced to such an extent that her consent had not been given voluntarily. The adoptive parents filed a motion for summary judgment asserting that the decree was a final one and that the consent could not therefore be withdrawn. They asserted by affidavit and other documents that the natural mother’s consent had been obtained voluntarily and without fraud, duress, or undue influence. The natural mother responded with affidavits in which she averred that “ [p] rior to the time that I gave my child up and after I gave my child up I constantly would say that I wanted my child back, but I was always told by the attorney for the adoptive parents that it was too late and I could not have the child back.” The record shows that the child was delivered to the adoptive parents on the same day that the consent was signed.
The probate court ruled that, as the decree was a final one in that it did not require a subsequent hearing, consent could not be withdrawn even upon a showing of fraud or duress. Based on that ruling, the court declared that as a matter of law the natural mother’s counter-affidavits could not raise an issue of fact as to her right to withdraw her consent to the adoption. We conclude that this holding of the probate judge is clearly erroneous and in direct conflict with the holding of the supreme court in McCluskey v. Kerlen, 278 Ark. 338, 645 S.W.2d 948 (1983).
In McCluskey, the order of adoption was identical to the one entered here. It declared the child to be adopted, ordered the issuance of a substituted birth certificate, and no subsequent hearing was required by its terms. The court, in that case, discussed the Revised Uniform Adoption Act, declared that under that act a consent for adoption could not be withdrawn after the entry of a final decree, and noted its previous declaration that any decree of adoption entered pursuant to that act would be construed to be a final one, whether it was termed interlocutory or final, if no subsequent hearing was required by the terms of the decree. The court qualified that statement, however, as follows: “In making this ruling we do not imply that consent could not be withdrawn after an interlocutory order upon a proper showing of fraud, duress or intimidation,” citing with approval In Re: Adoption of Graves, 481 P.2d 136 (Okla. 1971), wherein the issue was identical to that now before this court.
We reject the adoptive parents’ argument that Mc-Cluskey restricts the right of a natural parent to withdraw his consent on these grounds to those decrees which are truly interlocutory in nature and which require further action of the court. In that portion of McCluskey quoted above, the court did refer to an “interlocutory order, ” but it is clear from the context of the declaration that the court was referring to the order then before it for review. We interpret McCluskey as holding that a natural parent may not withdraw his consent to adoption after entry of an order which by its terms does not require a subsequent hearing, except upon proof of fraud, duress, or intimidation. We hold no more than that the probate court erred in concluding that, after the order of adoption here in question had been entered, it was without authority or jurisdiction to hear evidence on the issues of fraud, duress, and intimidation in the obtaining of the consent to adoption, and in granting summary judgment based upon that conclusion where the affidavit of the natural mother did raise a question of fact as to whether her consent was wrongfully obtained.
Reversed and remanded.
Cooper and Mayfield, JJ., agree. | [
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James R. Cooper, Judge.
The appellee, Charles Hilpert, was discharged from his job with the appellant, Little Rock Wastewater Utility. According to the appellant he was discharged because he failed to call in his absence for three consecutive days and for insubordination. The Board of Review reversed the Appeals Tribunal, finding that Hilpert was not discharged for intentional or willful misconduct and therefore, he was entitled to full unemployment benefits. On appeal, the appellant argues that the Board’s finding is unsupported by substantial evidence. We disagree with the appellant’s contention, and affirm the Board’s decision.
In unemployment compensation cases, the findings of the Board of Review as to the facts are conclusive on appeal if they are supported by substantial evidence. Victor Industries Corp. v. Daniels, 1 Ark. App. 6, 611 S.W.2d 794 (1981). Substantial evidence is valid, legal and persuasive evidence; such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Victor Industries, supra. Even where there is evidence from which the Board could have reached a different result, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it; we may not substitute our findings for those of the Board even though we might have reached a different conclusion had we made the original determination upon the same evidence. Shipley Baking Co. v. Stiles, 17 Ark. App. 72, 703 S.W.2d 465 (1986).
In the case at bar, the evidence shows that Hilpert had been employed by the appellant for approximately eight years. When Hilpert was hired he mentioned that he had a drinking problem. Hilpert stated that he had never been intoxicated on the job, but that he had called in sick a few times because of the effects of alcohol.
In 1980, Hilpert received a warning concerning his drinking problem. The written notice stated that “cover” would no longer be provided for his problems and that if his drinking problem continued he would be discharged. Milton Wylie, who at that time was the maintenance director, testified that the reprimand meant that Hilpert was to take his Antabuse tablets in the office each morning and join a chapter of Alcoholics Anonymous. He further stated that Hilpert understood these conditions, even though they were not specified in writing. The 1980 reprimand resulted from Hilpert’s being in a detoxification unit and being absent from work. Michael Jones, who became the director of maintenance in 1981, testified to essentially the same facts. It is uncontradicted that Hilpert suffers from alcoholism, and that the employee did not follow up on the conditions which the employer stated were part of the 1980 reprimand.
Hilpert testified that on Sunday, October 10, 1982, he had been drinking and began feeling extremely ill. He entered the hospital on that day to have tests run relating to liver damage, pancreas malfunction, and low blood sugar. He testified that he did not call his supervisor on Sunday because he knew that his employer took a dim view of his drinking. Hilpert stated further that on Monday, October 11, his wife was instructed to call in for him and report his illness and absence and that she had done so. However, Jones testified that the telephone call was never received. On October 12, Hilpert’s wife called about forty-five minutes after Hilpert was to report for work and told them that her husband was ill and was going to have some tests run at the hospital. On Wednesday, October 13, Hilpert called at about 3:00 p.m. and stated that the medical staff recommended that he enter the alcohol abuse program at the hospital and would be in detoxification for the next 28 days. At the time Hilpert had 25.9 days of sick leave accumulated.
Hilpert was discharged on October 20,1982 because he had failed to personally notify his supervisor of his absences on October 11,12 and 13 prior to the start of work. The appellant also alleged insubordination because Hilpert had failed to heed the 1980 reprimand.
The Appeal Tribunal specifically found that Hilpert’s failure to report to work was beyond his reasonable control, but that his failure to properly notify his employer constituted misconduct. The employer’s testimony showed that Hilpert had adequate sick leave accumulated to cover his hospitalization; that he had never been seen drinking on the job, and that he had no history of absenteeism or tardiness. The employer representatives denied that alcoholism was an illness, but confirmed that Hil-pert’s two previous hospitalizations for alcoholism (in the previous six years) had been covered by sick leave. Hilpert testified that he had been an alcoholic for years and that he was simply trying to get help in treating his alcoholism, which he believed was a disease. On this evidence, the Board found that Hilpert was not guilty of misconduct in connection with the work.
Mere inefficiency, unsatisfactory conduct, failure of good performance as the result of inability or incapacity, inadvertence and ordinary negligence or good faith errors in judgment or discretion are not considered misconduct for unemployment insurance purposes unless they are of such a degree or recurrence as to manifest culpability, wrongful intent, evil design, or an intentional or substantial disregard of an employer’s interests or of an employee’s duties and obligations. Shipley Baking Co., supra. We agree with the Board’s finding that Hilpert’s admission into a hospital for treatment of his alcoholism did not display any evil design or wrongful intent. Moreover, in light of Hilpert’s hospitalization at the times he was to report to work and the evidence of efforts to notify the employer of his absence, we do not think his failure to follow company guidelines and give advance notice that he would be absent rises to the level of misconduct.
Finally, we note the conflict in the testimony concerning whether alcoholism is an illness or disease. The Board did not decide this question, nor did it need to do so. Hilpert was hospitalized, as he had been on two other occasions, for treatment of alcoholism, and, as on the other two occasions, had adequate sick leave accumulated to cover his absence. The evidence was in conflict concerning his notification of the appellant, and the resolution of conflicts in the testimony, as well as the weight to be given the past practices of the parties, was for the Board of Review, not this Court, to resolve.
Affirmed.
Corbin, C.J., dissents. | [
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Beth Gladden Coulson, Judge.
Appellant argues a single point for reversal in this appeal from an order of the Workers’ Compensation Commission. Upon our review of the record, we find error on the Commission’s part, and we therefore reverse its decision.
The record reveals that appellant, Forrest E. White, sustained a compensable injury while working for appellee Lair Oil Company on November 17, 1983. Two chiropractors — Dr. Butler, whom appellant had selected, and Dr. Conners, whom appellee Lair Oil had selected — saw him and recommended the services of Dr. John L. K. Tsang, a neurosurgeon in Springfield, Missouri. Dr. Tsang operated on appellant in December, 1983, and March, 1984.
In the latter part of March, 1984, appellant suffered painful muscle spasms in his lower back and left leg. Appellant’s wife testified that when she phoned Dr. Tsang for assistance, he scolded her for disturbing him at home at 8:00 p.m., despite the fact that he had instructed appellant to call him at any time should he develop complications. Failing to obtain Dr. Tsang’s assistance, appellant’s wife took her husband to the emergency room at the hospital in Harrison, Arkansas, where he was treated by Dr. Geoffrey Dunaway, appellant’s family physician.
On April 19, 1984, after his release from the hospital, Dr. Dunaway referred appellant to Dr. Jorge Johnson, a neurologist in Fayetteville, Arkansas. Appellant was given an appointment for an office visit on May 1, 1984. According to Dr. Johnson’s records, appellant’s treatment began in June, 1984. He was hospitalized in August, 1984, and underwent surgery. Appellee carrier refused to pay Dr. Johnson’s charges, contending that the referral by Dr. Dunaway was an unauthorized change of physician under Ark. Stat. Ann. § 81-1311 (Supp. 1985).
A hearing was held on September 25, 1985, and the administrative law judge found Dr. Johnson’s treatment to be reasonable and necessary under the circumstances and appellees responsible for the outstanding medical charges. The law judge held that a proper referral had been made by Dr. Dunaway, who had followed appellant through the course of his unsuccessful treatment by other physicians. The Workers’ Compensation Commission, in an order filed April 10, 1986, ruled that the administrative law judge had misapplied the law. In reversing his decision, the Commission stated that the treatment appellant received from Dr. Johnson was neither authorized nor approved and that appellees bore no responsibility for Dr. Johnson’s charges. From that decision, this appeal arises.
Appellant’s sole argument for reversal is that the Commission erred in finding that he did not comply with the requirements of Ark. Stat. Ann. § 81-1311 (Supp. 1985). Hecontends that his treatment by Dr. Johnson was not, properly speaking, a change of physician but was instead merely a referral by his treating physician, under whose care he remained.
We agree. When Dr. Tsang refused to assist appellant when emergency services were required, he effectively released his patient from his care. At that point, Dr. Dunaway stepped into Dr. Tsang’s shoes and became appellant’s treating physician. Because the change was not of appellant’s seeking but was instead prompted by exigent circumstances, we cannot conceive that a reasonable mind could reach the conclusion that a change of physician had occurred. For all practical purposes, then, a continuum of treatment was administered to appellant under two doctors whose services could be said to have been merged as those of one.
In Universal Underwriters Insurance Co. v. Bussey, 17 Ark. App. 47, 703 S.W.2d 459 (1986), we declined to adopt a strict construction of the term “emergency treatment” that would entail only a life-threatening situation, and we upheld the award of medical expenses to a second physician who admitted the claimant to a hospital and performed surgery upon him several days later. There has been no dispute in the present case regarding whether the treatment appellant received from Dr. Dunaway could be characterized as “emergency.” Once it has been determined that, by virtue of the emergency, Dr. Dunaway also assumed the role of appellant’s treating physician, the question then to be resolved is whether the engagement of Dr. Johnson was a change of physician or a referral.
We held in Electro-Air v. Villines, 16 Ark. App. 102, 697 S.W.2d 932 (1985), that a referral had indeed occurred where the evidence showed that a claimant’s treating physician had referred her to a psychiatrist, despite the fact that the Commission had improperly labeled it a change of physician, and we affirmed the Commission’s approval of the referral. In the present case we are confronted by an almost identical situation — a treating physician referring his patient to a specialist. Thus, the Commission was in error to rule that appellant had made a change of physician.
We reverse and remand this matter to the Commission for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Mayfield and Cooper, JJ., agree. | [
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Donald L. Corbin, Chief Judge.
On January 30, 1985, Southwestern Bell Telephone Company applied to the Arkansas Public Service Commission for permission to issue $700 million in unsecured debentures. The debentures would not create a lien upon or otherwise encumber any of Bell’s property in Arkansas. Bell, incorporated under the laws of Missouri, stated in its application that it was placing the matter before the Commission solely as an “accommodation” and asserted that the PSC did not have jurisdiction over this securities transaction under Ark. Stat. Ann. Sections 73-254 (Repl. 1979) and 73-255 (Supp. 1985). The PSC disagreed and, in its Order No. 1, asserted that Ark. Stat. Ann. Section 73-255 gave it jurisdiction over the debentures and approved the application without a formal hearing on February 4, 1985. Bell petitioned for rehearing on the issue of whether the Commission had jurisdiction to approve the issuance of the debentures and, after hearings, the Commission reaffirmed its earlier assertion of jurisdiction. Bell appeals, contending the PSC is incorrect in interpreting Ark. Stat. Ann. Section 73-255 to give it jurisdiction over this type debenture issue. We agree with Bell and reverse.
For reversal, Southwestern Bell first claims that the Commission’s assertion of jurisdiction over this debenture issue violates the commerce clause of the U.S. Constitution because the security transaction is in interstate commerce. Second, Bell claims the Commission’s interpretation of Ark. Stat. Ann. Section 73-255 is arbitrary, capricious, unreasonable and not based on substantial evidence, and violates the intent of the General Assembly in enacting those statutes, as well as longstanding interpretation by the Commission in the past. Third, Bell claims the Commission violated Rule 5.01 of its own Rules of Practice and Procedure, which essentially recites the statutory language found in Ark. Stat. Ann. Section 73-255. Since the application of Arkansas statutes and rules of the Commission affords adequate relief to Bell, we need not reach the Company’s argument that the Commission’s action violates the commerce clause of the U.S. Constitution.
Ark. Stat. Ann. Section 73-255 (Supp. 1985) provides in pertinent part as follows:
A public utility may, when authorized by order of the Commission, and not otherwise, issue stock, bonds, notes or other evidence of indebtedness payable at periods of more than thirty-six (36) months after the date thereof when necessary for the acquisition of property, the construction, extension or improvement of its facilities or the improvement of its service, or for the discharge or lawful refunding of its obligations, or reimbursement of moneys actually expended from the income from any source, or for any of such purposes.
Read alone, this statute can certainly be interpreted to require Commission approval prior to issuance of these debentures. However, Bell claims that Ark. Stat. Ann. Section 73-255 must be read in conjunction with Ark. Stat. Ann. Section 73-254. Section 73-254 provides, in pertinent part, as follows:
The power of public utilities to issue stocks, stock certificates, bonds, notes and other evidences of indebtedness, in case of public utilities incorporated under the laws of this state, and to create liens on property in this state, in case of public utilities incorporated under the laws of any state or foreign country, is a special privilege, the right of supervision, regulation, restriction and control of which is, and shall continue to be vested in the state, and such power shall be exercised as provided by law under such rules and regulations as the department [Commission] may prescribe.
When a dispute turns on the construction of acts of the General Assembly, it is beyond question that our task in resolving that dispute is to ascertain what the General Assembly intended and to give effect to that legislative intention. Amason v. City of El Dorado, 281 Ark. 50, 661 S.W.2d 364 (1983); Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980). We construe a statute by the meaning of the expressed words of the statute, and if the language is clear and unambiguous, we must construe it in accordance with the language employed. National Baptist Convention v. Arkansas Employment Security Division, 3 Ark. App. 189, 623 S.W.2d 852 (1981), aff'd, 275 Ark. 374, 630 S.W.2d 31 (1982). If the statute is plain and unambiguous, this court has no authority to construe a statute to mean anything other than what it says. Id. The primary rule in the construction of a statute is to give effect to the intention of the lawmakers, and this intention is to be ascertained from a consideration of the entire act. Arkansas State Highway Commission v. Mabry, 229 Ark. 261, 315 S.W.2d 900 (1958).
With these principles in mind, we hold that Ark. Stat. Ann. Section 73-255 [Section 59 of Act 324 of 1935] must be read in conjunction with Ark. Stat. Ann. Section 73-254 [Section 5 8 of Act 324 of 19 3 5], as well as any other provisions of Act 324 of 1935 and the various amendments thereto whenever appropriate so as to give full effect to the intention of the Arkansas General Assembly. A fair reading of Section 59 in light of the provisions of Section 58 reveals that the legislature intended two classifications of utilities to be made when it enacted the language of those sections into law. First, the General Assembly classified public utilities “incorporated under the laws of this state” and conferred upon those utilities the “special privilege” of having the power to issue “stocks, stock certificates, bonds, notes and other evidences of indebtedness” under the supervision and regulation of the state. Second, the General Assembly classified public utilities “incorporated under the laws of any state or foreign country” into another category and conferred upon those utilities a “special privilege” consisting of the power, under the supervision and control of the state, to “create liens on property in this state.” Southwestern Bell Telephone Company is incorporated under the laws of Missouri. It is beyond dispute that the debenture issue in question here will not create a lien on property of Bell in this state. That being the case, and in light of the foregoing, the approval of the Arkansas Public Service Commission is not required.
Rule 5.01 of the Public Service Commission’s Rules of Practice and Procedure addresses the jurisdiction of the Commission as follows:
Public utilities, incorporated under the laws of this State, must file a formal application for authority to issue stock, bonds, notes or other evidences of indebtedness payable at periods of more than thirty-six months (36), after the date thereof, and public utilities, incorporated under the laws of any state must file a formal application for authority to create liens upon properties in this State, under the provision of Sections 58 and 59 of Act 324 of 1935, as amended. (Ark. Stat. Ann. Sections 73-254 and 73-255 (Repl. 1979)).
Again, a fair reading of the plain language of this Rule, which by its very terms seeks to give effect to both sections 58 and 59 of Act 324 of 1935, leads to the conclusion that the Commission itself has in the past given proper consideration to the General Assembly’s intentions. Indeed, the record reflects that the PSC has a long history of either disclaiming or failing to exercise jurisdiction over financing matters such as in this case. While it is true that an administrative agency’s construction of a statute is not conclusive, and it is considered highly persuasive and is entitled to considerable weight, we should overturn the administrative construction when it is clearly wrong. Arkansas Public Service Commission v. Allied Telephone Co., 274 Ark. 478, 625 S.W.2d 515 (1981); Walnut Grove School District No. 6 v. County Board of Education, 204 Ark. 354, 162 S.W.2d 64 (1942). Here, the Public Service Commission broke with its longstanding interpretation and application of Ark. Stat. Ann. Sections 73-254 and 255, and its rule promulgated to give effect to those statutes and adopted an interpretation we think is contrary to existing statutory law.
Finally, we note that the PSC is not without adequate means to guard against an ill-advised or imprudent debenture issue or other incurring of indebtedness by a company: the Commission may, in an appropriate exercise of its discretion, adjust a company’s capital structure whenever such may be called for by the particular circumstances of a rate case. Walnut Hill Telephone Company v. Arkansas Public Service Commission, 17 Ark. App. 259, 709 S.W.2d 96 (1986). All that is required is that the Commission act within the ambits of its statutory authority. Id. It follows, too, that the Commission must follow its own rules in so doing.
We hold that, where a public utility is incorporated under the laws of another state and is providing services within the State of Arkansas seeks to issue indebtedness which will neither create a lien upon nor otherwise encumber any utility assets in this state, and where the effect of that indebtedness on rates may be adequately addressed in the normal course of ratemaking by the Arkansas Public Service Commission, approval and other supervision of the issue by the PSC is not required under Ark. Stat. Ann. Sections 73-254 and 73-255.
Accordingly, we reverse and remand for an entry of an order consistent with this opinion. The order should include a provision for the return of the filing fee paid by Bell to the Commission for processing Bell’s application.
Reversed and remanded.
Ark. Stat. Ann. Sections 73-254 and 255 were enacted as Sections 58 and 59 of Act 324 of 1935, as amended. The 1985 amendment to Section 73-255 did not alter any provision of Section 59 in the 1935 Act which is in contention here.
The commerce clause and other issues raised during argument are intriguing; however, the court believes that the better course is to decide the case at bar based on the issues as discussed herein. | [
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Melvin Mayfield, Judge.
On January 14, 1984, the appellee filed a complaint for divorce against appellant. Although personal service was made on appellant, he failed to answer the complaint and failed to appear and defend against the allegations contained therein. On March 29,1984, the court granted appellee a divorce and ordered appellant to pay all indebtedness owed by the parties to Sears Roebuck and J.C. Penney. The decree recited that the matter had been submitted to the court upon the testimony of the appellee and a witness on her behalf.
On March 18,1985, almost a year after the divorce had been granted, appellee’s attorney filed a motion asking that an order be issued requiring appellant to appear and show cause why he should not be held in contempt for failure to pay the debts as ordered in the divorce decree. On May 7, 1985, after a hearing before the chancellor, the appellant was held in contempt for failure to comply with provisions of the decree. From that order, appellant brings this appeal.
Appellant first argues that the decree of divorce is invalid because it imposed debt obligations on him granted by default judgment when the complaint did not give notice that appellee was seeking to impose these obligations upon him. He further argues that the court had no authority to hold him in contempt since appellee’s motion for contempt citation was unverified and unaccompanied by an affidavit.
As to the first argument, it is true that the complaint for divorce filed by the appellee did not ask that the appellant be required to pay the debts to Sears and Penney. In fact, nothing was alleged about any debts, although the complaint did ask that the property rights of the parties be adjudicated. Therefore, it appears to have been erroneous for the chancellor to have ordered the appellant to pay these debts since a request for that relief was not specifically pleaded in appellee’s complaint. See Kerr v. Kerr, 234 Ark. 607, 611, 353 S.W.2d 350 (1962), where the court said:
The plaintiff’s statement of her cause of action contains no reference to financial problems of any nature or kind. Nor does the complaint contain so much as a hint that any decree touching upon custody or support will be sought. It is apparent from the pleadings here that the plaintiff was seeking but one thing — a divorce. This being true, she cannot enlarge and broaden the scope of the action to include matters foreign to her complaint upon the default in appearance by the defendant.
However, the appellant was personally served with summons in the divorce action, he did not file an answer, did not appear at trial, and did not appeal from the decree of divorce. Thus, that decree became a final judgment and it was not until the chancellor cited him for contempt, more than a year later, that the appellant alleged error in the decree. When a judgment becomes final, it is protected by the common law principle of res judicata, and the findings and orders of the decree cannot later be collaterally attacked. Gideon v. Gideon, 268 Ark. 873, 596 S.W.2d 367 (Ark. App. 1980); see also Taylor v. Taylor, 153 Ark. 206, 240 S.W. 6 (1922). This is true even if the judgment is erroneous. Gideon, supra. Not having appealed from the decree of divorce within the time permitted by law, the appellant is not now in a position to complain about its provisions. Best v. Williams, 260 Ark. 30, 537 S.W.2d 793 (1976).
As to appellant’s second argument, that the appellee’s motion for contempt was unaccompanied by an affidavit and not verified, the appellant relies upon the case of Hilton Hilltop, Inc. v. Riviere, 268 Ark. 532, 534, 597 S.W.2d 596 (1980), where the court said:
Unless the court initiates the proceedings on its own motion, however, any proceeding to punish for contempt committed outside the presence of the court must be initiated by an affidavit of a person who witnessed the contempt or otherwise has knowledge of it. York v. State, 89 Ark. 72, 115 S.W. 948 (1909); CarlLee v. State, 102 Ark. 122, 143 S.W. 909 (1912); Ex Parte Coulter, 160 Ark. 550, 255 S.W. 15 (1923); Henderson, Sheriff v. Dudley, Chancellor, supra.
268 Ark. at 534. In that case, the trial court had dismissed the petition for contempt without a hearing and the Arkansas Supreme Court said there was ample justification for that action. After setting out the general principle of law quoted above, the court explained:
In the case at bar, appellant initiated the proceeding by an unverified petition alleging contempt which was committed out of the presence of the court. Assuming that the factual allegations were legally sufficient to establish a prima facie showing of contempt, an issue we need not decide, appellant did not make the allegations by affidavit or otherwise provide the court with a sworn statement upon which the court was obliged to act. Although a court may initiate contempt proceedings on its own motion when presented with unverified allegations of constructive contempt, the court may summarily disregard such allegations if they are not made under oath.
268 Ark. at 534-35.
The cases cited in the above case also help make the issue clear. In Ex Parte Coulter, 160 Ark. 550, 255 S.W. 15(1923),the attorneys for the appellant’s former wife simply prepared a “notice” stating they would file a motion asking the court to hold the appellant in contempt, and the “notice” stated the motion would be presented to the court at a certain time. Even though the “notice” was served on the appellant, he did not appear at the stated time, and the court entered an order for the appellant to be taken into custody and confined in jail until he made past due child support payments. The appellant petitioned the Arkansas Supreme Court for certiorari to quash the trial court’s order and the Supreme Court granted the relief requested. The court said the attorneys had no authority to require the appellant to appear in court to answer their charge that he was in contempt and that the notice to appear would have had to be given by the trial court.
Another case cited in Riviere, supra, is Henderson v. Dudley, 264 Ark. 697, 574 S.W.2d 658 (1978). Henderson pointed out that Ark. Stat. Ann. § 34-903 (Repl. 1962) merely requires, where the contempt is not committed in the court’s presence, that the party charged be notified and have reasonable time to make his defense. After discussing prior cases, the court concluded:
Thus, it can be seen that this court has taken the position that an order of court setting out the charge, or statement thereof, containing the whole matter constituting the offense with which the alleged contemnor is charged, is the equivalent of a supporting affidavit.
264 Ark. at 704-05.
The Henderson case was expressly reaffirmed in Clark v. State, 287 Ark. 221, 697 S.W.2d 895 (1985). The opinion in Clark also contains the following quotation from CarlLee v. State, 102 Ark. 122, 127, 143 S.W. 909 (1912), a case which was cited in the Riviere case:
There must be an accusation before the accused can be notified of it, and there is no reason why the court in session can not recite that the matter offending has come to its knowledge, setting it out in an order, and direct a citation thereon to show cause.
The procedure described in the above quotation is exactly the procedure followed in the case at bar. The appellee’s attorney filed a motion asking that an order be issued requiring appellant to appear and show cause why he should not be held in contempt for failure to pay the Sears and Penney debts as ordered by the divorce decree. An order to that effect was issued by the court and the record shows it was served on the appellant. The order contained an exact day and time for his appearance. On that day and at that time, he failed to appear. The court then found him in contempt and that order recites it was based upon the evidence heard by the court. While the evidence is not included in the transcript filed here, appellant does not question that point, and even if he did, where the testimony is not brought forward in the record, we must presume that it was sufficient to support the trial court’s findings and order since it is the appellant’s burden to provide us with a record that demonstrates the trial court was in error. King v. Younts, 278 Ark. 91, 643 S.W.2d 542 (1982).
Affirmed.
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James R. Cooper, Judge.
The Attorney General appeals from orders issued by the Arkansas Public Service Commission (Commission) pursuant to an audit of costs allocated to Southwestern Bell Telephone Company (SWBT) by SWBT’s parent corporation and affiliates.
To clearly understand the issues presented, we must first discuss findings made by the Commission in a prior docket. In September 1992, Commission Docket No. 92-260-U was initiated by the Commission Staff (Stafi) to investigate SWBT’s earnings level. Staff filed traditional rate-case testimony in the docket based on a test year of December 31, 1991. Staff concluded from its analysis that SWBT’s rates produced earnings in excess of a reasonable revenue requirement. On May 3, 1993, a Stipulation and Agreement (Stipulation) agreed to by Staff, SWBT, AT&T Communications, Sprint Communications Company L.P., GTE Southwest Incorporated, GTE Arkansas Incorporated, and sixteen rural local exchange companies was filed in Docket No. 92-260-U to resolve the issues raised by the investigation. The Stipulation provided that, in lieu of proposed reductions to its rates, SWBT would make an incremental investment of $231 million over a three-year period to upgrade its infrastructure in Arkansas. The Stipulation provided:
The basic aspects of the [Stipulation] can be summarized as consisting of a significant network modernization plan, conversion to single party service in all exchanges served by SWBT, service to two previously unallocated ter ritories, and recognition of certain financial accounting changes .... This Stipulation and Agreement also contains a redefinition of basic local service for SWBT ... to include single party service with touch-tone and provides for a reduction in the current rates for touch-tone service. It incorporates the elimination of mileage charges for rural customers with the conversion of those exchanges to single party service and implements a reduction of special connection charges for the extension of facilities to rural areas.
The Stipulation also provided for the additional investment to be treated as a part of SWBT’s rate base. It further stated:
The Parties agree that the estimated value of these improvements is $231 million, and the annual revenue requirement effect based on the additional investment and associated costs is approximately $19.3 million. The Parties agree that the $19.3 million annual revenue requirement effect from investment and expenses is offered in lieu of potential reductions to SWBT’s existing rates.
In the Stipulation, the parties estimated that the touch-tone rate reduction would reduce SWBT’s revenues by $6.1 million annually and that the elimination of Outside the Base Rate Area (OBRA) mileage charges would reduce SWBT’s revenues by $8.2 million annually. The parties agreed that Staff’s ongoing audit of costs allocated to SWBT’s Arkansas division by its parent company and affiliates (the St. Louis audit) would continue until Staff deemed it completed.
Prior to the hearings held to address the Stipulation and the Attorney General’s objections to it, the Commission ordered Staff and SWBT to respond by testimony to specific questions about the earnings review and the Stipulation. In addition, the Commission ordered an update of the test-year financial information based on a test year ending May 31, 1993. Forty-seven witnesses testified at the hearings which began on September 14, 1993.
On January 27, 1994, the Commission entered Order No. 38, finding that the Stipulation was in the public interest and approving it with some modifications. In its thirty-seven-page order, the Commission presented a detailed examination and discussion of the testimony and exhibits presented in the docket and concluded:
The evidence is substantial that the Stipulation as a whole is in the public interest and will serve the needs of the people of Arkansas for a modern telecommunications system capable of carrying the state into the future. The Stipulation is an obvious departure from the normal course of a show cause proceeding to reduce a utilities rates when there is an allegation of overearning. The Stipulation does provide for some reductions in rates but it is novel as a proposal to invest for the future. The customers of SWBT will have access to a modern and more efficient telecommunications system in only three years without having to face increased rates to cover the costs. People in two areas of the state will have telephone service with the ability to call and be called for business, health or personal reasons where no telephone service has been available in the past. Schools and health care facilities will be able to provide more classroom choices, remote services and better quality services with the Distance Learning and Rural Health Care Networks. The state will be more attractive to high-tech industries with the development of fiber parks and a better educated work force through distance learning. For all these benefits to the people of this state, the Stipulation is a reasonable and advantageous resolution of the issues in this docket and is hereby approved.
The Commission also determined that “[t]he public will reap greater long term advantages from infrastructure upgrades than possible from a minor rate adjustment.” The Commission noted that the $19.3 million annual revenue requirement effect from the investment and expenses in the Stipulation was offered in lieu of potential reductions of existing rates but also recognized that the Stipulation proposed the elimination and reduction of certain charges. The Commission conditioned its approval of the Stipulation on SWBT’s agreement not to request a general change in rates on or before December 31, 1996.
The accounting procedure ordered by the Commission directed SWBT to treat the annual revenue excess of approximately $33 million as a deferred credit accruing interest until the occurrence of a general rate change. At that time, the balance in the deferred account was to be used to reduce any revenue deficiency or increase any revenue excess.
Apart from the Stipulation, the Commission also approved Staff’s recommended change in depreciation rates for Analog switching. The Commission noted that, pursuant to the Stipulation, SWBT would be 100 percent digital by the end of 1996, and found that the depreciation expense should be increased to avoid an accumulated depreciation reserve shortfall.
SWBT subsequently filed a motion to clarify the procedure for developing the investment monitoring report, stating that the monitoring and accounting formula should recognize the touch-tone and OBRA mileage revenue reductions and the additional expense resulting from the increased analog switch depreciation rates. Order No. 40 approved SWBT’s proposed report with some modifications. The resulting report provided that, on the first day of each month, one-twelfth of the revenue surplus (1/12 of $33,002,130.00) would be credited to the account. In addition, the report provided for the following monthly debits to the account: one-twelfth of the annual revenue requirement associated with the plant placed in service under the plan; the additional depreciation expense associated with the analog switch investment; and the revenue reductions resulting from the touch-tone and OBRA provisions. The report also provided that the revenue generated as a result of the investment would be credited monthly to the account and that interest would be credited or debited to the account based on the balance at that point. The docket remained open for the filing and review of the quarterly reports.
Neither the Attorney General nor any other party appealed from Order Nos. 38 and 40.
The docket that is the subject matter of this appeal is Cofnmission Docket No. 94-169-U (the Audit docket), opened by the Commission on May 24, 1994, in response to Staff’s audit of costs allocated or charged to SWBT’s Arkansas Division (SWBTA) by Southwestern Bell Corporation. In Order No. 1, the Commission directed Staff to complete the St. Louis audit using a test year compatible with the test year utilized in the Stipulation docket, and established a procedural schedule for filing and reviewing the audit report. The Attorney General also participated in this docket.
The St. Louis audit report was filed by Staff on September 20, 1994. The report recommended that $8,810,114.00 in expenses that had been improperly allocated to SWBTA be disallowed. The report also stated that the audit trail necessary to trace CDP (Cost Distribution Process for Information Services) charged to SWBTA’s cost of service by SWB General Headquarters (GHQ) was inadequate; however, that the alternative steps taken were adequate to assess the appropriateness of these expenses for ratemaking purposes. The audit report also included an entry that adjusted accumulated depreciation to recognize the impact of the new analog switch depreciation rate, approved in Order No. 38 of the Stipulation docket. The report stated that the depreciation adjustment, the disallowance of $8,810,114.00 in improperly allocated expenses, and other appropriate adjustments to the test year resulted in a gross revenue excess of $27,768,136.00, and that this revenue excess represented a decrease of $5,233,995.00 from the $33,002,130.00 revenue excess in the Stipulation Docket. The report recommended no change in rates for SWBTA at that time.
On November 3, 1994, Staff and SWBT entered into an Agreement to address Staff’s general concerns about allocations and the lack of an audit trail. The Agreement was designed to complete the audit and resolve all issues in the docket and provided that a consultant would be retained to develop an action plan to address Staff’s concerns. The Attorney General objected to Staff’s failure to recommend a change in SWBT’s rates pursuant to the disallowed expenses and objected to the Agreement that was proposed to address Staff’s general concerns about the audit process.
In Order No. 14, the Commission responded to the Attorney General’s argument and approved the audit report’s recommendation of no change in SWBT’s rates and approved the proposed Agreement. Order No. 15 denied the Attorney General’s application for rehearing. The Attorney General then filed his Notice of Appeal from Order Nos. 14 and 15, raising three general issues: (I) that the Commission’s use of the Stipulation docket to avoid reducing SWBT’s rates after Staff disallowed $8.8 million in expenses was an abuse of discretion; (II) that the Commission failed to abide by its statutory obligations when it refused to disallow $13.5 million in CDP costs, after it was determined that these costs could not be traced because of an inadequate audit trail; and (III) the Commission erred in refusing to allow the Attorney Gen eral to pursue relevant discovery and introduce relevant information.
Our review of appeals from the Commission is limited by the provisions of Arkansas Code Annotated § 23-2-423(c)(3), (4), and (5) (Supp. 1995), which defines the standard of judicial review as determining whether the Commission’s findings of fact are supported by substantial evidence, whether the Commission has regularly pursued its authority, and whether the order under review violated any right of the appellant under the laws or the Constitutions of the State of Arkansas or the United States. Bryant v. Arkansas Pub. Serv. Comm’n, 46 Ark. App. 88, 102, 877 S.W.2d 594 (1994). In AT&T Communications of the Southwest, Inc. v. Arkansas Pub. Serv. Comm’n, 40 Ark. App. 126, 843 S.W.2d 855 (1992), this Court stated:
The Arkansas Public Service Commission has broad discretion in exercising its regulatory authority, Associated Natural Gas Co. v. Arkansas Pub. Serv. Comm’n, 25 Ark. App. 115, 118, 752 S.W.2d 766, 767 (1988), and courts may not pass upon the wisdom of the Commission’s actions or say whether the Commission has appropriately exercised its discretion. Russellville Water Co. v. Arkansas Public Serv. Comm’n, 270 Ark. 584, 588, 606 S.W.2d 552, 554 (1980). It has often been said that, if an order of the Commission is supported by substantial evidence and is neither unjust, arbitrary, unreasonable, unlawful, or discriminatory, then this court must affirm the Commission’s actions. Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm’n, 35 Ark. App. 47, 76, 813 S.W.2d 263, 279 (1991). Névertheless, it is for the courts to say whether there has been an arbitrary or unwarranted abuse of discretion, even though considerable judicial restraint should be observed in finding such an abuse. Russellville Water Co. v. Arkansas Pub. Serv. Comm’n, 270 Ark. at 588, 606 S.W.2d 554. Administrative action may be regarded as arbitrary and capricious only where it is not supportable on any rational basis, and something more than mere error is necessary to meet the test. Woodyard v. Arkansas Diversified Ins. Co., 268 Ark. 94, 97, 594 S.W.2d 13, 15 (1980). To set aside the Commission’s action as arbitrary and capricious, the appellant must prove that the action was a willful and unreasoning action, made without consideration and with a disre gard of the facts or circumstances of the case. Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 353, 609 S.W.2d 23, 25 (1980). See also Beverly Enters.-Ark., Inc. v. Arkansas Health Servs. Comm’n, 308 Ark. 221, 230, 824 S.W.2d 363, 367 (1992).
40 Ark. App. at 129-30.
I.
The Attorney General’s first argument for reversal relates to the Commission’s refusal to lower SWBT’s rates pursuant to the finding of a disallowance of $8.8 million in the Audit docket. The underlying premise of his argument is that the Commission erred in its treatment of the accelerated depreciation rates for SWBT’s analog switches. Specifically, the Attorney General complains that the Commission erred in comparing SWBT’s excess earnings in the Audit docket with SWBT’s excess earnings that it approved in the Stipulation docket because the effect of the new depreciation rates was considered in the Audit docket but was not considered in the Stipulation docket. He asserts that the disparate treatment of the rates resulted in ratepayers being denied the benefit of an $8.5 million reduction in SWBT rates.
At the hearing in the Audit docket, the Attorney General presented the testimony of Basil L. Copeland, Jr., an economist specializing in energy and utility economics. Copeland testified that the revenue requirement exhibits from Docket No. 92-260-U (the Stipulation docket) had to be adjusted to recognize the depreciation rate change before considering the St. Louis audit adjustments. He stated in his prepared testimony: “Only then do we have a true and accurate picture of how the proposed [St. Louis audit] adjustments impact the level of revenue requirement that has already been determined to be just and reasonable.” (Emphasis in original.) Copeland testified that the parties to the Stipulation agreed that the proposed investment and expenses had a value of $19.3 million (the $33 million in excess revenues when adjusted for the depreciation change). He contended that the $19.3 million should be compared to the $28 million excess supported by Staff in the Audit docket, which would demonstrate a revenue excess of over $8 million and require a decrease in SWBT’s rates.
In rebuttal, Keith R. Mittledorf, a consultant who had recently retired as chief accountant for the Arkansas division of SWBT, testified for SWBT that his calculations showed a reduction in SWBT’s annual excess earnings from approximately $33 million to $28 million. Mittledorf stated that the reduction demonstrated that Arkansas customers would benefit by more than $5 million annually for the three years covered by the Stipulation because those customers were receiving more in revenue reductions and modernization improvements than a pure cost of service determination would provide.
John Stode, Staff telecommunications manager, denied that the parties agreed that the value of the Stipulation was $19.3 million, contending that Copeland’s calculations ignored the rate reductions, including $6.1 million in touch-tone reductions and $8.2 million in eliminated mileage charges, and non-priced benefits such as service to two previously unallocated, unserved areas of the state. Stode testified that the Commission’s approval of the change in depreciation rates was separate from the approval of the Stipulation and that there was no mention of the change in rates in the Stipulation. He stated that the recommendation of a change in rates was conditioned on the approval of the Stipulation.
In Order No. 14, the Commission addressed the Attorney General’s objections in part as follows:
The [Attorney General’s] position that refunds or rate reductions are required as a result of the findings of the St. Louis audit appear to hinge on the [Attorney General’s] contention that the value of the Stipulation approved in Docket No. 92-260-U is only $19.3 million, and thus ratepayers have not received a value equal to the amount of excess earnings. The figure of $19.3 million cited by the [Attorney General] is not the value of the Stipulation, but rather is the effect on SWBT’s revenue requirement of the $231 million in investment and expenses that SWBT agreed to undertake pursuant to the Stipulation. To determine the value of the Stipulation, all components of the Stipulation must be considered, including the elimination of [OBRA] mileage charges, the reduction in charges paid by rural SWBT customers, and the rate reduction in touchtone charges for both residential and business customers. While the [Attorney General] may consider approximately $14.3 million in previous rate reductions as inconsequential to this docket, such savings to ratepayers will not be disregarded by this Commission.
(Emphasis in original.)
The Commission concluded that the $8.8 million in expenses disallowed by Staff in the audit report were exceeded by SWBT’s increased depreciation expenses of $13.5 million which was ordered but not recognized in the revenue requirement calculation made in the Stipulation docket. From our review, we conclude that this Commission finding is supported by substantial evidence.
The Public Service Commission is free, within the strictures of its statutory authority, to make the pragmatic adjustments which may be called for by particular circumstances. No public utility has an absolute right to any method of valuation or rate of return, and the PSC has wide discretion in its approach to rate regulation. This court is generally not concerned with the method used by the Commission in calculating rates as long as the Commission’s action is based on substantial evidence. It is the result reached, and not the method used, which primarily controls. If the Commission’s decision is supported by substantial evidence and the total effect of the rate order is not unjust, unreasonable, unlawful or discriminatory, judicial inquiry terminates. Southwestern Bell, 19 Ark. App. at 327, 720 S.W.2d at 927; Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 18 Ark. App. 260, 715 S.W.2d 451 (1986); Walnut Hill Tel., 17 Ark. App. at 265, 709 S.W.2d at 99.
Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 24 Ark. App. 142, 144, 751 S.W.2d 8 (1988). The question on review of an administrative board’s decision is not whether the evidence would have supported a contrary finding but whether it supports the finding that was made. Bryant v. Arkansas Pub. Serv. Comm’n, 50 Ark. App. 213, 234, 907 S.W.2d 140 (1995).
In connection with his first point, the Attorney General argues that the Commission refused to reduce SWBT’s rates “by arbitrarily and capriciously ‘layering’ some aspects of [the Stipulation docket] upon the [Audit docket] while not ‘layering’ other aspects....” The Commission addressed the “layering” argument in Order No. 14 as follows:
The Commission directed Staff to complete the St. Louis audit using the May 31, 1993 test year adopted in [the Stipulation docket], so that a more accurate and final determination of SWBT’s test year earnings could be made. The “layering” of these two dockets that the [Attorney General] so strenuously objects to is precisely the purpose of using the same test year. Without the results of all aspects of Staff’s review of SWBT’s May 31, 1993 test year earnings and expenses, it is not possible to obtain an accurate, complete analysis of SWBT’s financial standing.
We agree with SWBT’s response that the Audit docket was not a separate and distinct earnings investigation “but merely the concluding and final part” of the investigation begun in the Stipulation docket. In both dockets, the Commission was reviewing evidence of twelve months of historical data from SWBT’s books and records for a test year ending May 31, 1993, with adjustments for reasonably known and measurable changes occurring in the proforma year in accordance with Arkansas Code Annotated § 23-4-406 (1987). Order No. 14 of the Audit docket calculated four adjustments to the financial exhibits adopted in the Stipulation docket: $8.8 million in disallowed expenses, $13.5 million in additional depreciation expense, a change in SWBT’s intraLATA toll pool revenue, and a change in the federal income tax rate.
The Attorney General also argues that the Commission abused its discretion in holding that Order Nos. 38 and 40 in the Stipulation docket could “cure,” or provide a credit for, the revenue excess in the Audit docket. As discussed earlier, it was incumbent upon the Commission to use the entire results of the audit and the revenue requirement impact on SWBT of its orders in the Stipulation docket in assessing the revenue excess. We find no error on this point.
Nor do we agree with the Attorney General’s contention that comparing the figures for revenue excess in the Audit and Stipulation dockets is “comparing apples to oranges” and that “fair-minded” persons could not reach a conclusion that it was a meaningful comparison. The Commission points out that the “$33 million was SWBT’s revenue excess based on the test year ending 5/ 31/93 in [the Stipulation docket]. $28 million is the revenue excess based on the same test year when adjusted for the depreciation rate expense, recommended disallowances, toll pool revenue adjustment, and federal income tax rate change.” We agree with the Commission that comparing the $33 million revenue excess to the $28 million revenue excess is comparing the same bottom-line figure with appropriate adjustments.
The Attorney General’s argument in the preceding points appears to be premised on the view that, by the agreement of the parties, the value of the Stipulation automatically decreased by the amount of increased depreciation rates ordered, thereby effectively canceling the benefit of the increased depreciation expenses. We do not agree with this argument. The Stipulation was not conditioned on the approval of the new depreciation rates. The Commission certainly had the option of approving or rejecting the recommended rates, and, in Order Nos. 38 and 40, the Commission clearly accepted the $33.6 million value placed on the Stipulation. The parties and the Commission acknowledged in setting the monitoring-report procedure that SWBT was entided to credit for the accelerated depreciation expense. The Attorney General recognizes the finality of the two orders, and his arguments on appeal about what the Commission could have done or should have done in the Stipulation docket are without merit. Further, we find no merit in the argument that the orders in the Audit docket constitute an impermissible attack on the earlier orders in the Stipulation docket, and we find no merit in the argument that the orders are inconsistent.
It is worth noting that the Attorney General has taken inconsistent positions in the course of this case. In his objection to SWBT’s motion to clarify Order No. 38 in the Stipulation docket, the Attorney General clearly recognized that the depreciation rate increase was not a part of the Stipulation. This position is contrary to the position taken by the Attorney General in the Audit docket and on appeal.
Having rejected the Attorney General’s view that the value of the Stipulation was reduced from $33 million to $19.3 million, we conclude that the Commission’s analysis in the Audit docket was appropriate. The Commission determined that SWBT’s excess earnings were increased by the $8.8 million disallowed expense but decreased by the $13.5 million in depreciation expense, resulting in excess earnings of $28.3 million, or approximately $5 million less than the approved excess earnings in the Stipulation docket (the value of the Stipulation). Giving due deference to the expertise of the Commission in rate matters, see Cullum v. Seagull Mid-South, Inc., 322 Ark. 190, 194, 907 S.W.2d 741 (1995), we find that the Commission did not err in its treatment of the depreciation expense and the disallowed expense.
The Attorney General next contends that it was error for the Commission not to adopt Copeland’s approach to accounting for the depreciation expenses. It is within the province of the Commission, as the trier of fact in rate cases, to decide on the credibility of the witnesses, the reliability of their opinions, and the weight to be given their evidence. The Commission is never compelled to accept the opinion of any witness on any issue before it, nor is the Commission bound to accept one or the other of any conflicting views, opinions, or methodologies. See Bryant v. Arkansas Pub. Serv. Comm’n, 46 Ark. App. 88, 101, 877 S.W.2d 594 (1994). We find no merit in the Attorney General’s argument.
In a related point, the Attorney General argues that the Commission should have adopted Copeland’s recommendation on how the deferred-account mechanism could be used to reduce rates by $8.5 million. In the alternative, the Attorney General argues that the Commission should have fully merged or layered the two dockets and amended Order Nos. 38 and 40 of the Stipulation docket to account for the disallowed expenses. Despite the Attorney General’s erroneous assertion that Copeland recommended a change in the deferred-account mechanism, the Attorney General never suggested in testimony or argument that the Commission “fully layer” the two dockets and amend Order Nos. 38 or 40 and never suggested prior to the issuance of Order No. 14 in the Audit docket that the Commission revise the deferred-account monitoring reports. We have often stated that we will not address issues on appeal that were not raised below. See Keesee v. Keesee, 48 Ark. App. 113, 117, 891 S.W.2d 70 (1995); Arkansas State Highway Comm’n v. Lee Wilson and Co., 43 Ark. App. 22, 27, 858 S.W.2d 137 (1993); Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm’n, 35 Ark. App. 47, 66, 813 S.W.2d 263 (1991). Moreover, the Attorney General failed to satisfy Arkansas Code Annotated § 23-2-422(b) (1987), which requires that the application for rehearing set forth specifically the grounds upon which the application is based. This argument is not presented in the application.
The Attorney General also contends that the Commission’s orders must be reversed because SWBT’s $28 million excess earnings in the Audit docket are unreasonable and are prohibited by Arkansas Code Annotated § 23-4-103 (1987), which provides that all rates must be just and reasonable. Order Nos. 38 and 40 of the Stipulation docket assessed excess earnings at $33 million, approved the Stipulation, and set the value of the Stipulation. The Attorney General remained silent while that record was closed. Nevertheless, he now seeks to attack those orders.
The order or determination of an administrative body, acting within its jurisidiction and under authority of law, is not subject to collateral attack. This is so in the absence of fraud or bad faith, or, under some authority, even on the ground of fraud. In this connection, it has been considered that the only method of attack available is by appeal as provided by statute.
73A C.J.S. Public Administrative Law and Procedure § 154 (1983). The Attorney General has failed to demonstrate that the orders are subject to collateral attack, and we therefore find no merit in this argument.
The Attorney General further argues that the Commission abandoned the intent of the deferred account by giving SWBT credit for all components of the Stipulation without further study of the monitoring reports, which were not in evidence in the Audit docket. It is his contention that the Commission failed to determine if the ratepayers were receiving the appropriate value from the Stipulation docket. This argument must fail for numerous reasons. Again, we note that the Attorney General failed to appeal the orders entered in the Stipulation docket that established the deferred-account monitoring process. Second, this argument was not presented to the Commission in the Audit docket prior to the Commission’s final order. The Attorney General introduced no evidence or testimony regarding the reports, made no arguments regarding the reports, and sought no accounting from the Commission. Finally, this argument was not made in his application for rehearing.
The Attorney General’s final point in this argument is that Order No. 14 violates the requirements of Arkansas Code Annotated § 23-2-421(a) (1987), which provides in pertinent part that “[t]he Arkansas Public Service Commission’s decision shall be in sufficient detail to enable any court in which any action of the commission is involved to determine the controverted question presented by the proceeding.” The Attorney General argues that the order is defective because the Commission appeared to base its decision both on the “excess value” theory and on a determination that the disallowed expenses in the Audit docket were exceeded by SWBT’s increased depreciation expense. The Attorney General refers this Court to Bryant v. Arkansas Pub. Serv. Comm’n, 45 Ark. App. 56, 63, 871 S.W.2d 414 (1994), where we stated: “Courts cannot perform the reviewing functions assigned to them in the absence of adequate and complete findings by the Commission on all essential elements pertinent to the determination.” We have reviewed the Commission’s findings and hold that they satisfy the requirements of Section 23-2-421 (a) and the case cited above. It is clear from the findings that the Commission relied on all aspects of the test-year data in determining SWBT’s financial standing. In addition, it is clear that the Commission considered all components of the Stipulation.
In order to establish an absence of substantial evidence to support the Commission’s order, the Attorney General had the burden of showing that the proof before the Commission was so nearly undisputed that fair-minded persons could not reach its conclusion, see AT&T Communications of the Southwest, Inc. v. Arkansas Pub. Serv. Comm’n, 40 Ark. App. 126, 131, 843 S.W.2d 855 (1992), and we hold that he failed to meet that burden. The Commission’s decision is supported by substantial evidence and the total effect of the order is not unjust, unreasonable, unlawful, or discriminatory. We therefore affirm on the Attorney General’s first argument.
II.
Next, the Attorney General argues that the Commission erred in failing to disallow $13 million in expenses charged to SWBT-Arkansas (SWBTA) by SWB-General Headquarters (GHQ) because of a lack of a sufficient audit trail to track these expenses to their originating sources. These expenses were entered into the Cost Distribution Process for Information Services (CDP), which is utilized by GHQ to allocate cost for information technology services to the state jurisdictions.
In its audit report, Staff stated that it had been unable to trace any of the CDP charges on SWBTA’s books to a specific originating source document, which demonstrated that the CDP process itself did not provide a comprehensive audit trail. According to the report, however, Staff was able to review the costs prior to entry into the CDP resource pools to determine whether the expense was necessary for providing utility service. Staff stated that, because the identity of the transaction was lost upon entry into the resource pools, “there was no way to determine the proportionate amount that SWBTA ultimately received of each disallowable transaction flowing to CDP. ” However, it was further stated that, by using the normal GHQ prorate factor to determine the portion attributable to SWBTA, Staff calculated that SWBTA apparently received through the CDP $236,485.00 less expense in the test year than would have been allocated through the normal GHQ prorate process. Staff concluded: “While the lack of a comprehensive audit trail for almost one-third of the expenses flowing to SWBTA from GHQ is very disconcerting, Staff believes that the alternative steps taken were adequate to assess the appropriateness of these expenses for ratemaking purposes.”
Basil L. Copeland, Jr., the Attorney General’s witness, relied on the audit report in recommending disallowance of the $13 million in expenses because they could not be “adequately verified owing to the lack of a comprehensive audit trail.”
Steve Usselmann, SWBT’s district manager for financial accounting and reporting, testified that the audit trail necessary to trace costs flowing from the GHQ prorate process and recorded in the Arkansas general ledger was adequate. He explained:
In accordance with generally accepted auditing standards, an auditor must evaluate the system in determining audit risk. Audit tests are performed through the system or around the system to obtain sufficient, competent, evidential matter as to the appropriateness of the expenses. Auditing through the system constitutes the actual trace of a document from its source to the general ledger. Auditing around the system is a practice which substantiates that a large group of transactions can be traced from one process to the next and that the end result is reasonable when compared to an acceptable alternative. Thus, auditing around the system provides assurance on the reliability of a process. It is quite common to audit around the system in a complex or complicated process.
Usselmann concluded that “the Staff performed audit procedures which provided the ability to assess the appropriateness of these expenses for ratemaking purposes. In other words, sufficient audit tests were performed by auditing around the system which is an acceptable method of auditing.”
Marie James, audit supervisor for the Staff electric section, disagreed with Copeland’s suggestion that the costs should be disallowed. She stated that although Staff was concerned about the lack of a comprehensive audit trail, the alternative steps taken were adequate to assess the appropriateness of the expenses for ratemak-ing purposes. James testified:
Staff acknowledged in the [audit] report that, with [SWBT’s] assistance, Staff successfully traced a selected sample of individual transactions from the special reports to the prorate audit trail report and to the original source documentation necessary to determine if the costs were appropriate for providing utility service. However, in Staff’s opinion, the addition of grand totals by originating source and a unique identifying characteristic that flows from report to report would greatly enhance the auditability of SWBT’s GHQ expenses, thus Staff’s assessment that the audit trail is inadequate.
On November 3, 1994, SWBT and Staff entered into the Agreement “designed to complete the St. Louis Audit and resolve all issues in this Docket.” It provided that “[t]he basis of the Agreement is for SWBT and Staff to jointly select a consultant to address Staff’s concerns about the lack of an audit trail, the tracking of research and development costs, allocations, and charging directions.” It further provided that “[i]t is the intent that the consultant be a firm with nationally recognized credentials and an established reputation for professionalism.” SWBT agreed to pay the fee for the consultant. At trial, SWBT stated that it would not attempt to recover the cost from ratepayers.
In rebuttal testimony, Copeland stated that the Agreement served no useful purpose other than to protect SWBT. He stated: “The public gets only what it had a right to expect as a minimum to begin with, i.e. further investigation into the lack of auditability of expenses that are being allocated to Arkansas ratepayers.” (Emphasis in original.) It was his conclusion that the Agreement should be rejected.
In Order No. 14, the Commission approved the Agreement and stated: “Clearly, ratepayers do benefit when Staff is able to more quickly and thoroughly perform an audit of SWBT’s financial performance. Auditing costs incurred by both Staff and SWBT are reduced, and Staff is able to complete its audit more quickly, allowing it to pursue other regulatory obligations.” Order No. 15 denied the Attorney General’s application for rehearing.
The Attorney General makes three, points in his second argument for reversal: (1) the Commission was obligated to accept his recommendation of disallowance of the $13 million in expenses because the amount of charges SWBTA received from the CDP system could not be traced to originating source documents; (2) Staff’s position on the treatment of CDP costs was inconsistent with its position on research and development (R&D) costs; and (3) the Commission’s findings were inadequate because the Commission refused to state its basis for rejecting the Attorney General’s recommendation.
We hold that there was sufficient evidence to support the Commission’s decision not to disallow the $13 million in expenses. Both the audit report and Marie James’ testimony support a finding that Staff successfully traced a selected sample of individual transactions from the special reports provided by SWBT to the prorate audit trail report and then to the original source documentation necessary to determine whether the costs were appropriate for providing utility service. SWBTA witness Usselmann testified that the approach adopted by Staff, which he referred to as “auditing around a system,” was an accepted auditing method. Both James and Usselmann have accounting credentials and audit experience. In contrast, the Attorney General presented the testimony of a witness who lacked accounting credentials, had never participated in a field audit, and did not examine SWBTA’s books, but relied entirely on Staff’s documents and testimony.
The Attorney General further argues that it was impossible to determine the proportionate amount that SWBTA received of each expense that was disallowed by Staff. We conclude that sufficient evidence was presented to the Commission from which it could approve the amount of expenses that should not be allowed. Staff explained in the audit report that the disallowed expense that SWBTA actually received in the test year was $236,485.00 less using the CDP process than it would have been using the average GHQ prorate factor for Arkansas. Although we appreciate the Attorney General’s concerns regarding the lack of an audit trail, these concerns were addressed in the Agreement, which is lengthy and details specific goals to be met, and provides that SWBTA and Staff joindy will select a consultant to address Staff’s concerns about the audit trail and other procedures. Further, it provides that the consultant will operate under the supervision of Staff, with consultation from SWBTA, that SWBTA will pay the fee for the action plan which will be developed, and that the consultant’s findings and recommendations will be submitted to the Commission. In Order No. 14, the Commission clearly found that ratepayers would benefit from the consultant’s services.
We conclude that the Attorney General has failed to provide either factual or legal support for his argument and hold that the Commission Order No. 14 is neither arbitrary nor capricious. We affirm on this point.
We also find no merit in the Attorney General’s contention that Staff’s position that SWBTA benefits from the CDP charges contradicts Staff’s position on R&D charges. The Commission addressed this contention in Order No. 14:
Contrary to the [Attorney General’s] claim, there is no inconsistency in the treatment of CDP charges and the complete disallowance of [R&D] costs. Staff faced different situations in those areas and treated them differendy for legitimate reasons. The audit report stated the R&D costs were not traceable to regulated or nonregulated services. Ratepayers should not pay for unregulated or competitive services. Staff was able to determine that expenses entering the CDP were appropriate for rate recovery.
The Attorney General’s final point in this argument is that the Commission erred in refusing to state its basis for rejecting the Attorney General’s recommendation. In Order No. 14, the Commission adopted Staff’s recommendations regarding the audit report. The Commission also addressed at length the Agreement and the Attorney General’s argument that it would provide no benefits. In the application for rehearing, the Attorney General argued that the Commission had failed to rule on his proposed disallowance of the CDP costs. It was his position that the Commission failed to comply with Section 23-2-421(a), which requires a commission’s decision to be in sufficient detail to enable a court to determine the controverted question presented by the proceeding.
To address this point, it is essential that we examine the manner in which the Attorney General presented his opposition to Staff’s recommendation in regards to the audit trail and acceptance of the $13 million in expenses. To support his recommendation that the expenses be disallowed, the Attorney General relied on a Staff draft audit report addressing a 1991 test year rather than the 1993 test year that the Commission ordered be used and an internal Staff memorandum addressing the draft report. The Commission excluded the documents and Copeland’s conclusions regarding the documents as not relevant to the issues presented in the Audit docket. As discussed later in this opinion, we find no error in the Commission’s exclusion of the evidence. As a result of the exclusion, the Attorney General’s recommendation was supported solely by Copeland’s opinion that: “Since there is no audit trail to track these expenses to their originating source, they should be disallowed and excluded from SWBTA’s cost of service.” In Order No. 14, the Commission clearly found Copeland’s opinions to be unreliable because of his lack of auditing credentials. There was no relevant supporting testimony or exhibit that required further discussion by the Commission.
In Order No. 15, the Commission stated that there was “no requirement that the Commission rule specifically on each and every proposal made by a party or provide each party with a line-by-line critique of its testimony.” The Commission noted that the issue was Staff’s audit report and whether certain affiliate charges allocated to SWBTA were appropriately charged to Arkansas. Also at issue, the Commission stated, was the Agreement filed by Staff and SWBTA. The Commission further stated: “These issues are fully addressed and resolved in Order No. 14. The Commission addressed the recommendations of the [Attorney General] as a whole and found the recommendations without merit.” In Order No. 14, the Commission adopted Staff’s recommendations on the $13 million adjustment and then discussed in some detail the proposed Agreement, including the Attorney General’s objections to it, and the expected benefits.
We hold that the Commission gave a considered and adequate response to the evidence presented and the arguments advanced.
It is not required that an administrative agency make findings of fact upon all items of evidence or issues, nor even necessarily to answer each and every contention raised by the parties, but the findings should be sufficient to resolve the material issues, or those raised by the evidence which are relevant to the decision.
73A C.J.S. Public Administrative Law and Procedure § 144 (1983). We conclude that the findings made by the Commission are sufficient to inform the parties and this Court of the basis for the Commission’s orders and indicate the reasoning by which the Commission reached its decision.
For the foregoing reasons, we affirm as to the Attorney General’s second argument.
III.
For his final argument, the Attorney General makes two separate points: (1) he contends that he was denied the opportunity to discover evidence and that Staff was allowed to determine the relevancy of the evidence he sought to discover; and (2) that the Commission refused to allow relevant evidence to be admitted or used for impeachment purposes.
Before we address the merits of these arguments, we note that the Commission and SWBT contend that the Attorney General has failed to preserve these issues for appeal. Specifically, they claim that the Attorney General’s notice of appeal failed to reference Order Nos. 5, 6, 11, and 12, as required by Arkansas Code Annotated § 23-2-423 (Supp. 1993), which provides that a party may obtain review of an order in this Court by filing a notice of appeal “stating the nature of the proceeding before the commission, identifying the order complained of and the reasons why the order is claimed to be unlawful, and praying that the order of the commission be modified, remanded, or set aside in whole or in part.” They urge that strict compliance with the provisions of this statute is necessary before any order of the Commission may be reviewed by this Court. We hold that the Attorney General has appropriately preserved the above issues for appellate review. In his petition for rehearing of Order No. 14, the Attorney General raised the issue of the Commission’s failure to allow him discovery, and this issue was addressed by the Commission in Order No. 15, denying the rehearing petition.
As to the merits, we note that the Audit docket was initiated by the Commission on May 24, 1994, in Order No. 1. In that order, the Commission recognized that Staff had been “in the process of” conducting an audit of Southwestern Bell Corporation (SBC) and that completion of the audit had been pending “too long.” The Commission directed Staff to complete the St. Louis audit using a test year ending May 31, 1993. The Commission set a procedural schedule and ordered Staff to file the audit results by September 24, 1994. Prior to the filing of the audit report, the Attorney General had submitted to SWBT requests for data and requests for production of documents. The Attorney General sought, inter alia, to obtain SWBT’s and SBC’s long-range planning documents, budgets, and network transition plans. SWBT objected to these discovery requests, stating in part that most of the information requested had been provided to the Attorney General in the Stipulation docket, that the Attorney General failed to specify what type of plans or budgets he sought, and that the documents lacked relevance because they did not address affiliate transactions or allocation of costs which were the subject of the audit report. In Order No. 5, issued July 19, the Commission found the Attorney General’s motion to compel discovery to be untimely and pointed out that the only pending matter in the docket was the Commission’s direction to Staff to conduct an audit. The Commission stated:
Until such time as Staff completes its audit and files its audit report there are no defined issues pending in this Docket. Therefore, it is difficult to understand why the [Attorney General] is conducting discovery at this time or how the [Attorney General] can definitively state what will or will not be relevant to the issues which may be developed as a result of the Staff’s audit report.
In Order No. 6, the Commission denied the Attorney General’s petition for rehearing but stated that the Attorney General could request additional time for discovery, if needed, after the audit report was filed.
The audit report was filed on September 20, 1994. In a pleading filed on October 20, SWBT objected individually to eleven data requests and eight document requests, filed by the Attorney General on October 12, 1994, contending that the information the Attorney General sought was beyond the scope of the audit and completely unrelated to any issue raised in Staff’s audit:
SWBT objects to this Data Request seeking information beyond the scope of this Docket which involves only SWBT’s affiliate transactions and corporate allocations. The Information Network Transition Plan (“INTP”) is not relevant to those issues and contains no information concerning or relating to such issues. The INTP does not address the allocation of cost (i.e. expense) between SBC, and it is not relevant to the review or audit of affiliate transactions. The majority of this document discusses SWBT’s strategic plans and goals, and it reveals SWBT’s assessments of its technological deployment progress in relation to its goals for deployment....
In Order No. 11, the Commission found that, with the issues to be addressed clearly identified for the first time, the scope of the proceeding was established and limited to the specific issues addressed in the audit report. Consequently, the Commission found the Attorney General’s motion to compel discovery to be ripe for resolution, but denied the motion, finding that the information sought was outside the scope of the docket. The Attorney General’s motion for partial rehearing was denied in Order No. 12:
The Commission defined the preliminary scope of this Docket in Order No. 1 which directed the General Staff to conduct the “St. Louis Audit” using a test year ending May 31, 1993. The issues and the scope of this Docket were further defined and narrowed by the filing of General Staff’s formal audit report on September 20, 1994, in compliance with Order No. 1. The Commission set the scope of the Docket and the Commission determined that the [Attorney General’s] discovery exceeded that scope. “Control of the ... extent of discovery rests in the sound discretion of the Commission.” Rule 13.02(a), Commission’s Rules of Practice and Procedure.
As the General Staff stated in its Response: “The simple fact that the [Attorney General] wishes to address issues the other parties do not consider relevant does not mean that the Attorney General has been denied due process. The Commission is the appropriate body to determine the scope of issues in pending dockets, especially when those dockets were initiated by the Commission.”
On appeal, the Attorney General contends that in limiting discovery the Commission failed to follow its own rules, improperly delegated its own function and responsibility, and deprived the Attorney General of his right to due process.
We find no merit to the Attorney General’s assertion that the Commission “did not abide by Rule 13.04 of the Commission’s Rules of Practice and Procedure, which provides that ‘discovery may commence by any party on assignment of a docket number by the Secretary [of the Commission].’ ” Here, the Commission simply delayed discovery until the audit report was filed and the scope of the docket was set. The Attorney General was allowed to pursue discovery after the filing of the audit report and had the same opportunity to conduct discovery as any other party to the docket. The Attorney General exercised his right to discovery and obviously did not find it necessary to seek additional time to complete discovery. In addition, the Attorney General has failed to demonstrate that he suffered prejudice as a result of the Commission’s delay of discovery.
The Attorney General also argues that the Commission erred by delegating to Staff the Commission’s responsibility to determine the scope of the docket. He argues that giving one party to the proceeding the right to determine what is relevant, discoverable, and admissible violated his right as the representative of Arkansas ratepayers to be heard and present evidence in support of his position and in rebuttal to the other parties’ positions. He argues:
A fundamental requirement of due process in matters of public utility regulation is a full and fair hearing. Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm’n, 35 Ark. App. 47, 64, 813 S.W.2d 263 (1991). A fall and fair hearing requires “that all whose rights are involved have the opportunity to be heard, to submit evidence and testimony, to examine witnesses, and to present evidence or testimony in rebuttal to adverse positions.” Id., citing Federal Trade Commission v. National Lead Co., 352 U.S. 419 (1957). Giving one party to the proceeding the right to determine what is relevant, discoverable and admissible violated the [Attorney General’s] right as the representative of ratepayers to be heard and present evidence in support of its position and in rebuttal to the other parties’ positions.
The Commission denied that the Attorney General did not receive a fair hearing but also defended its right to determine the scope of its dockets, especially one it initiated:
The Commission did not, as the [Attorney General] contends, delegate to a party the right to determine what is relevant, discoverable, and admissible. The Commission has broad investigatory authority. Ark. Code Ann. §§ 23-2-306 — 23-2-311 (1987). The [Attorney General] lacks this authority. The witnesses presenting testimony on behalf of Staff had auditing experience and expertise. The [Attorney General’s] witness had neither. Just as this Court gives due regard to the expertise of the Commission, Ark. Elec. Energy Consumers, 35 Ark. App. at 71, 813 S.W. at 277, citing Ark. Okla. Gas Corp. v. Ark. Pub. Serv. Comm’n., 27 Ark. App. 277, 282, 770 S.W.2d 180 (1989), the Commission can give due regard to the expertise of Staff.
The Attorney General acknowledges that the Commission has authority to conduct audits of jurisdictional utilities in accordance with Arkansas Code Annotated § 23-2-310 (1987), and it was the Commission’s decision to define the parameters of the docket by what Staff included in its audit report. We hold that the Commission properly exercised its authority and discretion in defining the scope of the docket.
The Attorney General’s final point is that the Commission abused its discretion by refusing to admit the following evidence or to allow it to be used for impeachment purposes: a Staff draft audit report addressing a 1991 test year, a memorandum related to the draft audit report prepared by a Staff member and addressed to another Staff member, and Attorney General witness Copeland’s testimony regarding the draft audit report and the memorandum.
The excluded draft audit report stated in part that absent an adequate audit trail, “consideration should be given as to whether any SWBTA expenses received through the GHQ prorate process should be recovered through rates paid by Arkansas ratepayers.” In the excluded memorandum, a Staff member had stated that “there are significant, serious areas of abuse and potential abuse by Southwestern Bell and its affiliates.” The Attorney General sought to introduce these documents at the hearing to show that Staff had changed its position concerning the GHQ costs and lack of an audit trail.
Staff objected to admitting the documents, pointing out that the report was not a final Staff product and had not been filed or presented to the Commission. Staffwitness James discussed the draft audit report in her surrebuttal testimony as follows:
First, it is obviously not a completed work product, as indicated by the designation of “draft”. Second, the purpose of “Staff’s Draft Audit” indicated on page ii indicates the “report is designed to provide a guide that will assist Staff, on a going forward basis, in assessing the operations of SWBT...” Third, the draft report covers a different test period, 1991. Some of SWBT’s accounting procedures are different for the current test year.
She further stated: “The memorandum in question is simply one person’s assessment of a draft audit report.” (Emphasis in original.)
The Commission granted Staff’s motion, finding that the two documents were not relevant to the proceedings before the Commission. The Commission then struck that portion of Attorney General witness Copeland’s testimony in which he pointed out that, in the excluded audit report, Staff had considered the possibility of disallowing the expenses and that a Staff member had stated in the memorandum:
It would appear that the Commission is “at the mercy” of [SWBT] with regard to these GHQ costs unless the Commission takes the position that: The burden of proof regarding these costs rests clearly on the shoulders of [SWBT], and, absent definitive proof regarding the appropriateness of these costs, none will be allowed for ratemaking in Arkansas.
On appeal, the Attorney General argues that the material should have been admitted because the material demonstrates that Staff had altered its positions on whether the costs should be recovered from Arkansas ratepayers and the proper burden of proof concerning the lack of an audit trail. The Attorney General contends that the Commission’s failure to allow this evidence violated his right to due process of law because he was unable to use it to impeach Staff witnesses or in support of his position.
In Order No. 15, the Commission addressed this argument of the Attorney General:
The [Attorney General] now contends that it should have been allowed to use the exhibits to impeach certain Staff witnesses. This is a new allegation by the [Attorney General] which was not raised during the hearing. The [Attorney General] cross-examined the Staff witnesses in the hearing but the [Attorney General] never attempted to use the stricken exhibits or any portion thereof during its cross-examination. The appropriate time to have raised this issue would have been during the hearing if the [Attorney General] had sought to use the stricken exhibits for impeachment purposes. It did not and it is too late to raise the issue after the hearing is concluded and the order entered.
We are not persuaded that the Commission abused its discretion in excluding the report and memorandum or that the Attorney General’s rights were violated. The testimony clearly showed that the audit report addressed a test year not in issue in the proceedings; that certain accounting changes had occurred since the report; that the report was a draft report and was never adopted by Staff as its position; and that the memorandum addressing the report simply was one Staff member’s opinion of the draft report. Furthermore, the Attorney General never presented the burden-of-proof issue to the Commission, nor did he attempt to impeach the witnesses with the material. These issues and arguments were not timely made and are not preserved for appeal. See In Re Estate of Spears, 314 Ark. 54, 61-62, 858 S.W.2d 93 (1993). In addition, the Attorney General’s cross-examination of Staff witnesses was not limited, and he elicited testimony from Staff that it previously had considered recommending a disallowance of the costs.
The Attorney General also argues that the Commission erred in striking the portion of Copeland’s testimony pertaining to the excluded Staff draft audit report and Staff memorandum. He contends that Copeland’s testimony should have been allowed even if the documents were not admissible. In making this argument, he relies on Rule 703 of the Arkansas Rules of Evidence, which provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
We reject this argument because we have sustained the Commission’s finding that the documents were not relevant to the issue in the proceedings. In addition, the Attorney General failed to demonstrate that a draft audit report based on a different test year and an internal Staff memorandum were “of a type reasonably relied upon by experts in the particular field in forming opinions or references upon the subject,” and the Attorney General failed to qualify his witness, an economist, as an expert on the sufficiency of audit trails.
For the reasons stated, we affirm the Commission’s orders relating to discovery and the admissibility of evidence.
We have examined the arguments made in Docket No. 94-169-U, and, since we find no error on the points raised on appeal, we affirm.
Affirmed.
Robbins, Pittman, and Stroud, JJ., agree.
Mayfield and Neal, JJ., dissent.
In portions of this opinion, SWBT is also referred to as SWBTA (i.e. SWBT-Arkansas) because that is how SWBT is referred to by the parties. For purposes of this opinion, SWBT and SWBTA are the same. | [
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Judith Rogers, Judge.
This is an appeal from the Workers’ Compensation Commission’s order affirming and adopting the administrative law judge’s decision. The ALJ found that on August 20, 1993, appellant sustained a recurrence of her low-back condition, that appellee was responsible for medical expenses and that appellant was entided to temporary total disability benefits from August 23, 1993, to a date yet to be determined. Also, the Commission determined that Act 796 of 1993 was inapplicable to recurrences of injuries which originally occurred prior to the effective date of Act 796. On appeal, appellant argues that there is no substantial evidence to support the Commission’s decision and that the Commission erred in finding that Act 796 was inapplicable. We disagree and affirm.
The record reveals that appellee, age thirty-four, was a certified nurse’s aide for appellant. While trying to change linens under a patient, Patsy Price, she sustained an injury to her lower back on July 16, 1992. She experienced a burning sensation in her lower back and reported the incident to LPN, Renee Glenn. She rested over the weekend, missed a day of work and received medical treatment. On Friday, August 20, 1993, while lifting a patient into a shower chair, appellee felt a hot burning sensation in the same area as she had in July of 1992. She completed her shift and rested over the weekend. She returned to work Monday, August 23, and reported the incident to Kay Parker, who assured her that her claim was covered. Later, after appellee had received medical attention, she was informed that the time limit from the first injury had expired and that her claim would not be covered. Subsequently, appellee filed a claim for benefits.
On appeal, appellant argues that there is no substantial evidence to support the Commission’s decision that appellee suffered a recurrence of her 1992 injury. We disagree.
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996).
When the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for every natural consequence that flows from that injury. If, after the period of initial disability has subsided, the injury flares up without an intervening cause and creates a second disability, it is a mere recurrence, and the employer remains liable. McDonald Equip. Co. v. Turner, 26 Ark. App. 264, 766 S.W.2d 936 (1989). A recurrence is not a new injury but simply another period of incapacitation resulting from a previous injury. See Pinkston v. General Tire & Rubber Co., 30 Ark. App. 46, 782 S.W.2d 375 (1990).
The record reveals that appellee sustained a compensable injury in July of 1992. This injury was a muscle strain with spasm. Appellee testified that she continued to experience soreness with exertion. She said that she would work four days, but would have to lie down and rest the next day. Appellee testified that in March and April of 1993, she became more symptomatic and that she mentioned this to a co-worker, Darlene Epperson. Appellee said that on Friday, August 20, while lifting a patient into a shower chair, she felt a hot burning sensation in the same area as her previous injury.
Appellee was seen by Dr. Dale Barton. Dr. Barton diagnosed back pain with observable muscle spasms and degenerative disc disease at L5-S1. An MRI revealed an abnormality at L4-5. Dr. Barton referred appellee to Dr. Scott M. Schlesinger. Dr. Scbles-inger reviewed the MRI and suggested that appellee may have a disc protrusion at L4-5. He recommended a myelogram CT scan, but his evaluation was not completed because the claim was denied, and appellee could not afford the costs.
Ms. Parker testified that appellee came in in 1993 and showed her where she had hurt her back. Ms. Parker said that appellee said it was in the same place as the previous injury.
The ALJ clearly gave great weight to the testimony of appellee in finding that appellee injured her back in 1992, returned to heavy manual labor, remained symptomatic and suffered a recurrence in 1993. The ALJ further found that the 1993 injury was reported and that appellant considered this a recurrence by advising appellee that she did not have to complete another accident form, by sending her to the company doctor, and by providing light duty. The ALJ concluded that appellee had proven by a preponderance of the credible evidence that appellee had sustained a recurrence of her low back condition on August 20, 1993. Based on the record before us, we cannot say that there is no substantial evidence to support the Commission’s finding that appellee sustained a recurrence of her 1992 injury.
For its second point, appellant argues that the Commission erred in finding that Act 796 of 1993 was inapplicable to the facts of this case. We disagree.
As discussed above, a recurrence is not a new injury but merely another period of incapacitation resulting from a previous injury. Under the general provisions of the 1993 workers’ compensation statute chapter nine, subchapter one, it is provided that “the provisions of this act shall apply only to injuries which occur after July 1, 1993.” The record clearly reflects that appellee’s injury was in 1992 before the enactment of Act 796. Consequendy, Act 796 does not apply to this case because appellee did not sustain an injury after July 1, 1993, but merely another period of incapacitation. Therefore, the Commission did not . err in determining that the new act did not apply.
Appellant also challenges the Commission’s finding that appel-lee was entitled to medical benefits and temporary total disability benefits.
The Commission directed appellant to pay all reasonable medical expenses associated with appellee’s lumbar injury. Appellant argues, under Act 796, that to be entitled to medical benefits appellee would have to show that her compensable injury was the major cause of her disability or need for treatment. Based on our earlier finding that Act 796 does not apply to this case, appellant’s argument is without merit.
The Commission also found that appellee was entitled to temporary total disability benefits from August 23, 1993, to a date yet to be determined because she was unable to work and thus remained in her healing period. After reviewing the record, we cannot say that there is no substantial evidence to support the Commission’s decision.
Affirmed.
ROBBINS and Neal, JJL, agree. | [
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James R. Cooper, Judge.
The appellant entered a negotiated plea of guilty to theft of property, a Class C felony. He was sentenced to three years’ probation, fined $100, and ordered to pay court costs and restitution. The parties agreed to a separate restitution hearing in which the trial court ordered restitution in the amount of $19,500.00. On appeal, the appellant argues that the trial court erred in determining the amount of restitution. We affirm.
The victim, Kelly Jones, testified that four of her horses were stolen in July 1993. She testified that two of the horses were registered Arabians and the other two were registered quarter horses. She stated that all the horses had been professionally trained and were show horses. Ms. Jones testified that one of the Arabians was a black bay mare worth $5,000. The other Arabian was a white stallion also valued at $5,000. Ms. Jones testified that her parents had given her one of the quarter horses which was a high point show mare. She testified that her parents paid $2,950 for the horse and she estimated its value at $3,500. Ms. Jones further testified that the fourth horse was a three-year-old palomino filly out of the highest point palomino in the American Quarter Horse Association. She stated that she borrowed $7,000 from her father to purchase the horse and had been offered $10,000 for it. The victim’s father confirmed that he loaned her $7,000 for the purchase of the palomino quarter horse. Ms. Jones further testified that she also lost $1,750 in stud fees.
Ms. Jones’s ex-husband testified that the horses were worth less than the amounts testified to by Ms. Jones. The appellant testified that he had sold the stolen horses for $1,600. He further testified that he made approximately $1,500 to $1,700 a month which was used to support himself, his wife, and three children.
In determining the amount of restitution, the trial court allowed $3,000 for each Arabian horse, $3,500 for one quarter horse and $10,000 for the second quarter horse. The appellant argues that it was error to consider the victim’s testimony to the amount of restitution. However, this argument was not made to the trial court. Our law is well established that arguments not raised at trial will not be addressed for the first time on appeal, and that parties cannot change the grounds for an objection on appeal, but are bound on appeal by the scope and nature of the objections and arguments presented at trial. Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995).
Theft of property is a Class C felony if the value of the property is less than $2500 but more than $200. Ark. Code Ann § 5-36-103 (b)(2)(A) (Repl. 1993). The appellant contends that the amount of restitution could not exceed $2500 because he entered a plea of guilty to a Class C felony theft of property. However, the appellant has not cited any authority to support this argument. Assignments of error unsupported by convincing argument or authority are not considered on appeal. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). Moreover, restitution is meant, as far as is practicable, to make the victim whole with respect to the financial injury suffered. See Ark. Code Ann. §§ 16-90-301 to -306 (1987). Here, there was evidence that the victim sustained damages in excess of $2500 as a result of the theft; consequendy, we hold that the evidence is sufficient to support the trial court’s order of restitution.
The appellant also asserts that the trial court failed to consider the amount he could afford to pay in determining the amount of restitution. We disagree. The trial court heard testimony about the appellant’s income and financial responsibilities. The trial court’s order noted that the appellant would have to make only reasonable monthly payments. We note that a trial court retains jurisdiction beyond the term of a suspended or probated sentence until any fine, costs, or restitution is paid. See Basura v. City of Springdale, 47 Ark. App. 66, 884 S.W.2d 629 (1994). Thus, the term of the appellant’s restitution payments may be longer than his thirty-six months’ probation. Accordingly, we find no error and affirm.
Affirmed.
Stroud, Griffen, Rogers, and Robbins, JJ., agree.
Mayfield, J., dissents.
The State questions whether the appellant may bring this appeal from his guilty plea. However, because the appeal does not constitute a review of the guilty plea itself, we conclude that the appellant is not precluded from bringing an appeal challenging the restitution. See Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994); State v. Sherman, 303 Ark. 284, 796 S.W.2d 339 (1990). | [
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Wendell L. Griffen, Judge.
The issue posed by this appeal is whether the decision of the Workers’ Compensation Commission denying Mary Hanson’s claim for additional medical benefits associated with her March 13, 1989, compensable injury is supported by substantial evidence. Hanson has appealed the Commission’s decision and contends that the decision is not supported by substantial evidence. We have reviewed the record and concluded that substantial evidence exists to support the decision. Therefore, we affirm the Commission.
Appellant was working for appellee on or about March 13, 1989, when she spilled methyl ethyl ketone (MEK) on her right leg. She dried the area with a hair dryer pursuant to advice obtained from her supervisor. A blister developed in the area later that day, so appellant consulted Dr. Thomas Pullig, her personal doctor, after work. Dr. Pullig noted in his office chart that appellant had sustained a “chemical dermatitis burn to right anterior leg.” The blister resolved within several days, but a small knot later developed in the area and continued growing until March of 1990 when appellant again saw her personal doctor and asked him about the knot. Appellant had been undergoing treatment from the doctor for hyperthyroidism between the time that he first treated the dermatitis burn and March of 1990, but the doctor testified by deposition that he did not recall appellant bringing the knot to his attention until March 5, 1990.
Dr. Pullig referred appellant to Dr. WJ. Giller, an orthopedist, whose initial report dated March 12, 1990, indicated that his impression was that appellant had a mass of the right lower leg of an undetermined etiology. Dr. Giller surgically removed the mass on March 28, 1990, and later recommended that appellant consult Dr. Marshall Cunningham, a plastic surgeon in Shreveport, Louisiana. Dr. Cunningham saw appellant on November 21, 1990, and she told him that the mass developed on her leg after an acid spill.
Appellant’s initial medical treatment by Dr. Pullig and Dr. Giller was paid by appellee. However, when appellant sought continued medical treatment for what she contends are the residual effects of the compensable injury, appellee contended that appellant’s complaints were unrelated to the compensable injury and, therefore, not compensable. At the hearing of this claim before the administrative law judge, the appellee introduced into evidence a 78-page exhibit that included medical reports from Dr. William Geissel and Dr. Henry Simmons. Neither Dr. Geissel nor Dr. Simmons had treated appellant. However, they had reviewed medical documents related to her dispute with appellee concerning her claim for additional medical treatment.
Appellant now argues that the Commission erred when it affirmed and adopted the decision of the law judge that denied her claim for additional medical benefits. Our task on appeal is to review the evidence and all reasonable inferences that may be deduced from it in the light most favorable to the findings of the Commission. Mac v. Tyson Foods, Inc., 28 Ark. App. 229, 771 S.W.2d 794 (1989). On appeal, the issue is not whether we might have reached a different result from that reached by the Commission, or whether the evidence would have supported a contrary finding. If reasonable minds could reach the Commission’s decision, we must affirm. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995).
The upshot of appellant’s argument is that the Commission denied her claim for additional medical benefits by relying upon the opinions of Dr. Geissel and Dr. Simmons although those doctors had not treated appellant and had only reviewed medical records provided to them by appellee. Appellant argues that the opinions of doctors who have not treated or examined her cannot be substantial evidence to support denial of her claim in the face of opinion evidence by Dr. Pullig, Dr. Cunningham, and Dr. Ernest Hartmann (another doctor who actually saw her). It is true that Dr. Pullig stated that his speculation was that the growth at the site of the chemical burn might have been caused by the burn, although he also admitted that he did not know if appellant had suffered a chemical burn that would have resulted in some sort of thickening or growth later occurring. Dr. Cunningham, the plastic surgeon, also opined that his common-sense assessment was that a causal connection existed between the chemical burn and the growth of the knot at the same site several months later.
On the other hand, the May 6, 1991, report from Dr. Henry Simmons, an assistant professor of toxicology at the University of Arkansas for Medical Sciences, included the following statement:
MEK is a simple ketone which is an irritant to the skin, eyes and mucous membranes. It is not an “acid.” It is not an exotic compound about which litde is known. Its cutaneous effects are attributable to leaching of fat from the skin which produces an effect similar to that occurring on the hands after the short-term use of gasoline to clean oily parts. Brief exposures to MEK do not characteristically cause deep injury to the skin. This is particularly true when contacts take place a single time, occur on previously normal skin, and do not involve occlusion. In any case, there is no evidence in the record that Ms. Hanson ever had severe damage to her skin in the period immediately after the accident.
Furthermore, I am aware of no literature linking the material to the development of subcutaneous fatty or fibrous tissue such as that contained in Ms. Hanson’s surgical specimens.
The responsibility of weighing the conflicting medical evidence and opinions and determining the preponderance of the evidence is not for us to fulfill on appellate review. It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). The Commission had the opportunity to consider the disparate opinions from the witnesses concerning whether appellant’s growth was caused by her chemical burn, and it decided that appellant had failed to prove by a preponderance of the evidence that the growth was caused by the chemical burn so as to entide her to additional medical treatment at appellee’s expense. The fact that reasonable minds might have reached a different result does not mean that the result reached by the Commission lacks substantial evidence. We hold that the opinion evidence provided by Dr. Geissel and Dr. Simmons, which rejected a causal relationship between the growth and the chemical burn, constitutes substantial evidence in support of the Commission’s decision.
At oral argument, counsel for appellant contended that reversal is mandated because the reports from Dr. Geissel and Dr. Simmons were not verified in compliance with Ark. Code Ann. § 11-9-704(c) (Repl. 1996). Although both counsel were under the impression at oral argument that appellant had objected to the reports from those doctors being received into evidence on that basis, the record clearly indicates otherwise. At page 16 of the record, the following exchange occurred between counsel for appellant and the administrative law judge:
MR. THOMAS: . . . Your Honor, we object specifically to the reports of Doctor William Geissel and Doctor Harry (sic) Simmons, who simply reviewed documents, medical documents; that we are really not sure exactly what they reviewed. They have never seen Ms. Hanson; never reviewed her case; they simply reviewed certain matters and discussed matters with a rehabilitation nurse, and we don’t feel that their reports are entitled to any weight or credibility, and really involve pure speculation and conjecture on their part as to what may be involved in this leg, since they have never seen this lady, and I think their letters are basically in terms of speculation and conjecture, and we don’t feel that they are properly admissible in this case, Your Honor.
JUDGE SMITH: Your objection will be taken under advisement, Mr. Thomas. I’ll have to look at the reports before I can make a ruling on it.
MR. THOMAS: I understand, Your Honor.
No objection was made before the Commission to the admissibility of the reports from Dr. Geissel and Dr. Simmons because they were unverified. Indeed, the record does not indicate that their authenticity was challenged at all. The objection raised by appellant’s counsel was directed to their probative weight, not their authenticity. As previously mentioned, it is the exclusive function of the Commission to weigh the evidence. Beyond that, issues may not be raised on appeal that have not first been raised and decided below. Hyde v. C.M. Vending Co., Inc., 288 Ark. 218, 703 S.W.2d 862 (1986). Therefore, our decision is not based on appellant’s new and unpreserved position at oral argument concerning the unverified reports.
Affirmed.
Jennings, C.J., and Pittman, Rogers, and Neal, JJ., agree.
Mayfield, J., dissents. | [
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Olly Neal, Judge.
Frankie Milton takes this appeal from his first-degree murder conviction which was entered after a bench trial in the Mississippi County Circuit Court. Milton contends that two of the three confessions he made to the Blytheville Police Department were erroneously admitted at his trial, and, therefore, reversal of his conviction is required. We agree with appellant and, accordingly, reverse the conviction.
Milton was initially arrested on July 12, 1994, eight days after police found the body of a woman named Lisa Thomas in a burned-out residence in Blytheville. The victim had been killed by a gunshot wound to her head on July 3, 1994. The day after appellant was arrested near Carlisle, Arkansas, and returned to Blytheville, Milton gave his first custodial statement, in which he denied any involvement in or knowledge of the murder.
On July 15, 1994, at a 9:00 a.m. hearing, the presiding magistrate found probable cause to charge Milton with first-degree murder and contemporaneously appointed the Mississippi County Public Defender’s Office to represent appellant. Appellant gave his second statement to police officers later that day and a third on July 18th, three days later. Both the second and third statements were inculpatory. In his second statement, appellant confessed his presence at the crime scene, but claimed that he held the victim’s arm while another man fired the fatal shot. In his July 18th statement, appellant admitted he fired the murder weapon.
A formal order appointing the public defender to represent appellant was entered on March 6, 1995, and appellant filed his Motion to Suppress. On March 21st, a Denno hearing was conducted on appellant’s motion. At the hearing, the State presented the testimony of the officers who interrogated appellant, the magistrate who made the initial appointment of counsel and the Blythe-ville Municipal Court Deputy Clerk, who was charged with maintaining court records.
Officer James Sanders testified that he, Lieutenant Glen Lester, and Detective Marvin Crawford were all present during the tape-recorded portion of appellant’s July 15th interview and that none of the officers threatened, coerced, or made any promises to appellant. Lieutenant Lester, who was present during the entire interview, corroborated Sanders’s account of the second interview, and, in addition, testified that he witnessed appellant sign a waiver of rights form. Lieutenant Lester also testified that he and Detective Crawford were present during the July 18th interview with appellant and that he, Lester, signed as a witness on the third waiver-of-rights form appellant executed. Both Sanders and Lester admitted that Milton never requested that his statement be taken and that all three confessions appellant gave resulted from police-initiated interrogations. All three officers denied knowing that appellant was represented by counsel and claimed that appellant never attempted to invoke his right to have an attorney present.
The Municipal Clerk Deputy, Grace Haney, testified that she specifically remembered appellant’s March 15, 1994, probable-cause hearing, but couldn’t remember which deputy prosecutor represented the State on that date. According to Ms. Haney, Guy Long, a local attorney, presided over the hearing. Attorney Guy Long, who was also called as a defense witness, admitted that he acted as sitting judge at appellant’s probable-cause hearing, and that it was he who made the finding of probable cause to charge appellant with murder in the first degree. Mr. Long stated that he appointed the public defender’s office to represent appellant, advised appellant of his right to counsel, and made certain that appellant was aware the public defender had been appointed to represent him. Finally, according to Mr. Long, Deputy Prosecuting Attorney Marvin Childers, who was present, filled out the affidavits necessary for the appointment and Long signed them.
Based on the evidence presented at the hearing, appellant’s motion to suppress was denied. After the subsequent trial on the merits before the court, appellant was convicted of the offense of murder in the first degree and sentenced to thirty years in the Arkansas Department of Correction.
Appellant’s only argument is that the taking of his second and third statements violated his Fifth Amendment right against self-incrimination and his Sixth Amendment right to counsel and, therefore, that both statements should have been suppressed. Relying on Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988) and Sutherland v. State, 299 Ark. 86, 771 S.W.2d 264 (1989), appellant contends that his Sixth Amendment right to counsel attached upon his arrest, and after counsel had been appointed to represent him he was not subject to further interrogation by the authorities unless he himself initiated that contact.
In reviewing a trial court’s denial of a motion to suppress a confession, we view the evidence in the light most favorable to the State and make an independent determination based on the totality of the circumstances of whether the accused knowingly, voluntarily, and intelligently waived his right to remain silent. Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). We only reverse if the decision to suppress was clearly against the preponderance of the evidence. Id.
Appellant is correct in his statements that police-initiated contact is prohibited after a criminal defendant expresses a desire to deal with the police only through counsel and that any subsequent waiver of rights is invalid and renders a resulting confession inadmissible. See Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988), and Sutherland v. State, 299 Ark. 86, 771 S.W.2d 264 (1989). In the present case, however, although it is clear from the record that the acting magistrate who presided over appellant’s probable-cause hearing designated the Mississippi County public defender’s office as counsel for appellant, nothing in the record shows that appellant requested the appointment or ever made any other objective indication that he desired the representation. However, the record does show that a deputy prosecuting attorney was present when an attorney was appointed to represent appellant, and that some representatives of the local police department escorted appellant to the hearing.
The Supreme Court’s holding in Sutherland seems to indicate that the fact of the appointment is enough by itself to invalidate a subsequent waiver of rights by a defendant where the police initiate the subsequent contact. However, in a more recent case, Lanes v. State, 53 Ark. App. 266, 922 S.W.2d 349 (1996), we discussed the standards set out in Michigan v. Jackson and Edwards v. Arizona, which were relied on in both Sutherland and Bussard. There, we stated:
The critical difference...between Michigan v. Jackson and the case at bar is that in Jackson, both Jackson and [his co-defendant] asked that counsel be appointed to represent them. Here, appellant made no request for counsel and was unaware that counsel had been appointed. In Moran v. Burbine, 475 U.S. 412, 422 (1986), the Court said, “Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.” (Citations omitted.) We conclude that the trial court’s determination that both the waiver and the statement were knowingly given should be affirmed.
This case is distinguishable from Lanes in that here, both appellant and the local authorities were aware that the court had provided an attorney for appellant while in Lanes, the appellant, not knowing that counsel had been appointed for him, sought other counsel. The record in Lanes was also sufficient to establish that none of the interrogating officers had constructive knowledge of the appointment.
Because appellant was aware that he had an attorney and the interrogating officers had at least constructive knowledge of that fact, reversal of appellant’s conviction is required.
Reversed and remanded.
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Judith Rogers, Judge.
This is an appeal from the Workers’ Compensation Commission’s order affirming and adopting the administrative law judge’s decision denying appellant’s claim for wage-loss disability benefits. On appeal, appellant argues that there is no substantial evidence to support the Commission’s denial of wage-loss disability benefits. We agree that the Commission’s decision cannot stand, and we reverse.
The record reveals that appellant was a fifty-nine-year-old practical nurse who worked for appellee for twenty-four years. She has a seventh grade education and worked her way to the position of nurse’s aide. Appellant attended LPN school and passed her state boards before taking the position with appellee. Her duties as a practical nurse included total patient care. She was assigned four or five patients whom she bathed and fed. She also administered medication to those patients. The record also indicates that appellant’s job required heavy lifting and repetitive bending.
On December 9, 1991, she sustained an admittedly compensa-ble injury to her back and was assigned a 10% anatomical impairment rating. Appellee paid temporary partial disability benefits until March 10, 1994, and permanent partial disability benefits based on a 10% permanent physical impairment rating. In June 1994, appellant was laid off along with twenty other employees. Appellant testified that she has sought employment since the lay-off, but she has not been able to find employment.
The medical evidence reflects that appellant was seen by Dr. Richard D. DeKok, Director of Physical Therapy with Crawford Memorial Hospital. On June 28, 1994, Dr. DeKok noted that it was his goal as far back as December 1993 that appellant could increase to an eight-hour light duty shift with certain restrictions. The record indicates, however, that appellant returned to light duty in July 1993, and was provided only a four-hour work day until she was laid off in June of 1994. Appellant testified that she went back to work expecting an eight-hour day, and she did not understand why she was only given four hours. She also said that she never refused to work. Appellant stated that even though the work bothers her physically, she would rather work than draw social security disability.
Appellant also testified that when she returned to light duty in 1993 she discussed attending classes at Westark Community College with Ms. Jo Hilgendorf, appellee’s Human Resource Director. Appellant said that she checked the class schedule and contacted Ms. Hilgendorf. According to appellant, Ms. Hilgendorf said that she would “get back with her,” but Ms. Hilgendorf never called her back to confirm the courses. Appellant also stated that she was not made aware that appellee would be responsible for the cost of the courses. Appellant filed a claim requesting additional temporary total disability benefits and wage-loss disability benefits.
At the hearing, appellant was the only witness to testify. It was not until approximately nine days after the hearing that Ms. Hilgen-dorf’s deposition was taken. She testified that appellee would cover the costs of courses at Westark College and have a position for appellant if she completed the courses and if a job were available. Appellant gave a deposition in response to that of Ms. Hilgendorf in which she said that she would be willing to go to Westark College for training in typing and computer skills if appellee shouldered the costs.
The ALJ stated in his opinion:
If the claimant successfully completes the courses required at Westark Community College and if the respondent/ employer rehires the claimant at a wage equal to or greater than the wage she was drawing prior to her injury, then the claimant does not have a wage loss disability. The claimant would argue that if she cannot complete the courses or if the respondent/ employer does not re-employ her, then she has a wage loss disability. It appears to me that the issue of permanency was prematurely addressed. The issue should have been couched in terms of a request for rehabilitation benefits. It was not, therefore I find that claimant failed to prove by a preponderance of the credible evidence that she has a wage loss disability. (Emphasis added.)
After making a finding that the issue of wage loss was premature, the ALJ summarily denied appellant wage-loss disability because of insufficient credible evidence. It appears from the ALJ’s decision that his basis for the denial of wage-loss benefits was that the issue was premature and that the issue should have been “couched in terms of a request for rehabilitation benefits.” We find that the ALJ erred in denying appellant wage-loss disability benefits after he determined the issue to be premature. A finding on the issue of wage-loss disability should have been held in abeyance based on the ALJ’s finding. Therefore, we reverse the Commission’s denial of wage-loss disability benefits in light of its finding that the issue was premature.
We also note, that despite the Commission’s finding that the issue of permanency was premature, the Commission failed to make specific findings of fact in determining appellant’s entitlement to wage-loss disability benefits. In addition, the limited findings that the Commission did make are not supported by the record.
The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other matters affecting wage-loss, such as the claimant’s age, education, and work experience. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). “The employer or his workers’ compensation insurance carrier shall have the burden of proving the employee’s employment, or the employee’s receipt of a bona fide offer to be employed, at wages equal to or greater than his average weekly wage at the time of his accident.” Ark. Code Ann. § ll-9-522(c)(l) (Repl. 1996).
The ALJ made the following findings regarding wage-loss disability:
Even prior to the June 1994 layoff the claimant was advised by Jo Hilgendorf, Human Resources Director for Crawford County Memorial Hospital, that Crawford County Memorial Hospital would pay for computer training at Westark Community College which is located in Fort Smith. After schooling she would be employed by the respondent employer in either medical records or admissions. She would also be employed at the same rate of pay she was making prior to her compensable injury. For reasons known only to the claimant, she showed no interest in attending Westark Community College for training.
The ALJ failed to make specific findings with regard to the factors it should have considered when determining the issue of wage-loss disability benefits. The ALJ did not indicate that he considered appellant’s age, education, work experience, or medical condition. The Commission adopted that ALJ’s decision which failed to make sufficient factual findings that would enable the appellate court to conduct a meaningful review of the Commission’s decision. See Arkansas Dep’t of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993). A specific finding must contain all the specific facts relevant to the contested issue or issues so that the reviewing court may determine whether the Commission has resolved those issues in conformity with the law. Wright v. American Transportation, 18 Ark. App. 18, 709 S.W.2d 107 (1986). In this case, the ALJ failed to make specific findings with regard to the issue of wage-loss disability, and the limited findings that were made do not appear to be supported by the record.
The record reveals that there was no actual offer of employment made by appellee to appellant. Ms. Hilgendorf said that if appellant was capable of performing the work, if a job was available, and if appellant could work eight hours a day then there may be a position as a ward secretary or in medical records when the computer equipment arrived. She testified that there was not a job available at the present time based on appellant’s current level of experience, education, and medical condition.
Arkansas Code Annotated § ll-9-522(c)(l) places the burden on the employer of providing “a bona fide offer to be employed.” This means that there must be an actual offer of employment. See Weyerhaeuser Co. v. McGinnis, 37 Ark. App. 91, 824 S.W.2d 406 (1992). The evidence in this case does not show that appellant was offered a job. In fact, the evidence shows that any type of job available to appellant was speculative and based on future circumstances. Also, there is no evidence in the record indicating what rate of pay appellant would receive if she returned to a job with appellee. Furthermore, in noting that “[f]or reasons known only to the claimant, she showed no interest in attending Westark Community College for training,” the ALJ completely disregarded appellant’s testimony explaining why she had not attended classes. It would have been appropriate for the ALJ to make a credibility determination with regard to appellant’s testimony on this point, but that is not what occurred.
Ordinarily, we would remand a case when the Commission fails to make specific findings to support its conclusion on an issue. However, in this case, the Commission’s decision must be reversed because of the Commission’s finding that the issue of wage-loss was premature. Consequendy, the onus will be on appel lant to file a claim for wage-loss disability at an appropriate time when the issue is ripe for consideration.
Reversed.
Cooper, Robbins, and Mayfield, JJ„ agree.
Jennings, C.J., and Griffen, J., dissent.
The dissent does make specific findings from the evidence in the record to support the Commission’s denial of wage-loss disability. In accusing the majority of not following the appropriate standard of review, the dissent has done exactly what it condemns. The dissent has made credibility determinations, weighed the evidence, and gone to the record to bring forth evidence to support its position. While there may be evidence in the record to support a finding one way or the other, neither the ALJ nor the Commission resolved the wage-loss issue by appropriate findings of fact. See Sonic Drive Inn v. Wade, 36 Ark. App. 4, 816 S.W.2d 889 (1991). It is not our duty or role on review to go to the record and make those specific findings of fact. Only when the Commission fails in its responsibility to set forth specific findings of fact or when it determines an issue to be premature but then rules on that issue, does it then become our responsibility to correct the Commission’s error by either remanding the case or reversing the decision.
The dissent incorrectly notes that this case is remanded to the Commission “so that the parties may develop and present proof about appellant’s training and employment.” This case is being reversed because an issue was determined to be premature. The burden is on appellant to file a claim in the future if she wishes to seek wage-loss disability benefits. | [
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Wendell L. Griffen, Judge.
Alton Levern Brunson has appealed his conviction after a bench trial in the Pulaski County Circuit Court on the charges of misdemeanor possession of a controlled substance (marijuana) and felony possession of a controlled substance (cocaine). Appellant argues that the police officer who searched his person without a warrant lacked probable cause to believe that he had committed a felony, thereby making his arrest and search unlawful, and appellant contends that the trial court erred by denying his motion to suppress the evidence obtained from the search. We hold that appellant’s motion to suppress should have been granted because the warrantless search lacked probable cause, thereby making the fruit of the search illegal under the Fourth Amendment to the Constitution of the United States. Therefore, we reverse the conviction.
Appellant was one of four people riding in a car around 1:30 a.m. on March 19, 1994, in North Little Rock when Officer John Breckton of the North Litde Rock Police Department stopped the car because it was playing music too loudly in violation of a city noise ordinance. Officer Breckton testified that as he approached the driver’s side of the car, he smelled the odor of marijuana, so he ordered the occupants from the car. Appellant was seated in the rear seat on the passenger side, and exited the car as ordered. Officer Breckton then performed a pat-down search of the occupants, including appellant, in a search for drugs. Based upon the items found during the search, appellant was charged. He moved to suppress the evidence seized during the search of his person on the ground that the search was unlawful. The trial court denied the motion to suppress, and found him guilty. The misdemeanor sentence was merged with the felony, and appellant was fined $250, placed on probation for five years, and ordered to pay court costs.
In reviewing the denial of a motion to suppress evidence, the appellate court makes an independent determination based on the totality of the circumstances and reverses the decision only if the trial court’s ruling was clearly against the preponderance of the evidence or was clearly erroneous. Mounts v. State, 48 Ark. App. 1, 888 S.W.2d 321 (1994); Houston v. State, 41 Ark. App. 67, 848 S.W.2d 430 (1993). We have reviewed the evidence in light of this standard, and conclude that the trial court’s denial of appellant’s motion to suppress was clearly erroneous, thereby compelling reversal.
The Fourth Amendment to the Constitution of the United States protects persons from unreasonable searches and seizures. This constitutional guarantee means that appellant’s motion to suppress requires analysis of several factors: (1) whether he was searched based upon a warrant; (2) if not, whether the warrantless search was based upon probable cause; and (3) if that was not the case, whether the warrantless search was incidental to a contemporaneous lawful arrest. None of these factors apply to this case. Instead, the State argues that the motion to suppress was properly denied because appellant was bodily searched incidental to a vehicular search for contraband that the officer reasonably believed might have been contained in the vehicle in which he was a passenger pursuant to Rule 14.1 of the Arkansas Rules of Criminal Procedure. Rule 14.1 applies to vehicular searches, and states, in pertinent part:
(a) An officer who has reasonable cause to believe that a moving or readily movable vehicle is or contains things subject to seizure may, without a search warrant, stop, detain, and search the vehicle and may seize things subject to seizure discovered in the course of the search where the vehicle is: (i) on a public way or waters or other area open to the public; . . .
(b) If the officer does not find the things subject to seizure by his search of the vehicle, and if: (i) the things subject to seizure are of such a size and nature that they could be concealed on the person; and (ii) the officer has reason to suspect that one (1) or more of the occupants of the vehicle may have the things subject to seizure so concealed; the officer may search the suspected occupants. . .
The evidence does not support the State’s reliance upon Rule 14.1 and the cases that have applied it. There is no proof that Officer Breckton searched the vehicle after he smelled marijuana but before searching appellant. Rule 14.1 explicitly conditions a search of the occupants of a vehicle in which an officer believes things subject to seizure may be found on a prior search of the vehicle. The vehicular search must not produce the things that the officer reasonably believes are subject to seizure and which are of the size and nature that the officer has reason to suspect that one or more of the occupants of the vehicle may have concealed on his or her person.
The State cannot rely upon Rule 14.1(b) to justify the search of appellant’s person where the clear proof shows that Officer Breckton made no effort to search the vehicle for the marijuana that he believed that he smelled. To rule otherwise would render the introductory clause of Rule 14.1(b) a nullity, and would essentially license officers to perform warrantless searches of persons traveling the streets and highways of Arkansas even where the officers lacked probable cause to believe that those persons were guilty of anything more than riding in a vehicle. Indeed, if Officer Breckton did smell the odor of marijuana as he approached the vehicle on the driver’s side, it is at least odd that he conducted no search for marijuana in the vehicle before searching its occupants, or afterwards as far as can be determined from the record.
There is no evidence indicating how the officer formed a reasonable suspicion that appellant, in particular, had concealed any contraband given that the officer detected the marijuana odor as he approached the driver’s side of the vehicle whereas appellant was seated in the rear, and on the opposite side. Rule 2.1 of the Arkansas Rules of Criminal Procedure defines “reasonable suspicion” as suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion. Reasonable suspicion for detaining persons under Rule 3.1 of the Rules of Criminal Procedure and conducting weapons searches under Rule 3.4 (the stop and frisk situation not involved in this case) is different from probable cause for an arrest or for a warrandess search. Probable cause for an arrest means a reasonable ground of suspicion supported by circumstances sufficiendy strong in themselves and existing at the time the arrest is made which justify a cautious and prudent police officer in believing that the accused committed a felony, although this does not require the quantum of proof necessary to support a conviction. Reed v. State, 9 Ark. App. 164, 656 S.W.2d 249 (1983). Accepting the assertion that Officer Breckton smelled marijuana as he approached the driver’s side of the vehicle and, therefore, had reasonable cause to conduct a warrandess search of the vehicle does not authorize us to ignore the plain language of Rule 14.1 requiring that the officer first search the vehicle and fail to find the things believed subject to seizure before proceeding to search the occupants.
Although the dissenting members of our panel would uphold the trial court’s denial of appellant’s motion to suppress by viewing the search as one incidental to a contemporaneous arrest, we do not share their reasoning. It is true that pursuant to Rule 3.1 of the Arkansas Rules of Criminal Procedure, a law enforcement officer lawfully present in any place may, in the performance of his or her duties, conduct what is known as an investigatory stop and briefly detain any person reasonably suspected of committing, having committed, or about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or appropriation of or damage to property, if stopping and detaining that person is reasonably necessary to either obtain or verify the identification of the person or to determine the lawfulness of his or her conduct. Moreover, when a law enforcement officer who has detained a person in connection with an investigatory stop reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer or a designee may search the outer clothing of the person detained and seize any weapon or other dangerous thing which may be used against the officer or others. Ark. R. Crim. P., Rule 3.4. Neither of these situations existed in this case.
Rule 4.1 of the Arkansas Rules of Criminal Procedure provides that a law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that the person arrested has committed a felony, a traffic offense involving either death or physical injury to a person, damage to property, or driving while under the influence of any intoxicating liquor or drug, as well as any violation of law in the officer’s presence. There is no evidence before us showing that Officer Breckton saw appellant commit any violation of the law, not to mention an offense covered by that rule.
We have also reviewed Rule 12.1 of the Rules of Criminal Procedure to determine whether the search in this case can be upheld as incidental to appellant’s arrest. That rule provides that an officer making a lawful arrest may conduct a warrantless search of the person or property of the accused for only four purposes: (1) to protect the officer, the accused, or others; (2) to prevent the accused from escaping; (3) to furnish appropriate custodial care if the accused is jailed; or (4) to obtain evidence of the commission of the offense for which the accused has been arrested or to seize contraband, the fruits of crime, or other things criminally possessed or used in conjunction with the offense. But if Officer Breckton lacked probable cause for arresting appellant, he manifestly lacked a reasonable basis for searching him. Nothing resembling probable cause existed until the officer searched appellant’s pocket and found the marijuana. The officer admitted that he searched appellant and the other occupants of the vehicle because he had smelled marijuana. As the United States Supreme Court emphasized in Sibron v. New York, 392 U.S. 40 (1968), it is axiomatic that an incident search may not precede an arrest and serve as part of its justification.
Officer Breckton had observed nothing about appellant’s behavior or appearance before performing the search that created a reasonable basis for suspecting that appellant had done anything deserving arrest, let alone concealed contraband on his person. This factor distinguishes this case from those where evidence was seized after a search prompted by the officer who saw the defendant attempt to conceal suspicious material after the officer had detected the odor of marijuana. Crail v. State, 309 Ark. 120, 827 S.W.2d 157 (1992). He did not perform the pat-down search of appellant based upon a reasonable concern that appellant was armed as was done in Jackson v. State, 34 Ark. App. 4, 804 S.W.2d 735 (1991). Appellant had committed no crime in the officer’s presence. Assuming that the officer smelled the odor of marijuana smoke, possession of marijuana would have been a misdemeanor, so the search cannot be sustained as one incidental to arresting appellant for a felony. The crack cocaine was not found until after appellant had already been arrested for misdemeanor possession of marijuana, having been searched without probable cause for believing that he had committed any crime. Based on the facts known to Officer Breckton before appellant was searched, appellant should not have been searched because there was nothing beyond a naked hunch for believing that he had committed a crime or that he possessed contraband.
In order to justify the intrusion into personal privacy caused when agents of the government handle persons and their effects, the government agent must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. Terry v. Ohio, 392 U.S. 1 (1968). The requisite cause justifying an arrest is not the same as that proof necessary to support a conviction. Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987). However, it is well setded that absent a valid arrest and probable cause to make a warrandess search, evidence seized as the result of the warrandess search of the defendant’s person is obtained illegally. United States v. Di Re, 332 U.S. 581 (1948). If persons can be arrested and searched without a warrant and without probable cause, then the Fourth Amendment rings hollow indeed when it guarantees persons the right to be secure in their persons against unreasonable searches and seizures. Riding in a car that is playing loud music is not a crime, let alone a felony, even if the car smells like marijuana. Persons riding vehicles on the streets, roads, and highways of this state have a reasonable expectation that they will not be forced to submit to invasion of their privacy merely because the police are zealous to combat the evil of illegal drugs.
Because there was no probable cause for arresting appellant and searching him, it follows that the evidence seized because of the illegal search should have been suppressed pursuant to his motion. Since the decision by the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643 (1961), the sanction for illegal searches has been to exclude illegally obtained evidence in state criminal cases. The exclusion of evidence obtained due to illegal searches in this nation dates back to 1914 when the United States Supreme Court made the following statement in Weeks v. United States, 232 U.S. 383 (1914):
If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.
Id. 232 U.S. at 393. Justice Clark, in writing for the majority in Mapp v. Ohio, stated: “The criminal goes free if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.” 367 U.S. 659, (quoting Olmstead v. United States) 277 U.S. at 438. As Justice Brandéis, dissenting, said in Olmstead:
Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example .... If the Government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.
Based upon our independent determination of the totality of the circumstances surrounding appellant’s search and arrest, and after viewing the evidence in the light favorable to the State as required by our standard of review, we conclude that Officer Breckton lacked probable cause for arresting appellant and conducting a warrandess search of his person. Hence, the search was prohibited by the Fourth Amendment, the evidence seized thereby was obtained illegally, and the trial court’s denial of appel lant’s motion to suppress the evidence obtained in the illegal search was clearly erroneous.
Reversed and remanded.
Cooper, Robbins, and Mayfield, JJ., agree.
Jennings, C.J., and Rogers, J., dissent.
The officer testified at trial, in pertinent part, as follows:
As I walked up to the driver’s side and approached the vehicle I smelled an odor of marijuana coming from the vehicle. After I smelled this odor of marijuana, I had the occupants of the car step out of the vehicle. The defendant was in the rear passenger side seat. When I came in contact with him I proceeded to search him. I did this because I had a suspicion that there was marijuana in the ... because of the smell, we searched all the occupants of the vehicle. I performed a search of his person, a pat-down search, where I found a small quantity of marijuana in his left front pants pocket. I found that and a package of cigarette rolling papers in the same pocket. At that time I place him under arrest. I continued the search and in the cargo pocket of his left leg, the pocket lower down, there were two rocks of suspected crack cocaine.
The text of the Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. | [
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Melvin Mayfield, Judge.
This opinion is substituted for one issued on June 12, 1996, which has been withdrawn. The case is an appeal from a judgment against the appellant holding it liable under the underinsured motorist coverage (UIM) provisions of an insurance policy issued by it. The case was ultimately submitted to the court, without a jury; therefore, any factual determinations are subject to review under the clearly erroneous standard of Rule 52(a) of the Arkansas Rules of Civil Procedure.
In December 1989, appellee, a truck driver, was injured while riding as a passenger in his employer’s truck when it ran off the road and overturned in a ravine. At the time of the accident, the truck was being driven by appellee’s co-employee, Ronnie McClellan, and appellee was sleeping in the passenger seat. Appellee’s injuries occurred during and within the course and scope of his employment. All of appellee’s medical expenses were paid by his employer’s workers’ compensation carrier; however, it was stipulated that appellee was not frilly compensated for his injuries by his workers’ compensation benefits and that his remaining damages were in excess of $25,000.00.
At the time of the accident, appellee was insured under a policy appellant had issued to appellee’s wife that contained a provision for $25,000.00 in UIM coverage. This provision provided:
In consideration of the premium charged, we will pay damages for bodily injury which a covered person is legally entitled to recover from the owner or operator of an under-insured auto ....
The Underinsured Motorist coverage does not apply to:
4. any person while occupying or being struck by an auto, owned by or furnished for the regular use of a covered person, that is not an insured auto under this endorsement. . . .
Appellee made claim for the $25,000.00 UIM coverage, alleging that the workers’ compensation benefits he received from his employer did not compensate him for his pain, suffering, and loss of wages.
Appellant denied appellee’s claim, and in September 1993, appellee filed suit. Appellant answered, denying that appellee was entitled to UIM benefits and contending that appellee’s workers’ compensation was appellee’s exclusive remedy. Appellant also claimed that the truck appellee was occupying in the accident was not an “underinsured auto” as defined by the policy.
Subsequently, appellant made a motion for summary judgment, alleging that, under the policy provisions, appellee was not “legally entided to recover” from either the owner of the vehicle or the operator of the vehicle and that coverage was expressly excluded under the “regular use” exclusion of the UIM endorsement. Appel-lee denied the motion should be granted and alleged that the “regular use” exclusion was ambiguous and presented a question of fact. The motion was denied and the parties filed a joint motion requesting the court to take the case under consideration and render a final decision based upon the stipulations, briefs, and other evidence before it.
Judgment was subsequently entered by the trial court for the appellee in the amount of $25,000, plus twelve percent penalty and attorney’s fee. The trial court: (1) rejected appellant’s argument that appellee was not legally entitled to recover against the owner and operator of the vehicle, and rejected appellant’s conclusion that appellee had no UIM claim under the policy; (2) rejected appellant’s argument that appellee’s claim was barred by the statute of limitations; (3) found the exclusion in appellant’s policy relating to an “auto owned by or furnished for the regular use of” a covered person was ambiguous and did not preclude coverage under the fact situation; and (4) found that appellee’s workers’ compensation benefits were sufficient to trigger his rights to recovery under the UIM provision of the policy issued by appellant.
I.
Appellant first argues that the trial court erred as a matter of law in awarding appellee UIM benefits because the exclusive remedy doctrine of workers’ compensation law prevents appellee from being “legally entitled to recover” from the owner of the vehicle, and the joint-enterprise doctrine prevents appellee from being “legally entitled to recover” from the operator.
Appellant contends that Ark. Code Ann. § 23-89-209 (Supp. 1995), the Underinsured Motorist Statute, creates a condition precedent that requires the insured to prove that he is “legally entitled to recover” from the owner or operator of another vehicle before UIM benefits can be collected. Moreover, the policy language in the case at bar also uses the phrase “legally entitled to recover.” Therefore, the appellant contends that both the statute and the policy require the injured party to prove that the operator or owner of the underinsured vehicle was negligent and underinsured, and also that he has a legally enforceable claim against the owner or operator.
But the appellant’s reference to the requirement that UIM coverage only applies when the injured party proves that the operator or owner of the underinsured vehicle was negligent and the injured party is “legally entitled to recover” does not mean that the appellant is contesting in this case the issue of negligence on the part of the driver of the vehicle in which the appellee was riding at the time the appellee was injured. Nowhere in the briefs filed by the appellant is there any suggestion that the driver of the vehicle, which ran off the road while the appellee was sleeping, was not negligent or that his negligence was not the proximate cause of the appellee’s injuries.
What the appellant does contend in the instant case, is that Ark. Code Ann. § ll-9-105(a) (Repl. 1996), of the workers’ compensation law, bars appellee from being “legally entided to recover” against the owner of the vehicle because that owner is the appellee’s employer, and this section provides that “[t]he rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee ...” Also, as to the driver of the vehicle, the appellant contends that workers’ compensation is exclusive because Rea v. Fletcher, 39 Ark. App. 9, 832 S.W.2d 513 (1992), holds that supervisory as well as non-supervisory employees are immune from suit for negligence in failing to provide a safe place to work. And in addition, according to the appellant, the appellee is barred from recovering from the operator of the vehicle under the “joint-enterprise doctrine.”
Therefore, it is the appellant’s position that the appellee cannot show he has a “legally enforceable claim” and cannot be considered “legally entided to recover.” Although the appellant relies upon cases from other jurisdictions, we think the Arkansas Supreme Court has decided cases which control the instant case.
In Hettel v. Rye, 251 Ark. 868, 475 S.W.2d 536 (1972), our supreme court held that the policy requirement that an insured must be legally entided to recover from an uninsured motorist is intended only to require a showing of fault on the part of the uninsured motorist. The court stated:
The uninsured motorist clause is intended not to afford coverage to the uninsured motorist but rather to provide protection to the policyholder against the perils of injury by such a motorist. It is generally held that the policy requirement that the insured “be legally entided to recover” from the uninsured motorist is intended only to require a showing of fault on the part of the latter. Upon that reasoning, in cases directly in point here, it has been held that the policyholder may recover against the insurer even though the statute of limitations has run in favor of the uninsured motorist, or even though the plaintiff has dismissed his suit against the uninsured motorist with prejudice.
251 Ark. 869-70, 475 S.W.2d 537-538 (citations omitted).
In Travelers Insurance Company v. National Farmers Union Property and Casualty Co., 252 Ark. 624, 480 S.W.2d 585 (1972), our supreme court held that a provision of uninsured motorist coverage was invalid which provided that any amount payable under that coverage because of bodily injury would be reduced by the amount paid, and the present value of all amounts payable, on account of such injury under any workmen’s compensation law. The court recognized that there was a division of authority on the question of the validity of such provisions, 252 Ark. 629-30, 480 S.W.2d 590, but the court concluded:
The uninsured motorist legislation was passed long after adoption of the Workmen’s Compensation Act. When we consider the basic purposes of the latter act, our belief that the legislature did not intend that the Uninsured Motorist Act be the means of discrimination against working people protected under the workmen’s compensation laws is strengthened. . . . The right claimed by the [company issuing the policy providing for uninsured motorist coverage] would simply provide it with a windfall in the case of one covered by the workmen’s compensation laws. The purpose of the Uninsured Motorist Act was to protect the insured, not the insurer.
252 Ark. 631-32, 480 S.W.2d 591.
In Gullet v. Brown, 307 Ark. 385, 820 S.W.2d 487 (1991), it was held that workers’ compensation benefits were the exclusive remedy of an employee injured in the course of his employment by an uninsured motorist where the uninsured motorist coverage was provided by the employer’s self-insurance program. But, the court distinguished Travelers, supra, because in that case the uninsured motorist coverage was provided by the employee’s own insurance. Likewise, in the instant case the UIM was carried by the employee.
In Shepherd v. State Auto Property and Casualty Insurance Co., 312 Ark. 502, 850 S.W.2d 324 (1993), the supreme court relied on its holding in Travelers, supra, in a case involving UIM coverage. In that case, four women were passengers in an automobile when it was struck by the tortfeasor’s vehicle. All four women were in the course of their employment at the time of the accident, and three of the women were killed in the accident. The tortfeasor carried $50,000.00 limits for liability coverage, and the vehicle in which the women were riding had UIM coverage of $300,000.00. The personal representatives of the deceased women’s estates, and the survivor and her husband filed suit against the tortfeasor and against the appellee for the UIM benefits. Subsequently, a judgment was entered in favor of the appellants against the appellee in the amount of $250,000.00, which included an offset in the amount of the tortfeasor’s $50,000.00 policy limits, and also found that the workers’ compensation carrier was entitled to a two-thirds workers’ compensation lien on the $50,000.00. Thereafter, the appellants filed their notice of appeal, which included their contention that the trial court erred as a matter of law by finding that the appellee was not liable for a twelve percent penalty on the principal sum of $300,000.00. In addressing this point on appeal, the supreme court stated:
Secondly, while there may be no Arkansas authority precisely on point with regard to underinsured policies and workers’ compensation benefits, we have held that the amount of recovery under the uninsured motorist provisions of a liability policy could not be reduced by the amount the injured party received under workers’ compensation coverage where the setoff provision reduced the limit of liability under the uninsured motorist coverage. Moreover, in O’Bar v. MFA Mutual Ins. Co., 275 Ark. 247, 628 S.W.2d 561 (1982), we held that accidental death benefits should not be reduced because an insured’s beneficiaries also received workers’ compensation payment for the insured’s death and that a clause in a policy denying benefits on such a basis is a violation of public policy.
Underinsured motorist coverage was enacted in this state in 1987 to supplement benefits recovered from a tortfeasor’s liability carrier. Ark. Code Ann. § 23-89-209 (1987). We have stated its purpose to be “to provide compensation to the extent of the injury, subject to the policy limit.” Clampit v. State, 309 Ark. 107, 110, 828 S.W.2d 593, 595 (1992).
Even though a precise case applicable to underinsured policies had not been decided at the time State Auto refused to pay underinsured benefits, we believe that the public policy of the state could be sufficiently extrapolated from analogous cases and from the underinsured motorist statute itself. Even with the knowledge of the State’s clear public policy, State Auto refused to pay though a demand for payment was made on July 31, 1989. In light of these facts, State Auto’s good-faith argument must fail.
312 Ark. 513-14, 850 S.W.2d 329.
We think Arkansas case law interpreting our uninsured and UIM statutes has expressed a public policy that requires coverage in the instant case. UIM coverage applies when the tortfeasor has at least the minimum amount of insurance required by law but not enough to fully compensate the victim, and it is designed to provide compensation to the extent of the injury, subject to the policy limits. See State Farm Mutual Automobile Insurance Co. v. Beavers, 321 Ark. 292, 296, 901 S.W.2d 13, 15-16 (1995). The amount of the tortfeasor’s coverage has no effect on the appellee’s recovery under UIM coverage except that the appellee cannot be reimbursed twice for the same damages. See American Casualty Co. v. Mason, 312 Ark. 166, 169, 848 S.W.2d 392, 395 (1993), stating that “the changes made to § 23-89-209(a) by Act 209 of 1991, the title of Act 209, and the emergency clause of Act 209, clearly indicate the legislature intended underinsured motorist benefits under Act 335 of 1987 to be provided without regard to the amount of insurance carried by any liable party.” 312 Ark. 170, 848 S.W.2d 395.
Therefore, in regard to appellee’s UIM insurance coverage, we do not believe that the exclusive remedy provisions of the workers’ compensation law bars the appellee from being “legally entided to recover” against the owner or operator of the vehicle in which the appellee was riding at the time he received the injuries for which he was granted judgment in this case.
Although it may not be clear that the trial court found that the driver of the vehicle in which appellee was riding was negligent and that this was the proximate cause of appellee’s injuries, the trial court did specifically reject the appellant’s contention that the appellee was not legally entided to recover against the owner and operator of the vehicle and also specifically rejected appellant’s contention that the appellee had no claim under the underinsured motorist coverage of the policy issued by appellant to the appellee.
This case was submitted to the trial court, without a jury. In Southern Farm Bureau Casualty Insurance Co. v. Reed, 231 Ark. 759, 332 S.W.2d 615 (1960), the trial court, sitting without a jury, entered judgment for the appellee based on a finding that an endorsement to a policy of insurance on an automobile modified the original terms of the policy and was void because the endorsement was without consideration. The Arkansas Supreme Court affirmed the judgment and said:
While the trial court may have erroneously based its finding and judgment on the ground that the endorsement was void, we hold that the judgment, nevertheless, should be affirmed for the reason that the facts would support a finding that appellee, Reed, was in fact driving his automobile at the time of the mishap or accident and therefore the endorsement could not affect his claim for damages. Our rule of long standing in this State is that we will not disturb a correct decision and judgment of a trial court though based on a wrong or insufficient ground.
231 Ark. at 762, 332 S.W.2d at 617 (citations omitted).
Other cases have consistently applied this rule. See Summers Chevrolet, Inc. v. Yell County, 310 Ark. 1, 4, 832 S.W.2d 486, 488 (1992) (“We will affirm the trial court if it reached the right result, even though it may have announced the wrong reason.”). Many other cases have made the same holding. See also Estate of Gaston v. Ford Motor Co., 320 Ark. 699, 898 S.W.2d 471 (1995); Hubbard v. Shores Group, Inc., 313 Ark. 498, 855 S.W.2d 924 (1993); Tittle v. City of Conway, 268 Ark. 1126, 599 S.W.2d 412 (Ark. App. 1980).
Appellant’s contention that the “joint-enterprise doctrine” prevents the appellee from being “legally entitled to recover” against the driver of the vehicle must also be rejected in light of the law as to that doctrine and the evidence in the record that supports the trial court’s judgment against the appellant.
In Woodard v. Holliday, 235 Ark. 744, 361 S.W.2d 744 (1962), the court quoted with approval the following statement from Prosser on Torts (2d Ed.) § 65:
“The prevailing view is that a joint enterprise requires something beyond the mere association of the parties for a common end, to show a mutual ‘right of control’ over the operation of the vehicle — or in other words, an equal right in the passenger to be heard as to the manner in which it is driven. It is not the fact that he does or does not give directions which is important in itself, but rather the understanding between the parties that he has the right to have his wishes respected, to the same extent as the driver. In the absence of circumstances indicating such an understanding, it has been held that. . . fellow servants in the course of their employment, although they may have a common purpose in the ride, are not engaged in a joint enterprise.”
235 Ark. at 748, 361 S.W.2d at 746-47.
The court in Woodard v. Holliday held that the trial court erred in submitting the question of joint enterprise to the jury because there was not sufficient evidence to support a finding that the appellant Woodard, who was riding as a passenger in the car which hit the appellee’s vehicle, had equal right to control the vehicle Woodard was in, even though he and the driver were co-employees. The court cited several cases from other jurisdictions which had made the same holding. In Prosser And Keeton On The Law of Torts, § 72, at 519 (Fifth Ed.), the same view is still taken (“fellow servants in the course of their employment, although they may have a common purpose in the ride, are not engaged in a joint enterprise”). The closest the evidence comes to supporting the right to control issue here is appellee’s answer of “Yes” to the question of whether he and the driver had an “equal voice in what you were doing and what you wanted to do on the trip.” Even if this was sufficient to make a fact question on the issue of joint enterprise, we think the evidence would clearly support a finding that there was no joint enterprise between the appellee and the co-employee who was driving the vehicle they were in at the time the appellee was injured. And, as discussed above, we will affirm the court’s judgment if supported by the law and the evidence.
Therefore, we do not believe that the joint-enterprise doctrine keeps the appellee in this case from being “legally entitled to recover” against the driver of the vehicle in which the appellee was injured insofar as that provision is used in appellee’s UIM insurance coverage.
II.
Appellant’s second point contends that the trial court erred in awarding appellee UIM coverage because, at the time he filed his complaint, the applicable statute of limitations barred him from recovering from the owner or operator of the underinsured vehicle. Appellant concludes that, because appellee’s tort claim against the owner or operator would be barred by the applicable three-year statute of limitations, it was error to grant him a judgment in this case.
But, in the context of the uninsured motorist coverage, the supreme court held in Hettel v. Rye, supra, that a policyholder may recover against the insurer even though the statute of limitations has run in favor of the uninsured motorist or even though the plaintiff has dismissed his suit against the uninsured motorist with prejudice. 251 Ark. at 870, 475 S.W.2d at 538.
III.
Appellant’s final point is that the trial court erred in holding that the UIM endorsement relating to an “auto owned or furnished for the regular use of a covered person” was ambiguous and therefore did not preclude UIM coverage. The endorsement in question provides: “The underinsured motorist coverage does not apply to: . . . any person while occupying or being struck by an auto, owned by or furnished for the regular use of a covered person, that is not an insured auto under this endorsement.” Appellant claims that the facts established in appellee’s deposition (which was made a part of the evidence presented to the trial court) clearly show that the truck he was occupying when the accident occurred was furnished for “his regular use.” Appellant concedes in his brief that in Travelers Indemnity Co. v. Hyde, 232 Ark. 1020, 342 S.W.2d 295 (1961), and General Agents Insurance Co. of America v. People’s Bank & Trust Co., 42 Ark. App. 95, 854 S.W.2d 368 (1993), the court found similar provisions to be ambiguous. Nevertheless, he argues that, under the facts of the instant case, the exclusion was not ambiguous. We do not agree.
In Travelers Indemnity Co. v. Hyde, supra, the supreme court held that a provision which stated “while occupying an automobile . . . furnished for the regular use of either the named insured or any relative, other than an automobile defined herein as an ‘owned automobile’ ” was ambiguous. 232 Ark. at 1022, 342 S.W.2d at 297. Whether an insured’s particular use of an automobile furnished by another is a regular use within the meaning of the policy presents a question of fact which calls for an interpretation of the language of the policy relating to the facts involved. 232 Ark. at 1024, 342 S.W.2d at 298. Provisions of a policy of insurance must be construed most strongly against the insurance company that prepared it, and if a reasonable construction could be placed on the contract that would justify recovery, it would be the duty of the court to so construe. Travelers v. Hyde, supra. See also Baskette v. Union Life Ins. Co., 9 Ark. App. 34, 36, 652 S.W.2d 635 (1983). Here, the term “regular use” is not defined by the policy. The provision in the insurance policy in question was clearly ambiguous; therefore, its meaning presented a question of fact. Under the evidence presented in this appeal, we do not think appellant has demonstrated that the circuit court clearly erred in finding that the vehicle in which the appellee was riding was furnished for his “regular use” as that phrase was used in the policy here involved.
Affirmed.
Cooper and Robbins, JJ., agree. | [
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John E. Jennings, Chief Judge.
On September 7, 1994, Renee Treadwell was driving in Monticello, Arkansas. She was struck from behind by a vehicle driven by Andrea Collins. The case was tried to a jury and liability was admitted. The jury returned a verdict for $2,436.06. Later, the trial judge granted Renee Tread-well’s motion for a new trial and set the jury verdict aside.
On appeal, Ms. Collins contends that the trial court abused its discretion in granting a new trial. We must agree and reverse.
The trial court is authorized to set aside a jury verdict and grant a new trial when the verdict is clearly against the preponderance of the evidence. Brown v. Wilson, 282 Ark. 450, 669 S.W.2d 6 (1984). When a motion for new trial is granted, the test on review is whether the judge abused his discretion. Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982).
In this case it is clear that the jury’s verdict included the cost of repairing appellee’s vehicle, $2,093.90; $100.00 for her loss of its use; $199.16 for a cargo cover; and appellee’s $43.00 medical bill. The trial judge set the jury verdict aside because he felt that the jury did not properly consider appellee’s testimony as to her personal injuries.
After the accident, Ms. Treadwell did not think she was injured and the investigating officer noted the accident involved “property damage only.” Ms. Treadwell testified that about three days after the accident she felt pain in her neck. She testified:
I went to Dr. Peter Go in Dumas. I complained of pain in my neck and lower back. I do not have any permanent injury and the pain is over with. I have a paranoid feeling, because every time I stop, I look in my rearview mirror to make sure that everything is O.K. It is not an unbearable situation. It makes my hands sweat. The amount of my medical bill was $43.00. The bill was incurred on September 9, 1994.
This is all the evidence relating to appellee’s injury. There was no evidence that her pain required any medication or treatment. Under these circumstances we are persuaded that setting aside the jury verdict constitutes an abuse of discretion. The trial court may not substitute its view of the evidence for that of the jury. Ray v. Green, 310 Ark. 571, 839 S.W.2d 515 (1992).
For the reasons stated, the order granting a new trial is reversed.
Rogers and Griffen, JJ., agree. | [
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John F. Stroud, Jr., Judge.
Appellant, David G. Jones, pled guilty to charges of theft, and on March 26, 1987, was placed on probation for five years and ordered to pay a fine of $500, attorney’s fees, and court costs. He was not required to make restitution or reparation. On March 6, 1992, the trial court ordered that appellant’s probationary period be extended for five years without prejudice to appellant to petition the trial court to terminate the probation upon appellant’s compliance with the orders of the trial court. The order noted that appellant had failed to comply with the conditions of probation by not paying the fine and costs previously ordered. On March 20, 1992, the State filed a petition for revocation of probation. On July 30, 1992, appellant filed a motion to dismiss in which he requested the dismissal of the revocation petition filed on March 20, 1992, and the setting aside of the order extending his probation. The trial court’s docket sheet shows that on October 25, 1993, the trial court wrote, “Motion to Dismiss granted.”
On December 7, 1994, and January 18, 1995, the State filed petitions to revoke appellant’s probation. At a revocation hearing held January 26, 1995, appellant argued that his probation should not have been extended, that his July 30, 1992, motion to dismiss was granted by the trial court on October 25, 1993, and that the petition for revocation should not be considered. The trial judge stated that he did not think that he granted the motion to dismiss on the basis that he lacked authority to extend appellant’s probation. He also stated that if he did grant it for that reason, it was in error, as the trial court retains jurisdiction over a probationer until such time as he fully complies with all conditions of his probation. The trial court denied appellant’s motion to dismiss the petition to revoke probation because the order extending his probation either for five years or until he complied with the conditions of his probation was valid. At the conclusion of the hearing, the trial court revoked appellant’s probation and sentenced him to eight years in the Arkansas Department of Correction.
Appellant first argues that the trial court erred in extending his probation without notice or a hearing. His allegation of prejudice is that he could have argued at such a hearing that the trial court did not have authority to extend his probation. His second argument is that the trial court improperly extended his probation because it lacked the authority to do so. Because we reverse based on appellant’s second argument, we do not address his first argument.
Appellee contends that, by analogy to Ark. Code Ann. § 5-4-303(f), our holding in Basura v. City of Springdale, 47 Ark. App. 66, 884 S.W.2d 629 (1994), that the trial court retains jurisdiction over a criminal defendant until all fines and costs are paid, should permit the trial court to extend probation in cases where the defendant has failed to pay fines and costs. Basura does not apply to the facts of this case, and no analogy or inference can be drawn from that holding that would allow Ark. Code Ann. § 5-4-303(f) to apply.
In Basura, the defendant was arrested pursuant to a summons issued in accordance with Ark. Code Ann. § 5-4-203 (Repl. 1993) which specifically grants the trial court the authority to enforce payment of fines and costs. The issue presented in that case was whether the trial court retained jurisdiction to enforce payment of fines and costs under Ark. Code Ann. § 5-4-203 until such time that the fines and costs have been paid. The trial court did not attempt to change the defendant’s sentence or purport to act under the authority of Ark. Code Ann. § 5-4-303, and our holding in Basura was limited to a determination of the trial court’s jurisdiction to enforce payment of fines and costs pursuant to Ark. Code Ann. § 5-4-203. Thus, we do not find appellee’s reliance on Basura persuasive.
The trial court’s order extending appellant’s probation purports to rely upon Ark. Code Ann. § 5 — 4—303(f) (1987), which provides:
If the court has suspended the imposition of a sentence or placed a defendant on probation conditioned upon his making restitution or reparation and the defendant has not satisfactorily made all his payments when the probation period has ended, the court shall have the authority to continue to assert its jurisdiction over the recalcitrant defendant and extend the probation period as it deems necessary or revoke the defendant’s suspended sentence.
It is undisputed in this case that appellant was never ordered to pay any restitution or reparations. Thus, Ark. Code Ann. § 5-4-303(f) does not apply to this case, and the trial court erred in relying upon it for its authority to extend appellant’s probation for his failure to pay the fine and costs.
We hold that the trial court’s order of March 6, 1992, extending appellant’s probation was an invalid attempt to modify the original sentence in this case. The trial court’s original judgment on appellant’s guilty plea sentenced him to probation for five years, a fine of $500, and ordered him to pay attorney’s fees and court costs. A guilty plea coupled with a fine and either probation or a suspended imposition of sentence constitutes a conviction, which, in turn, entails execution. See Ark. Code Ann. § 5-4-301(d)(l)(Repl. 1993) and Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994). A trial court cannot modify or amend the original sentence once a valid sentence is put into execution. DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993). The trial court was without authority to modify appellant’s sentence, and the order extending appellant’s probation was invalid. Thus, appellant’s probationary period expired on March 26, 1992. Likewise, the trial court’s purported revocation of appellant’s probation on January 26, 1995, was invalid.
Reversed and dismissed.
Pittman, Neal, and Griffen, JJ., agree.
Jennings, C.J., and Rogers, J., concur. | [
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WENDELL L. Griffen, Judge.
State Farm Mutual Automobile Insurance Company (“appellant” or “State Farm”) appeals from the decision by the Randolph County Circuit Court granting summary judgment to Dorothy Lindsey (“appellee” or “Lindsey”) for insurance benefits under both the uninsured and the underinsured provisions of an automobile policy. Lindsey’s mother was the insured under the policy and was killed in an automobile accident by a uninsured tortfeasor. State Farm paid the $25,000 policy limit under the uninsured motorist provision. Lindsey, as the executrix of her mother’s estate, brought this action to also recover under the underinsured provision of the same policy. The trial court granted summary judgment in her favor after both parties filed summary judgment motions. State Farm contends that this case is controlled by State Farm Mut. Auto. Ins. Co. v. Beavers, 321 Ark. 292, 901 S.W.2d 13 (1995), a decision issued by the supreme court while this appeal was pending. We agree that Beavers is dispositive. Accordingly, we reverse and remand with the instruction that summary judgment be entered in favor of State Farm.
As an initial matter, we note that appellant argues in its jurisdictional statement that jurisdiction may properly lie with the supreme court because this case involves the interpretation and construction of an act of the General Assembly. Ark. R. Sup. Ct. 1-2 (a) (3). However, we need not interpret Ark. Code Ann. §§ 23-89-209 (Supp. 1995) and 23-89-401 — 405 (Repl. 1992) (the underinsured and uninsured motorist coverage acts, respectively). Beavers has done that for us. Hence, this case requires that we simply apply the relevant case law. Thus, it is properly within our jurisdiction. Ark. R. Sup. Ct. 1-2(a).
The facts in Beavers are virtually identical to the instant case. The insured was struck by an uninsured motorist. The State Farm auto policy involved appeared to contain the same uninsured-underinsured provisions. The accident occurred before the 1993 amendment to the Arkansas underinsured motorist statute. Ark. Code Ann. § 23-89-209 (Repl. 1992) (amended by Act 1180 of 1993). The only differences between Beavers and the instant case — none of which are relevant — are that State Farm in Beavers refused to pay benefits under either the uninsured or the underinsured provisions (State Farm paid the policy limit under the uninsured provision here), and the case went to trial before a jury rather than, as here, being decided on motions for summary judgment.
In a well-researched opinion that relied on law review articles, treatises, and case law from other jurisdictions, the supreme court stated:
[I]n following the simple rule of considering this policy’s language, including its definition and exclusions, together with the language of the statute, which clearly refers to the tortfeasor’s insurance coverage, we must conclude that underinsured coverage does not apply when the insured is struck by an uninsured motorist.
321 Ark. at 297, 901 S.W.2d at 16.
The automobile policy at issue states in clear terms: “an ««definsured motor vehicle does not include a land motor vehicle . . . defined as an ««insured motor vehicle in your policy.” (Emphasis added.) Moreover, the underinsured motorist statute provides: “Coverage of the insured pursuant to underinsured motorist coverage shall not be reduced by the tortfeasor’s insurance coverage, except to the extent that the injured party would receive compensation in excess of his damages.” Ark. Code Ann. § 23-89-209 (Repl. 1992) (emphasis added). We believe that both the Arkansas General Assembly and State Farm inténded for uninsured and underinsured coverages to be distinct concepts. In particular, the statute implies that underinsured coverage is not triggered unless the tortfeasor has insurance in the first instance. To allow uninsured and underinsured coverage to apply to the same accident — as appellee would have us hold — would permit a double recovery in the face of clear statutory and policy language to the contrary.
We reverse the summary judgment in favor of appellee. We also remand to the circuit court with the instruction that summary judgment be entered in favor of State Farm.
Reversed and remanded.
Mayfield and Robbins, JJ., agree. | [
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George K. Cracraft, Chief Judge.
Sidney Warner brings this appeal from an order of the probate court denying probate of a will on finding that it had been obtained by undue influence. He contends that the evidence was not sufficient to sustain such a finding and that the court erred in refusing to allow a full trial on the issues. We find no merit to either contention.
In 1981, while a patient in a Memphis hospital, Jessica Handschke executed three wills in which she disinherited her son Kenneth Warner and named her other son Sidney Warner as principal beneficiary. The testatrix died on May 28, 1982 and shortly thereafter Sidney Warner offered for probate the latest of the three wills which was dated October 23,1981. The appellee contested the probate of this will on the ground that it had been obtained by undue influence.
At the commencement of the hearing on the petition for probate counsel stipulated that a Memphis attorney who prepared all three wills would testify that in September he was contacted by appellant who came to his office for the purpose of having a will prepared for his mother. He prepared all three wills from information given him solely by the appellant. The second will was prepared and executed after Sidney Warner learned from an Arkansas attorney that under our law of pretermitted children it was necessary that the excluded son be mentioned in the will. The second will was drafted October 6 and included an additional paragraph which acknowledged the existence of Kenneth. The third will was prepared after learning from the Arkansas attorney that the earlier wills did not meet the statutory requirements for execution of a will signed by mark. It was also stipulated that the attorney had prepared other documents for the appellant and would testify that he had never seen or conferred with the testatrix.
Counsel also stipulated that when the proof shows that a proponent of a will was a substantial beneficiary the burden of proof shifts to the proponent to prove both that the will was executed without undue influence and that the testatrix had the mental capacity to execute the will. In its decree denying probate the court found that appellant had caused the will to be prepared by an attorney of his choosing, was solely responsible for both the preparation and execution thereof, and had failed to satisfy his burden of proving that the will was executed while the testatrix was competent and not under undue influence. Despite the earlier stipulation as to the presumption and burden of proof the appellant filed a motion for a new trial contending that as the will was executed in Tennessee it should have been tested by the law of that state. The motion for a new trial was denied but the appeal was never perfected.
After the period for perfecting an appeal had expired the appellant brought a second proceeding for probate of the will executed on October 6,1981. Appellee filed a motion to deny probate on several grounds including that of undue influence. Prior to the hearing on that petition it was stipulated that the entire record of the earlier hearing and all rulings, pleadings and motions filed subsequent to the earlier decree be made a part of the record. It was stipulated that the appellant might interpose any objection to any testimony introduced at the first hearing and that no other evidence would be adduced. It was further stipulated that the Tennessee attorney would testify that he did not advise the appellant of the law of either state concerning the presumption of invalidity of a will procured by the beneficiary.
After considering the record as made, the judge denied probate of the second proffered will. First, the appellant contends that the trial court erred in restricting the evidence to the record made at the hearing on presentation of the first will. He offers no citation of authority and makes no argument in support of his contentions. He simply states that “it is tremendously difficult to develop a record for appeal under the method imposed upon appellant by the court’s order of August 22, 1984.” We do not address this issue for two reasons. Assignments of error presented by counsel in their brief, unsupported by convincing argument or authority, will not be considered on appeal unless it is apparent without further research that they are well taken. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). Secondly, although the court’s order of August 22, 1984, provided that no additional testimony would be taken it is apparent that this order was based upon the stipulation of the parties entered on May 3.
The appellant next contends the evidence does not support a finding of undue influence. His argument is two-pronged. He first contends that as the will was executed in the State of Tennessee, its validity should be tested by the law of that state. He argues that although Tennessee recognizes a similar presumption it does not place as heavy a burden as we do upon the proponent. The appellant argues that Ark. Stat. Ann. § 60-405 (Repl. 1971) settles the question of choice of law as to the execution of a will. That section provides that a will executed outside the state in a manner prescribed by our Code or in a manner prescribed by the law at the place of its execution or by the law of the testator’s domicile at the time of its execution shall have the same force and effect in this state as if executed in this state and in compliance with our law.
Ark. Stat. Ann. § 60-403 (Repl. 1971) sets out those formalities which must accompany the execution of a will in this state. It provides that the will be signed by the testator and two witnesses to whom the testator declared the instrument to be his will, that he executed it at the end of the •instrument by one of the prescribed methods in the presence of his witnesses, and that the witnesses signed at the request and in the presence of the testator. Section 60-405 provides only that if a will is executed in a sister state with execution requirements different from our own we will recognize its execution once the requirements of the sister state have been met. Under this section the formality essential to the execution will be tested either by the law of the place of its execution or of the place of the testator’s domicile. Proof of valid execution, however, is referrable to our own statutes because the proponent seeks to have the will initially probated in this state. In Re Altheimer’s Estate, 221 Ark. 941, 256 S.W.2d 719 (1953). In discussing statutes similar to § 60-405 Dr. Robert Leflar in his work American Conflicts Law (1968), § 196 states:
At least thirty-two of the American states now have statutes of this general sort. As an original question it might seem that such a statute ought to cover all aspects of the validity of wills, substantive as well as formal, but the opposite conclusion has been reached because the wording of the statute is restricted to manner of execution. Thus substantive grounds for the asserted invalidity of wills are left to be handled under the common law of conflicts. This would include such matters as partial invalidity of a will because of failure to mention a child or entire invalidity due to the mental incapacity of a testator or to undue influence allegedly exerted upon him.
The appellant recognizes the argument that we are concerned with a presumption of fact which might be considered procedural and thus governed by the law of the forum. He argues, however, that this statement is not all inclusive and that there are some presumptions which are so inseparably bound to the substantive law that the lex loci should control. We conclude that our court has adopted a different view. Our courts have declared that on questions of the burden of proof the law of the forum governs. St. Louis and S.F. Rd. Co. v. Coy, 113 Ark. 265, 168 S.W. 1106 (1914); Huckaby v. St. Louis, I.M. & S. Ry. Co., 119 Ark. 179, 177 S.W. 923 (1915); St. L., I.M. & S. Ry. Co. v. Steel, 129 Ark. 520, 197 S.W. 288 (1917). These cases dealt with a presumption of negligence arising against a railroad company by proof of injury to a passenger caused by the operation of its trains. In Huckaby, the court said:
The presumption of negligence arises in a suit brought in. this jurisdiction upon proof of the fact of injury to a passenger by the operation of a railroad train in another State where no such rule obtains, such presumption relating to the burden of proof and being governed by the law of the forum.
Dr. Leflar, American Conflicts Law § 124, discusses the question of presumptions and burden of proof as follows:
Any so called ‘conclusive presumption’ is so obviously a rule of substantive law that it should not be called procedural. But the ordinary rebuttable presumption is for all practical purposes a substitute for evidence, or merely another kind of evidence which is offered to the court. . . . The decided weight of authority treats the applicability of presumptions, like the admissibility of evidence, as a procedural matter, with forum law governing, regardless of substantive effect.
Our cases declare that the presumption of undue influence which arises under the circumstances of this case is rebuttable. It arises because when a will is written by one who stands to benefit from it the circumstances require stricter scrutiny and make it incumbent on the one seeking to establish the will to show beyond reasonable doubt that the testator had both the mental capacity and freedom of will required to render a will legally valid. McDaniel v. Crosby, 19 Ark. 533 (1858). Whether those actions occur in this state or elsewhere they give rise to the same need for stricter scrutiny and impose upon the proponent the same burden.
In addition to the presumption arising from appellant’s action there was direct evidence of his exercise of undue influence over his mother at the time the will was procured.
Prior to her hospitalization in Memphis there had been a close relationship between the mother and both of her sons. She had executed a will leaving her estate to them in equal shares. At the time the testatrix suffered her stroke and disability she executed a power of attorney giving her son Kenneth plenary power over all of her property. He properly exercised that authority until the power was revoked in writing on September 30 — the same day that appellant procured the first of the three wills and the execution of a power of attorney in his favor.
Initially the appellee had maintained his mother’s existing accounts in her banks in West Memphis. It was stipulated that it was the policy of those banks not to honor a power of attorney exercised by a non-resident of Crittenden County and that the bank officers had so informed the appellee. As a result of this, and at their suggestion, he closed out those accounts and deposited his mother’s funds in her own name in a bank in Marianna where he resided. At the hearing the appellant admitted that prior to the execution of the instrument, although he knew that appellee had the power of attorney and the ability to take care of any of her wants and had been doing so, he informed his mother that she didn’t have money to buy “Cokes and things like that” because the appellee had taken all of her money.
There was evidence from another witness that she had visited the testatrix in the Memphis hospital and had observed Sidney talking to his mother about money and “what Kenneth had done.” There was other evidence from which the court could and did conclude that these actions by the appellant so dominated and influenced the action taken by his mother as to invalidate the will.
The appellant next contends that a great deal of the oral testimony at the first hearing consisted of irrelevant evidence of appellant’s alleged mismanagement of the testatrix’s affairs. The appellant argues in his brief that although no objection was made to this testimony at the first hearing he did note his objections in writing to that evidence to the trial court before the second hearing. Neither the objection nor the court’s ruling is abstracted. Although not required to, we have looked at the record and we find that he made his objections to testimony by reference to page and line number. For us to determine what testimony was objected to would require that we peruse the record to locate the lines and pages he refers to. This we are unwilling to do.
At the conclusion of the first hearing the trial court in announcing his findings stated:
The court has heard a great deal of evidence, it has taken three days to try this lawsuit. Some of the evidence is probably of little value to the court. But the court has heard the witnesses, observed their demeanor from the witness stand, and feels that there is no question that the will of Jessica P. Handschke as executed on October 23, 1981, is the result of undue influence on the part of Sidney Warner. [Emphasis supplied]
Without an abstract we cannot tell what testimony was objected to or the court’s rulings on objections.
Appellant admitted that after the power of attorney was executed he had withdrawn thousands of dollars from his mother’s account and placed them in his own lock box, purchased real estate in his own name and that of his daughter and deposited sums in his daughter’s account. We recognize that evidence of conduct which takes place after the will is executed does not affect the validity of the will but it is admissible for its bearing on the proponent’s actions as a whole. Gingrich v. Bradley, 232 Ark. 884, 341 S.W.2d 33 (1960).
We affirm.
Corbin and Mayfield, JJ., agree. | [
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Melvin Mayfield, Judge.
Appellant was convicted of the misdemeanor of negligent homicide. He was driving on a street near the town square of Monticello, Arkansas, about 9 p.m. on June 1, 1983, when he struck Walter Vick, a pedestrian. Vick died eighteen days later. The jury verdict assessed punishment at one year in the county jail, a $1,000 fine, and recommended treatment at a drug and alcohol rehabilitation center.
The appellant admits that his vehicle struck Vick and, although appellant left the scene, he drove immediately home where he told his father what had happened, and within a few minutes appellant and his father went to the police station. A breathalyzer test was performed, and at appellant’s request blood was taken for a blood alcohol test. The breathalyzer showed a .15% alcohol content, but appellant denied having had anything to drink for several hours. The result of the blood alcohol test was not introduced into evidence.
Vick, who was a diabetic, was taken to a hospital in Pine Bluff where he was treated until his death. Doctors were not aware that Vick was a diabetic and even though his blood sugar was elevated, he was not treated for diabetes until a couple of days before he died. Pulmonary embolism was listed as the cause of death, but no autopsy was performed until after the body was exhumed several months later. After performing the autopsy, the medical examiner listed the cause of death as diabetes aggravated by blunt trauma.
On appeal, the appellant argues that the evidence is insufficient to support the verdict because there is no substantial evidence that he was guilty of negligent conduct that caused Mr. Vick’s death, and that there was no substantial medical evidence to prove that the injuries sustained by Mr. Vick caused his death.
Appellant argues that the evidence does not support the finding that he was negligent because he was driving in the left lane on a one-way street and Vick stepped off the curb into the side of his car. Appellant points out that the damage to the vehicle was to the left fender, post, and windshield; that Vick was retarded and blind in one eye; and that there were photographs introduced that he contends show an obstruction on the street which prevented appellant from seeing Vick before he was hit.
On the other hand, there was evidence that appellant was speeding; that he was under the influence of alcohol; that the street was well lighted; and that he never applied his brakes before he struck Vick. In addition, parts of Vick’s eyeglasses and watch were found near the center of the street in the crosswalk and there was a sign at the intersection which read, “Stop for Pedestrian in Crosswalk.”
We must view the evidence in the light most favorable to the appellee and affirm if there is substantial evidence to support the conviction. Holloway v. State, 11 Ark. App. 69, 666 S. W.2d 410 (1984). Substantial evidence has been defined as “evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other.” Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). Appellant suggests that Vick was himself negligent, but contributory negligence would not lessen appellant’s culpability. The Arkansas Supreme Court considered such a theory in Benson v. State, 212 Ark. 905, 910, 208 S.W.2d 767 (1948), and the court said:
It is also argued that the boys riding the bicycle were guilty of negligence which contributed to the injury and death of [one of them]. The doctrine of contributory negligence recognized in civil actions is inapplicable here. In 5 Am. Jur., Automobiles, § 796, it is said: “The familiar rule that contributory negligence of the person injured or killed by the negligence of the defendant in the operation of an automobile bars a recovery in a civil action has no application to a prosecution for homicide due to criminal negligence in operating an automobile. In such case, the decedent’s behavior may have a material bearing upon the question of the defendant’s guilt, but if the culpable negligence of the latter is found to be the cause of the death, he is criminally responsible whether the decedent’s failure to use due care contributed to the injury or not.
In the present case, we believe there was substantial evidence from which the jury could have found that the appellant was negligent in striking Vick with his automobile. Once that is determined, contributory negligence on the part of the victim is not a defense.
Appellant also argues that the medical evidence did not prove that the injuries received in the accident were the cause of Vick’s death. He contends that Vick’s physical condition and the failure of the doctors to treat his diabetes was the true cause of death. The medical examiner listed “diabetes aggravated by blunt trauma” as the cause of death, but it is not disputed that immediately prior to the accident Vick, although retarded, blind in one eye and suffering from diabetes, was a functioning human being, able to care for himself and help out at a church. Immediately after the accident, in which he suffered broken ribs, a broken leg and a head injury, he lapsed into a coma from which he never totally emerged. The state was not required to prove that appellant was the sole cause of Vick’s death, only that he was a contributing cause. In Taylor v. State, 193 Ark. 691, 101 S.W.2d 956 (1937), the Arkansas Supreme Court quoted from other authorities and then concluded as follows:
“[I]n law, if the person dies by the action of the wound, and the medical and surgical action jointly, the wound must clearly be regarded sufficiently a cause of the death. And the wound need not be even the concurrent cause; much less need it be the next proximate one; for if it is the cause, of the cause, no more is required.” [Citations omitted.] . . . “If death ensues from a wound, given in malice, but not in its nature mortal, but which, being neglected or mismanaged, the party died, this will not excuse the prisoner who gave it; but he will be held guilty of the murder, unless he can make it clearly and certainly appear that the maltreatment of the wound, or the medicine administered to the patient, or his own misconduct, and not the wound itself, was the sole cause of his death; for if the wound had not been given, the party had not died.”
The evidence was sufficient to take to the jury the question of the cause of death, and, as we have seen, it was not necessary that the wounds should be the “proximate” or “exclusive” cause, but only if they were the cause of the cause, either the mediate or the immediate cause of death.
Likewise, in the case at bar, we think the evidence was sufficient to take this issue to the jury.
We find there is substantial evidence to support the finding of the j ury, and we affirm the appellant’s conviction.
Cracraft, C.J., and Cooper, J., agree. | [
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Lawson Cloninger, Judge.
In this appeal of their conviction on second degree murder charges, appellants raise two points for reversal. We find neither persuasive, and we affirm the judgment of the trial court.
Appellants were married on December 24, 1983. They each had a male child by previous marriages. Christopher Love, the son of appellant Nancy Deviney, was nearly sixteen months old at the time of his death on January 24, 1984. Appellants were charged two days later with murder in the second degree under Ark. Stat. Ann. § 41-1502 (Repl. 1977). A jury trial was held on June 11, 1984, and guilty verdicts were returned. Both appellants were sentenced to twenty years imprisonment.
The first point addressed by appellants is that insufficient evidence existed to support the jury’s verdict of guilty. Most of the argument focuses upon the testimony given by a witness for the prosecution, Dr. Fahmy A. Malek, the State’s Chief Medical Examiner, who performed an autopsy on the victim. Appellants contend, in essence, that Dr. Malek approached the autopsy convinced that the infant had been murdered and that his interpretation of the results merely conformed to the conclusion he had already reached. The jury thus based its verdict, appellants say, “entirely on surmise and conjecture furnished only by Dr. Malek in his effort to detect and prove child abuse.” We cannot agree.
On appeal in criminal cases, we affirm if substantial evidence is present to support the finding of the trier of fact. Holloway v. State, 11 Ark. App. 69, 666 S.W.2d 410 (1984). Substantial evidence is that evidence which is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other; it must force or induce the mind to pass beyond a suspicion or conjecture. Jones v. State, 11 Ark. App. 129, 668 S.W.2d 30 (1984). We review the evidence in the light most favorable to the State. Mooring v. State, 11 Ark. App. 119, 666 S.W.2d 720 (1984). Our examination of the record convinces us that substantial evidence was presented at trial to warrant the jury’s finding of guilt.
Appellants both worked at a dairy, milking cows. They began work at about 4:00 a.m. each morning and took their two infant sons with them. Inside the dairy barn was a small room warmed by an electric space heater hanging on a wall. Appellants would leave their children on a pallet prepared on the carpeted concrete floor while the parents milked cows approximately seventy-five feet away. When they finished their work, usually around 8:00 a.m., appellants would collect the children and return home.
On the morning of January 24, 1984, when appellant Nancy Deviney tried to awaken her son Christopher, he did not respond. Appellant Troy Deviney called his employer who in turn phoned appellants’ parents. An ambulance arrived, but efforts made to revive the child were futile. Christopher Love was pronounced dead upon arrival at the Conway Memorial Hospital. The autopsy report stated that the infant died as a result of a fractured skull.
Testimony at trial supported the finding of the medical examiner and pointed to the guilt of appellants. A criminal investigator for the Faulkner County Sheriff’s Office testified that he was shown the child’s body at the hospital and observed nicks, cuts, and bruises, principally on the face, and dried blood in the ear. He also stated that the back of the child’s head appeared to have received a hard blow, as it was soft, puffy, and swollen. With appellants’ consent, the investigator searched appellants’ house and took a bloodstained pillow and sheet. On the basis of his observations, the investigator was of the opinion that Christopher Love had been abused and had suffered a severe injury to the back of his head.
Appellants, by all accounts, were most cooperative with the investigating authorities. They stipulated that the bloodstains on the seized pillow and sheet were from Christopher’s ear. Appellant Nancy Deviney, in a statement given to another criminal investigator, said she had taken her son to two doctors for an ear infection. Appellant Troy Deviney also stated to the investigator that a doctor had seen Christopher for an ear infection. The theory proposed by appellants to explain the child’s death was that Christopher suffered from slow subdural bleeding caused by his falling down steps at his grandparents’ house about six weeks before his death.
This hypothesis was convincingly refuted by the Chief Medical Examiner. Dr. Malek discussed each stage of the autopsy and explained the medical significance of various photographic exhibits of the procedure. He showed the jury broken bones in both arms and bruises on the body that were consistent with injuries resulting from child abuse. He demonstrated that two cracks appearing on the child’s skull indicated that Christopher had sustained two separate hard blows that were inconsistent with injuries suffered in a fall. In Dr. Malek’s opinion, the cracks in the skull had been caused by the child’s head having been struck against a carpeted floor, or, when wrapped, against a wall, followed by a hard blow from an open hand. Dr. Malek explained that the gap between the cracks, the lack of a healing reaction, and the presence of blood denoted the fact that Christopher’s injuries were inflicted within twenty-four hours before he died. Specifically, he found that the meningeal artery had been damaged by the blows, bleeding was fast, and unconsciousness ensued within half an hour. The injuries, he said, simply could not have been caused by a fall, as argued by appellants.
Appellants had exclusive custody and control of Christopher Love. The jury was satisfied that the medical evidence presented at trial connected the couple with the child’s death. Of course, the evidence against them is circumstantial, a not uncommon situation in child abuse cases. The fact that evidence is circumstantial, however, does not render it insubstantial. Holloway v. State, supra. Where circumstantial evidence alone is relied upon, it must exclude every other reasonable hypothesis but the guilt of the accused. The question whether circumstantial evidence excludes every other reasonable hypothesis other than guilt is usally reserved for the jury. The jury is permitted to draw any reasonable inference from circumstantial evidence to the same extent that it can from direct evidence. It is only when circumstantial evidence leaves the jury solely to speculation and conjecture that it is insufficient as a matter of law. The test is whether there was substantial evidence to support the verdict when the evidence is viewed in the light most favorable to the State. Harshaw v. State, 275 Ark. 481, 631 S.W.2d 300 (1982); Darville v. State, 271 Ark. 580, 609 S.W.2d 50 (1980). We believe that when this test is applied to the present case the jury was justified in rendering its guilty verdicts.
Appellants’ second argument for reversal is that the trial court erred in admitting into evidence five photographs taken by the Medical Examiner during the autopsy. The color photographs of the victim’s skull and left forearm, appellants say, served merely to inflame the minds of the jurors. We disagree. Each of the photographs in question was used by Dr. Malek to illustrate his contentions that the child died as a result of blows administered and that any falls previously sustained in no way contributed.
Under Rule 403, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), the determination of whether a photograph will be admitted is governed by whether its "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The weighing of the opposing factors lies within the sound judicial discretion of the trial court, and its decision will not be reversed absent a clear abuse of that discretion. Tucker v. State, 3 Ark. App. 89, 622 S.W.2d 202 (1981). See also Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979). We believe that the probative value and explanatory purpose of the photographs outweighed any possible prejudicial effect upon appellants and that the trial court properly admitted the evidence.
The ghastly character of a photograph does not alone warrant its exclusion. Tucker v. State, supra. See also Divanovich v. State, 271 Ark. 104, 607 S.W.2d 383 (1980). In the instant case, none of the photographs was unusually gruesome; each was more clinical than sensational in character. All were necessary for a more complete understanding of Dr. Malek’s testimony. No error can be detected in the second point raised by appellants.
Affirmed.
Corbin and Glaze, JJ., agree. | [
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Donald L. Corbin, Judge.
This appeal is consolidated as the issues in each are identical. Larry Pate, a patient, and Sue Bean, an ambulance attendant traveling with him, were being transported by the Glenwood Rescue Ambulance Service. Keith Mangrum, the ambulance driver, crossed in front of a train and Pate and Bean were killed in the collision. Appellants, executors of Pate and Bean’s estates, filed wrongful death actions against United States Fidelity and Guaranty Company, the ambulance service’s auto liability insurance carrier, and Western World Insurance Company, its driver and attendants malpractice insurance carrier. The claims against United States Fidelity and Guaranty Company were settled. The claims against Western World were heard by the trial court on appellee’s motion for summary judgment. Summary judgment was granted. We affirm.
Western World argued that its insurance policy did not provide coverage for the negligent operation of a vehicle because (1) the policy specifically excluded any liability that would be covered by “a standard automobile public liability policy”, (2) the drivers and attendants malpractice insurance coverage did not cover auto accidents and (3) the policy specifically excluded liability arising from injury or death of any employee that arose out of and in the course of his employment.
In response, appellants argued (1) that “standard automobile public liability policy” has no accepted meaning and is an ambiguous term, (2) that driving a patient in the ambulance was a “professional service” covered by the malpractice insurance coverage and (3) that whether Bean was an employee of the insured is a fact question that must be determined before the court can know whether the employee exclusion is applicable.
This case turns primarily on the construction of Western World’s policy exclusion which reads: “This policy does not apply: ... to any liability of the insured which would be covered by a standard automobile public liability policy. . .” This provision must be viewed in light of the entire insurance policy. In the policy the named insured is designated “Ambulance Service.” In the space designated “Business of the Named Insured,” the words “Ambulance Service” were inserted. The policy contained spaces for various coverages which were not checked or purchased for coverages including “comprehensive automobile liability insurance.” The policy clearly noted that “ambulance drivers and attendants malpractice liability insurance” was the coverage purchased. Viewing this exclusion provision in relation to the entire policy and applying the pertinent rules of construction, we believe the policy obviously intended to exclude coverage for the operation of a motor vehicle.
It is a well settled rule of this Court that in construing contracts of insurance, where a provision of an insurance policy is susceptible of two equally reasonable constructions, one favorable to the insurer and the other to the insured, the latter will be followed. St. Paul Fire & Marine Ins. Co. v. Kelly, 231 Ark. 193, 328 S.W.2d 510 (1959). However, different clauses of a contract must be read together and the contract construed §p that all of its parts harmonize, if that is at all possible. Continental Casualty Co. v. Davidson, 250 Ark. 35, 463 S.W.2d 652 (1971). The intention of the parties is to be gathered not from particular words and phrases but from the whole context of the agreement. Fowler v. Unionaid Life Ins. Co., 180 Ark. 140, 20 S.W.2d 611 (1929). The phrase “Standard Automobile Public Liability Policy” standing alone may be subject to different constructions, but not to equally reasonable ones. When examining the entire policy we believe it is clear that liability for the negligent operation of a motor vehicle was excluded. The contract of insurance was clear in its terms as to coverage available. We are not required by the rules of contractual construction to stretch our imaginations to create coverage where none exists. Having affirmed this case on this issue we need not address appellants’ other arguments.
Affirmed.
Mayfield, J., dissents. | [
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Melvin Mayfield, Judge.
The appellees, Ray Dawson and members of his family, are residents of Arkansas who owned a farm in the State of Mississippi. In March of 1982, the appellees sold the farm to a group of investors from Illinois which included Howard Lessman, one of the appellants. Mr. Dawson agreed to take a promissory note from the Illinois group for $600,000 as part of the purchase price, but only after reviewing Mr. Lessman’s individual financial statement that assessed his total assets at more than $1,500,000 and which included a 700-acre rice farm located in Independence County, Arkansas. The promissory note called for interest to be paid on March 1, 1983, and for interest and unpaid principal to be paid on March 10, 1984.
The Illinois group executed two other promissory notes in connection with the transaction; one in the amount of $3,150,000, to the Germantown Trust Savings and Loan Association in Memphis, Tennessee, and the other in the amount of $426,090, to a trustee employed by the two real estate agents who negotiated the sale of the farm. At the time of the sale, the Illinois group anticipated reselling the Mississippi farm in the very near future and making a substantial profit. Unfortunately various problems ensued, the property did not resell, and the group defaulted on all three of its promissory notes.
In November of 1983, the appellees obtained a judgment against Mr. Lessman in the Phillips County Circuit Court on the unpaid $600,000 note and they then attempted to levy execution on the rice farm in. Independence County. They discovered, however, that in May of 1982, Mr. Lessman had conveyed a substantial amount of his property, including the farm, to his wife, who is the Other appellant in this case. The appellees were thus unable to collect on their judgment and filed suit in the Independence County Chancery Court to have the conveyance of the farm property from Mr. Lessman to his wife set aside as fraudulent and void.
The chancellor found that the conveyance of the farm, which was accomplished by a deed dated May 10,1982, but not recorded until September 20, 1982, was indeed fraudulent and void and he ordered it set aside as against the claims of the appellees. The appellants make two arguments on appeal. First, they argue that the chancellor erred in finding that the conveyance was fraudulent as there was no showing that Mr. Lessman was insolvent at the time of the conveyance. Second, they argue fraud is never presumed and that the evidence is not sufficient to establish intent to defraud.
The appellants recognize that Ark. Stat. Ann. § 68-1302 (Repl. 1979) provides that the conveyance of property with, the intent to delay, hinder, or defraud creditors shall be void. They also cite 37 Am. Jur. 2d Fraudulent Conveyances § 5 (1968) for the general statement that a debtor’s assets constitute a fund out of which his creditors have a right to be paid, but that an individual should be permitted to exercise extended discretion as to the time and manner of disposing of his property, provided he does so fairly and honestly in reference to the equitable rights of his creditors. And from 37 Am. Jur. 2d, supra, § 15, appellants quote the following:
Insolvency is to be determined as of the time of the conveyance, which, even though without fair consideration is not fraudulent because of the debtor’s insolvency if the conveyance itself does not render the debtor insolvent and he does not become insolvent until some time afterward. (Emphasis added.)
The Arkansas cases of Wasson v. Patton, 190 Ark. 397, 79 S.W.2d 276 (1935), Mente & Co., Inc. v. Westbrook, 181 Ark. 96, 24 S.W.2d 976 (1930), and Fisher v. Knight, 211 Ark. 465, 200 S.W.2d 799 (1947), are cited by appellants for the proposition that a conveyance will not be set aside as fraudulent as to creditors if the debtor is not insolvent at the time of the conveyance.
On the other hand, the appellees contend that it is not required that the grantor be insolvent at the time of the conveyance in order for the conveyance to constitute a fraud on creditors. They point out that Ark. Stat. Ann. § 68-1302, supra, does not even use the word “insolvent” and. that it speaks of conveyances made with the “intent to hinder, delay, or defraud creditors.” Appellees also cite United States v. Johnston, 245 F. Supp. 433 (W.D. Ark. 1965), where the court stated:
In a suit to set aside a conveyance as fraudulent, it is not indispensable for the plaintiff to prove that the transferor was insolvent at the time of the transfer or that he was made so by the transfer. If prejudice to creditors results, a transfer made with intent to hinder, delay or defraud them will be set aside even though the transferor was solvent at the time of the transfer and remained so thereafter. . . .
Appellees argue that the date to use in determining the intent of the transferors is the date the conveyance is filed for record and not the date of its execution. For support, they cite Chronister v. Jernigan, 196 Ark. 615, 119 S.W.2d 538 (1938) and Kaufman v. Citizens’ Bank, 189 Ark. 113, 70 S.W.2d 572 (1934).
We think the questions of whether the debtor must be insolvent, and whether the date to use in determining intent is when the conveyance is executed or when it is filed for record, are not ultimate questions but are simply matters for consideration in making the determination of whether the conveyance was made with intent to delay, hinder, or defraud creditors.
In this case there is evidence that on the date the Independence County farm was conveyed by Mr. Lessman to his wife, he had obligations totaling more than $4,000,000. As of the date the deed to his wife was executed, Lessman owed, for accrued interest only, more than $126,000, and by the time the deed was filed for record, the accrued interest obligation amounted to over $380,000. The evidence shows that buyers for the Mississippi land did not materialize, that appellants had trouble renting the land, and that they had trouble farming it. Within six weeks after he executed the $600,000 note to appellees, Lessman had made property transfers to his wife which made it impossible for him to pay the appellees’ note. He admitted this at the trial of this matter. He also admitted that he had judgments against him in excess of $2,000,000, taken after he transferred assets worth more than $1,000,000 to his wife for no consideration save love and affection, and she is not liable for any of his debts.
In Dereuisseaux v. Bell, 238 Ark. 60, 378 S.W.2d 208 (1964), Sam Bell had shot a man in 1961. At that time he owned property worth about $25,000. During the first half of 1962, Bell gave all his property to his niece, Leila Dereuis-seaux. In May of 1962, the man who was shot sued Sam Bell for $120,000. In a suit to set aside the conveyances to the niece, the chancellor entered a decree granting the relief sought. The Supreme Court said:
It was stipulated at the beginning of the trial that “Sam Bell gave all of his property, both real and personal, except the truck, to Leila Dereuisseaux.” Mrs. Dereuisseaux and others gave testimony indicating that Bell was motivated not by any desire to defraud William Robert Bell but by the wish to provide for this niece, for whom he had great affection. It is argued that in view of this proof the appellee failed to prove such actual fraud as would justify the chancellor in setting aside the gifts.
This argument is unsound, for there is no requirement that conscious fraud be shown. We have repeatedly held that conveyances by an embarrassed debtor to his near relatives are presumably fraudulent, and when the debtor’s condition proceeds, as here, to the point of insolvency, such conveyances are, with respect to existing creditors, conclusively presumed to be fraudulent. Wilks v. Vaughan, 73 Ark. 174, 83 S.W. 913; Kaufman v. Citizens Bank, 189 Ark. 113, 70 S.W.2d 572; Connelly v. Thomas, 234 Ark. 1024, 356 S.W.2d 430. Since the presumption of fraud is conclusive it cannot be rebutted by proof that there was actually no intentional wrongdoing. . . . (Emphasis in original.)
The appellees cite other cases to the same effect. In one, Tunstill v. J. T. Fargason Co., 156 Ark. 513, 246 S.W. 856 (1923), the court said:
It occurs to us that this testimony was sufficient to warrant the trial court in finding that Tunstill was insolvent. That is to say, after conveying the property described in the deed, he was wholly unable to pay the debt due the appellee. The deed was executed upon the nominal consideration of $1. At the time the conveyance was made, Tunstill was indebted to the appellee in a sum which the latter claimed to be over $>1,500, which sum Tunstill has not challenged by his evidence and does not dispute in his brief, his only contention as to this being that he was not insolvent. The court was warranted in finding that Tunstill was in debt in a large amount to the appellee, and that this conveyance would render him utterly unable to pay this debt. There was ample testimony to justify the court in finding that the conveyance from Tunstill to his wife was a voluntary conveyance and made to defraud creditors.
We see no need to discuss actual intent to defraud since the evidence in this case, considered in light of the law set out in Dereuisseaux and Tunstill, clearly supports the chancellor’s decision. See also Keck v. Gentry, 238 Ark. 672, 384 S.W.2d 242 (1964); Collatt v. Bowen, 181 Ark. 268, 25 S.W.2d 770 (1930); Papan v. Nahay, 106 Ark. 230, 152 S.W. 107 (1913); and Allis v. Jones, 403 F.2d 707 (8th Cir. 1968).
Affirmed.
Cracraft, C.J., and Corbin, J., agree. | [
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George K. Cracraft, Chief Judge.
This case comes up for review on appeal and cross appeal. We find no merit in either and affirm the judgment of the trial court as entered.
It was undisputed that the parties first entered into an oral agreement under which Patterson Dental Company agreed to sell to Barry and Patsie Brazil dental equipment and supplies. Although it was not disputed that they agreed that Patterson would sell the supplies at a discount and would allow a discount on the equipment provided the Brazils could obtain financing from a party other than Patterson, the evidence was conflicting as to the amount of discount and what constituted outside financing. Brazil testified that he was to receive a 25% discount on the equipment. Officials from Patterson testified that the discount on the equipment was to be determined on an item by item basis and would range from 15% to 25%. There was no dispute that they had agreed the financing must be from someone other than Patterson.
Brazil initially arranged for financing through Credit Alliance Corporation. In order for that financing to be obtained Credit Alliance required that the equipment be installed. In accordance with that requirement Patterson installed the equipment before financing was available and before a written sales agreement was executed. When Credit Alliance learned of the discount it declined to finance the transaction. The parties subsequently executed an installment sales contract and a security instrument in favor of Patterson which made no mention of discount on either supplies or equipment and was unclear as to the responsibility for th,e payment of the sales tax. The parties disagreed as to the terms of their oral agreement on those issues. It was not disputed that Patterson would allow the discount after the written installment contract and security instrument were executed provided the outside financing could be obtained.
The appellees subsequently obtained financing from Dental Capital Corporation. Patterson then refused to allow the discount because Dental Capital was its wholly owned subsidiary. It contended that this was not “outside financing” within the meaning of their agreement. Patterson decided that the appellees were in arrears on their account, initially placed them on C.O.D. status, and subsequently refused to deliver any more supplies to them on any basis. Patterson then brought suit alleging that the Brazils owed it $26,631.91 on account plus an additional sum of $4,703.52 as sales tax on the $157,000 equipment purchase. The Brazils denied the indebtedness, claimed that they were entitled to a discount in an amount in excess of that claimed by Patterson, and denied any liability for the sales tax, contending that under the agreement the tax was to have been paid by Patterson. By way of counterclaim the Brazils alleged that the failure of Patterson to continue to sell supplies to them at discount forced them to purchase supplies from other outlets at much higher prices, for which they prayed damages.
By agreement of the parties the matter was referred to a master. The master found that the contract provided for a discount if the purchase was financed by one other than Patterson. He further found that although Dental Capital was a subsidiary of Patterson it was an entirely separate and distinct entity and met the requirement of outside financing as a condition of the discount. He also found that although the contracts did not expressly so provide, the Brazils were obligated under their agreements to pay the sales tax. On the complaint he found that the sales tax and the open account owed to Patterson equalled the sum of $26,631.91 and recommended offsetting judgments accordingly.
The appellant filed an exception to the report insofar as it found that financing with Dental Capital met the requirement of outside financing. Appellant did not except to any other finding. Brazil filed no exceptions. The court overruled the exception to the report, approved the master’s findings and conclusions, and entered judgment in favor of Brazil in the sum of $1,368.09, that being the difference between the two judgment.
Patterson appeals contending the finding that Dental Capital constituted outside financing was clearly erroneous. The Brazils cross-appeal arguing the trial court erred in holding them liable for payment of sales tax and in disallowing their claim for damages. They also contend that the amount allowed as discount was erroneously computed.
On Patterson’s direct appeal we cannot conclude that the finding of the trial court was clearly erroneous. Although it was not disputed that the agreements contained an understanding that the discount would be allowed if the Brazils obtained outside financing from some concern other than Patterson, Patterson argues that as Dental Capital was its subsidiary it was not outside financing and that they had so informed the Brazils in a letter of December 27.
The appellees, on the other hand, testified that in making the agreement the words “affiliates, partnerships or subsidiaries” were never mentioned. It was simply agreed that the financing must be from some source other than Patterson. Brazil testified that he knew that he had to get financing from someone other than Patterson but he was never told that Dental Capital was Patterson’s subsidiary. Nor was he informed that if Dental Capital provided the financing he would lose his rebate until after all arrangements with Dental Capital had been completed. He testified that the understanding between the parties was that the discount would be allowed if financing were obtained from any entity other than Patterson and that the exclusion of any other financial institution was not within the contemplation of the parties.
On conflicting evidence the master found appellees’ testimony to be correct. Under ARCP Rule 53(e)(2), the court shall accept a master’s findings unless they are clearly erroneous. Under ARCP Rule 52(a) we review the findings of a master to the extent that the court adopts them as if they were the findings of the court and will not set them aside unless they are clearly erroneous. We find that the master’s findings and the action of the court in adopting them were not clearly erroneous.
We do not address any of the other points advanced in the direct appeal or cross-appeal because they were not raised in the trial court by exception to the master’s report. If any of the findings of the master were deemed to be incorrect, they should have been pointed out to the trial court by a specific objection. ARCP Rule 53(e)(2) provides that the court shall accept the master’s findings of fact unless they are clearly erroneous. It allows the filing of written exceptions to the report within twenty days of the filing of that report and a ruling by the court on those exceptions in which it may adopt the report or modify it, reject it in whole or in part, receive further evidence, or recommit it to the master with further instructions.
ARCP Rule 53 contains wording similar to that found in superseded Ark. Stat. Ann. §§ 27-1812 and 27-1814 (Repl. 1962). In Dashko v. Oil Fields Corp., 174 Ark. 1067, 298 S.W. 351 (1927); Wally v. Heck, 125 Ark. 597, 185 S.W. 444 (1916); Walworth v. Birch, 81 Ark. 52, 98 S.W. 717 (1906) our court in applying those sections held that exceptions to the report of a master made for the first time on appeal will not be considered. In the early case of Burns v. Rosenstein, 135 U.S. 449 (1890) the U.S. Supreme Court, in construing similarly worded Federal Equity Rule 83, stated that where no exceptions were filed to the master’s report the issues might not be raised for the first time on appeal:
The master was directed to report all issues of fact made by the pleadings, and to take an account of the dealings and transactions between the parties, and all claims for damages arising out of said transactions. He could not intelligently discharge that duty without adopting some theory as to the scope and effect of the partnership agreemént. If he went beyond the order of reference, or if the account taken by him involved a misconception of the provisions of that agreement, the defendants should have brought those matters to the attention of the court by exceptions to the report. Having failed to do this, they cannot, in this court, for the first time, object that the master proceeded upon erroneous views as to the contract between the parties.
In this case.the master’s report construed the agreement of the parties with reference to the sales tax and the obligation of Patterson to continue to furnish supplies at discounts. His rulings were based on those determinations. If either party deemed them to be erroneous he should have brought those matters to the attention of the master and to the court by exceptions. Having failed to do so they cannot object that the master proceeded on an erroneous view of their contract for the first time on appeal.
Affirmed.
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Tom Glaze, Judge.
In this appeal, the sole issue is whether sufficient minimum contacts exist between appellant Wesley Rice and the State of Arkansas to sustain the trial court’s exercise of in personam jurisdiction over him. Based upon the Supreme Court’s decision of SD Leasing, Inc. v. A l Spain and Associates, Inc., 277 Ark. 178, 640 S.W.2d 451 (1982), we affirm the trial court’s decision. See also Meachum v. Worthen Bank & Trust Co., 13 Ark. App. 229, 682 S.W.2d 763 (1985).
The events revolving around the lease transactions in this case are almost identical to those in Spain, supra. The appellee, SD Leasing, an Arkansas corporation, sued Rice, a Florida resident, claiming sums due it by virtue of Rice’s default under seven lease agreements and guarantees. All American Vending, a Florida business, originally owned these leases and guaranties covering video machines which it later sold to appellee.
The documents upon which SD Leasing based its claim were all signed in Florida. Wesley Rice, an official and the only stockholder of ABP Computers (ABP), decided that ABP should have a game room. ABP ordered seven video units from All American but actually executed leases with Peoples Acceptance Corporation (PAC), a Florida corporation, as the lessor. ABP’s first payment or deposit under the leases was due on September 29, 1981. However, the record reflects that on this same date, Rice executed SD Leasing’s customer credit checklist authorizing SD Leasing to obtain credit information on ABP from others. On or about October 19, 1981, SD Leasing purchased these video units from All American; on this same date, Rice, on ABP’s behalf and as its guarantor, signed seven leases with SD Leasing as lessor, covering the same seven video units named in the earlier leases with PAC. The All American representative, who had presented the credit and lease documents to Rice for signature caused the documents to be mailed to SD Leasing in Arkansas. SD Leasing approved and accepted the leases on November 1, 1981. Soon thereafter, SD Leasing called ABP to verify the leases, and on November 18, 1981, mailed ABP a copy of each lease with a corresponding payment book.
Although Rice does not deny that he executed SD Leasing’s leases, he testified that he had not read these documents and was unaware that SD Leasing was involved in these rental transactions. ABP made only three payments which were all payable to All American. These payments were appropriately credited when SD Leasing purchased All American’s interests in the ABP leases. ABP’s last payment was made in December, 1981, after which ABP defaulted. Rice claims he first became aware of SD Leasing’s interest in the video units when ABP requested All American to take back the units.
On May 24,1982, SD Leasing filed suit against ABP and Rice, as ABP’s guarantor, seeking rental payments due under the terms of the seven leases. In its complaint, SD Leasing sought to establish jurisdiction and to obtain service upon ABP and Rice pursuant to Arkansas’ long-arm statute, Ark. Stat. Ann. § 27-2502 (Repl. 1979). ABP and Rice responded by filing separate motions to quash summons alleging the Arkansas court had no jurisdiction over them. The trial court overruled both motions. At a jury trial held on March 8, 1984, SD Leasing obtained judgment against Rice for $15,269.86.
SD Leasing submits the Supreme Court’s case of SD Leasing v. Al Spain and Associates, Inc., supra, is dispositive of the jurisdiction issue here, and we agree. Rice attempts to factually distinguish the Spain case, but the transactions related there are virtually identical to the ones here. First, Rice points out that A1 Spain and Associates, Inc., had mailed some payments to SD Leasing before Spain defaulted on the lease. Here he points out that ABP mailed no payments to SD Leasing. We find little merit in this distinction because regardless of actual payments made, both Spain and ABP were required under their respective leases to forward rental payments to SD Leasing. Here ABP merely quit making its payments earlier than did Spain.
Second, Rice argues that Spain had mailed two memos to inform SD Leasing that Spain was going out of business. We simply fail to see how the mailing of memos to SD Leasing concerning ABP’s anticipated breach adds much to distinguish this cause from Spain. While it mailed no memos to SD Leasing, ABP was contacted on several occasions either by SD Leasing or All American after ABP defaulted. Besides, the Spain court placed its emphasis on two other factors which are also existent here: (1) The lease(s) specifically provided that the lease(s) shall be governed by and construed under the laws of the State of Arkansas; and (2) the parties’ agreement contained a provision in which the lessee Spain consented to the jurisdiction of the Arkansas courts to enforce the lease terms. The Spain court determined that these contract provisions were fair and reasonable, and upheld their enforceability. From our review of the record, we find nothing that significantly distinguishes this case from the Spain holding. Thus, because we believe the Spain decision supports the trial court’s ruling that it had jurisdiction over appellant, we affirm.
Affirmed.
Cracraft, C.J., and Corbin, J., agree.
In Meachum, the author of this opinion and Judge Corbin registered their disagreement with our appellate court’s recent interpretations of this State’s long-arm provisions. Because Spain and Meachum are now precedent, we both join in applying when applicable those decisions and their underlying rationale to future cases. Because we find the Spain case controlling here, we deem it unnecessary to discuss Meachum.. We do note, however, that Meachum was a Texas resident who had no contacts with Arkansas, except he furnished the Arkansas bank a financial statement and lease-guarantee involving a lease between two Arkansas corporations. This court found that due process requirements were met, and the Arkansas court had jurisdiction over Meachum.
The record is unclear concerning the relationship between All American and PAC. Nevertheless, PAC claims no interest in or title to the video units.
ABP was placed in bankruptcy in February, 1983. | [
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James R. Cooper, Judge.
This case involves the validity of a bill of assurance and protective covenants. The appellees filed suit seeking to enforce a bill of assurance against the appellants. In response, the appellants counterclaimed, alleging that the bill of assurance and protective covenants was invalid, both as to them and to those persons who might acquire an interest in the land from them. The chancellor held that the bill of assurance and protective covenants was effective as to future development of the property, but not as to the mobile home placed on the property by the appellants. From that decision, comes this appeal by the appellants, who argue that the bill of assurance is ineffective to restrict their development of the property.
In April, 1978, Rodger and Charlene Seratt conveyed approximately forty acres which they owned in Washington County, Arkansas, to Ben and Janice Williams. The warranty deed was recorded on April 17, 1978. In August, 1978, the Seratts executed a bill of assurance and protective covenants, covering the same land, which prohibited the placement of mobile homes on the property, as well as imposing certain other restrictions on development. On March 7, 1979, the Seratts contracted to sell the same land to the Whites, and a deed describing the land was placed in escrow. The Whites subsequently moved a mobile home onto the property. The bill of assurance and protective covenants was recorded on May 24, 1979, and then, on May 12, 1980, Ben and Janice Williams reconveyed the subject lands to the Seratts.
The chancellor determined that the 1980 conveyance from the Williamses to the Seratts inured to the benefit of the Whites under the doctrine of after-acquired title; that the bill of assurance, once recorded, constituted notice to White of its provisions, and that, therefore, from and after the time of recordation, White was subject to the restrictions contained in that document. However, the chancellor held that the mobile home was placed on the premises prior to the date the Whites were bound by constructive notice, and therefore the Whites should not be required to move the mobile home.
The common law doctrine of after-acquired title is codified in Ark. Stat. Ann. Section 50-404 (Repl. 1971), and provides that:
If any person shall convey any real estate by deed purporting to convey the same in fee simple absolute, or any less estate, and shall not at the time of such conveyance have the legal title in such lands, but shall afterwards acquire the same, the legal or equitable estate afterwards acquired, shall immediately pass to the grantee, and such conveyance shall be as valid as if such legal or equitable estate had been in the grantor at the time of the conveyance.
A conveyance by deed is a prerequisite to the application of the doctrine of after-acquired title under the above-cited statute. The Seratts merely executed a contract for the sale of the land and deposited a warranty deed into escrow. As stated in Mansfield Lumber Co. v. Gravette, 177 Ark. 31, 5 S.W.2d 726 (1928), “[W]hen a deed is delivered merely as an escrow to take effect upon the performance of some condition by the grantee in the future, no title passes until the condition has been performed.” Therefore, by the delivery of the deed into escrow, the Whites obtained no interest in the property until they fulfilled the conditions of the escrow agreement and contract. Since that is true, and since the doctrine of after-acquired title requires a conveyance, the doctrine has no application to the facts of this case.
Because we have held that the doctrine of after-acquired title did not operate so as to relate back to the delivery of the deed in escrow, it follows that the Seratts’ acquisition of a deed from the Williamses on May 12, 1980 vested title in the Seratts as of that date, rather than as of the date when the escrow agreement was signed, as the chancellor found. Thus, when the bill of assurance was recorded by the Seratts, they had no title whatsoever in the lands they sought to burden, and could not validly impose restrictions on the subject lands. See Ark. Stat. Ann., § 50-427 (Repl. 1971). The bill of assurance was ineffective to restrict the Whites’ use of their land. We reverse the chancellor’s decision that the bill of assurance was effective from and after the date of its recordation, and we remand for the entry of an order consistent with this opinion.
Reversed and remanded.
Cracraft, C.J., and Mayfield, J., agree. | [
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Tom Glaze, Judge.
Appellant appeals from a divorce decree because of his dissatisfaction with the chancellor’s division of the parties’ properties. Appellant’s sole contention is that the trial court erred in not complying with Ark. Stat; Ann. § 34-1214 (Supp. 1983), by failing to state in writing its basis and reasons for not returning appellant’s nonmarital property to him. However, his disagreement with the trial court’s decision extends to the court’s treatment of some of the parties’ marital property as well. Appellant claims that it did not divide the property equally and that it gave no reasons for not having done so. We disagree and therefore affirm.
The statutory provisions in issue are set forth in § 34-1214(A)(1), (A)(2) and (B). Under § 34-1214(A)(1), the trial court must equally divide the parties’ marital property between them unless the court finds and states in the order its basis and reasons for not doing so. With the exception of those items listed in § 34-1214(B)(1) through (5), marital property is defined as all property acquired by either spouse subsequent to the marriage. Nonmarital property, on the other hand, must be returned to the party who owned it prior to the marriage unless the court states in writing its basis and reasons for dividing it otherwise. In unequally dividing either marital or nonmarital property, the court must consider those factors enumerated in § 34-1214(A)(l), viz., the length of the marriage; age, health and station in life of the parties; occupation of the parties; amount and sources of income; vocational skills; employability; estate, liabilities and needs of each party and opportunity of each for further acquisition of capital assets and income; contribution of each party in acquisition, preservation or appreciation of marital property, including services as a homemaker; and the federal income tax consequences of the court’s division of property.
In the instant case, the appellant and appellee each brought property into the marriage, but appellant’s was the more substantial. In fact, appellant’s underlying argument in this appeal is that the trial court’s award to appellee failed to take into consideration the disparate amounts each party owned before their marriage, and that the court did not trace and distribute their respective property interests as required in Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983).
Appellant’s two major premarital assets were a trailer park and the house in which the parties lived. Appellee brought into the marriage a mobile home and savings in the amount of $1,263.00. Appellee’s premarital property was subsequently utilized in underwriting appellant’s defense against a criminal prosecution. During their marriage, the parties also sold appellant’s trailer park for $200,500.00 which was payable in monthly payments of $1,813.55. At the time of their divorce, the parties still retained the homeplace.
In granting appellee the divorce, the trial court ordered certain marital property sold and the proceeds equally divided between them. It also awarded them the vehicles each brought into the marriage. In considering their other marital and nonmarital interests, the court awarded the homeplace to appellant and ordered $500.00 to be paid appellee from the $1,813.66 monthly payments due under the contract of sale of the trailer park. At the time of divorce, eighty-six payments were due on the contract — which, under the court’s decree, results in awarding $43,000 to appellee and $ 112,974 to appellant if all payments are made.
In making its awards, the trial court recited in its decree the factors enumerated in § 34-1214(A)(l). The decree also set forth the following additional findings or reasons:
[T]he . . . [appellee] has contributed much time in accounting and services which she performed in connection with the business which was operated by these parties during their marriage and that such was of great benefit to said business and the court finds that personal property of the [appellee] which was non-marital property was used in the business which was conducted by these parties during the time that they were living together as husband and wife, and that such business was operated on property owned by the [appellant] prior to marriage.
Although appellant urges that the trial court failed to state its basis and reasons for making its award, his actual argument is that the court’s reasons are’insufficient and fail to support the unequal award it made. In his argument, appellant attempts to detail the parties’ respective properties and contributions to their marriage, and he claims if one construes the evidence most favorably to the appellee, she is entitled only to $26,747, not $43,000. In so calculating, appellant credits appellee with her premarital interests and lists joint contributions made on the homeplace and trailer park business. Appellee responds with her own statistics, claiming appellant omitted certain marital contributions she made during the marriage and which were supported by the evidence and considered by the trial court in its award.
As we have stated earlier, the chancellor had authority to make an unequal division of the parties’ personal property so long as he considered the factors set forth in Ark. Stat. Ann. § 34-1214(A)(1) (Supp. 1983). Cantrell v. Cantrell, 10 Ark. App. 357, 664 S.W.2d 493 (1984). Here the trial judge made an unequal division and stated his reasons for doing so. Unless his findings are clearly against the preponderance of the evidence, we will not reverse. Carrick v. Carrick, 13 Ark. App. 42, 679 S.W.2d 800 (1984). While the trial court’s reasons and findings could have been more exacting, we cannot say from our de novo review that it clearly erred. For example, although appellant argues that at most the appellee is entitled to $26,747, he omits any reference to her age (67 years old), her employability, or the facts that she kept books for the trailer business for fifty months and was a homemaker for six and one-half years: Furthermore, appellee and her witness (áppellant’s ninety year old foster mother) testified that appellee worked long hours in caring for and maintaining both the hómeplace and trailer park. Appellee also claimed interest (as a gift) in nine rooms of furniture which the trial court awarded appellant. In its decree, the trial court recited the factors enumerated in § 34-1214 and other reasons it considered when making its awards. In his review of the evidence, appellant falls short in demonstrating that the trial court failed to state its reasons for its distribution of the property; nor did appellant show that the court’s findings and reasons were clearly erroneous. Therefore, we affirm.
Affirmed.
Cooper and Cloninger, JJ., agree.
Actually, this was the net amount distributed between the parties after deducting a monthly payment of $369.43 on a mortgage against the property.
Appellee died after the trial court’s decision, and her executrix, Carolyn Jane Rowe, has been substituted as the real party in this cause immediately prior to the delivery of this Court’s opinion. | [
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Melvin Mayfield, Judge.
This is the second appeal of this case. Max and Shelia Shaver were also the appellants in the first appeal, where an unpublished opinion was handed down February 28, 1990, by a division of this court, which reversed and remanded the case to the chancery court from which it came. It is from the order of the chancery court on remand that the appellants bring this new appeal.
As required by Rule 9(d) of the Rules of the Arkansas Supreme Court and Court of Appeals, the appellant has also abstracted in this second appeal the pertinent portions of the record filed in the first appeal. Based upon the abstract and our opinion in the first appeal, we make the following státement of the matters now before us.
The original suit concerned appellants’ purchase on July 11, 1987, of a dairy farm, 137 head of cattle, and various items of personal property and equipment for the sum of $300,000.00. Appellants testified that shortly after purchase, they discovered the dairy herd was heavily infected with mastitis, and the entire herd was sold for slaughter by court order in January of 1988. In December of 1987, the appellants filed suit alleging breach of express and implied warranties and seeking rescission and reimbursement for their down payment and necessary expenses. After appellants presented their evidence, the chancellor granted appellees’ motion for a “directed verdict.”
In the first appeal, we reversed the trial court’s order granting the “directed verdict” and remanded the case. Our opinion simply stated “Reversed and Remanded.” However, the mandate issued by our clerk stated that the case was remanded “for further proceedings . . . not inconsistent” with our opinion.
In the early case of Rushing v. Horner, 135 Ark. 201, 204 S.W. 1145 (1918), the court in a second appeal from chancery court, construed its remand for a new trial in the first appeal as follows:
When a cause is remanded broadly for a new trial, all the issues in the case are open for trial anew, the same as if there had been no trial. “The case stands as if no action had been taken by the lower court.”
135 Ark. at 205 (citations omitted). But in Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979), the court reviewed cases relating to remand of chancery cases for further proof and then held:
Where a judgment [or decree] is reversed for error in the proceedings in the court below and remanded for proceedings according to law and not inconsistent with the opinion of the court, it is always understood that the proceedings in the court below, prior to the fault or error which is ascertained by this court to exist, are in no wise reversed or vacated by the adjudication of the appellate court, but the fault or error adjudicated is the point from which the cause is to progress anew ....
266 Ark. at 568 (citation omitted). As the court explained in Ferguson, the above rule results from the fact that chancery cases are reviewed de novo on appeal and all the issues raised in the court below are before the appellate court, and it determines what the decision of the chancellor should have been and renders the decree the chancellor should have made. 266 Ark. at 564. But, the opinion in Ferguson also pointed out that the appellate court has the power to remand “any case in equity or further proceedings, including hearing additional evidence.” Id. at 565.
In our unpublished opinion in the first appeal, we discussed the “test” which the appellate courts in this state have said should be used to determine whether a motion for “directed verdict” should be granted. We also pointed out that since we were reviewing an appeal from a chancery court, where there was no jury, the motion before us was “technically a motion to dismiss” the claim filed by plaintiff below; however, we said the “test” was the same as used when a motion for “directed verdict” was made in a case being tried by a j ury. We then pointed to comments made by the chancellor when granting the motion for “directed verdict” in the first trial of the present case and said the judge’s statements revealed that he “weighed” the plaintiffs evidence instead of giving that evidence its “strongest probative force,” and we said this demonstrated that the judge failed to “apply the proper test” to the evidence.
Apparently relying upon the mandate, the appellees filed a new motion in the trial court stating that the court should use the test which we referred to in our opinion and make a new determination of whether the court should grant a directed verdict or dismiss the appellants’ complaint on the grounds that they had not established a prima facie case at the first trial. The appellants filed a response asking that the trial court deny appellees’ motion.
Appellants also filed an amended complaint stating that when the court dismissed their complaint at the first trial, the court also entered a judgment against appellants on the promissory .note given for the purchase of the dairy farm and cattle and ordered for payment of the note a sale of the property purchased upon which appellees held a security interest. Appellants also alleged that the collateral had been sold at public auction; that at this point there could be no rescission of the purchase agreement; that appellees were liable to appellants for express and implied warranties as to the condition of the cattle sold to appellants; and that they should have judgement against appellees for damages and expenses incurred.
At the same time the amended complaint was filed, appellants also filed a motion to transfer this case from chancery to circuit court for the reason that the amended complaint stated a claim for money damages only and that was a claim exclusively cognizable in a court of law.
The appellees filed a response to the amended complaint generally denying the allegations in the complaint with regard to the right to recover damages but admitting the allegations of the amended complaint in regard to the judgment rendered against appellants and the sale at public auction of the dairy farm and equipment which had been purchased by appellants. The appel-lees also filed a response to appellants’ motion to transfer to law, alleging that the motion should be denied.
After the above matters had been filed, a hearing was had at which the chancellor first considered appellees’ motion for directed verdict. No additional testimony was taken and after hearing arguments of counsel, the trial judge stated that, in explaining his reasoning at the first trial, it did look as if he was weighing the evidence, but he did intend to apply the proper test. Stating that he was now applying the proper test, the judge reached the same conclusion and again granted the appellees’ motion.
Appellants then asked the chancellor to consider their motion to transfer, stating that some indication was needed in that regard since they intended to appeal and would argue there that the matter should be transferred. The judge, however, said he did not think he could give a ruling “which is strictly prospective” but added that if the case came back he did not feel that a transfer to circuit court would be warranted.
We now address the arguments presented by the parties in this new appeal. The appellants first argue that the trial court erred in dismissing their complaint. They say, given its strongest probative force, their evidence established a prima facie case of breach of express warranty (Ark. Code Ann. § 4-2-313(1) (1987)), breach of implied warranty of good health (Ark. Code Ann. § 4-2-316(3)(d)(ii)), and breach of implied warranty of merchantability and fitness for a particular purpose (Ark. Code Ann. § 4-2-314). Appellants contend the appellees’ representations about the health of the herd were express warranties that all 137 head of cattle were healthy, except four which were identified as having mastitis; that the appellees knew of the disease or sickness; that the appellees knew appellants would use the cattle for milk production to make their living; and that the appellants relied upon appellees’ word in proceeding with the purchase.
At trial, appellant Shelia Shaver testified that appellee Luther Spann stated the cattle were relatively young, that he was treating three cows for mastitis, and that the cattle had an occasional flare-up of mastitis. She said she asked about a cow out in the field with a swollen quarter, and Mr. Spann stated that cow could not be cured of mastitis and it would have to be sold; that when Mrs. Shaver asked for the records on the herd, Mr. Spann said he didn’t bother keeping any; and that when she asked for the State Health Department records, the appellees said they had burned them. Max Shaver testified that when his wife asked Mr. Spann why he hadn’t told them the truth, he replied, “If I had, you wouldn’t have bought it.”
Also, there was evidence that the appellees had requested laboratory testing of six special milk samples pulled from their herd during June 1987; that the samples contained excessive counts on the Wisconsin Mastitis Test (WMT) and Direct Microscopic Somatic Cell Count (DMSCC) during the month prior to the sale; that the health department had sent appellees a warning letter on June 2, 1987, advising of the unacceptable DMSCC; and advising them that if the health department received three out of five regular samples in violation of the acceptable count, it would suspend the dairy’s permit to sell Grade A milk.
In Henley’s Wholesale Meats, Inc. v. Walt Bennett Ford, Inc., 4 Ark. App. 362, 631 S.W.2d 316 (1982), we set out the following test to determine when a “directed verdict” should be granted at the close of the plaintiffs evidence:
The test is to take that view of the evidence that is most favorable to the party against whom the verdict is sought and to give it its highest probative value, taking into account all reasonable inferences deducible from it, and to grant the motion only if the evidence viewed in that light would be so [in] substantial as to require that a jury verdict for the party be set aside. Bradford v. Verkler, 273 Ark. 317, 619 S.W.2d 636 (1981). The applicable rule, stated in other terms, is that the duty of the trial court, sitting without a jury, when asked to give a “directed verdict” at the close of the plaintiffs case, is to consider whether the plaintiffs evidence, given its strongest probative force, presents a prima facie case. McCollough v. Ogan, 268 Ark. 881, 596 S.W.2d 356 (Ark. App. 1980), and Werbe v. Holt, 111 Ark. 198, 229 S.W.2d 225 (1950). As was pointed out in Minton v. McGowan, 253 Ark. 945, 490 S.W.2d 136 (1973), it is not proper for the court to weigh the facts at the time the plaintiff completes his case, and the motion should be denied if it is necessary to consider the weight of the testimony before determining whether the motion should be granted.
4 Ark. App. at 363. The above quotation comes from an opinion in a case appealed from a nonjury trial in circuit court, and the present case is an appeal from chancery court. However, the test is the same. See Newbern, Arkansas Civil Practice and Procedure § 23-12 (1985), which makes the following explanation:
Either party may challenge the sufficiency of the other’s evidence by moving for a directed verdict, in a jury trial, or dismissal, in a bench trial. The directed verdict and this sort of dismissal are provided in Ark. R. Civ. P. 50(a). While the case law which formerly provided for directed verdict and the statute provided for chancery dismissal were different in several respects from the rule, the rule does not specifically address the test for determining the sufficiency of the evidence, and, as the rule has thus not changed the law with respect to the test, cases decided prior to the advent of the rule should still be authoritative on that point.
The case of Minton v. McGowan, 253 Ark. 945, 490 S.W.2d 136 (1973), cited as authority in Henley’s Wholesale Meats v. Walt Bennett Ford, supra, was an appeal from a chancery court. The test set out in the opinion of Minton v. McGowan, is as follows:
Since this case involves a demurrer to the evidence, it is the duty of the trial court to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if his evidence, when so considered, fails to make a prima facie case.... At the time the plaintiff completes his case, it is not proper for the court to weigh the facts, and the motion should be denied if it is necessary to consider the weight of the testimony before determining whether the motion should be granted.
253 Ark. at 946 (citations omitted). See also Werbe v. Holt, 217 Ark. 198, 229 S.W.2d 225 (1950).
We think appellants’ evidence when viewed in the light of the above decisions is sufficient to establish a prima facie case and the trial court erred in granting the appellees’ “motion for directed verdict” or motion to dismiss.
The second point argued by the appellants in the brief in this court is that this matter should be transferred from chancery to circuit court. In considering this point, we must keep in mind our role in the appeal of chancery cases. In Hall v. Staha, 303 Ark. 673, 800 S.W.2d 396 (1990), the Arkansas Supreme Court said:
Chancery cases are tried de novo on appeal, and we will not reverse the chancellor’s findings unless clearly erroneous. Conway Corp v. Construction Engineers, Inc., 300 Ark. 225, 782 S.W.2d 36 (1989), cert. denied, 494 U.S 1080, 110 S.Ct. 1809 (1990). This court does not normally remand a case to chancery court, but rather we try the case de novo and render the decree that should be rendered below. The usual practice is to end the controversy by final judgment or by directions to the trial court to enter a final decree. This rule, however, is not imperative and this court, in the furtherance of justice, has the power to remand any case in equity for further proceedings, including hearing additional evidence. Walt Bennett Ford v. Pulaski County Special School District, 274 Ark. 208, 624 S.W.2d 426 (1981).
303 Ark. at 679. See also Ferguson v. Green, supra. As we must reverse the chancellor again, we know from the last proceedings that the question of transferring this case to circuit court is bound to be presented again. Thus, we believe we should follow the usual practice, deciding in this de novo appeal all the issues presented that the record demonstrates are at this point ready for decision.
We find the case of Liles v. Liles, 289 Ark. 159, 711 S. W.2d 447 (1986), on the question of whether this case should be transferred to circuit court, instructive. In that case, an attorney who had represented the appellee in a divorce action, argued that the chancellor lacked jurisdiction to award appellee damages for the fraud the attorney was found to have perpetrated against the appellee in connection with the divorce litigation. The attorney had in chancery court made no motion to transfer the claim to circuit court and had not demanded a trial by jury. The Arkansas Supreme Court stated that the issue for determination on appeal was whether the chancellor had the power to determine the matter.
In its opinion, the court discussed Chamberlain v. Newton County, 266 Ark. 516, 587 S.W.2d 4 (1979). In that case the appellant filed suit for an injunction but ultimately amended her complaint to ask only for damages. On appeal, the supreme court said appellant no longer claimed the right to an equitable remedy and therefore the chancery court lacked jurisdiction because there was no equitable relief being sought to which the tort claim might have been considered incidental for the purpose of exercising the clean-up doctrine.
In Liles, the court also cited Bierbaum v. City of Hamburg, 262 Ark. 532, 559 S.W.2d 20 (1977). That case also began as a suit for an injunction. The chancellor denied the injunction and, recognizing that the only issue remaining was the amount of compensation to which the appellant was entitled, transferred the case to the circuit court. On appeal the appellant argued the chancellor should have retained the case to determine the damages. The supreme court held that the chancellor not only could determine the damages aspect of the case but that he must do so absent any request that the case be transferred and must do so despite the prospect that the granting of any equitable remedy might have “faded away.”
And in Liles the court cited in its opinion Crittenden County v. Williford, 283 Ark. 289, 675 S.W.2d 631 (1984), which said it is only when the court of equity is “wholly incompetent” to consider the matter that “we will permit the issue of competency to be raised for the first time on appeal.”
The Arkansas Supreme Court in Liles then summed up its holding on this issue as follows.
Viewed together, these cases demonstrate that we have come to the position that unless the chancery court has no tenable nexus whatever to the claim in question we will consider the matter of whether the claim should have been heard there to be one of propriety rather than one of subject matter jurisdiction. We will not raise the issue ourselves, and we will not permit a party to raise it here unless it was raised in the trial court.
289 Ark. at 175-76.
In the instant case, appellants first sought rescission of their contract. Later, appellants amended their complaint to one for money damages only and made a written motion to transfer their cause of action to circuit court. The appellees argue that if this case is remanded, the chancery court would still have jurisdiction under the clean-up doctrine to determine the issues of damages. While we do not think our supreme court has decided that precise issue, we do not think we have to know the answer to that point in order to determine the transfer issue in this case.
We think the question here is whether this case should be transferred to law in the furtherance of justice. This issue is not based on the power of either the chancery or circuit court but is one of discretion. The court in Liles clearly did not foreclose this time-honored procedure. The opinion in that case said unless the chancery court has no tenable nexus the question of transfer to circuit court will be considered “one of propriety” and “we will not permit a party to raise it here unless it was raised in the trial court.” And in UHS of Arkansas v. Charter Hospital of Little Rock, 297 Ark. 8, 759 S.W.2d 204 (1988), the supreme court said “it is clear that the chancery court abused its discretion in exercising jurisdiction.” 297 Ark. at 13. To make the point clear, in the case of In re Porter, 298 Ark. 121, 765 S.W.2d 944 (1989), the court cited UHS of Arkansas and said:
There we required a chancery court to transfer to the circuit court a case in which a declaratory judgment had been sought with respect to the same issues pending in a circuit court proceeding. In that case neither court had been assigned exclusive jurisdiction by statute of the issues in question.
298 Ark. at 124. Thus, the supreme court has twice held, since the Liles decision, that cases may be transferred between chancery and circuit court based upon the proper exercise of discretion. In the present case the appellants filed a motion to transfer to circuit court and they argue on appeal that the chancellor erred in failing to grant the motion. In that connection, we need to consider a final point.
The record discloses that counsel for appellants and appel-lees also disagree as to what matters should be open if this case is remanded again. Counsel for appellants thought a new trial would be proper. He explained that two years have already elapsed since the evidence was first presented and that two more years would likely elapse before it could proceed further in the trial court. He pointed out that not only has the cause of action changed from one for rescission to one for damages but the extent of damage and the proof thereof have changed.
In Rushing v. Horner, supra, the court said:
On a reversal of a cause by this court it seldom occurs that the same is remanded for a new trial, but when such is the direction of this court, then the case stands for trial precisely the same as if there had never been any trial.
135 Ark. 206.
In the present case because of the lapse of time, the nature of the claim and the relief now sought, we think this case should be remanded for a new trial. To go back to and try to finish a four-year old case would be courting disaster. It also seems proper for both sides to be able to present what is now a suit for money damages only to a jury if either side so desires. Since we remand for a new trial, and for many of the same reasons, we also find in this de novo review that this court should, in the exercise of our discretion and in the furtherance of justice, transfer this case to circuit court.
Reversed and remanded for a new trial, with directions that the chancery court transfer this case to circuit court for the new trial.
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Judith Rogers, Judge.
This is an appeal from Orders 17 and 18 of the state Public Service Commission in its Docket No. 89-128U. The appellant is Arkansas Electric Energy Consumers (AEEC), a voluntary association of large industrial customers of Arkansas Power and Light Company. The appellees are the Arkansas Public Service Commission (APSC), Arkansas Power and Light Company (AP&L), which are here to defend the Commission action, and the Attorney General, who participated below but has not filed briefs here.
This case was commenced before the APSC by AP&L on June 21, 1989. AP&L asked the APSC to approve a Stipulation and Settlement Agreement (“Agreement”) entered into by AP&L, the Attorney General, and the APSC staff. The Agreement’s major provisions address what amounts to a considerable restructuring in the manner and means by which AP&L proposes to conduct its business. The portions of the agreement at issue in this appeal involve the transfer of AP&L’s interests in two generating plants to a sibling corporation named Entergy Power, Inc. (EPI) , a bulk power marketing company owned by AP&L’s parent company, Entergy Corporation. The plants are the Ritchie Steam Electric Station Unit No. 2 (Ritchie 2), an oil/gas burner rated at 544 megawatts (MW) of power located near Helena, and the Independence Steam Electric Station Unit No. 2 (ISES 2), a coal burner rated at 842 MW located near Newark. AP&L owns 31.5% of ISES 2, which amounts to 265 MW of generating capacity. The total capacity involved, therefore, is 809 MW.
The ISES 2 capacity has never served Arkansas customers; rather, it was leased by MP&L from the time ISES came online in December 1984 through December 1989. As of the date of the APSC hearings, it had a remaining useful life of about forty-four years. Ritchie 2 became operational in 1968 and has a remaining useful life of about twenty-seven years.
By the Agreement, AP&L proposed to sell the 809 megawatts of generating capacity to EPI at book value (approximately $171 million) and to have a right to purchase electricity from those plants (to the extent such is not obligated to other EPI customers outside the Entergy system) at cost as needed. Thus, the fixed costs associated with ownership in those generators will be avoided by AP&L.
The Agreement also provides (1) for the transfer of management and operation (but not ownership) of the two generating units of Arkansas Nuclear One (ANO) plant at Russellville to Entergy Operations, Inc. (EOI), a sibling company owned by Entergy Corporation, (2) for recovery of certain deferrals from ratepayers, and (3) for amortization and retention of certain investment tax credits (ITC’s).
The points for reversal, as articulated in its brief by the appellant, are:
I. The PSC Staffs Pre-Filing Commitment to Support the Settlement Violated Due Process.
II. The Commission Failed to Consider Fair Market Value [of the plants].
III. The Settlement was not Supported by Substantial Evidence.
On June 22, 1989, AEEC was granted intervenor status, conditioned upon its identifying its membership. A dispute ensued over the issue of identification, but AEEC identified its membership on August 30, 1989, and was granted full status as an intervenor the following day.
A procedural schedule was established by the Commission, bifurcating AP&L’s application into two phases, Phase II to deal with the transfer of the ISES 2 and Ritchie 2 plants and Phase I to deal with all other issues. Phase I issues were heard on January 3 and 4, 1990, and Phase II issues were heard on February 9, 12, and 13,1990. On April 2,1990, the Commission issued Order No. 17, which granted the application with several modifications. On May 1,1990, AEEC requested a rehearing and stay of Order No. 17. The request was denied on May 31,1990. On June 28,1990, AEEC filed a Notice of Appeal with this Court, seeking review of Order No. 17 and requesting that this Court stay the APSC’s order. On July 3, 1990, this Court issued a per curiam opinion which denied the appellant’s request for a stay. Ark. Electric Energy Consumers v. Ark. Public Service Comm’n, 31 Ark. App. 217-A, 791 S.W.2d 719 (1990). The Supreme Court denied AEEC’s request for review of this Court’s stay on September 10, 1990. AEEC filed its abstract and brief on September 12, 1990. AP&L and the APSC filed supplemental abstracts and briefs on October 19, 1990, and AEEC filed its reply brief on November 13, 1990. Oral arguments were heard April 24, 1991.
The voluminous record in this case consists of nearly 4,000 pages, most of which contain the testimony and exhibits of the dozen or so witnesses who testified on the various issues below. Because so much of the parties’ disagreement goes to the substance of the evidence, a brief overview of some of the more salient testimony at the hearings below is appropriate.
R. Drake Keith, President and Chief Operating Officer for AP&L, testified that AP&L was seeking permission to sell the generating plants because the Commission found in a previous rate case that AP&L had 969 MW of “excess generating capacity.” Excess generating capacity is that capacity over and above what is required to meet peak system demand, plus a reasonable reserve. Keith testified the Agreement’s ultimate purpose was to hold down rates and obviate the need for a rate increase in the near future, except in certain limited circumstances.
According to Keith, the ISES 2 sale would eliminate the need for $23 million in additional revenues, a figure representing the annual lease payments to AP&L from MP&L for the plant. He testified that, according to his company’s analysis, AP&L and the rest of the Entergy electric system will not need any additional generating capacity until 2000 or beyond and that, if additional capacity becomes necessary in the interim, combined cycle capacity or cogeneration projects would be less expensive in present net value terms than retaining Ritchie 2 and ISES 2.
Keith testified the proposed cost of the transfer would be $171 million, a figure which represents original cost adjusted to compensate for income taxes netted against the depreciated original cost, with the proceeds to be used to retire high cost securities, thereby reducing AP&L’s cost of capital, which would reduce the need for future rate increase. He also pointed out that, by transferring the coal-fired ISES 2, AP&L could avoid the costs of dealing with charges which could be mandated by acid-rain legislation.
With regard to the nuclear management issue, he testified that, by transferring management responsibility for ANO to a nuclear management subsidiary, significant savings could be realized. He emphasized that AP&L will retain control over the nuclear-fired plants. Keith also set forth the reasons why the company wanted authorization to recover deferrals (about $4.4 million) due to the excess capacity adjustment and how, in his opinion, amortization of investment tax credits could positively affect AP&L’s net earnings by about $10.9 million without impacting retail rates.
As to Phase II issues, Keith affirmed AP&L’s position that sale of Ritchie 2 and ISES 2 would be beneficial to ratepayers over the coming 10 to 20 years. He explained a “rate cap” proposal whereby AP&L rates would be limited in any event to what rates would be if the plants were not sold. Under the rate cap, if ISES 2 and Ritchie 2 were to be transferred, AP&L would keep records, subject to annual PSC audits, reflecting the costs of retaining the units versus savings from selling the units.
As to the cost of transferring the generators, Keith said that it was his understanding that SEC regulations require that transfers between affiliates of public utility holding companies be at cost and that the proposed transfer from AP&L to EPI would be at book value, which is cost less depreciation. Keith also said it was AP&L’s position that the company would in all likelihood not need to build additional generating capacity for at least 15-years.
Lee W. Randall, Senior Vice-President of Finance and Administration and Chief Financial Officer for AP&L, addressed, from a management perspective, how the status quo would change if the Agreement is approved and said, in his opinion, that AP&L’s customers would benefit.
T. Gene Campbell, Vice-President and Senior Nuclear Executive for AP&L, said there would be potential savings at ANO of about $7.6 million if the Commission decided to allow management transfer to a nuclear management company. On cross-examination, however, he acknowledged that, even without the management transfer, savings of about $2.8 million could also be achieved with modifications in current management practices.
Sandra Hayley, Management Audits Supervisor of the PSC Staff, testified about the proposal to transfer management of ANO to a nuclear management company. She addressed particular safeguards to be accomplished through an ongoing evaluation that could assure that the consolidation of management is in the public interest. Hayley also proposed some changes in the company’s Operating Agreement to satisfy regulatory concerns. Essentially, she testified favorably to the Settlement Agreement, provided adequate oversight and documentation of savings could be maintained.
Russell D. Widmer, Senior Technical Policy Analyst of the PSC Staff, testified about two aspects of the settlement, one involving recovery of excess capacity deferrals and the other dealing with the amortization of ITC’s. He proposed some modifications in the bookkeeping methods AP&L proposed to use in regard to ITC’s, noting that more than one method is available by which ITC’s could be amortized.
John Strode, Manager, Electric Section, PSC Staff, headed the PSC staff investigation of AP&L’s current rates and the settlement’s revenue requirement effects. He concurred with AP&L’s position that its rates would not need to be adjusted if ISES 2 and Ritchie 2 are sold. He also agreed with the proposal as to amortization of ITC’s. Strode oversaw some considerable accounting and economic analyses of AP&L’s financial condition and the potential impact of the settlement agreement. One of Strode’s conclusions was that, with the termination of the ISES 2 lease, AP&L’s current retail revenue situation would result in a revenue deficiency of slightly over $21 million. Strode testified that, even if the proposed sale is completed, AP&L would have a revenue deficiency of $5.5 million. He said that the sale would not wipe out the total $21 million deficiency because of other factors such as reduced reserve equalization revenues, fuel adjustment clause savings, and elimination of excess capacity deferrals because AP&L would no longer have excess capacity. His testimony supported the position taken by AP&L that, if the settlement is approved, no rate adjustments would be needed but that, without the sale of ISES 2 and Ritchie 2, AP&L might be entitled to seek rate relief of about $21 million.
Strode also testified to rebut an assertion by AEEC witness Falkenberg that the off-system sales potential (wholesale to other companies outside allocated service territory) of ISES 2 and Ritchie 2 is identical whether or not the plants are sold. Basically, Strode said that, if sold, the sale potential of the units would be greater because the price of energy would be lower due to lower revenue requirement for the two plants.
Donna Gray, Director of Management and Financial Analysis, PSC Staff, testified at the hearing. Gray’s stated purpose in testifying was to address the issue of whether the settlement was in the public interest and to evaluate AP&L’s required rate of return. She said the proposed sale of ISES 2 and Ritchie 2 would be of significant benefit to ratepayers in present value terms. She stated that, according to projections by Staff member Lou Ann Westerfield, AP&L’s total revenue requirement would decrease by about $26.8 million if the plants were sold, compared with a present value cost of holding the plaints at about $96.3 million. The net present value of selling versus holding, according to Gray, was $410.3 million to ratepayers. Gray said that selling the plants at book value would be beneficial to ratepayers.
Gray also agreed with Hayley’s conclusion that transfer of ANO management to a nuclear management company was in the public interest and would benefit ratepayers. She also summarized Widmer and Strode’s analysis of ITC amortization and recovery of deferrals of excess capacity returns. The ITC amortization, Gray said, would reduce AP&L’s revenue requirement by $14.7 million, with the deferrals totalling $1.8 million.
Gray also testified in support of a rate moratorium, modifying the excess capacity adjustment and AP&L’s financial condition in general. She concluded by saying:
The Staff has thoroughly analyzed each aspect of the Stipulation and quantified the ratemaking effects of each provision. Having weighed the respective detriments and benefits of each point, I concluded that the Stipulation, as a whole is in the public interest. The stipulation offers AP&L an opportunity to significantly reduce costs, and ensures that the ratepayers will not suffer a rate increase for several years. I, therefore, recommend that the Commission approve the Stipulation as filed.
Dr. Jay B. Kennedy, President, Kennedy and Associates, testified on behalf of AEEC. He said that the sale of ISES 2 and Ritchie 2 at depreciated book value as proposed would not be advisable. He pointed out that the sale at $171 million amounted to a cost of $215 per kilowatt of capacity and that oil/gas capacity (Ritchie 2) probably cannot be replaced for less than $300 per KW. Further, he said that the replacement cost for ISES 2 coal capacity would be at least $1,500.00 per KW. Dr. Kennedy cited several examples of what it would cost to build replacement units. He estimated total replacement cost for the two units to be $561 million. He said that fair market value rather than depreciated book value should be the measure of price. He also disputed the results of a cost-of-service study AP&L conducted at the PSC staff’s request. Kennedy stated in general terms that he had reservations about the remainder of the settlement’s provision and also suggested calculating AP&L’s return on equity at 12.35% instead of 13.00%, as used by staff.
Kennedy also testified during Phase II in rebuttal to AP&L and staff witnesses. In essence, Kennedy pointed out that nothing is certain in the future and that there is room for disagreement over whether or not the sale of the plants would be beneficial to ratepayers over the long run. His quarrel was general and not at all specific. Kennedy said that AEEC would prefer to take its chances on a general rate case and its outcome instead of having the ISES 2 and Ritchie 2 units sold and a rate case avoided.
Rodney Gilbreath, Manager of Revenue Requirements for AP&L, testified about Dr. Kennedy and Strode’s analysis of AP&L’s cost-of-service study. He pointed out that it was based on a 198 8 test year and that, if AP&L filed a general rate case, the test year would be 1989 or later, carrying with it increased costs and, therefore, resulting in an even larger revenue deficiency. Gilbreath said he thought Strode’s analysis was reflective of a minimum possible rate increase, not a maximum, and that Kennedy’s position was untenable, in his opinion.
Jack T. Blakely, Manager, Pricing and Economic Analysis for AP&L, disputed Kennedy’s analysis of AP&L’s return on equity, which was 12.35 %. His testimony criticized the methods and assumptions by which Kennedy calculated AP&L’s cost of equity.
Basil L. Copeland, Jr., an Economist with Chesapeake Regulatory Consultants, Inc., of Annapolis, Maryland, was retained by the PSC staff to evaluate AP&L’s evaluation study as to the market value of ISES 2 and Ritchie 2. The study concluded that the market value of ISES 2 and Ritchie 2 was not measurably in excess of depreciated book value. Copeland said that the study was flawed and did not actually measure the plants’ value. “If the actual life of the units turns out to be greater than the life assumed in determining the recovery of book value through depreciation, the market value will be greater than the book value, a fact obscured by the Burns and McDonnell [AP&L’s consultant] study,” Copeland said. Copeland addressed costs and revenues under various scenarios with regard to the plants, along with related data.
William T. Clarke, Project Manager, Economic Studies Department, Burns and McDonnell Engineering Company, was hired by AP&L to provide an opinion as to the fair market value of ISES 2 and Ritchie 2. Clarke went into a great deal of detail about this country’s energy markets and how electric companies in particular go about their business. He discussed “market value” versus “book value” and how these figures, while usually close early in a generating plant’s life, may diverge over time. The ultimate conclusion of the study was the market value of the combined generating capacity of 809 megawatts represented by ISES 2 and Ritchie 2 could range from $0.00 to $425,356,688, with a “weighted average” of $174,357,922. He noted that the net book value for ISES 2 is $150,090,800.27, and the net book value for Ritchie 2 is $20,239,675.44, for a combined total of $170,330,475.71. Thus, the study concluded that the market and book value of the generating plants did not differ substantially.
Tom D. Reagan, Manager, AP&L Energy Resource Planning, addressed the proposal to sell the plants and discussed options available for replacement of ISES 2 and Ritchie 2 capacity in the future. He said four supply-side alternatives were found acceptable in the event unexpected capacity additions become necessary, all involving more efficient generation technology than the two plants. Reagan testified extensively and sponsored numerous exhibits which illustrated in great detail AP&L’s current generating capacity and projections for future needs in that regard.
Jack L. King, Senior Vice-President, System Executive-Operations, Entergy Corporation, testified about Entergy’s proposal to establish a bulk power marketing subsidiary company (EPI) to own ISES 2 and Ritchie 2 along with other generators. He testified about the manner in which the company would operate in marketing the power capacity it acquires and addressed the effect on intercorporate relationships in the Entergy corporate structure.
Randall J. Falkenberg, Vice-President, Kennedy and Associates, Utility Consultant for AEEC, testified that the Settlement Agreement and transfer of generating units would not be in the ratepayers’ best interests, that AP&L’s studies were biased due to errors and incorrect or unreasonable assumptions, that PSC staffs position was based on incorrect analyses of the biased AP&L studies, and that the Commission should not approve the Agreement. Falkenberg’s extensive testimony went into great detail about the reasons for his conclusion and gave examples and numbers as to why he concluded as he did. He thoroughly criticized Reagan’s analysis. Falkenberg said he thought that a ten-year study was too short a time frame within which to analyze the economics of selling versus retaining the two generating plants because the plants’ useful lives exceeded that amount of time. He analyzed the variables in AP&L’s study and disagreed with many of those used, such as capacity factors and cogeneration, and demonstrated how, with different variables AP&L’s own study would conclude that the sale was ill-advised.
Charles Cicchetti, Managing Director, Putnam, Hayes & Bartlett, Inc., was hired by AP&L to respond to Kennedy and Falkenberg’s assertions. Essentially, this witness testified that, in his opinion, Kennedy and Falkenberg’s analyses were incorrect. He criticized Falkenberg’s conclusions with regard to cogeneration options included in AP&L’s study and testified that the Commission would still maintain a great deal of control over AP&L’s activities even if it allowed the plants to be removed from its direct jurisdictional authority.
Lou Ann Westerfield testified for the PSC staff. She was questioned extensively by counsel for appellant about a meeting she attended with Jerrell Clark, of the PSC staff, Dr. Keith Berry, her supervisor at the PSC, Ralph Teed of AP&L, and Tom Reagan of AP&L, where the company presented its proposal to sell the plants. Westerfield testified about her instructions with regard to analyzing AP&L’s proposal and said'that her analysis essentially verified AP&L’s position. Several alleged deficiencies in her testimony were pointed out by other witnesses, some of which she corrected or modified. Her position that the proposed sale was beneficial to ratepayers did not change, however.
For reversal, AEEC first contends that it was denied due process because of certain alleged ex parte contacts between AP&L and the Chairman of the PSC and the PSC staff before any application was filed. AEEC claims that, commencing in March of 1989 and over the following two months, there were numerous meetings between AP&L, the PSC staff, and the office of the Attorney General which culminated in execution of the Agreement at issue on June 5, 1989. The PSC staff and the Attorney General, in the agreement, agreed to support the adoption of it by the Commission.
At the heart of AEEC’s argument are the Supreme Court’s comments in General Tel. Co. v. Arkansas Public Service Commission, 295 Ark. 595, 751 S.W.2d 1 (1988), where the Court said:
The company argues that it was improper for the commission to allow its staff to seek the rehearing of its order which resulted in the reduction of the amount of new revenue it was to allow the company. The statute governing rehearings before the commission, Ark. Code Ann. § 23-2-422 (1987), provides, in subsection (a), that application for rehearing may be made by “[a]ny party. . .aggrieved by an order issued by the commission.” The commission argues it has the power to make rules and that it has, by its Rule 1.05, provided that its staff is to be bound by the commission’s rules as a party. In the first order issued in this case, the commission designated the staff as a party. The commission argues that the company waived its right to object to the staff being treated as a party before it by not raising the issue until it filed its motion to dismiss the staff’s rehearing application.
A quick look at the statutes providing for rate hearings before the commission shows the commission to be, without doubt, a quasi-judicial body. See Ark. Code Ann. §§ 23-2-401 through 23-4-424 (1987 andSupp. 1987). It is troublesome that an agency which is placed in a decision-making role can have its own staff before it as a party. Even if the internal operating procedures of the commission kept the commissioners totally isolated from their staff, and we assume that is not the case, we would find a serious appearance of impropriety in this situation. It is a little like a judge making his or her law clerk a party to a case even though the law clerk has a close association with the judge, is his or her employee, and has the judge’s ear before and after the hearing.
We have real doubts about this situation, especially now that the Arkansas Attorney General may represent the public interest in these cases, Ark. Code Ann. § 23-4-305 (1987). In this case, however, we find no specific, unfair prejudice in permitting the staff to ask for rehearing. Arkansas Code Ann. § 23-2-426(a) (1987) provides: “The commission may at any time, and from time to time, after notice, and after opportunity to be heard as provided in the case of complaints, rescind or amend by order any decision made by it.”
While we find no prejudice resulting from the treatment of the staff as an adverse party before the commission in this case, this opinion should not be read as generally approving a situation we regard as giving an appearance of impropriety. In other instances prejudice may be demonstrated to have resulted from this apparent conflict. For now, we will reserve judgment on the matter.
According to PSC chairman Sam Bratton’s testimony, while he was legal counsel to Gov. Bill Clinton just prior to being named PSC Chairman, he .was involved in a meeting with AP&L management and said he found the proposal “interesting” and “worth considering.” AEEC argues that the effect of ex parte contacts may be seen in that the entire agreement was approved as submitted with only a few modifications, i.e., the “rate cap” and oversight provisions with regard to changing nuclear operations management. Essentially, AEEC claims the PSC staff, the Attorney General, and AP&L colluded to assure approval of the settlement.
Appellant also points out that Ark. Code Ann. § 23-4-305 (1987) provides as follows:
The Consumer Utilities Rate Advocacy Division [of the office of Attorney General] shall represent the state, its subdivisions, and all classes of Arkansas utility rate payers and shall have the following functions, powers, and duties:
(1) To provide effective and aggressive representation for the people of Arkansas in hearings before the Arkansas Public Service Commission and other state and federal courts or agencies concerning utility-related matters.
(2) To disseminate information to all classes of rate payers concerning pertinent energy-related concepts.
(3) To advocate the holding of utility rates to the lowest reasonable level.
AEEC contends that, because the Attorney General bound himself to support the agreement, he was incompetent to perform his duty to provide aggressive representation for the people.
The APSC counters appellant’s bias claim by first pointing out that AEEC never objected to the Commissioners hearing the case. It cites several cases in support of the proposition that any objection on the basis of bias was untimely. AP&L points out that the APSC chairman testified on the record at the outset of the proceedings about the March 1989 meeting, detailing those present and what was said. Further, appellee argues that, from the very words spoken, no possibility of bias was demonstrated to exist. As the APSC staff participation, it says:
Ex parte communications, as defined by APSC procedural rule 1.06 are: “off-the-record communications to any member of the Commission or hearing examiner in such proceeding reasonably designed to influence a decision on any issue of fact in a contested proceeding.” [Emphasis added.] The same rule defines “contested proceeding” to mean:
. . .in which a petition or notice to intervene in opposition to requested Commission action has been filed.
AP&L argues that there is no evidence any such contacts with Commissioners occurred and points out that Commission Order No. 18 in this proceeding states none occurred. Finally, AP&L points out that AEEC itself has joined the PSC staff in entering into settlements before the PSC.
On the issue of staff participation, PSC found the challenge to be untimely because AEEC could have filed its Motion as early as August 31, 1989, but did not file until February 6, 1990. The Commission said that AEEC had knowledge of all facts pertinent to the issue at the earlier date, and hence waived the issue. In Order No. 18, it discussed at great length the participation of agency staff in administrative agency proceedings and noted that no bias or detriment and been demonstrated.
The Supreme Court of the United States, in Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975), addressed a similar question and said:
Concededly, a “fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U.S. 133, 136 (1955). This applies to administrative agencies which adjudicate as well as to courts. Gibson v. Berryhill, 411 U.S. 564, 579 (1973). Not only is a biased decisionmaker constitutionally unacceptable but “our system of law has always endeavored to prevent even the probability of unfairness.” In re Murchison, supra, at 136; cf. Tumey v. Ohio, 273 U.S. 510, 532 (1927). In pursuit of this end, various situations have been identified in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable. Among these cases are those in which the adjudicator has a pecuniary interest in the outcome and in which he has been the target of personal abuse or criticism from the party before him. [Footnote omitted.]
The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.
* * *
. That is not to say that there is nothing to the argument that those who have investigated should not then adjudicate. The issue is substantial, it is not new, and legislators and others concerned with the operations of administrative agencies have given much attention to whether and to what extent distinctive administrative functions should be performed by the same persons. No single answer has been reached. Indeed, the growth, variety, and complexity of the administrative processes have made any one solution highly unlikely.
* * *
It is not surprising, therefore, to find that “[t]he case law, both federal and state, generally rejects the idea that the combination [of] judging [and] investigating functions is a denial of due process. ...” 2 K. Davis, Administrative Law Treatise § 13.02, p. 175 (1958). Similarly, our cases, although they reflect the substance of the problem, offer no support for the bald proposition applied in this case by the District Court that agency members who participate in an investigation are disqualified from adjudicating. The incredible variety of administrative mechanisms in this country will not yield to any single organizing principle.
* * *
That the combination of investigative and adjudicative functions does not, without more, constitute a due process violation, does not, of course, preclude a court from determining from the special facts and circumstances present in the case before it that the risk of unfairness is intolerably high.
Withrow v. Larkin, 421 U.S. at 46-47, 51, 52, and 58.
Appellant, in attacking the procedure below as a denial of due process, has the burden of proving its invalidity. Omni Farms v. AP&L, 271 Ark. 61, 607 S.W.2d 363 (1980). In Public Service Commission proceedings, due process must be preserved to all whose legal rights are involved and concluded by the Commission’s final order. Public Service Commission v. Continental Telephone Company, 262 Ark. 821, 561 S.W.2d 645 (1978). A fundamental requirement of due process in matters of public utility regulation is a full and fair hearing. Shields v. Utah Idaho Central Railroad Co., 305 U.S. 177, 59 S.Ct. 160, 83 L.Ed. 111 (1938). An elementary element of a full and fair hearing is that all whose rights are involved have the opportunity to be heard, to submit evidence and testimony, to examine witnesses and present evidence or testimony in rebuttal to adverse positions. Federal Trade Commission v. National Lead Co., 352 U.S. 419, 77 S.Ct. 502, 1 L.Ed.2d 438 (1957).
We have reviewed the voluminous record below and cannot sustain appellant’s claim that it was denied due process. The only evidence concerning pre-filing negotiations was that the PSC Chairman, prior to his appointment to that position, was privy to a conversation concerning AP&L’s proposal to sell the plants and found it “interesting.” The Chairman, who spoke on the record to the substance of his exposure to the proposal and was presumably susceptible of cross-examination by appellant, was not shown to have been biased or prejudiced by the conversation. Indeed, a fair reading of the plain language recalled by the Chairman demonstrates merely that he was receptive to hearing the particulars of the proposal and does not reveal a commitment about the matter on his part.
PSC staff witnesses Strode and Westerfield were extensively cross-examined about pre-filing contacts with AP&L. Neither expressed what could be construed as having a predetermined agenda prior to investigating the proposal, and their testimony shows that their assigned tasks were to verify or refute the validity of AP&L’s proposal. The testimony reveals that there were other individuals from AP&L and the PSC staff involved in discussions which led to the agreement in issue here, all of whom could have been, but were not, called as witnesses on the issue of whether the pre-filing contacts violated appellant’s due process rights.
We cannot agree that the record supports appellant’s contention that the attorney general’s support of the Agreement violates the statutory mandate of Ark. Code Ann. § 23-4-305 (1987). The record is devoid of any evidence that the attorney general failed to provide “effective and aggressive representation for the people of Arkansas” or failed “to advocate the holding of utility rates to the lowest reasonable level.” To the contrary, a plain reading of the agreement discloses that the attorney general was in fact attempting to fulfill that mandate in signing the agreement. Throughout the agreement are recitations as to why the parties agree that the public interest would be best served by adoption of its provisions.
In sum, there was no evidence that the Commission proceedings were directed to a predetermined outcome or that they were tainted by the PSC staffs contacts with AP&L. The Commission was free to accept or reject the proposal in whole or in part. Appellant was afforded every opportunity to participate in the proceedings below, and in fact did so with competent vigor. The simple fact that it did not achieve the result it sought is not tantamount to a denial of due process. We therefore reject appellant’s claim that the proceedings below denied it due process.
Parenthetically, we observe that this case was filed with the Commission on June 21,1989, and that appellant’s first objection to staff’s participation was in January 1990. Although appellant was thoroughly involved in the case from August of 1989, it did not object to the staff’s participation for at least four months. The objection was untimely, and appellant cannot, for that reason alone, be afforded relief on its objection. Pass Word, Inc. v. Federal Communications Commission, 673 F.2d 1363 (D.C. Cir. 1982), cert. den. 459 U.S. 840 (1982). Moreover, although appellant has requested this court to disqualify the Commission and remand the matter for hearings before another Commission, it never requested any such relief until now. We do not consider arguments raised for the first time on appeal. Mitchell v. Goodall, 297 Ark. 332, 761 S.W.2d 919 (1988).
We also note that utility regulation is by its very nature a complicated, unconventional undertaking and that the various jurisdictions at both federal and state levels have created administrative systems not unlike Arkansas’ for dealing with cases such as these. We note that it has been emphasized repeatedly in the cases that the Public Service Commission is a creature of the legislature and performs, by delegation, legislative functions. As such, it possesses the same powers as the General Assembly while acting within its legislatively-delegated powers and has very broad discretion in exercising those powers. City of Fort Smith v. Ark. Public Service Commission, 278 Ark. 521, 648 S.W.2d 40 (1983). Because the Commission acts in a legislative capacity and not in a judicial one, orders of the Commission are viewed as having the same force and effect as would an enactment of the General Assembly. Bluefield Water Works and Improvement Co. v. Public Service Commission, 262 U.S. 679, 43 S.Ct. 675, 67 L.Ed. 1176 (1923).
We hold that the appellant was afforded a full and fair opportunity to be heard and that appellant has failed to demonstrate. a clear showing that the limits of due process have been overstepped or that an arbitrary result has been reached. Our inquiry, therefore, goes no further. Arkansas Power & Light Co. v. Arkansas Public Service Commission, 226 Ark. 225, 289 S.W.2d 668 (1956).
Next, AEEC contends for reversal that the Commission failed to consider fair market value in pricing the plants.
Arkansas Code Annotated § 23-3-102 (1987) provides in pertinent part:
(a)(3) . . . [A]ny utility may sell, acquire, lease, or rent any. . . property constituting an operating unit. . . .
(b)(2). . . If [the PSC] finds that the proposed action is consistent with the public interest, it shall give its consent. . . .
(3) In reaching its determination, the PSC shall take into consideration the reasonable value of the property, plant, equipment, or securities of the utility to be acquired or merged.
And, Rule 6.02(b) of the PSC’s Rules of Practice and Procedure provides that an application by a utility to sell property shall include “[a]n accurate detailed description of the property to be sold or leased, together with the original cost to applicant and applicant’s statement as to the present value thereof.” AEEC contends that present market value rather than depreciated book value is the proper measure of cost and claims that there may be a “premium” on the plants which should inure to the benefit of ratepayers.
AP&L counters flatly that Ark. Code Ann. § 23-3-102(3) (1987) simply does not apply in this case because the statute’s application “is limited to cases where property is acquired by or merged into another public utility,” and that EPI, the proposed purchaser, is not a public utility. It points out that the practical reason for this is that when a public utility buys property it affects its rate base and, consequently, rates, whereas when a public utility sells property, it removes it from rate base and, along with it, the ratepayers’ obligation to pay a reasonable rate of return. AP&L also contends that, even if the statute applies, it does not mandate a valuation methodology but simply specifies that the Commission consider the reasonable value of the property to be transacted.
While the APSC’s brief does not direct itself to the applicability of the statute, it essentially parallels AP&L’s assertion that the statute simply requires that the Commission take into consideration the plant’s reasonable value and affirms that is precisely what was done in this case. The PSC staffs brief also extensively addresses the “premium” issue and observes that the issue has been retained for full consideration in AP&L’s next general rate case. It takes the position that, while the transfer price may be adequately determined at this time, the existence of a premium may not be and that, in any event, it would be more appropriately considered in a rate case where rates could be adjusted to allow for any premium.
With these same principles of statutory construction in mind, we cannot accept AEEC’s argument that the Commission must, in assessing a proposed sale of utility assets, use “fair market value” as the only criterion of value in considering whether to allow its consummation. Section (b)(3) of the statute merely mandates that the “reasonable value” of the asset “shall” be considered by the Commission in reaching its decision. Appellant contends that the Commission failed to comply with its statutory mandate. We cannot agree. The record is replete with assessments of the plants’ value and the bases and considerations underlying those assessments. Depending on which portion of which witnesses’ testimony and supporting exhibits one chose to accept as valid, the plants’ value is anywhere from zero to about a half billion dollars. The Commission chose to accept depreciated book value as a reasonable value of the property, and that decision was supported by ample competent evidence on the record before it. Simply because AEEC’s witnesses disagree with the valuation at book instead of some other method is not enough for us to disturb the Commission’s findings.
Moreover, we note that the Commission specifically reserved for the future the issue of whether there is some value over and above book value which should accrue to the benefit of AP&L’s customers. Further, the Agreement, as approved with considerable modifications obviously designed to protect ratepayers, contains a “rate cap” provision designed to insure that no harm to AP&L customers, including appellant’s membership, can occur in the form of higher rates because of the sale of the plants to EPI; indeed, we can find no quantifiable risk of harm to appellant or other ratepayers in the record before us.
Finally, AEEC claims this court should reverse the Commission because the settlement was not supported by substantial evidence. Appellant states that “[t]he critical issue is whether it will cost more to hold ISES 2 and Ritchie 2 until needed than to build replacement capacity.” Inasmuch as the answer to the question is a matter of obvious dispute on the record below, we observe that there are probably several correct and supportable solutions, depending on one’s viewpoint. One writer recently articulated an answer to a similar issue as follows:
It depends. It depends on the size of the utility and its power needs; it depends on the rating agencies and how they will gauge buy vs. build decisions; and it depends on state public utility commissions (PUCS). In the final analysis, it depends on a whole host of issues, some of which a company can control, some of which it cannot.
C. Greenberger, “Buy, Build — or Save?” Public Utilities Fortnightly, Vol. 127, No. 9, p. 35 (May 1, 1991).
AEEC vigorously argues that staff witness Westerfield had committed some errors and miscalculations in fuel and maintenance calculations related to the long-term effects of selling ISES 2 and Ritchie 2 and that no reliance whatsoever may therefore be placed on the PSC staff’s recommendation. The PSC counters that, while some errors were made, they were subsequently corrected in supplemental testimony for Phase II, and Wester-field’s analysis still showed that transfer of the units would be beneficial. AP&L points out that the PSC Order itself says that, even if staff had not participated, it would have granted the application based on AP&L’s and AEEC’s evidence alone. Order No. 18 states at page 3697 of the record:
It is possible to review the record in this Docket relying only on the testimony of two parties, AP&L and AEEC. Were we to make our decision on that basis, the Commission would find, as it did in Order No. 17, that AP&L has met the burden of proof that its Application should be granted and that there is substantial evidence of record that the Application of AP&L is in the public interest. Based upon the record in this proceeding without regard to Staffs testimony, it is our opinion that the record reflects that the Application of AP&L should be approved as in the best interest of all of AP&L’s ratepayers.
Appellant, on the other hand, argues that, because Wester-field’s original position contained some errors, the Commission erred in not adopting Falkenberg’s recommendations. It also contends that, because Westerfield and Strode’s testimony did not completely agree, the acceptance of the settlement was not supported by substantial evidence. The PSC staff contends, on the other hand, that AEEC is incorrectly comparing the two witnesses and points out that Westerfield’s testimony went to the costs and effects of transferring the plants versus retaining them, whereas Strode addressed AP&L’s present revenue situation if the plants were included or not included in the revenue requirement calculation. In other words, they argue that the two witnesses’ testimony involved different issues altogether.
Arkansas Code Annotated Section 23-2-423(c)(3), (4), and (5) (1987) defines this court’s scope of review with regard to appeals from the Arkansas Public Service Commission:
(3) The finding of the commission as to the facts, if supported by substantial evidence, shall be conclusive.
(4) The review shall not be extended further than to determine whether the commission’s findings are supported by substantial evidence and whether the commission has regularly pursued its authority, including a determination of whether the order or decision under review violated any right of the petitioner under the laws or Constitution of the United State or of the State of Arkansas.
(5)All evidence before the commission shall be considered by the court regardless of any technical rule which might have rendered the evidence inadmissible if originally offered in the trial of any action at law or inequity.
In Arkansas Oklahoma Gas Corporation v. Arkansas Public Service Commission, 27 Ark. App. 27, 770 S.W.2d 180 (1989), we said:
On appeal, we give due regard to the expertise of the Commission, which derives its authority from the Arkansas General Assembly. City of Fort Smith v. Arkansas Public Service Commission, 278 Ark. 521, 648 S.W.2d 40 (1983). The Arkansas Public Service Commission has broad discretion in exercising its regulatory authority. Associated Natural Gas Co. v. Arkansas Public Service Commission, 25 Ark. App. 115, 752 S.W.2d 766 (1988); Southwestern Bell Telephone Co. v. Arkansas Public Service Commission, 19 Ark. App. 322, 720 S.W.2d 924 (1986); Southwestern Bell Telephone Co. v. Arkansas Public Service Commission, 18 Ark. App. 260, 715 S.W.2d 45 (1986); Walnut Hill Telephone Co. v. Arkansas Public Service Commission, 17 Ark. App. 259, 709 S.W.2d 96 (1986). Judicial inquiry terminates if the action of the Commission is supported by substantial evidence and its action is not unjust, unreasonable, unlawful or discriminatory. Southwestern Bell Telephone Co. v. Arkansas Public Service Commission, 24 Ark. App. 142, 751 S.W.2d 8 (1988). It is the province of the Commission as the trier of fact, to assess the credibility of the witnesses, the reliability of their testimony, and the weight to be accorded the evidence presented. Arkansas Public Service Commission v. Continental Telephone Co., 262 Ark. 821, 561 S.W.2d 645 (1978); Associated Natural Gas Co., supra; General Telephone Company of the Southwest v. Arkansas Public Service Commission, 23 Ark. App. 73, 744 S.W.2d 392 (1988).
27 Ark. App. at 282.
To establish an absence of substantial evidence to support the decision the appellant must demonstrate that the proof before the administrative tribunal was so nearly undis puted that fair-minded men could not reach its conclusion, [citation omitted] . . . [T]he question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made.
Williams v. Scott, 278 Ark. 453, 455, 647 S.W.2d 115, 116 (1983). A decision of an administrative agency may be supported by substantial evidence even though this court might have reached a different conclusion had we heard the case de novo or sat as the trier of fact. Fouch v. State, Alcoholic Beverage Control Division, 10 Ark. App. 139, 662 S.W.2d 181 (1983). We observed in General Telephone Co. of the Southwest v. Ark. Public Service Comm’n, 23 Ark. App. 73, 744 S.W.2d 392 (1988):
As the trier of fact in rate cases, it is within the province of the appellee to decide on the credibility of the witnesses, the reliability of their opinions, and the weight to be given their evidence. The appellee is never compelled to accept the opinion of any witness on any issue before it. The appellee is not bound to accept one or the other of any conflicting views, opinions, or methodologies. Arkansas Public Service Commission v. Continental Telephone Co., 262 Ark. 821, 561 S.W.2d 645 (1978).
General Telephone, 23 Ark.App. at 83.
In American Telegraph & Telephone Co., et al. v. United States, et al., 299 U.S. 232, 236 (1936), the United States Supreme Court said:
This court is not at liberty to substitute its own discretion for that of administrative officers who have kept within the bounds of their administrative powers. To show that these have been exceeded in the field of action here involved, it is not enough that the [administrative action] shall appear to be unwise or burdensome or inferior to another. Error or unwisdom is not equivalent to abuse.
After the hearings, the Commission issued a fifty-five-page order (No. 17), in which it found that, with the return of ISES 2 to AP&L, the company would have a revenue deficiency in excess of $21 million according to Strode’s analysis and in excess of $14 million according to Kennedy. It noted that AEEC took the position, however, that only a general rate case could yield reliable data but observed that the data was based on a cost-of-service study, which is the elementary component of a rate case. The PSC stated: “We find that the evidence of record presented by both Staff and AP&L conclusively supports the proposition that without approval of the Stipulation, AP&L would almost certainly seek and would probably be entitled to a significant rate increase.” The Commission also concluded that the evidence “clearly establishes” that new technology generators would be less costly to ratepayers in net present value terms than retaining ISES 2 and Ritchie 2 should the need to build units arise. The PSC noted that Reagan testified the net present value benefit would be from $33 million to $62 million over the next ten years. The Order said that staff’s analysis verified the results of AP &L’s analysis that the sale of the generators would benefit ratepayers, lowering AP&L’s revenue requirement by nearly $27 million and that the net present value would between $90 million and $107 million. It also found that ISES 2 and Ritchie 2 would not be needed to meet projected current loads for ten to thirteen years. The Commission concluded:
The record in this proceeding clearly and substantially shows that ISES 2 and Ritchie 2 are not currently needed; that the 809 megawatts of capacity represented by those plants will not be needed until at least the year 2000 and probably even beyond; and, that it is substantially more economical to sell those plants now and replace them in the future as opposed to holding them in reserve as urged by AEEC. The evidence in this proceeding clearly shows that the only prudent course of action is to sell these plants and eliminate the financial threat they carry for AP&L’s ratepayers. When additional capacity is needed, ten to fifteen years or more out in the future, more economical alternatives will be available. AP&L’s ratepayers should not be expected or asked to foot the high cost now of plants which they don’t need when more economical alternatives can be exercised in the future.
As noted, the proposed transfer was to be at depreciated book value of about $ 171 million, and some witnesses testified that the SEC requires transfers between subsidiaries of Public Utility holding companies to be accomplished at book. It appears that the rationale for this is to prevent “churning” of assets among sibling corporations owned by a single parent.
Although the parties do not directly address the issue in their briefs, Section 10 of the Public Utility Holding Company Act of 1935, 15 U.S.C. § 79j (1982), has been interpreted to prohibit a sales transaction at profit between affiliates of companies regulated under the Act, with the price of such transactions limited to cost. See e.g., In the Matter of Georgia Power Company, S.E.C. Docket Release No. 23448 (Oct. 10, 1984); sec generally Kripke, A Case Study in the Relationship of Law and Accounting: Uniform Accounts 100.5 and 107 (1944), 57 Harvard L. Rev. 693, 705-708. While the wisdom of requiring corporate books of affiliated corporations to reflect sales transactions among them at cost is obvious, we agree with counsel for appellant’s observation at oral argument that the same is not necessarily true for ratemaking purposes. Indeed, the Commission’s order in this case specifically reserved for future rate cases the matter of whether a “premium” inuring to the AP&L ratepayers’ benefit exists. We think such a reservation is prudent.
The Commission found that market value and book value on Ritchie 2 and ISES 2 did not differ significantly. It specifically found the testimony of Copeland for the PSC staff and Falkenberg for AEEC, whose opinions differed considerably from AP&L’s, to have been “thoroughly discredited” on cross-examination, and rejected a bidding procedure as a means to establish the value of the plants. The Commission specifically stated that, in reaching its decision, it had “taken into consideration the reasonable value” of ISES 2 and Ritchie 2 as required by Ark. Code Ann. § 23-3-102 (1987), and said:
The evidence of record in this proceeding clearly establishes that the sale of ISES 2 and Ritchie 2, even at book value, is more economically beneficial to ratepayers than holding the plants for future use. Other aspects of the Stipulation, unrelated to the sale of ISES 2 and Ritchie 2 discussed hereinafter, further require a finding that approval of the Stipulation, taken in the aggregate, is in the public interest.
AP&L may proceed with the sale of ISES 2 and Ritchie 2 to EPI at book value if it so desires. However, the Commission is not bound, for ratemaking purposes, by the book value transfer of these plants. The issue of whether or not the plants have a fair market value in excess of their book value and whether or not any such premium above book value should be shared with ratepayers is specifically reserved and will be deferred until such time as AP&L files its next general rate case proceeding.
The Order also approved the “rate cap” proposal as in the public interest and specified that (1) EPI would not serve retail or wholesale customers in Arkansas without approval, (2) that EPI would not enter into capacity sales with any Entergy affiliates without Commission approval, (3) reserved the right to inspect and audit EPI’s books, (4) AP&L would retain a right of first refusal to repurchase ISES 2 and Ritchie 2 at depreciated book value should EPI desire to sell those units. The PSC also approved a rate moratorium proposed by AP&L, finding that it provided “significant potential economic benefit” to ratepayers and was in their best interests.
The Order outlines in great detail the proposal to transfer management of the nuclear plants to a management company and specified several complex and highly technical conditions which may be found at pages 37-40 of Order No. 17, appearing in the record at pages 3563-3566. It found that AEEC’s objections to the management change were theoretical and stated that the conditions it imposed adequately addressed those concerns. It therefore approved the management change.
With regard to recovery of excess capacity deferrals, the Order said “AEEC has failed to offer any evidence which would demonstrate that AP&L’s and Staffs projections regarding when the associated excess capacity will become used and useful are either based on unreliable data or unreasonable.” It found that recovery of the deferrals was in the public interest and should be approved. Likewise, it found amortization of investment tax credits to be supported by the testimony and in the public interest and approved that proposal.
In essence, appellant disagrees with the Commission’s acceptance of some testimony and rejection of other testimony, and in support of its position points out to the Court those issues where its witnesses disagreed with what the Commission adopted.
It has often been said that, if an order of the Commission is supported by substantial evidence and is neither unjust, arbitrary, unreasonable, unlawful, or discriminatory, then this court must affirm the Commission action. Walnut Hill Telephone Co. v. Ark. Public Service Commission, 17 Ark. App. 259, 709 S.W.2d 96 (1986); City of Forth Smith, supra; Ark. Power and Light Co. v. Arkansas Public Service Commission, 226 Ark. 225, 289 S.W.2d 668 (1956).
In Williams v. Scott, 278 Ark. 453, 455, 647 S.W.2d 115 (1983), the supreme court said:
To establish an absence of substantial evidence to support the decision the appellant must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded men could not reach its conclusion, [citation omitted] . . .[T]he question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made.
And, the rule is that we view only the evidence most favorable to the appellee in cases presenting questions of substantial evidence. General Telephone Co. v. Arkansas Public Service Commission, 272 Ark. 440, 616 S.W.2d 1 (1981).
In consideration of the above, we simply cannot sustain appellant’s position. As discussed earlier, we have reviewed all of the extensive evidence in this case. In consideration of appellee’s evidence, we cannot find the evidence in support of the agreement to be anything short of substantial.
It is obvious that the various expert witnesses’ approaches to the issues before the Commission diverged considerably. Certainly, not all of them could be correct, and in all probability, none of them are absolutely correct because no one or no system can accurately predict what the future may hold.
Public utility regulation, by its very nature “. . .involves judgment on a myriad of facts,” and “. . .has no claim to an exact science.” Colorado Interstate Gas Co. v. Federal Power Commission, 324 U.S. 581, 589, 65 S.Ct. 829, 89 L.Ed. 1206 (1945); Acme Brick Co. v. Arkansas Public Service Commission, 227 Ark. 436, 450, 299 S.W.2d 208 (1957). The Commission here evaluated the diverse and conflicting predictions and analyses of the many witnesses and found the proposed transaction to be of quantifiable benefit to the ratepayers of AP&L. We cannot, on the record before us, find that the decision is not supported by substantial evidence.
The decision below is affirmed in all respects.
Affirmed.
Cracraft, C.J., and Cooper, J., concur in the result.
The AEEC members participating in this case are: Acme Brick Company, Alumax Aluminum Corporation, Aluminum Company of America, Archer Daniel Midland, Arkansas Aluminum Alloys, Arkansas Chemicals, Inc., Arkansas Lime Company, Berry Petroleum Company, ConAgra Frozen Foods (Batesville), ConAgra Frozen Foods (Russellville), Cross Oil & Refining Company, Ethyl Corporation, Great Lakes Chemical Corporation, Halstead Metal Products, International Paper Company, Lion Oil Company, Producers Rice Mill, Quincy Soybean Company, Razorback Steel, Reynolds Metals Company, Riceland Foods, SMI Steele, Superwood Corporation, Temple Inland Forest Products, Tyson Foods, Inc., U.S. Vanadium Corporation, Viskase Corporation, and Weyerhaeuser Company.
At hearings, EPI had not been formed and AP&L sometimes referred to the proposed company by the name “NEWCO.”
Entergy corporation is organized and operating under the Public Utility Holding Company Act of 1935 and owns all the common stock of four retailing subsidiaries: AP&L, Mississippi Power and Light Co. (MP&L), Louisiana Power and Light Co. (LP&L), and New Orleans Public Service, Inc. (NOPSI), along with all the stock in several related subsidiaries, including EPI.
Although the case was heard in two separate Phases below, some witnesses testified at both Phases, and for purposes of simplicity here, any such testimony is merged for summary.
For an excellent, brief overview of regulatory systems and a discussion of issues similar to those in this case, see Attorney General of the State of New Mexico v. New Mexico Public Service Commission and Public Service Company of New Mexico, 808 P.2d 606 (1991). | [
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John E. Jennings, Judge.
Norris and Etta Lee Guinn were married in 1958 and were divorced by decree of the Saline County Chancery Court on September 25,1989. On appeal to this court, Mrs. Guinn contends that the chancellor erred in holding that the “Timex Major Needs Fund” was not marital property and erred in his disposition of certain funds which had been withdrawn from a joint bank account. We agree with the first point raised and reverse and remand.
Mr. Guinn began working for the Timex Corporation at about the time the parties married. During the marriage Mr. Guinn had accumulated interest in a fund described as a “Major Needs Fund Account.” The fund was non-contributory in the sense that all contributions to it were made by the employer. The employer’s annual contribution was equal to ten percent of the appellee’s base pay. At the time of the divorce appellee’s interest in the fund was $14,546.91. This money was available for Mr. Guinn’s use, at his option, for the following purposes only: (1) purchase of an automobile up to the sum of eighty percent of its price or the limits of the fund account; (2) investment in real estate up to eighty percent of the property’s price or the limits of the fund account; (3) educational needs of Mr. Guinn or his dependents up to the limit of the fund account; and (4) home improvements up to five percent of the base of the employee’s annual salary or the limits of the fund account.
The entire balance of the fund was payable in cash upon the employee’s retirement, layoff, disability, or death. The appellee would become ineligible to withdraw the money in the fund only if he voluntarily quit or was discharged for cause.
In determining that the property was not marital the court said:
[I]t does not appear that that is a vested account that is subject to his receiving it other than if he meets certain criteria.
The testimony is that they have not used it in the past. It is based on the likelihood, only contemporaneously that something may or may not occur.
It is not a vested marital asset with acceptable division. To grant her half interest in the amount would require him to go borrow or to trump up a need to borrow something so he could get money out of the plan. I don’t feel like it is the court’s province to require people to utilize things if they don’t feel it is profitable to do so. I do not find it to be marital.
We cannot agree. In Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), the court held:
[E]arnings or other property acquired by each spouse must be treated as marital property, unless falling within one of the statutory exceptions, and neither one can deprive the other of any interest in such property by putting it temporarily beyond his or her own control, as by the purchase of annuities, participation in a retirement plan, or other device for postponing full enjoyment of the property.”
In Gentry v. Gentry, 282 Ark. 413, 668 S.W.2d 947 (1984), the supreme court said that “marital property means all property acquired by either spouse subsequent to the marriage” (citing Ark Stat. Ann. § 34-1214 (Repl. 1962)) (emphasis in Gentry).
As to the question whether Mr. Guinn’s interest in the major needs fund account was “vested,” his right to the account meets the test approved in Day, i.e., it is “one that cannot be unilaterally terminated by the employer without also terminating the employment relationship.” Day v. Day, 281 Ark. at 267. Finally, the fact that the fund is non-contributory is not controlling. Goode v. Goode, 286 Ark. 463, 692 S.W.2d 757 (1985); Dunn v. Dunn, 35 Ark. App. 89, 811 S.W.2d 336 (1991). We conclude that the appellee’s interest in the major needs fund account was marital property.
Under the circumstances of the case at bar we think it appropriate to remand the case to the trial judge, as the supreme court did in Gentry, supra. The chancellor has at least three options available for the disposition of vested but non-matured retirement interests. Addis v. Addis, 288 Ark. 205, 703 S.W.2d 850 (1986).
Appellant’s second contention concerns a joint bank account. When the parties separated in 1989, Mr. Guinn moved from the marital home and withdrew approximately $5,600.00 from a joint bank account. As of the date of divorce $2,400.00 of these funds remained unspent and the chancellor divided this amount equally between the parties. Mr. Guinn testified that he used the balance of the funds to pay dental bills, rent, security deposits, and start-up expenses for housekeeping. Appellant does not contend that the money was spent otherwise, but insists that the chancellor was required to divide the account balance as of the date it was withdrawn.
Before the money was withdrawn from the account it was held as tenancy by the entirety property and was subject to division under Ark. Code Ann. § 9-12-317 (1987). See Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988). When appellee withdrew the funds they ceased to be a part of the estate by the entireties. See Jackson v. Jackson, 298 Ark. 60, 765 S.W.2d 561 (1989). It is clear, however, that the appellee could not, merely by the act of withdrawing the funds from the joint account, acquire title to the funds as against the appellant. It is true, as appellant contends, that one remedy available in an appropriate case is the imposition of a constructive trust. See e.g., Savage v. McCain, 21 Ark. App. 50, 728 S.W.2d 203 (1987). The chancellor also has authority in equity to order an accounting (See D. Dobbs, Handbook on the Law of Remedies § 4.3 at 252 (1973), and in an appropriate case to offset funds. See Dillard v. Dillard, 28 Ark. App. 217, 772 S.W.2d 355 (1989) (Rogers, J., dissenting). The equitable remedy of a constructive trust, however, is not imposed absent a legal wrong, such as fraud, as suggested in Jackson v. Jackson, 298 Ark. 60, 765 S.W.2d 561 (1989), or overreaching, as in Savage, supra. In the case at bar the chancellor made no finding of fraud or overreaching on the part of the appellee, and we are not persuaded that we should make such a finding on de novo review. Not infrequently parties to a divorce must use marital funds to live from day to day during the pendency of the divorce. Equity must act only when unfair advantage is taken. In the case at bar we cannot say that the chancellor’s decision not to impose a constructive trust or to order an offset was clearly erroneous.
Affirmed in part; reversed and remanded in part.
Danielson and Mayfield, JJ., agree. | [
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Elizabeth W. Danielson, Judge.
AM Credit Corporation appeals from an order of the Polk County Circuit Court denying it a deficiency judgment against appellees. We find no error and affirm.
In March 1986, appellees leased an automobile from Mid-American Motors in Hot Springs, and Mid-American Motors subsequently assigned its rights in the lease agreement to AM Credit Corporation (also known as Chrysler Credit Corporation). In April 1988, the appellees prematurely terminated their lease agreement with the appellant and surrendered possession of the vehicle to Mid-American Motors. Appellees subsequently received written notice from the appellant that a sale of the vehicle would take place on or after the 14th day of April, 1988, at the offices of Chrysler Credit Corporation, 10801 Executive Center Drive, in Little Rock, Arkansas. However, the vehicle was actually sold at a dealer’s-only auction in North Little Rock on May 3, 1988. Appellant then filed suit against the appellees seeking to recover the balance of the debt owed after deducting the proceeds of the sále of the vehicle. The circuit judge found that, because the vehicle was actually sold at a location different from that listed in the notice,' the sale was not commercially reasonable pursuant to the requirements of Ark. Code Ann. § 4-9-504(3) (1987). He therefore denied appellant’s claim for a deficiency judgment.
It was not disputed at trial that the disposition of the collateral in question was made at a location different from the one listed in the notice to the appellees and at a time unknown to appellees. The record does not reflect that there was any attempt made to notify appellees of the location and date of the auction. Appellant maintains, however, that, because the sale of the vehicle was by “private sale,” it was not necessary to inform appellees of the location of the sale and the notice sent complied with section 4-9-504(3), which provides in pertinent part:
Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale.
The distinction between the notice requirement of a private sale and public sale was recognized by the Arkansas Supreme Court in Barker v. Horn, 245 Ark. 315, 316, 432 S.W.2d 21, 22 (1968), where the court stated that, although the statute requires notice of the time and place of public sale, only reasonable notification of the time after which a private sale will be made is required.
Based on the record, there is no evidence to support the appellant’s contention that appellees were notified that the disposition was to be by private sale and not public sale. The notice itself was not introduced into evidence, and Kay Kusenberger, an employee of AM Credit Corporation testified she did not know whether the notice provided for “public” or “private” sale. The appellate court will not consider arguments based on matters not contained in the record or reverse a trial judge on facts outside the record. See Gen. Electric Credit Auto Lease, Inc. v. Paty, 29 Ark. App. 30, 32, 776 S.W.2d 829, 831 (1989). Even if we assume without deciding that a dealers-only auction is a private sale, appellant’s argument still must fail as appellant has not shown that appellees were notified that the disposition would be by private sale.
“When the code provisions have delineated the guidelines and procedures governing statutorily created liability, then those requirements must be consistently adhered to when that liability is determined.” First Nat’l Bank of Wynne v. Hess, 23 Ark. App. 129, 134, 743 S.W.2d 825, 827 (1988), quoting First State Bank of Morrilton v. Hallett, 291 Ark. 37, 41, 722 S.W.2d 555, 557 (1986). “If the secured creditor wishes a deficiency judgment he must obey the law. If he does not obey the law, he may not have his deficiency judgment.” First State Bank of Morrilton, 291 Ark. at 41, 722 S.W.2d at 557, quoting Atlas Thrift Co. v. Horan, 27 Cal. App. 3d 999, 104 Cal. Rptr. 315, 321 (1972).
We agree with the circuit judge that this notice was not in compliance with the requirements of Ark. Code Ann. § 4-9-504(3) (1987). The appellant is therefore barred from obtaining a deficiency judgment against the appellees.
Affirmed.
Jennings and Mayfield, JJ., agree. | [
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James R. Cooper, Judge.
The appellant was convicted in a jury trial of theft of property and contributing to the delinquency of a minor. He was sentenced to eight years in the Arkansas Department of Correction for theft of property and sentenced to one year in jail and fined $1,000.00 for contributing to the delinquency of a minor. On appeal, he argues that the trial court erred in admitting evidence of a prior arrest, that the trial court erred in denying his motion for a directed verdict, and that the trial court committed reversible error by admitting hearsay testimony. We affirm.
Initially, the State asserts that the appellant received an illegal sentence because the judgment and commitment order does not reflect that the appellant’s sentences are to be served concurrendy. However, we will not consider the issue of an illegal sentence on appeal unless the appellant has raised it. See Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995).
Although the appellant challenges the denial of his motion for a directed verdict his second argument, preservation of the appellant’s right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of trial errors. Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994). The appellant contends that the trial court erred in denying his motion for a directed verdict on the theft of property charge or in reducing the charge to a misdemeanor because the State failed to prove that the stolen property had a value of more than $200.00. The appellant contends that the State’s witness lacked personal knowledge of the value of the merchandise on the date of the theft or at a reasonable time thereafter.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). In reviewing the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the State and affirm if the verdict is supported by substantial evidence. LaRue v. State, 34 Ark. App. 131, 806 S.W.2d 35 (1991). Substantial evidence is evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resort to speculation or conjecture. Kendrick v. State, 37 Ark. App. 95, 823 S.W.2d 931 (1992).
Theft of property is a Class C felony if the value of the property is less than $2,500.00 but more than $200.00. Ark. Code Ann. § 5-36-103(b)(2)(A) (Repl. 1993). “Value” is defined as the market value of the property 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(ll)(A)(i) & (ii) (Repl. 1993). The State has the burden of establishing the value of the property. Coley v. State, 302 Ark. 526, 790 S.W.2d 899 (1990). Value may be sufficiendy established by circumstances which clearly show a value in excess of the statutory requirement. Id. It is the owner’s present interest in the property that the law seeks to protect. Hardrick v. State, 47 Ark. App. 105, 885 S.W.2d 910 (1994). In determining market value, the fact finder may consider when the owner purchased the property and at what price as well as the present cost to replace the property. Id.
Debra Young testified that she was employed at Wal-Mart as a UPC (Universal Product Code) clerk. She testified that her duties included checking merchandise prices by conducting a computer inquiry using the merchandise UPC numbers. The computer information reflected the wholesale cost, retail price, and vendor of the merchandise. It also reflected if the merchandise was replenishable and if it was on clearance. She testified that the list of information she obtained from the computer gave the current retail price of the Wal-Mart merchandise. She further testified that the prices had changed or had been reduced since the time of the theft. She did not, however, testify to what the retail prices were at the time of the theft but she did testify to the wholesale price Wal-Mart paid for each piece of merchandise which totaled approximately $239.00.
Thus, Ms. Young testified that she knew the value of the items and that it was part of her job to be familiar with the cost and retail price of the items through the records in Wal-Mart’s computer system. See Lee v. State, 264 Ark. 384, 571 S.W.2d 603 (1978); Williams v. State, 29 Ark. App. 61, 781 S.W.2d 37 (1989). Although she did not testify specifically to the retail price of the merchandise at the time of the offense, she did testify to the value of the merchandise based on the cost of the items to Wal-Mart. Thus, we find the evidence sufficient to establish the value of the property and therefore, sufficient to support the appellant’s conviction.
The appellant next contends the trial court erred in admitting evidence of his prior arrest in a Wal-Mart store because the prior arrest lacked independent relevance and because the prejudicial effect of the prior arrest substantially outweighed its probative value. The evidence at trial revealed that the appellant and a seven-year-old girl entered a Wal-Mart store in Jacksonville, Arkansas, on April 5, 1994. The appellant placed Wal-Mart merchandise in a bag that he had hidden on his person, gave the bag of merchandise to the girl and instructed her to take it to the car without paying for it. The State presented further evidence that the appellant had committed a similar act in a Wal-Mart store in December of 1993 involving a fourteen-year-old boy.
Rule 404(b) of the Arkansas Rules of Evidence provides:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
In order for evidence to be admissible under this Rule, it must be independendy relevant and its probative value must not be substantially outweighed by the danger of unfair prejudice. Kennedy v. State, 49 Ark. App. 20, 894 S.W.2d 952 (1995). The admission or rejection of evidence under Rule 404(b) is left to the sound discre tion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion. Id. Evidence of a crime other than the one charged may be admitted to show that the appellant committed the crime charged where both crimes followed the same unique method of operation. Thrash v. State, 291 Ark. 575, 726 S.W.2d 283 (1987). Rule 404(b) does not mention modus operandi as one of the bases for introducing evidence of other crimes; however, the list of exceptions to inadmissibility contained in the rule is not an exclusive list but rather represents examples of the types of circumstances where evidence of other crimes or wrongs would be relevant and admissible. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994); Thrash v. State, supra.
The appellant used the same mode of operation in the case at bar as he did in the previous incident. In both incidents the appellant entered a Wal-Mart store with a bag concealed on his person, placed merchandise in the bag, handed the bag to a juvenile and directed the juvenile to leave the store without paying for the merchandise. Thus, the evidence was relevant to show a unique method of operation as well as the appellant’s intent, preparation, plan, and absence of mistake or accident in committing the theft and contributing to the delinquency of the minor. We also cannot find that the trial court abused its discretion in determining that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice particularly in view of the fact that the appellant failed to request a limiting instruction. Although the appellant was entitled to a cautionary instruction limiting the use of the evidence of his prior crime, he failed to ask for such an instruction and thus, cannot now claim error on appeal. Lindsey v. State, supra; White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).
The appellant also argues that Ms. Young’s testimony concerning the wholesale prices of the Wal-Mart merchandise was inadmissible hearsay. The appellant made a hearsay objection below when Ms. Young attempted to testify to a price that was listed on a price tag attached to one of the stolen items. The trial court sustained the objection but ruled that Ms. Young could testify to the current wholesale prices of the merchandise. Ms. Young then testified to the wholesale prices of the merchandise using the computer generated UPC list. The appellant did not make a specific hearsay objection to that testimony. In order to preserve an issue for appellate review, the objection below must be specific enough to apprise the trial court of the particular error about which the appellant complains. Hooper v. State, 311 Ark. 154, 842 S.W.2d 850 (1992). Thus, the appellant failed to preserve this argument for appeal.
Affirmed.
Mayfield and Stroud, JJ., agree. | [
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JOHN B. Robbins, Judge.
Appellant Harold Lee Foxx sustained a compensable back injury while working for appellee American Transportation in April 1993. American Transportation paid certain benefits, but controverted Mr. Foxx’s claim that he had suffered a 5% permanent impairment as a result of his injury. Mr. Foxx filed a claim with the Workers’ Compensation Commission, and the Commission ruled that Mr. Foxx failed to prove the alleged 5% impairment. Mr. Foxx now appeals, arguing that the Commission’s decision is not supported by substantial evidence. In addition, Mr. Foxx contends that the Commission erred as a matter of law when it relied upon wage-loss disability factors in denying his permanent anatomical impairment rating.
When reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if supported by substantial evidence. Welch’s Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). A decision by the Workers’ Compensation Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983).
The evidence in this case shows that Mr. Foxx sustained a knee injury while working for American Transportation on March 15, 1993. Mr. Foxx returned to work and, on April 23, 1993, injured his lower back. When asked how this injury occurred, Mr. Foxx replied, “[pjossibly bending and stooping, favoring my left knee, the doctors say I pulled the muscles in the left side of my back.” He subsequently received medical treatment from Drs. Gil Johnson, Earl Peeples, and Robert McCarron.
Dr. Johnson treated Mr. Foxx four days after his back injury, and indicated that straight leg tests and x-rays were negative. Dr. Johnson diagnosed a lumbar strain, and Mr. Foxx was then attended by Dr. Peeples. Dr. Peeples saw Mr. Foxx in May 1993 and found no definite abnormality. He ultimately determined that Mr. Foxx’s healing period ended on June 7, 1993, and rendered the following opinion:
I do not anticipate the patient would have any permanent impairment of function related to his injury. I do not anticipate any further medical expenses related to his problem.
Dr. McCarron treated Mr. Foxx next, and noted that Mr. Foxx essentially had a normal examination. However, due to urinary symptoms and scrotal pain, Dr. McCarron ordered an MRI which was performed in late June or early July 1993. The MRI revealed a herniated disc at L4-5, and on September 24, 1993, Dr. McCarron estimated a 5% impairment to his body as a whole. It is on this opinion that Mr. Foxx primarily relies.
In addition to the medical evidence, the Commission considered evidence prepared by private investigator Kenneth Jones. Mr. Jones investigated Mr. Foxx from July 17, 1993, until July 30, 1993. During this time, Mr. Jones prepared a video tape and observed Mr. Foxx operating a mowing service. According to Mr. Jones, he saw Mr. Foxx lift heavy objects, bend down, and run without exhibiting any symptoms of pain or disability. Mr. Foxx was also seen moving a very heavy mower from one location to another. There was further evidence that, during this time, Mr. Foxx was operating a cleaning service which entailed cleaning offices.
In finding that Mr. Foxx failed to prove a 5% permanent anatomical or functional impairment, the Commission weighed the medical evidence along with other evidence of Mr. Foxx’s physical capabilities. Although Dr. McCarron assigned a 5% impairment rating, Dr. Johnson failed to assign a rating and Dr. Peeples opined that Mr. Foxx’s healing period had ended and that he suffered no permanent functional impairment. The resolution of conflicting medical evidence is a question of fact to be determined by the Commission. Brantley v. Tyson Foods, Inc., 48 Ark. App. 27, 888 S.W.2d 543 (1994). In addition to the conflicting medical evidence, the Commission relied on the fact that Mr. Foxx was capable of engaging in relatively heavy labor activities. However, as Mr. Foxx points out, the issue presented to the Commission was whether Mr. Foxx had suffered an anatomical impairment, not whether he had suffered a wage-loss disability. We held in Second Injury Fund v. Fraser-Owens, 17 Ark. App. 58, 702 S.W.2d 828 (1986), that “ ‘anatomical impairment’ means the anatomical loss as reflected by the common usage of medical impairment ratings.” See Second Injury Fund v. Yarbrough, 19 Ark. App. 354, 721 S.W.2d 686 (1986). The bases for these medical impairment ratings are found generally in Guides to the Evaluation of Permanent Impairment (3d ed. 1988) published by the American Medical Association. In the introduction to chapter one of this publication, the following definition is found:
The accurate and proper use of medical information to assess impairment depends on the recognition that, whereas impairment is a medical matter, disability arises out of the interaction between impairment and external demands, especially those of an individual’s occupation. As used in the Guides, “impairment” means an alteration of an individual’s health status that is assessed by medical means, “disability,” which is assessed by nonmedical means, is an alteration of an individual’s capacity to meet personal, social, or occupational demands or statutory or regulatory requirements. (Emphasis in original.)
Clearly, the Commission considered Mr. Foxx’s capacity to perform strenuous occupational demands in deciding whether he suffered an anatomical impairment. Its opinion included the following:
Despite all claimant’s continued complaints of pain and unknown to his healthcare providers, claimant was working for respondent and ran a cleaning business and lawn care business. Claimant did the cleaning and the yard work himself. He had apparendy began these operations while he was off work for the carpal tunnel syndrome. He continued to work after the knee and back difficulties. In fact, claimant’s tax return[s] indicate that his cleaning service grossed over $30,000 in 1993.
The evidence shows that claimant was working on lawns with a lawn mower that weighs between 200 and 300 pounds. A videotape illustrates that claimant was quite mobile. He was able to move the lawn mower in and out of a trailer without significant difficulties. There were many other activities on the videotape which indicate that claimant was able to run, jump and actively work.
The preponderance of the evidence does not establish that claimant is entitled to any benefits, even the contingent 5% disability benefits. The Administrative Law Judge apparently relied primarily upon medical reports. However, the videotape indicates that claimant was able to participate in gainful employment at 100% capacity.
Claimant was able to lift mowers and perform many other activities. Therefore, claimant has failed to prove by a preponderance of the credible evidence that he has any impairment. Therefore, we find that respondent should not be Hable for a 5% disability rating. When the medical reports, specifically Dr. McCarron’s assessment, is weighed against the preponderance of the credible evidence, it is clear that claimant has not sustained a 5% disability rating.
While these evidentiary findings would be highly relevant and appropriate in determining wage-loss disability, wage-loss disability was not an issue. However, the Commission held that, because Mr. Foxx “was able to participate in gainful employment at 100%,” he was not entitled to any benefits.
We agree with Mr. Foxx that the Commission has blurred the distinction between anatomical impairment and wage-loss. The landmark case of Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961), involved a decision of the Commission which held that evidence other than clinical findings could not be considered to arrive at a rating for permanent partial disability. The supreme court reversed and remanded because disability in excess of anatomical impairment was sought. See also Ray v. Shelmutt Nursing Home, 246 Ark. 575, 439 S.W.2d 41 (1969). Here, disability (wage-loss) in excess of anatomical impairment has never been sought by Mr. Foxx.
While we do not hold that nonmedical proof is wholly irrelevant to the issue of anatomical impairment, the Commission may not arbitrarily disregard a physician’s opinion (Wade v. Mr. C. Cavenaugh’s, 25 Ark. App. 237, 756 S.W.2d 923 (1988)), especially when based on objective and measurable findings. Though the opinions of the medical experts conflicted, Dr. McCarron had the benefit of an item of objective medical proof that Dr. Johnson and Dr. Peeples did not. Dr. McCarron reported that an MRI was performed which revealed a herniated disc. The Commission may not have believed Dr. McCarron, or it may have believed that the herniated disc was not caused by the compensable injury, but, if so, it should have said as much.
We remand this proceeding to the Commission for it to make some finding regarding Dr. McCarron’s report and the MRI which reflected a herniated disc.
Reversed and remanded.
Jennings, C.J., Mayfield, and Neal, JJ., agree.
Pittman and Rogers, JJ., dissent. | [
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JAMES R. Cooper, Judge.
The appellant in this workers’ compensation case sustained a scheduled injury resulting in 10% impairment to his left arm. He filed a workers’ compensation claim seeking benefits for permanent total disability. In addition, he argued that the denial of wage-loss benefits in scheduled injury cases where less than total disability is sustained is an unconstitutional denial of equal protection. The Commission found that the appellant failed to prove that he was permanendy and totally disabled, but did not rule on the constitutional issue. From that decision, comes this appeal.
For reversal, the appellant contends that the denial of wage-loss benefits in scheduled injury cases is violative of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. We remand for the Commission to consider the constitutional issue raised by the appellant.
We have consistendy held that constitutional issues must be raised before the Commission in order to preserve them for appeal to this Court. See, e.g., Shaw v. Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991); Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989); International Paper Co. v. McBride, 12 Ark. App. 400, 678 S.W.2d 375 (1984). The cases have not, however, been consistent with regard to the Commission’s authority and duty to decide such constitutional issues. In International Paper Co. v. McBride, supra, we decided the constitutional question although the Commission had declined to rule on the issue when it was raised before them. In Quinn v. Webb Wheel, 52 Ark. App. 208, 915 S.W.2d 740 (1996), we held that it was necessary to obtain a ruling on the constitutional issue from the Commission in order to preserve the question for appellate review.
We think it important to clarify, for the benefit of the Commission and the bar, the manner in which constitutional issues are to be preserved for review by this Court. We have observed that constitutional issues which have been raised before but not decided by the Commission are often presented to us in an unfocused state, devoid of the factual development necessary for decision. Consequently, we hold that the Commission is required to rule on constitutional questions that are properly before it.
This procedure was tacitly approved by the Arkansas Supreme Court in Hamilton v. Jeffrey Stone Co., 293 Ark. 499, 739 S.W.2d 161 (1987). We believe that requiring the Commission to decide constitutional issues will ensure that the Commission takes a “hard look” at the question, thereby giving us the benefit of its experience and expertise. See Sierra Club v. Robertson, 784 F.Supp. 593 (W.D. Ark. 1991), aff’d 28 F.3d 753 (8th Cir. 1994). Such a requirement would also serve the important purpose of presenting us with fact-findings sufficient to permit the constitutional issues to be decided. This will prevent many needless remands, in keeping with our policy of discouraging piecemeal appeals in workers’ compensation case. See, e.g., Baldor Electric Co. v. Jones, 29 Ark. App. 80, 777 S.W.2d 586 (1979).
Because of the inconsistencies in our prior decisions regarding the need to obtain a ruling from the Commission in order to preserve a constitutional issue for appeal, we think it would be unduly harsh to impose our ruling retrospectively. Therefore, we do not affirm for lack of a ruling, but instead we remand to the Commission for such further proceedings as it deems necessary consistent with this opinion.
Remanded.
Pittman, Mayfield, Stroud, and Griffen, JJ„ agree.
ROBBINS, J., concurs in the result. | [
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Judith Rogers, Judge.
Appellant was convicted by a jury of four counts of theft of property and sentenced to twelve years. On appeal, appellant argues that the trial court erred in denying his motion to dismiss. We disagree and affirm.
On November 4, 1993, appellant and his accountant, Glen Reed, were indicted by a federal grand jury charging them with multiple counts of mail fraud, one count of wire fraud, obstruction of justice, theft, and two counts of money laundering. Appellant was acquitted of all charges. At Mr. Reed’s trial, appellant testified against Reed and in doing so incriminated himself. Two months later, the State of Arkansas charged appellant with four counts of theft. Appellant filed a pretrial motion to dismiss arguing that he was granted “use immunity” when he testified against his accountant; and therefore, he could not be prosecuted based on any testimony derived from that previous proceeding. Appellant asserted that the state did not have any evidence outside of the immunized testimony to charge him with theft. The trial court denied appellant’s motion.
On appeal, appellant argues that the trial court erred in denying his motion to dismiss based on the finding that no immunity was granted. We disagree.
The burden of proving an agreement granting immunity and appellant’s compliance with it rested upon appellant. Young v. State, 316 Ark. 225, 871 S.W.2d 225 (1994). The determination of whether an agreement was reached granting immunity is a question .of fact. And the trial court’s decision will not be reversed unless clearly against the preponderance of the evidence. Riddling v. State, 19 Ark. App. 231, 719 S.W.2d 1 (1986).
Title 18 of the United States Code, sections 6002 and 6003(a) provide:
§ 6002. Immunity generally
Whenever a witness refuses on the basis of his privilege against self-incrimination, to testify or provide other information in proceeding before or ancillary to-
(1) a court or grand jury of the United States,
(2) an agency of the United States, or
(3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House,
and the person presiding over the proceeding communicates to the witness an order issued under this tide, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or an information direcdy or indirecdy derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.
§ 6003. Court and grand jury proceedings
(a) In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a court of the United States or a grand jury of the United States, the United States district court for the judicial district in which the proceeding is or may be held shall issue, in accordance with subsection (b) of this section, upon the request of the United States attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this tide.
As developed in the context of formal grants of immunity, transactional immunity accords full protection from prosecution for the offense to which the immunized testimony relates. Use immunity is more limited: it prohibits the use, in a criminal prose cution, of any evidence derived directly or indirecdy from the information provided to the government. U.S. v. Harvey, 900 F.2d 1253 (8th Cir. 1990).
In this case, it is clear that appellant was not granted immunity under 18 U.S.C. §§ 6002 and 6003; in fact, we agree with the trial court’s ruling that appellant has failed to prove that he had an agreement granting any type of immunity.
Appellant’s attorney, Jim Rose III, testified that appellant had been placed under subpoena by the U.S. Attorney to testify for the government in the trial of appellant’s accountant. Mr. Rose stated that he advised appellant not to testify in the other trial but to assert his Fifth Amendment rights. Mr. Rose continued that he advised U.S. Attorney P.K. Holmes over the phone that appellant was going to assert his Fifth Amendment privilege unless granted “full immunity.” Mr. Rose said that the next morning Mr. Holmes offered appellant “use immunity.” According to Mr. Rose, he advised appellant to take this immunity and testify. Mr. Rose testified that appellant accepted the “use immunity” offered by Mr. Holmes.
Mr. Holmes testified, however, that he did not recall having any discussion with Mr. Rose about full immunity over the telephone. He did recall speaking with Mr. Rose the afternoon before the trial about full immunity, but said he rejected the request because he was not about to immunize appellant for something “he had no knowledge of.” Mr. Holmes stated that he did recall telling Mr. Rose that he had no intention of prosecuting appellant on anything that arose out of the trial testimony. Mr. Holmes testified that he had absolutely no recollection of telling Mr. Rose that he was going to give appellant “use immunity”.
Claude Hawkins, co-counsel with Mr. Holmes, testified that he had no understanding that appellant was testifying under a grant of any type of immunity.
Mark Grisham, with the FBI, testified that he was involved in the Glen Reed trial and was present during conversations that Mr. Holmes, Mr. Rose and appellant had prior to appellant’s testimony. He said that he had no knowledge of immunity and was not aware that- appellant was testifying with immunity.
Judge Franklin Waters, the judge presiding over the Reed trial, was interviewed and stated that he was not aware that appellant was testifying under any type of immunity when he testified in the Reed case. Judge Waters also submitted an affidavit in which he noted that he did not issue an order granting appellant “use immunity” pursuant to 18 USC § 6002 to compel his testimony.
The trial court found:
There was never a meeting of the minds in the Court’s judgment. The Court is not ruhng that there was a Waiver. The Court’s ruling is simply there was never any agreement between Mr. Maglothin and the United States Government to immunize his testimony.
Based on the conflicting evidence in the record, we cannot say that the trial court’s decision is clearly against the preponderance of the evidence.
Affirmed.
Robbins and Neal, JJ„ agree. | [
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JOHN F. Stroud, Jr., Judge.
On June 23, 1992, JoAnn Caldarera suffered a knee injury in the poultry processing plant where she worked. She received initial medical treatment through the company physician, but eventually surgery was required. The employer, Pilgrims Pride, contested her claim for workers’ compensation benefits. The administrative law judge found the claim compensable and found that she was entided to temporary total disability benefits from September 1 through November 9, 1992, as well as reasonably necessary medical expenses related to the injury. After conducting a de novo review, the Workers’ Compensation Commission affirmed and adopted the decision of the law judge. Pilgrims Pride now appeals, contending that the Commission erred in finding that Ms. Caldarera was injured during the course of her employment. We affirm.
A challenge to the Commission’s findings constitutes a challenge to the sufficiency of the evidence to sustain the finding. City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987). In determining the sufficiency of the evidence to sustain the Commission’s factual findings, we review the evidence in the light most favorable to those findings, and we must affirm if there is any substantial evidence to support them. Id. We may reverse the Commission’s findings only when we are convinced that fair-minded people with the same facts before them could not have arrived at the conclusion reached by the Commission. Id. It is the function of the Commission to draw inferences when testimony is open to more than one interpretation, and when it does, its findings have the force and effect of a jury verdict. Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979). Determinations of the weight and credibility of the evidence are exclusively within the province of the Commission. George W. Jackson Mental Health Ctr. v. Lambie, 49 Ark. App. 139, 898 S.W.2d 479 (1995).
Both the claimant and her son testified at the hearing before the administrative law judge. Their testimony reveals that, immediately before the injury, the claimant was working at her station on the lower floor of the plant, and her son was working on a suspended catwalk above the floor. He was working alone on the chicken-wing machine, which usually was operated by more than one employee. When he could not keep up with the machine, chicken wings began “flying everywhere,” and he “hollered for help.” The wings hit workers below, including a female co-worker who accused him of throwing them at her. The two exchanged heated words. He said, “You bitch, get up here and help me.” She ran up onto the catwalk, swinging her arms, and began hitting him. He put a hand in front of his glasses as her blows approached his face. A crowd gathered to watch, but neither security nor supervisory personnel came, and no one tried to stop the altercation.
The claimant testified that she was doing her job at the chicken-thigh machine on the main floor when this action took place on the catwalk. She saw her son’s face redden just before he “reared his fist back like he was going to get her.” The claimant screamed, “Don’t hit her!” She stated that she left her machine and hurried to the catwalk to see if she could separate them. Her knee injury occurred when she slipped in her wet shoes on a metal step of the catwalk.
A claimant seeking benefits must prove by a preponderance of the evidence that the injury arose out of and in the course of the employment. Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993). “Arising out of the employment” refers to the origin or cause of the accident while the phrase “in the course of the employment” refers to the time, place, and circumstances under which the injury occurred. Id. The test for the course of employment requires that the injury occur within the time and space boundaries of the employment, while the employee is carrying out the employer’s purpose or advancing the employer’s interests directly or indirectly. Id. (citations omitted) (emphasis added).
Appellant challenges the -finding of compensability, relying upon San Antonio Shoes v. Beaty, 28 Ark. App. 201, 771 S.W.2d 802 (1989), for the proposition that injuries are not compensable when a workplace assault arises out of purely personal reasons. Appellant contends that appellee left her station to pursue an endeavor that was strictly personal and that appellee’s actions were not in furtherance of her responsibilities to her employer.
The Commission found that the decision of the administrative law judge was supported by a preponderance of the credible evidence and correcdy applied the law. Its opinion included the following conclusions:
While Ms. Caldarera’s movement toward the fight area was not striedy “in furtherance of her employer’s business,” she was certainly acting in the employer’s best interest in trying to stop a fight in which far more grave injuries might have been incurred. . . .
Here appellee testified that she was hurrying to the catwalk to see if she could separate her son and his co-worker, and she stated that she probably would have made efforts to stop the fight even if her son had not been involved. We believe that reasonable minds could reach the Commission’s conclusion that appellee’s actions were not personal and that she was acting in her employer’s best interest when she approached the catwalk and hit her knee. We therefore hold that substantial evidence supports the Commission’s finding that appellee sustained a compensable injury.
Affirmed.
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JOHN B. Robbins, Judge.
Appellant Southern Steel & Wire appeals from a portion of the decision of the Workers’ Compensation Commission which held that the appellee Debra Kahler was entitled to wage-loss disability. Appellant contends on appeal that the Commission erred in awarding the appellee wage-loss benefits, arguing that the Commission’s holding that appellee was not barred from recovering wage loss under Ark. Code Ann. § ll-9-522(c)(2) for misconduct is not supported by substantial evidence. We affirm.
On appeal in workers’ compensation cases, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if those findings are supported by substantial evidence. Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. ITT/Higbie Mfg. v. Gilliam, 34 Ark. App. 154, 807 S.W.2d 44 (1991).
The evidence before the Commission showed that the appel-lee sustained an admittedly compensable injury to her upper arm and shoulder on February 13, 1993, when she was working for appellant. Appellee was paid appropriate temporary total disability benefits and medical benefits. Appellee was also paid for a permanent anatomical impairment rating to her upper extremity.
Testimony indicated that appellee continued to work for the appellant after her injury, but was “off and on” during her treatment by Dr. Alberty. Testimony further indicated that appellee performed various duties for appellant after her final release from treatment, but she testified that she had difficulties with certain positions to which she was assigned. The appellee was terminated by appellant on October 9, 1993, for what the appellant claimed was excessive absenteeism.
Appellant controverted any responsibility for the payment of wage-loss disability because appellee had returned to work making the same or higher wages as before her injury. Appellant contended that because appellee was discharged for what appellant considered misconduct due to excessive absenteeism, she was not entitled to wage-loss benefits. Relying on Ark. Code Ann. § ll-9-522(c)(2), appellant argues on appeal that since appellee was discharged for misconduct, she is not entitled to wage-loss disability.
Arkansas Code Annotated section ll-9-522(c) (1987) provides:
(c)(1) The employer or his workers’ compensation insurance carrier shall have the burden of proving the employee’s employment, or the employee’s receipt of a bona fide offer to be employed, at wages equal to or greater than his average weekly wage at the time of the accident.
(2) Included in the stated intent of this section is to enable an employer to reduce or diminish payments of benefits for a functional disability, disability in excess of permanent physical impairment, which, in.fact, no longer exists, or exists because of discharge for misconduct in connection with the work, or because the employee left his work voluntarily and without good cause connected with the work.
The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). In Keller v. L.A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992), this court stated that it was the employer’s burden to prove that the employee was discharged for misconduct connected to the work. Misconduct has been defined in Employment Security Division cases as meaning more than mere inefficiency or unsatisfactory conduct; it is some act of wanton or willful disregard for the employer’s interest, a deliberate violation of the employer’s rules, or a disregard of the standard of behavior that the employer has a right to expect of his employees. Baker v. Director, 39 Ark. App. 5, 832 S.W.2d 864 (1992).
The evidence indicated that the appellant’s personnel policy provides for termination after nine occurrences. Appellee testified that she was unable to perform various duties she was assigned by appellant because of pain in her shoulder and arms due to her compensable injury. Appellee testified that approximately half of her absences were attributable to personal sickness and problems with her children and the other half of the absences were attributable to physical difficulties resulting from her compensable injury.
The Commission, which adopted the administrative law judge’s opinion, found that the appellee was a credible witness and that her testimony about her absences was accurate. The Commission found that if the appellee’s “discharge was for excessive absenteeism not occasioned by the effects of her compensable injuries, it could constitute a ‘discharge for misconduct in connection with the work.’ ” However, the Commission went on to hold that, “If her termination was based (even in part) on absenteeism necessitated by the effects of her compensable injuries, it is [our] opinion that it would not be sufficient to constitute a ‘discharge for misconduct in connection with the work.’ ” The Commission found it was peculiar that the appellee was able to maintain her employment with the appellant for six-and-one-half years and then be terminated for excessive absenteeism less than two months after a final release from her doctor’s care. The Commission held that the appellant presented insufficient evidence that the appellee was discharged for misconduct in connection with the work and that she was not precluded from receiving wage-loss benefits.
The Commission found that the appellee was physically restricted in the types of employment she could perform. Appellee was not a high school graduate but was working on her GED at the time of the hearing before the administrative law judge. The Commission found that appellee was well motivated to continue working and that she had sought employment elsewhere. The Commission also found that appellee was pursuing rehabilitation on her own to obtain training in the areas of employment more suited for her current physical restrictions.
The Commission has the duty of weighing the medical evidence as it does any other evidence, and, if the evidence is conflicting, the resolution of the conflict is a question of fact for the Commission. Mack v. Tyson Foods, Inc., 28 Ark. App. 229, 771 S.W.2d 794 (1989). Because the Commission found that the appellee was a credible witness and her absences were in part due to her compensable injury, the Commission’s finding that the appellee was not properly discharged for misconduct in connection with the work is supported by substantial evidence.
Affirmed.
Mayfield and Griffen, JJ., agree. | [
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Melvin Mayfield, Judge.
Appellant Donald Wayne Boyd was found guilty by a jury of aggravated robbery and theft of property. His only argument on appeal is that the evidence was insufficient to convict him of aggravated robbery.
In resolving the question of the sufficiency of the evidence in a criminal case, we view the evidence in the light most favorable to the appellee and affirm if there is substantial evidence to support the decision of the trier of fact. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty and precision, compel a conclusion one way or the other, without resorting to speculation or conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 ( 1989); Ryan, supra.
At trial, Johnny Ray Johnson testified that on May 4, 1994, between 3:45 and 4:00 a.m., he woke up to see his car backing out of the driveway. He said he went out on the front porch and yelled, “Hey, where are you going with my car?” He then heard a shot, which he thought was directed at him, and he ran back into the house. Johnson said it was too dark for him to see how many people were in the car, and he could not determine whether they were black or white, male or female.
After the car left, Mr. Johnson went across the street to his mother’s house. She had heard the shot and had seen the commotion. They got into her car and went looking for his car. They came upon some police officers and reported that the car had been stolen. Johnson described his car as a black, four door, 1986 Fleetwood Cadillac, with the right headlight broken out, and the license number OYT-517. Johnson said he bought the car in early 1992 for about $9,000. He said it was in excellent condition except for the broken headlight. Johnson also testified that the car was not for sale, but he had been offered as much as $3,500 for it. Later, the police called him and said they had located his car; however, it was demolished.
Lucille Robinson, Johnson’s mother, corroborated his testimony. She testified that she had got up about 4:00 a.m. to go to the bathroom and heard a shot. She looked out the window and saw her son’s car back out of his driveway, hit the opposite curb, go forward and hit the other curb, and drive off. She said she knew her son was not driving like that, and she saw him on his front porch. They then went to look for the car and reported the theft to police.
Detective Chris Oldham, a Little Rock police officer, testified that he heard a police broadcast about the stolen car at approxi mately 4:00 a.m., and he saw the car coming toward him shortly thereafter. He described a high-speed chase through the eastern section of Little Rock in which the stolen vehicle ran a red light and a stop sign. The chase ended when the driver lost control of the vehicle and slammed into a telephone pole. The officer testified that as he approached the vehicle, a black handgun was thrown from the driver’s side into the field adjacent to the telephone pole. According to Detective Oldham, the driver had a cut on his forehead but was talking and alert, and appeared to be in good condition. He got the driver out of the vehicle, handcuffed him, and placed him in a police car to be transported to the police station. He then retrieved the gun, which was a .45-caliber automatic weapon with two rounds in the clip and one in the chamber. Detective Oldham identified the appellant as the driver of the stolen car.
Detective Marty Garrison testified that he came into contact with appellant when he was brought to the Litde Rock police station in the early morning hours of May 4, 1994. Garrison said he advised appellant of his Miranda rights and got the impression that appellant understood them, but appellant refused to sign the rights form or the waiver, and said, “I’m not going to sign anything,” but said, “I’ll tell you what happened,” and asked, “What do you want to know?” In response to the officer’s questions, the appellant said that he got the gun from the car but did not shoot at the owner. He said he “shot in the air.” Detective Garrison said appellant answered all his questions and never asked for an attorney.
When the State rested, counsel for appellant made a motion for directed verdict on both counts. He said that when the shot was fired the theft was completed, and he was not resisting immediate apprehension. He contended that the most the evidence would support was a theft and possibly an aggravated assault. The motion for directed verdict was denied, and the defense then rested and renewed its motion for directed verdict.
Arkansas Code Annotated § 5-12-102 (Repl. 1993) defines robbery as follows:
(a) A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.
Ark. Code Ann. § 5-12-101 (Repl. 1993) defines physical force as “any bodily impact, restraint, or confinement or the threat thereof” Ark. Code Ann. § 5-12-103, Aggravated robbery, provides:
(a) A person commits aggravated robbery if he commits robbery as defined in 5-12-102, and he:
(1) Is armed with a deadly weapon or represents by word or conduct that he is so armed; or
(2) Inflicts or attempts to inflict death or serious physical injury upon another person.
On appeal appellant argues:
It is clear that the appellant neither used nor threatened to use the gun while taking possession of the car. Mr. Johnson was asleep inside his house when the car was taken. The appellant was already in possession of the car by the time Mr. Johnson was aware that it was being stolen. Therefore, the offense of theft was completed before the shot was fired.
There was evidence that the appellant shot the gun when Mr. Johnson yelled for him to stop. However, Mr. Johnson was not, at that time, attempting to apprehend the appellant. He was on his porch when he heard the shot. The only action that he had taken at that point was to yell, “Hey, where are you going with my car[?]” Yelling at a thief does not amount to an attempt to apprehend one. Therefore, if the appellant had fired a shot at that point he did not do so in an attempt to resist apprehension because nobody was attempting to apprehend him at that point. [Transcript references omitted.]
Appellee contends that theft is a continuing offense according to Findley v. State, 300 Ark. 265, 778 S.W.2d 624 (1989), and Hall v. State, 299 Ark. 209, 772 S.W.2d 317 (1989). In Findley, the appellant argued that the state’s proof established no more than a theft by Findley of Phillips’ $1,700 followed by a murder four days later — too distant, he maintained, for compliance with the requirement of the robbery statute that the use of force occur “immediately thereafter.” The Arkansas Supreme Court replied:
But, as we have noted, the evidence was such that the jury could infer that Findley killed Phillips either to obtain the funds or to silence Phillips when he demanded the return of his money. In Hall v. State, 299 Ark. 209, 772 S.W.2d 317 (1989), we considered an analogous challenge to the applicability of the first degree murder statute, Ark. Code Ann. § 5-10-102 (1987), which defines the offense as including a death occurring during “immediate flight” from the commission of a felony. Hall was seen by the police driving a car which had been stolen five days earlier. Hall sped away and in the ensuing chase he struck and killed a pedestrian. Hall was convicted of first degree murder, theft by receiving and fleeing. His arguments on appeal included the proposition that because the theft had occurred five days earlier, he was not in “immediate flight” from the commission of a felony. This court rejected that premise on the reasoning that theft by receiving was a continuing offense, citing State v. Reeves, 264 Ark. 622, 574 S.W.2d 647 (1978).
300 Ark. at 274, 778 S.W.2d at 627.
Relying on these cases, appellee submits that appellant is in error in his assertion that the theft had ended when he employed the deadly weapon since theft is a continuing offense. In addition, appellee argues, even if it is assumed that the theft ended before appellant utilized his deadly weapon, viewing the evidence in the light most favorable to the State, there is substantial evidence that the deadly weapon was employed to resist apprehension. Although appellant contends that the owner was not attempting to apprehend him, it is certainly a fair inference that appellant employed the weapon as a means of avoiding arrest.
Appellant admitted he took Johnson’s car from his driveway and fired a shot while leaving. We cannot break crimes down into component parts microseconds apart. The theft began when appellant got into the victim’s car and continued until appellant hit the telephone pole and was apprehended by police.
Affirmed.
COOPER and Robbins, JJ., agree. | [
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Judith Rogers, Judge.
This case involves a dispute between the buyers and seller of a house. This is an appeal from a decree resolving that dispute wherein the chancellor granted appellee-buyers judgment in the amount of $2,446.49 and ordered appellant-seller to bear the expense of placing the home under a termite contract. Appellant raises two issues on appeal. He contends: (1) that the chancellor erred in granting relief not sought by appellees; and (2) that the chancellor erred in granting the amount and nature of damages awarded. We find no merit in the first issue raised, but we find sufficient merit in a portion of the second issue to remand on that point.
Appellees, Walter and Belinda Ray, purchased a home from appellant, Bill Jones, on May 27, 1993. Thereafter, they filed this suit in equity for the rescission of the purchase agreement. In their complaint, appellees alleged that the house had termite damage, that the sewer was defective and that a weight-bearing wall had settled due to deterioration in the underlying foundation. Appellees further alleged that appellant had concealed these material facts in order to induce their purchase of the house. After a hearing, the chancellor found no fraudulent inducement and concluded that the parties were operating under a mutual mistake of fact regarding the existence of termites and the resulting damage. The chancellor found, however, that this mutual mistake of fact was not substantial enough to warrant rescission of the contract. The court then awarded appellees $2,446.99 for the repair of the termite damage. The chancellor further ordered that the house be inspected for termites after the completion of the repairs and that “the residence should be placed under a contract at the expense of the [appellant].” This appeal followed.
As his first issue, appellant contends that the chancellor erred in awarding appellees damages when rescission was the only claim for relief sought in their complaint. Appellant contends that appellees elected the remedy of rescission and that he had no notice of a damage claim. We do not find this argument persuasive. The record reflects that appellees, and appellant himself, presented testimony concerning the amount it would cost to repair the termite damage. We have held that, although pleadings are required so that each party will know the issues to be tried and be prepared to offer his proof, Rule 15(b) of the Arkansas Rules of Civil Procedure provides that issues not raised in the pleadings, but tried by express or implied consent of the parties, shall be treated in all respects as if they had been pled. In re Estate of Tucker, 46 Ark. App. 32, 881 S.W.2d 226 (1994). Under the circumstances, we conclude that the issue was tried by the implied consent of the parties. Moreover, appellant has failed to cite any authority for the proposition that the chancellor could not make an award of damages to compensate appellees for their loss upon finding that rescission of the contract was not justified under the facts presented at trial. The doctrine of election of remedies applies to remedies, not causes of action. Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993). Simply put, it bars more than one recovery on inconsistent remedies. Cater v. Cater, 311 Ark. 627, 846 S.W.2d 173 (1993). No double recovery has occurred here; therefore, it cannot be said that the doctrine of election of remedies has been offended. A court of equity may fashion any reasonable remedy justified by the proof. Smith v. Eastgate Properties, Inc., 312 Ark. 355, 849 S.W.2d 504 (1993). We find no merit in appellant’s challenge to the chancellor’s ruling.
Appellant also takes issue with the amount of damages awarded by the chancellor, arguing that it exceeded the amount necessary to repair the damage. The chancellor, however, considered the testimony of appellant’s witness and disregarded it for the reason that the witness’s estimate did not include the cost of repairing the floor. The court found that the repair of the floor was necessary and accepted the estimate of appellees’ witness who stated that the total damage could be repaired for $2,446.99. Chancery cases are reviewed de novo on appeal, and the appellate court will not disturb the chancellor’s findings unless they are clearly against the preponderance of the evidence, giving due deference to the chancellor’s superior position to determine the credibility of the witnesses and the weight to be given their testimony. McClard v. McClard, 50 Ark. App. 189, 901 S.W.2d 33 (1995). We cannot say that the chancellor’s finding is clearly erroneous.
Appellant further argues that the chancellor erred in ordering him to bear the expense of keeping the home under a termite contract for an indefinite period. In response, appellees maintain that appellant’s interpretation of the order is too broad. We agree that the chancellor’s order is not entirely clear on this point. Although we have the power to decide chancery cases de novo on the record before us we may, in appropriate cases, remand such cases for further action. Since the chancellor’s direction is unclear and the parties themselves dispute its meaning, we think it appropriate to remand for the chancellor to reconsider or clarify his order on this point alone.
Affirmed in part; remanded in part.
Jennings, C.J., and Cooper and Robbins, JJ., agree.
Griffen and Mayfield, JJ., dissent.
Not surprisingly, appellant does not argue in this appeal that the chancellor erred in failing to grant appellees’ request for rescission of the contract. Nor have appellees pursued a cross-appeal from the chancellor’s decision arguing that their claim for rescission should have been granted. In short, no party in this appeal takes issue with the chancellor’s denial of that relief. Consequently, any question of whether the chancellor should or should not have granted rescission is not an issue that is before us. We point this out only as a statement of the obvious, and that statement is not a product of flawed or result-oriented reasoning. More to the point, since the question of rescission is not before us, we are puzzled by the dissent’s conclusion that this case ought to be reversed and remanded for the purpose of granting that relief. | [
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Judith Rogers, Judge.
Appellant, Gino Hill, was convicted by a jury of debvery of a controlled substance and sentenced to twenty-five years in the Arkansas Department of Correction. On appeal, appellant argues that the trial court erred in improperly limiting appellant’s cross-examination of the State’s witness, Detective Elliott Johnson, as permitted under Rule 608(b) of the Arkansas Rules of Evidence. We agree and reverse and remand.
Appellant’s arrest and subsequent conviction resulted from an undercover drug purchase. The operation was conducted by local police and involved the use of an undercover officer, Detective Johnson. Detective Johnson testified that on February 28, 1994, he made contact with appellant and advised appellant that he wanted to purchase $20 worth of crack cocaine. According to Detective Johnson, appellant handed him one piece of crack cocaine in exchange for the money. At trial, the State only offered the testimony of Detective Tony Brainard, Detective Johnson, and a chemist from the State Crime Laboratory, Michael Stage, who related that the substance in question was cocaine. At the beginning of the trial on February 28, 1995, the State moved in limine to prohibit the defense from referring in any manner to the reason that Detective Johnson left the police force. The trial court granted the motion.
On appeal, appellant argues that the trial court erred in denying him the opportunity to cross-examine Detective Johnson under Rule 608 concerning a false police report the detective filed with the police department. We agree.
The State responds, however, that appellant proffered no testimony; therefore, we should decline to consider appellant’s Rule 608 argument. A proffer is not necessary when the substance of the offer is apparent. Billett v. State, 317 Ark. 346, 877 S.W.2d 913 (1994). Here, the State filed a motion in limine to exclude the examination of Detective Johnson concerning the reason for his resignation from the police department. Appellant argued that the detective had filed a false police report and had given a false statement regarding his police vehicle being stolen. Appellant also proffered the police report. Under these facts, there is no question about the substance of the testimony. Since the substance of the testimony is clearly apparent, we reach the issue. A.R.E. Rule 103(a)(2).
Rule 608(b) provides in part:
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness for the purpose of attacking or supporting his credibility ... may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness.
In interpreting this rule, the supreme court has adopted a threefold test for admissibility: (1) the question must be asked in good faith; (2) the probative value must outweigh its prejudicial effect; and (3) the prior conduct must relate to the witness’s truthfulness. Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983).
In this case, the substance of the proffered inquiry involved two instances: one in which Detective Johnson made a false statement to the police department and the other in which Detective Johnson filed a false police report. The police report was proffered. It is clear from the proffered evidence that the intended questioning was being pursued in good faith. Also, it is without question that these instances of misconduct are related to the wit ness’s veracity and were thus probative of his capacity for truthfulness as required by the rule.
In the case of Urquhart v. State, 30 Ark. App. 63, 782 S.W.2d 591 (1990), the defendant was convicted after a drug “sting” operation of delivery of a controlled substance. The undercover officer responsible for the purchase was the only witness to testify as to the events of the drug transaction. The defense wished to cross-examine the witness concerning two instances in which the witness made false statements. The trial court did not allow the cross-examination. We reversed and remanded, noting that credibility was a key to the State’s case and it was crucial to the appellant’s case that he be allowed to conduct as full an impeachment of the witness’s credibility as the rules of evidence allow. Therefore, we concluded that the appellant should have been allowed to pursue the line of questioning, and the trial court abused its discretion by limiting cross-examination on the issue.
In this case, Detective Johnson was the only witness to testify to the events of the actual drug purchase. Therefore, appellant should have been allowed to question Detective Johnson concerning his false statement and filing of a false police report. The trial court abused its discretion in limiting the cross-examination; therefore, we reverse and remand.
Reversed and remanded.
Pittman and Stroud, JJ., agree. | [
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John B. Robbins, Judge.
Chad Eveland, Scotty Hancock, and Charles Provance appeal from a decision of the Randolph County Circuit Court, which ruled on remand from this court that the appellants’ motions for separate trials and counsel’s motion to be relieved as counsel for two of the appellants were not timely and were denied. We find merit to the appellants’ arguments and reverse for a new trial.
The appellants were originally convicted of rape and each was sentenced to ten years in the Arkansas Department of Correction. An appeal was taken, and in an unpublished opinion on December 7, 1994, we remanded the case to the trial court because of the trial court’s failure to rule on the appellants’ motions for separate trials and counsel’s motion to be relieved as counsel. We-observed in our 1994 opinion that the trial court was under the misconception that the constitutional prohibition against double jeopardy would prevent the appellants from being tried again if either motion were granted. We clearly stated in our first opinion that, “[w]hile it is true that jeopardy attaches to the accused when the jury is finally sworn to try the case, the constitutional right against double jeopardy, as is pertinent here, may be invoked to bar a second trial only when the first jury is discharged before the case is completed urithout the consent of the defendant, expressed or implied.” We went on to hold that, “since appellants were the moving parties, granting the motions and discharging the jury clearly would not have prevented appellants from being tried for their alleged crimes.” See Wilson v. State, 289 Ark. 141, 712 S.W.2d 654 (1986).
Upon remand, the trial court failed to understand, or at least failed to acknowledge, the authorities we cited that explained why double jeopardy would not act as a bar to a subsequent prosecution. The trial judge referred to our 1994 opinion and stated on the record that “I don’t care what they say. What is the, what is the standard law?” We find the trial court’s remarks intemperate and disrespectful of our authority. Even if our opinion was erroneous, which it was not, our earlier decision was controlling under the doctrine of the law of the case. See Christian v. State, 318 Ark. 813, 889 S.W.2d 717 (1994); Mauppin v. State, 314 Ark. 566, 865 S.W.2d 270 (1993); Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992); Findley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991); Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). Because the trial court ultimately ruled that the motions were untimely, even though still laboring under the misconception that double jeopardy would bar a new trial, we now review the correctness of those rulings.
A brief recitation of the facts is necessary for a proper understanding of the issues currendy on appeal. The appellants were charged with the rape of a thirteen-year-old girl that occurred in August 1990. Shortly after the alleged rape, each of the three appellants gave a statement to the police in which each made certain incriminating statements against the others, as well as statements implicating themselves.
On July 6, 1992, appellants’ attorney of record notified the trial court of his suspension from the practice of law. Just prior to the trial, Mr. Cecil Kildow undertook representation of appellants and represented all three of them at trial. During a preliminary hearing prior to selecting the jury, the prosecutor informed the court that he intended to use the appellants’ prior statements for impeachment purposes during cross-examination. Shordy thereafter, but after the jury was selected and sworn, appellants’ counsel moved for separate trials and to be relieved as counsel for two of the appellants. Counsel argued that a conflict had arisen in attempting to represent all three appellants because there were potential “defenses that the alleged accomplices could raise that would adversely affect the case of the alleged perpetrator.” As discussed above, the trial court ruled that jeopardy had attached and denied the motion. To reiterate our earlier rifling, though jeopardy had attached, the appellants were the moving parties, and double jeopardy would not bar a subsequent prosecution had the trial court granted appellants’ motions. On remand the trial court again denied the motions, rifling that they were untimely.
The appellants first contend on appeal that the trial court erred in failing to grant their motions for separate trials. On remand appellants argued that they were entitled to separate trials under Ark. R. Crim. P. 22.3, and argued that they had met certain criteria that are to be considered for a severance, citing Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993), and McDaniel v. State, 278 Ark. 631, 648 S.W.2d 57 (1983). Appellants argue that their defenses were antagonistic because of their statements to the police implicating each other. Charles Provance and Chad Eveland also contend that, because the evidence against Scotty Hancock was overwhelming and the evidence against them only minimal, severance should have been granted.
Arkansas Rule of Criminal Procedure 22.3 provides:
(a) When a defendant moves for a severance because an out-of-court statement of a codefendant makes reference to him but is not admissible against him, the court shall determine whether the prosecution intends to offer the statement in evidence at the trial. If so, the court shall require the prosecuting attorney to elect one of the following courses:
(i) a joint trial at which the statement is not admitted into evidence;
(ii) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been deleted, provided that, as deleted, the statement will not prejudice the moving defendant; or
(iii) severance of the moving defendant.
In McDaniel v. State, id., the supreme court listed seven factors that a trial court should consider in deciding whether to grant a severance. These factors favoring severance are as follows:
(1) where defenses are antagonistic; (2) where it is difficult to segregate the evidence; (3) where there is a lack of substantial evidence implicating one defendant except for the accusation of the other defendant; (4) where one defendant could have deprived the other of all peremptory challenges; (5) where if one defendant chooses to testify the other is compelled to do so; (6) where one defendant has no prior criminal record and the other has; (7) where circumstantial evidence against one defendant appears stronger than against the other.
The issue of severance is to be decided on a case-by-case basis considering the totality of the circumstances. Williams v. State, 304 Ark. 279, 801 S.W.2d 296 (1990). A trial court’s decision denying a motion to sever will not be disturbed unless the appellate court finds that there has been an abuse of discretion. Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988). A trial court is said to have abused its discretion when it is manifest from the record that a severance was necessary in order to have a fair determination of an accused’s guilt or innocence. Legg v. State, 262 Ark. 583, 559 S.W.2d 22 (1977).
In the present case, the trial court failed to consider Arkansas Rule of Criminal Procedure 22.3 when it ruled that the appellants’ motions were untimely. Furthermore, the trial court did not consider any of the seven factors set forth above that favor severance. The evidence in this case clearly showed that appellants’ defenses were antagonistic because their prior statements were used against each other as well as themselves. Both Chad Eveland’s and Charles Provance’s statements, which were admitted into evidence, stated that their codefendant, Scotty Hancock, had sexual intercourse with the victim. Each of the codefendants’ statements contained damaging statements against the others. The victim testified at trial that Charles Provance gave her assistance after the alleged rape occurred. There was clearly a lack of substantial evidence indicating that Charles Provance was an accomplice to the alleged rape. Additionally, all three appellants were called as witnesses in their own defense, possibly being compelled to testify due to the others testifying and implicating one another.
Based on these three factors favoring severance and the trial court’s failure to follow Rule 22.3 to protect the appellants against each other’s statements, we believe that the trial court abused its discretion in failing to grant the severance. Trial counsel had only recendy been appointed and seems to not have been on notice, prior to trial, of the significance of the appellants’ statements, that they were going to be introduced into evidence, and of the conflict in defenses that we believe is apparent from the record.
Appellants secondly contend that the trial court erred in failing to grant Mr. Kildow’s motion to withdraw as counsel for two of the appellants. He requested to be relieved as counsel as to Chad Eveland and Charles Provance, stating, “There are potentially defenses that the alleged accomplices could raise that would adversely affect the case of the alleged perpetrator.” Appellants argue that the trial court abused its discretion in ruling that the motion was untimely. We agree.
In White v. State, 39 Ark. App. 52, 837 S.W.2d 479 (1992), we stated that when a conflict of interest exists, the issue is whether the conflict adversely affected counsel’s performance. An attorney may represent two or more defendants without such representation constituting a per se violation of the Sixth Amendment right to effective assistance of counsel. Holloway v. Arkansas, 435 U.S. 475, 482 (1978). A defendant who objects to multiple representation must have the opportunity to show that potential conflicts impermissibly imperil his right to a fair trial. Cuyler v. Sullivan, 446 U.S. 333 (1980). If no objection at trial is made, a defendant must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. Id. at 349.
In Holloway v. Arkansas, supra, the Supreme Court recognized that defense counsel “is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.” When a substantial disparity in the evidence exists between the codefendants, it is unusual if an actual conflict does not also exist. See abo Ingle v. State, 294 Ark. 353, 742 S.W.2d 939 (1988). The Supreme Court also stated in Holloway that defense attorneys have the obligation to advise the court at once upon discovering a conflict of interest.
In the present case, the sole counsel for the appellants had just recently undertaken their defense. It was only just prior to the jury being sworn that the prosecutor voiced his intent to use the statements in a specific manner. Shortly thereafter counsel moved to sever and to be relieved as counsel because of the conflict of interest.
As pointed out above, the appellants’ defenses were antagonistic in certain respects because of their prior statements, and because of their anticipated and actual testimony against each other at trial. There was a large disparity between the evidence against one defendant, Scotty Hancock, who was the alleged “perpetrator,” and Charles Provance, who the victim herself acknowledged had assisted her after the rape. Counsel also had a conflict in the defense of the three appellants because of his need to call them to testify in their own respective behalves, yet each contradicted the others’ alleged innocence during direct testimony. Furthermore, they implicated each other in their prior statements that were used by the prosecution on cross-examination.
As the Supreme Court stated in Holloway, trial counsel was in the best position to evaluate the possible conflicts and requested to be relieved as counsel for two of the appellants. It appears that counsel made his motion in a reasonably timely manner upon learning of the problem. Such a fundamental right to counsel should not have been overlooked by the trial court. We believe that the trial court abused its discretion in denying appellants’ motions for separate counsel.
We reverse and remand for a new trial with separate counsel for each respective appellant. The appellants are entided to separate trials unless they now agree to a consolidated trial.
Reversed and remanded.
GRIFFEN, J., agrees.
Mayfield, J., concurs.
Although the trial judge commented from the bench that he was denying all of these motions, the order filed on March 7, 1995, from which this appeal was taken, only recites that appellants’ motions for separate trials were denied and was silent on appellants’ motion for separate counsel. However, because it appears that the trial court implicitly denied this motion and since all parties to this appeal treat the motion as having been denied, so do we. | [
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Melvin Mayfield, Judge.
The appellee, Rayburn McDonald, was awarded compensation for a work-related hernia by the administrative law judge, and the Arkansas Workers’ Compensation Commission affirmed and adopted the law judge’s decision. Appellant has appealed, claiming that appellee failed to meet two of the criteria for a hernia to be compensable: (1) severe pain in the hernial region; and (2) physical distress so severe that it required the attendance of a licensed physician within seventy-two hours.
McDonald, who appeared before the Commission pro se, testified that he was employed by appellant as the lead man over the tool and die room on the second shift, 2:45 p.m. to 12:00 midnight. On July 5, 1994, while several people were on vacation, he was asked to cut some holes in an “Arkwell” fixture. At the hearing McDonald produced a picture of the fixture, which the law judge described in his opinion as depicting “a rather large piece of equipment which appeared quite heavy.” McDonald said he had to remove the bolts and dowels and move a part of the fixture to the band saw in order to cut the requested holes. To do this he put his hip under an extruding portion of the fixture and held it against his stomach to lift it to a cart.
When McDonald lifted the fixture he felt a pain, stretching sensation, and burning in his left side where he had previously had surgery for a hernia. McDonald said his supper time was 8:30 — 9:00 p.m., and he thought this happened shortly before 8:30 because he remembered pushing the fixture over to the saw before supper. He then sat down to eat, and during that time the pain and burning in his side eased up. The rest of the night when he would get in a certain position he would feel a sticking or pinching sensation. About 11:00 p.m. he went to the “Arkwell” supervisor and told him of the incident. The supervisor sent him to first aid and said he would be with him in a few minutes. However, the supervisor never came, so about quitting time McDonald went back to the supervisor and was told that he had forgotten about McDonald. The supervisor then called the time officer and had the incident entered in the first aid log. McDonald then went home.
McDonald testified that he felt nothing unusual the next day, but gradually, over the next few days, he developed a bulge which continuously got larger. On July 23 he asked his supervisor to get him an appointment with the human-resource person, Pam Steele. It was several days before he got to see her. He asked her to make him a doctor’s appointment but she refused, and she telephoned the appellant’s insurance carrier, Sedgwick James. McDonald was interviewed on the telephone and was told that his claim was denied, and they would not send him to a doctor. A few days later he went to his own doctor. At the hearing McDonald said he was waiting to have hernia surgery, and he wanted appellant to pay for it.
Arkansas Code Annotated § 11-9-523 (Repl. 1996) provides in part:
(a) In all cases of claims for hernia, it shall be shown to the satisfaction of the commission:
(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;
(2) That there was severe pain in the hernial region;
(3) That the pain caused the employee to cease work immediately;
(4) That notice of the occurrence was given to the employer within forty-eight (48) hours thereafter; and
(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within seventy-two (72) hours after the occurrence.
Appellant’s first argument is that there is no substantial evidence to support the finding of the Commission that McDonald met the statutory requirement of severe pain in the hernial region. It contends that McDonald never experienced the “severe pain” required by the second criterion in the hernia statute. McDonald said he felt as if he had “stretched” something, pulled something, that he felt “a slight burning sensation,” and a sticking or pinching feeling in certain positions. McDonald also testified that he had previously experienced a double hernia, and it had developed more slowly than the present one did. He said he had a high pain threshold and never felt excruciating pain, even with the double hernia.
In Ayres v. Historic Preservation Associates, 24 Ark. App. 40, 747 S.W.2d 587 (1988), this court stated:
Appellant argues in his fourth point for reversal that the Commission erred in failing to find that he suffered “severe pain in the hernial region” as required by Ark. Code Ann. § ll-9-523(a)(2) (1987). In a statement made to appellee Liberty Mutual Insurance Company’s adjuster, appellant described his pain as “sudden” rather than “severe,” a word choice the Commission apparently deemed significant. We do not put semantics before substance; it is clear that the Commission’s reading of appellant’s description of his pain as something less than severe is not supported by substantial evidence.
24 Ark. App. at 47, 747 S.W.2d at 591. And, as noted in Ayres, Ark. Code Ann. § ll-9-523(a) provides that each of the five criteria “shall be shown to the satisfaction of the commission.” We cannot say that the Commission’s finding on this point was not supported by substantial evidence.
Appellant also argues that there is no substantial evidence to support the finding of the Commission that McDonald suffered physical distress which required the attendance of a licensed physician within seventy-two hours. This is the fifth prerequisite for finding a hernia to be compensable. But Ark. Code Ann. § 11-9-523(b)(1) provides:
In every case of hernia, it shall be the duty of the employer forthwith to provide the necessary and proper medical, surgical, and hospital care and attention to effectuate a cure by radical operation of the hernia, to pay all reasonable expenses in connection therewith, and, in addition, to pay compensation not exceeding a period of twenty six (26) weeks.
Appellant claims that when McDonald told his supervisor he had hurt himself and went to first aid, he was not doing it because he was in such severe pain that he wanted immediate medical care; he was simply following procedure for reporting a claim. Appellant argues that nothing in McDonald’s testimony suggests he was in such physical distress that he required the attention of a physician. In fact, appellant argues, it was two and one-half weeks before McDonald felt the need to see a doctor; that it was several days between the time he asked to see the human-resource director and when he actually saw her; and that even more time elapsed after his claim was refused before he went to his own physician.
Again, the Commission found that this did not bar recovery, and we agree. We have held that we cannot be hypertechnical when construing the statute regarding hernia.
In Cagle Fabricating & Steel, Inc. v. Patterson, 42 Ark. App. 168, 856 S.W.2d 30 (1993), we said:
Arkansas Code Annotated § 11-9-523(a) requires a showing that “the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within seventy-two (72) hours after the occurrence.” A claimant need not prove that he was actually attended by a physician within 72 hours after the injury; instead, the statute provides only that the physical distress following the occurrence of the hernia was such as to require the attendance of a physician within the 72-hour-period. Cagle Fabricating and Steel, Inc. v. Patterson, 36 Ark. App. 49, 819 S.W.2d 14 (1991), rev’d on other grounds, 309 Ark. 365, 830 S.W.2d 857 (1992). [Emphasis in the original.]
In the case at bar, the Commission on remand found that the physical distress experienced by the appellee following the occurrence of the hernia was such as to require the attendance of a physician within the 72-hour-period. Although the record shows that the appellee did not seek medical treatment until more than two weeks after the occurrence, the Commission noted that the appellee continued to experience discomfort and periodic episodes of severe pain during this time. The Commission also relied on testimony that the appellee is “stubborn about going to a doctor,” and that he did not seek medical attention sooner because he “thought it would work itself out.” Viewing the evidence in the light most favorable to the appellee, we cannot say that the Commission erred in finding that the appellee’s physical distress was such to require the services of a physician within 72 hours after the occurrence.
42 Ark. App. 172, 856 S.W.2d at 32.
Likewise, in the instant case, McDonald experienced continuing discomfort and a constandy enlarging bulge. The Commission found this to be sufficient to meet the fifth criterion, and we agree.
Affirmed.
Cooper and Stroud, JJ., agree. | [
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John E. Jennings, Chief Judge.
Claude Bennett was found guilty in Pulaski County Circuit Court of driving while intoxicated. He was sentenced to one year’s imprisonment with an additional two years suspended. On appeal, Bennett contends that the trial court erred in denying his motion to dismiss based on a lack of speedy trial. We agree and therefore reverse and dismiss.
Rule 28.1 of the Rules of Criminal Procedure provides that a defendant is entided to a dismissal if not brought to trial within twelve months. The State concedes that because Bennett was admitted to bail, the speedy-trial time runs from the date of his arrest, June 27, 1993. Rule 28.2(a). Once it has been shown that trial was scheduled to be held after the speedy-trial period had expired, the State has the burden of showing that any delay was the result of the petitioner’s conduct or was otherwise legally justified. Glover v. State, 307 Ark. 1, 817 S.W.2d 409 (1991). The primary burden is on the court and the prosecutor to assure that a case is brought to trial in a timely fashion. A defendant has no duty to bring himself to trial. Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987).
The record in the case at bar can only be described as meager. Appellant was arrested on June 27, 1993. His case was filed in Little Rock Municipal Court. On July 20, 1993, appellant moved to transfer to North Little Rock Municipal Court because of a conflict of interest between his then counsel, Mr. Grasby, and the Little Rock municipal judge. On November 30, 1993, a second motion to transfer was filed by the appellant.
On December 17, 1993, appellant was arraigned in North Little Rock Municipal Court and the case was set for trial on May 24, 1994. On June 22, 1994, the State filed an information against the appellant in Pulaski County Circuit Court. On July 20, 1994, appellant moved for a continuance to hire a new attorney. The continuance was granted until August 16, 1994, at which time appellant was arraigned in circuit court. On September 27, 1994, appellant waived jury trial and his trial was set for November 3, 1994. On November 3, the State moved for a continuance because the breathalyzer machine operator was unavailable. The trial court continued the case to December 13, 1994. On that date, appellant was tried and found guilty of DWI, fourth offense.
The time from the appellant’s arrest until his trial was thus 527 days, well in excess of the 365 days' permitted by the rule. The circuit court held that the period of time from July 20, 1993, when appellant first moved to transfer to North Little Rock Municipal Court, until May 24, 1994, the date his trial was set in that court, was excludable. The court’s ruling cannot be sustained.
This case is governed, in principle, by State v. McCann, 313 Ark. 286, 853 S.W.2d 886 (1993). There, McCann, a juvenile, was arrested on October 1, 1991, and charged in circuit court. At his scheduled trial on April 13, 1992, McCann moved to transfer the case to juvenile court and the circuit judge granted the motion. The case was subsequently heard in juvenile court on October 13, 1992.
In McCann, the supreme court said:
The State asks us to interpret this rule so that where, on a juvenile defendant’s motion, a circuit court transfers a felony charge over to juvenile court, the entire time during which the case is pending before the circuit court be declared an excludable period under Rule 28.3(a)_ [W]e must reject the State’s argument.
Under Rule 28.3(a) delays caused by hearings on pretrial motions filed by the defendant are specified as excluda-ble periods. Rule 28.3(a) limits the excludable period caused by a pretrial motion taken under advisement not to exceed thirty days.
As mentioned above, McCann’s motion to transfer was not made until the date of trial on April 13, 1992, the circuit court heard his motion and granted it on that same date. A memorandum in the record indicates acceptance of the transfer by the juvenile court on April 14. Applying Rule 28.3(a) to these facts, the only time that is remotely attrituable to McCann and, thus excludable, is the one day between submission of McCann’s motion to transfer in one court and acceptance by the receiving court.
If we were to assume that the State is entitled to have excluded thirty days based on appellant’s first motion to transfer, eighteen days as a result of appellant’s second motion to transfer, and a total of sixty-six days due to motions for continuance filed by both the State and the appellant in circuit court, the total excluda-ble period of 114 days would leave the time between arrest and trial at more than 400 days, well in excess of the twelve-month limit.
For the reasons stated the judgment of the circuit court is reversed and dismissed.
Reversed and dismissed.
Rogers and Neal, JJ., agree.
Although it was subsequently suggested in circuit court that the case was nol prossed in North Little Rock Municipal Court there is no docket entry to that effect. | [
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Melvin Mayfield, Judge.
Appellant Marcus Johnson was found guilty in a jury trial of possession of cocaine with intent to deliver, and he was sentenced to serve 30 years in the Arkansas Department of Correction.
Wayne Bewley of the Little Rock Police Department testified that at approximately 10:50 p.m. on November 19, 1989, he stopped a vehicle for speeding. The officer pulled up behind the stopped vehicle where he could see its license plate. While the officer was talking on his radio, checking out the stopped vehicle, he saw a plastic bag come out the passenger’s window of the vehicle and land on the ground by the sidewalk. Right after that the driver’s door opened and the appellant stepped out of the vehicle. The officer said there was a street light at the location and he got a good look at appellant’s face. He also testified that there were two passengers in the car; a female in the back seat and a male in the front. Officer Bewley testified he asked appellant to stay in the car and he would be there in just a second. He testified that appellant sat back in the car and about thirty seconds later drove off, throwing gravel and rocks all over the officer’s car. A chase ensued, but the officer was unable to keep up with appellant’s vehicle and the pursuit was abandoned. Officer Bewley testified that he turned around at 20th and Oak and returned to 22nd and Oak where he had stopped the vehicle driven by appellant, and the officer picked up the plastic bag that had been thrown out of that vehicle. Bewley also said there was no foot or car traffic around the plastic bag and that the streets were empty at that time. The bag contained about 15 white rocks which later proved to be almost 20 grams of cocaine.
Approximately an hour later, Officer Larry Ringgold received a call that two men were pushing a car up an alley on 21st street. Officer Ringgold testified that when he arrived at the location the vehicle had been involved in a single-car accident and that it fit the description of the vehicle that had been stopped by Officer Bewley approximately one hour earlier. Officer Ringgold said he saw two men, one of whom Ringgold identified as the appellant, in the yard of a house approximately 30 feet from the vehicle. The officer took appellant and the other man into custody and called Officer Bewley to the scene. When Bewley arrived, he identified appellant as the driver of the vehicle he had pursued.
On appeal the appellant argues that (1) the trial court erred in failing to grant his motions for directed verdict; (2) the evidence was insufficient to allow a conviction for possession of cocaine with intent to deliver; and (3) the verdict was against the law and the weight of the evidence. Each of these arguments challenges the sufficiency of the evidence.
It is appellant’s contention that he was convicted upon purely circumstantial evidence; that his conviction is based upon mere suspicion, speculation, and conjecture; that the contraband was not found in the vehicle but in an area from which the officer had been absent for several minutes; and that anyone could have dropped the plastic bag. Appellant also argues it cannot be reasonably inferred that because he was the driver of the car, he knew that passengers possessed drugs or that he exercised dominion or control over the drugs. Appellant admits that his actions of speeding off and eluding the police are suspicious, but argues that he was also charged with theft by receiving a stolen automobile and therefore his suspicious behavior is not substantial evidence linking him to the contraband drugs.
In resolving a question of the sufficiency of the evidence in a criminal case, we view the evidence in the light most favorable to the appellee and affirm if there is substantial evidence to support the decision of the trier of fact. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty and precision, compel a conclusion one way or the other, without resorting to speculation or conjecture, Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989); Ryan, supra. The fact that evidence is circumstantial does not render it insubstantial. Small v. State, 5 Ark. App. 87, 632 S.W.2d 448 (1982).
The gist of appellant’s argument is that the state failed to prove the cocaine was in appellant’s joint or constructive possession. In order to sustain a conviction for possession of a controlled substance, the case law is clear that actual or physical possession is not required. Sweat v. State, 25 Ark. App. 60, 752 S.W.2d 49 (1988). Constructive possession is the control, or right to control, the contraband in question, and constructive possession is sufficient for conviction. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982).
In Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988), our supreme court held that where there is joint occupancy of the premises where contraband is found, some additional factor must be present linking the accused to the contraband. In such cases the state must prove that the accused exercised care, control and management over the contraband and that the accused knew the matter possessed was contraband. The court stated:
Other courts have held that the prosecution can sufficiently link an accused to contraband found in an automobile jointly occupied by more than one person by showing additional facts and circumstances indicating the accused’s knowledge and control of the contraband, such as the contraband’s being (1) in plain view; (2) on the defendant’s person or with his personal effects; or (3) found on the same side of the car seat as the defendant was sitting or in immediate proximity to him. Other facts include the accused (4) being the owner of the automobile in question or exercising dominion and control over it; and (5) acting suspiciously before or during arrest.
297 Ark. at 70 (citations omitted).
In Nowden v. State, 31 Ark. App. 266, 792 S.W.2d 621 (1990), this court applied the Plotts rationale to affirm a conviction in a case where the appellant was driving a truck which neither he nor the passenger owned. After a legal stop the officer noticed a grocery sack containing green vegetable matter, which later proved to be marijuana, in plain view on the floorboard on the passenger’s side of the truck. This court held the evidence that Nowden was exercising dominion over the vehicle by driving it, coupled with his nervous behavior after he was stopped, and the fact that the contraband was in his immediate vicinity was enough to sustain his conviction for possession of a controlled substance.
Applying the Plotts rationale to the instant case, in addition to the joint occupancy of the vehicle, there is at least one additional factor which links appellant to the cocaine and from which constructive possession can be inferred. Appellant was exercising dominion and control over the vehicle by driving it. Moreover appellant exhibited suspicious behavior by speeding away after he was stopped. Indeed, the evidence in the instant case is stronger than that in Nowden where the appellant “was just very nervous.” Nervousness during an arrest and search can be expected. See Cerda v. State, 303 Ark. 241, 795 S.W.2d 358 (1990). Although appellant argues his suspicious behavior is not substantial evidence linking him to the contraband drugs as he was also charged with theft by receiving the stolen auto, the jury had the right to conclude that appellant’s behavior was the result of the presence of a controlled substance in the vehicle.
We are not unmindful of appellant’s reliance upon Williams v. State, 289 Ark. 443, 711 S.W.2d 825 (1986). However, in Plotts, our supreme court in finding the facts sufficient to establish possession stated that its decision in Williams would have been decided differently under its current analysis.
As to appellant’s argument that anyone could have dropped the bag at that location and that the policeman was absent from the area for several minutes, Officer Bewley testified that he saw the bag come out of the window and saw where it landed. When he returned to the area the plastic bag was the only thing lying on the ground, there was no foot or car traffic at the time, and the streets were empty. Moreover, the officer ended pursuit after only two blocks. We think Officer Bewley’s testimony presents sufficient evidence from which the jury could find that the plastic bag found on the ground at 22nd and Oak was the bag that Officer Bewley saw thrown from the vehicle driven by the appellant.
Also, there is evidence that the plastic bag contained approximately 20 grams of cocaine. Possession of more than 1 gram of cocaine gives rise to the presumption that it was possessed with intent to deliver. Ark. Code Ann. §5-64-401 (d) (1987).
Finally, although appellant produced several witnesses who testified appellant was inside a house when the vehicle was discovered by Officer Ringgold, thus disputing Ringgold’s testimony that appellant was in the yard of a house approximately 30 feet from the vehicle, inconsistencies in the testimony are matters for the jury to resolve. Ronning v. State, 295 Ark. 228, 748 S.W.2d 633 (1988).
Considering the evidence in the light most favorable to the appellee we think the evidence is sufficient to support appellant’s conviction, and the trial court did not err in refusing to grant appellant’s motion for a directed verdict.
Affirmed.
Jennings and Cooper, JJ., agree. | [
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Melvin Mayfield, Judge.
Appellant, Randy Dwight Armstrong, was convicted in a bench trial of terroristic threatening and second degree battery and was sentenced to five years in the Arkansas Department of Correction on each charge, to be served concurrently. On appeal he argues only that the evidence was insufficient to support the conviction of battery, second degree.
The charges arose out of an incident which began at a Little Rock restaurant on October 29,1989. The appellant was involved in some kind of altercation with a woman inside the restaurant and was asked to leave. After appellant got to the parking lot, Deputy Sheriff Eddy Madden, who was working off duty that evening, attempted to arrest him. Madden testified that appellant resisted, became violent, abusive, and threatening to him and Corporal McNeely, who was helping Madden handcuff appellant, and a struggle ensued in which Madden and McNeely wrestled appellant to the ground.
Deputy Sheriffs Cryer and Kesterson happened to be driving past, saw the struggle, and stopped. Deputy Cryer testified that after the appellant was handcuffed and placed under arrest, he immediately began to curse and threaten to kill the officers. Cryer said he placed appellant in the back seat of the patrol car that Deputy Kesterson was driving and Cryer got into the front seat. He said the car did not have a “cage” separating the front and back seats, and before they even got out of the parking lot appellant had lunged over the seat trying to get in the front, all the while yelling, screaming and threatening both officers and their families. Cryer said he crawled over the seat and held appellant in the back seat so Deputy Kesterson could drive.
When they got to the Pulaski County Jail, the appellant was taken to the booking room where he was searched and the handcuffs were removed, then to a room where an Arkansas Arrest and Disposition Report was filled out. Cryer said that while the form was being completed the appellant continued to yell and scream, then became enraged, and managed to kick Kesterson in the leg. While Cryer was attempting to subdue him, appellant hit Cryer in the abdomen and tried to bite his right hand. Cryer testified that even after the appellant was subdued, he continued to make threats. As a result of the scuffle, Cryer had a bruise on his right shin which lasted about four days.
Deputy Kesterson testified that appellant had threatened to kill him and his family and that he took the threats very seriously. He said appellant kicked him in the right shin, which resulted in a knot about the size of a quarter that turned blue, was puffed out about a quarter of an inch, and was tender for three to four weeks.
Ark. Code Ann. § 5-13-202 (1987) defines the offense of battery in the second degree as follows:
(a) A person commits Battery in the Second Degree if:
(4) He intentionally or knowingly without legal justification causes physical injury to one he knows to be:
(A) A law enforcement officer or firefighter, while such officer or firefighter is acting in the line of duty;
Appellant does not deny that he knew Deputies Cryer and Kesterson were law enforcement officers who were acting in the line of duty; however,,he argues that the officers did not suffer physical injury as defined by Ark. Code Ann. § 5-1-102(14) (1987). That section provides: ‘“Physical injury’ means the impairment of a physical condition or the infliction of substantial pain.” Appellant contends that the evidence does not show that either officer suffered “substantial pain.”
In resolving the question of the sufficiency of the evidence in a criminal case, this court views the evidence in the light most favorable to the appellee and affirms the judgment if there is any substantial evidence to support the finding of the trier of fact. Ryan v.State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989); Ryan v. State, supra.
The appellant cites Kelley v. State, 7 Ark. App. 130, 644 S.W.2d 638 (1983), where we held the evidence insufficient to support a conviction of battery in the third degree because we found the evidence did not show that the injuries to the victim caused him “substantial pain.” In that case the injury did not require medical attention and was described by one witness as a “fingernail scratch.” By contrast, in Holmes v. State, 15 Ark. App. 163, 690 S.W.2d 738 (1985), we affirmed a conviction for second degree battery where the victim, a 10-year-old child, was choked, his tongue was pulled, and he was thrown down. The child testified that this hurt at the time it was done, but testified that he was not cut, did not bleed, and he did not hurt after it was over. We stated:
In determining whether an injury inflicts substantial pain the trier of fact must consider all of the testimony and may consider the severity of the attack and the sensitivity of the area of the body to which the injury is inflicted. The finder of fact is not required to set aside its common knowledge and may consider the evidence in the light of its observations and experiences in the affairs of life.
15 Ark. App. at 166.
The offense of battery is divided into first, second, and third degrees. “To sustain a conviction of first degree battery, ‘life-endangering conduct’ must generally be involved.” Bolden v. State, 267 Ark. 504, 505, 593 S.W.2d 156 (1980). That is a Class B felony. Third degree battery only requires “physical injury” and is a Class B misdemeanor. See Ark. Code Ann.§ 5-13-203 (1987). Second degree battery is a Class D felony and is divided into four classifications. See Ark. Code Ann. § 5-13-202 (1987). The first three are concerned with “serious physical injury.” However, the fourth classification only requires “physical injury” if the victim is (A) a law enforcement officer or firefighter acting in the line of duty, (B) a teacher or other school employee upon, or adjacent to school grounds or in a building used for school purposes, (C) a person 60 years of age or older or one 12 years old or younger, or (D) an officer or employee of the state acting in the performance of his lawful duty. Thus, in the instant case only a “physical injury” was required. While “physical injury” is defined in Ark. Code Ann. § 5-1-102(14) (1987) as the “impairment of physical condition or the infliction of substantial pain,” we believe there is substantial evidence from which the fact finder, considering the evidence in the light of his own observations and experiences in the affairs of life, could find that the injuries to the law enforcement officers caused them substantial pain.
Affirmed.
Jennings and Danielson, JJ., agree. | [
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Elizabeth W. Danielson, Judge.
Appellee Curtis Lee Brown was adjudicated the father of Deedra and Deven Toney, minors, in a paternity action on July 8, 1988, and ordered to pay $325 per month in child support. His appeal on the paternity issue was affirmed. On July 13, 1989,. he was ordered to pay an additional $32.50 per month for the arrearages of child support which had accrued during the appeal as well as to continue paying $325 per month in child support. The 1989 order set out that “any employer/payor shall withhold no more than $357.50 per month from defendant’s income. . .
Subsequently, Brown, who is a United States army recruiter in Louisiana, received notice from the Internal Revenue Service that the Arkansas Department of Human Services, the appellant, intended to intercept his federal income tax refund and apply it toward reducing his child support arrearages of $3,314.17. He also learned that DHS had reported to the credit bureau that he was delinquent with his child support. The letter notices that Brown received with this information gave him ten days to contact the Child Support Enforcement Unit of DHS if he had any questions and gave him a telephone number to contact. He called the number in Chicot County which was provided but was told his file was in Monticello. Brown then called Monticello but was told they did not have his file and that he should call Chicot County.
Brown petitioned the Chicot County Chancery Court seeking relief as to the matters set out above. Brown claims that he is in compliance with the court’s order by paying $357.50 per month and that with DHS withholding his federal income tax return of $780, he is paying more than he was ordered to pay. He also claims that he is not delinquent with his child support and that it was wrong for the state to affect his credit rating by reporting a delinquency.
The trial court found that Brown was current on his child support payments since the July 13, 1989, order. The trial court stated that when it entered the 1989 order, it did not contemplate that DHS through the IRS would intercept Brown’s refund check and apply it to child support that was owing from July 1988 to June 1989. Thus, the court reduced his monthly payment by $70 since it became clear DHS could and would continue to intercept the IRS refund each year.
The state argues that the trial court’s decision was clearly erroneous and should be reversed and that Brown’s current child support obligation should be restored to $325 per month, retroactive to February 1990. DHS contends that according to Reynolds v. Reynolds, 299 Ark. 200, 771 S.W.2d 764 (1989), Brown, the party seeking modification of the chancellor’s order, had the burden of showing a change in circumstances and that Brown has not shown a change in circumstances justifying modification of the $325 per month child support order. However, there is no hard and fast rule concerning the specific nature of the changed circumstances. Eubanks v. Eubanks, 5 Ark. App. 50, 632 S.W.2d 242 (1982).
Brown did not allege that he has suffered a change in financial conditions since the court’s 1989 order nor did he assert any of the factors the trial court uses as a guide to justify modifying a previous order. What Brown did argue is that the state went outside the bounds of the chancellor’s order when it intercepted his IRS tax refund.
The state argues that the fact that Brown had his federal tax refund intercepted to reduce child support arrearages is not a legitimate justification for reduction of his current child support obligation, and reducing his current support obligation defeats the purpose of the federal tax intercept program. Ark. Code Ann. § 9-14-206(a) (1987) permits state agencies to secure payment of past due child support from federal income tax refunds. DHS contends it would be against public policy to deny enforcement of this statute against parents who get behind or fail to pay their child support payments.
The importance of providing financial support for Brown’s children is paramount. But, it should not be structured in a way that unnecessarily burdens Brown financially. DHS should be working with Brown and encouraging him to continue to support his children by complying with the court’s orders. Therefore, this court will modify the chancellor’s order and set child support for Brown’s children at $325 per month with no monies paid toward arrearages since the state will continue to withhold Brown’s income tax refund and apply it towards the arrearages.
Based on the testimony, we believe the Department of Human Services was oppressive and out of line in the manner in which it dealt with Brown as well as by reporting him to the credit agencies. Therefore, we will further modify the chancellor’s order as follows: DHS is forbidden to report Brown to the credit bureaus unless he becomes $1,000 in arrears of his child support payments from the 1989 order; DHS is to write a letter to the appropriate credit bureaus, informing them that Brown is current in his child support payments and not delinquent, with a copy of that letter sent to Brown, a copy placed in his DHS file, and a copy sent to this court; and finally, DHS is directed to notify Brown as to where he can call for information regarding the state of his child support obligation.
The record reflects that DHS has acted in an unreasonable and detrimental manner in their treatment of Brown and his children. Such behavior by DHS defeats any benefits that it might otherwise accomplish and renders no service to the public it is set up to serve.
Chancery cases are reviewed de novo on appeal, but the findings of the chancellor will not be reversed unless clearly erroneous. Bolan v. Bolan, 32 Ark. App. 65, 796 S.W.2d 358 (1990). When the case is as fully developed as it is here and we can see where the equities lie, we may, on de novo review, enter the judgment that should have been entered by the trial court. Estate of Houston v. Houston, 31 Ark. App. 218, 792 S.W.2d 342 (1990).
Affirmed as modified.
Cooper, J., agrees.
Rogers, J., concurs. | [
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Melvin Mayfield, Judge.
In an unpublished opinion issued by this court on April 3, 1991, a division of three judges reversed the trial court’s order granting the appellee’s motion for summary judgment. The appellee filed a motion for rehearing which three of the six judges of the court have voted to deny. Thus, the petition for rehearing, having not been granted by a majority of the court, is denied. See Ark. Code Ann. § 16-12-114 (1987). Because the judges are equally divided on the petition for rehearing and because the original opinion was not published, we issue this supplemental opinion.
The appellee is a fraternal benefit society incorporated under the laws of Ohio and licensed to do business in Arkansas. The appellant is a resident of Arkansas and the widow and executrix of the estate of Carter Ware Ferguson who died in Pulaski County, Arkansas, on February 4,1984. On August 27,1973, the appellee issued a certificate of insurance to Mr. Ferguson providing for the payment of $20,000.00 in the event of his accidental death. In November of 1983, Ferguson was struck by an automobile and sustained injuries which were the alleged cause of his death on February 4, 1984. The appellant furnished the appellee a written proof of loss on February 27,1984, but the appellee denied liability on the grounds that Mr. Ferguson’s death was not accidental. Appellant filed suit on February 2, 1989, alleging that Ferguson’s death was accidental and that the $20,000.00 was due and payable.
The appellee filed an answer and a motion to dismiss which alleged that appellant’s suit was barred by limitations. After the motion to dismiss was denied, the appellee filed the motion for summary judgment which was granted. No affidavits were filed in support of the motion which stated that it relied upon the matters filed of record. Except for responses to requests for admissions which agreed that the exhibited certificate of insurance and proof of loss were true and accurate copies, nothing was filed of record other than the pleadings and motions. A response to the motion for summary judgment was filed by the appellant and each side submitted briefs. The trial court’s order simply granted the motion and dismissed the appellant’s complaint.
The appellee’s argument in the trial court and on appeal is based upon paragraph 11 of a section of the provisions of the certificate of insurance. The pertinent part of the paragraph states:
No action at law or equity shall be brought to recover on this certificate . . .after the expiration of three years after the time written proof of loss is required to be furnished.
Since the record shows that this suit was filed more than three years after the proof of loss was furnished, the appellee claims the trial court was correct in granting the motion for summary judgment. The appellant, however, stated in her response to the motion for summary judgment, and it is her argument on appeal, that paragraph 4 of the section of the certificate entitled “Addi tional Provisions” prevails over the above paragraph 11. Paragraph 4 provides:
Any provision of this certificate which, on its effective date, is in conflict with the statutes of the state in which the member resides on such date, is hereby amended to conform to the minimum requirements of such statutes.
Appellant argues that it was error for the court to grant summary judgment on the basis that the three-year period of limitation provided in the certificate barred the action. She contends paragraph 11 of the certificate, which purports to limit the bringing of legal action on the certificate to a period of three years, was expressly waived by paragraph 4 which provides for conformity of the policy to the minimum statatutory provisions of the certificate holder’s state of residence. It is the appellant’s position that in Arkansas the minimum period of limitations for bringing suit on a written contract is five years as fixed by Ark. Code Ann. § 16-56-111 (1987). She says that if paragraph 4 of the certificate of insurance does not constitute an express waiver of the period of limitations set out in paragraph 11, the conflicting clauses in the certificate create an ambiguity which presents a question of fact to be decided.
Summary judgment is an extreme remedy which should only be granted when it is clear that there is no issue of fact to be litigated. Johnson v. Stuckey & Speer, Inc., 11 Ark. App. 33, 665 S.W.2d 904 (1984). Motions for summary judgment are governed by some well-established principles of law. In Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1981), we summarized:
On such motions the moving party has the burden of demonstrating that there is no genuine issue of fact for trial and any evidence submitted in support of the motion must be viewed most favorably to the party against whom the relief is sought. Summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable men might differ. Henricks v. Burton, 1 Ark. App. 159, 613 S.W.2d 609 (1981); Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979); Braswell v. Gehl, 263 Ark. 706, 567 S.W.2d 113 (1978).The object of summary judgment proceedings is not to try the issues, but to determine if there are any issues to be tried, and if there is any doubt whatsoever the motion should be denied. Trace X Chemical, Inc. v. Highland Resources, Inc., 265 Ark. 468, 579 S.W.2d 89 (1979); Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1969). A motion for summary judgment cannot be used to submit a disputed question of fact to a trial judge. Griffin v. Monsanto Co., 240 Ark. 420, 400 S.W.2d 492 (1966).
3 Ark. App. at 210. On motion for summary judgment, the court is authorized to ascertain the plain and ordinary meaning of a written instrument “after any doubts are resolved in favor of the party moved against,” and if there is any doubt about the meaning, there is an issue of fact to be litigated. Brooks v. Renner & Co. Inc., 243 Ark. 226, 228, 419 S.W.2d 305 (1967). When the intent of the parties as to the meaning of a contract is in issue, summary judgment is particularly inappropriate. Camp v. Elmore, 271 Ark. 407, 609 S.W.2d 86 (Ark. App. 1980).
Certain principles regarding contracts of insurance are also well settled. In Home Indemnity Co. v. City of Marianna, 297 Ark. 268, 761 S.W.2d 171 (1988), the Arkansas Supreme Court stated:
We recognize that a contract of insurance is to be construed like other contracts, with the different clauses read together and an interpretation given that would harmonize all parts. However, an interpretation that will harmonize all parts is not always possible when there is ambiguity in the insurance policy because of two conflicting provisions. It is also established law in our state that provisions contained in a policy of insurance must be construed most strongly against the insurance company which prepared it, and if a reasonable construction may be given to the contract which would justify recovery, it is the duty of the court to do so. Further, this court has held that if there is doubt or uncertainty as to the policy’s meaning and it is fairly susceptible of two interpretations, one favorable to the insured and the other favorable to the insurer, the former will be adopted.
297 Ark. at 271-72 (citations omitted).
Appellee contends that it is a fraternal benefit society exempt by statute from the regular insurance statutes and governed only by Title 23, Chapter 74 of the Arkansas Code. See Ark Code Ann. § 23-74-103 (1987). Therefore, the appellee argues that paragraph 11 of its certificate of insurance does not conflict with the five-year general statute of limitations for actions on written policies (which has been in force since the late 1800’s), because Ark. Code Ann. § 23-74-121 (c)(1) (1987), applicable to fraternal benefit societies, provides that no life benefit certificate shall contain “any provision limiting the time within which any action at law or in equity may be commenced to less than two (2) years after the cause of action shall accrue.” In fact, the appellee says that its contract could have provided that no cause of action could be maintained two years after proof of loss was furnished and still it would not conflict with Arkansas’ minimum requirement for limitation periods for actions on contracts issued by fraternal benefit societies. The problem with that argument is that Ark. Code Ann. § 23-74-121 (c)(l) does not fix the period of limitations on policies issued by fraternal benefit societies. It simply provides that “no life benefit certificate” of a fraternal benefit society shall fix the period of limitations at less than two years.
Thus, the provision in paragraph 11 of the certificate in this case limiting an action to three years after written proof of loss is furnished does appear to conflict with the minimum period of five years which Ark. Code Ann. § 16-56-111 provides for bringing an action on a written contract. This results from the fact that there is no minimum period provided for in the Arkansas statutes governing suits on policies issued by fraternal benefit societies. The provision in Ark. Code Ann. § 23-74-121 (c)(1) only provides for the minimum period that the certificates issued by the societies may contain. At the very least, the appellee’s certificate is ambiguous as to the period within which suit on the certificate may be brought. The appellant says that paragraph 4 waived the requirements of paragraph 11, and since this suit was filed within five years after the death of Mr. Ferguson, it was filed within the minimum requirements of Arkansas’ general statute of
limitations on written contracts. According to Home Indemnity Company v. City of Marianna, supra, we must construe an insurance policy most strongly against the insurer and in favor of recovery. When we consider the certificate of insurance in this case in that light, we conclude that under the record before us the certificate is ambiguous as to the prevailing period of limitation, and the intent of the parties is a question of fact that should not have been decided by summary judgment.
The petition for rehearing is denied and this case is reversed and remanded.
Cracraft, C.J., Jennings and Rogers, JJ., would grant the petition for rehearing and affirm the trial court’s action. | [
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John E. Jennings, Judge.
Appellant, Leon Koenighain, was employed as a new car salesman for appellee, Schilling Motors, Inc., from 1986 through 1989. It was appellant’s practice to quote payments to prospective customers that did not include extended warranty, credit life insurance, or sales tax. It was Schilling’s policy to require its salesmen to include such items in payments quoted to prospective buyers. After receiving complaints from two buyers about the difference between their actual payment and the payment they were quoted, Schilling fired Koenighain. Koenighain sued for wrongful discharge on the theory that his termination violated public policy and obtained a jury verdict for $5,000.00. The trial judge set the verdict aside on motion for judgment notwithstanding the verdict.
The sole issue raised on appeal is that “the court erred in finding insufficient evidence that defendant’s discharge of plaintiff constituted a violation of a well-established public policy of the state.” We find no error and affirm.
In reviewing the grant of a motion for judgment notwithstanding the verdict, we affirm only if we find there is no substantial evidence to support the jury verdict. Lancaster v. Schilling Motors, Inc., 299 Ark. 365, 772 S.W.2d 349 (1989). In making that determination we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the party who had obtained the jury verdict. See McCuistion v. City of Siloam Springs, 268 Ark. 148, 594 S.W.2d 233 (1980).
In Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), the supreme court traced the history in Arkansas of the employment-at-will doctrine. After a discussion of its earlier decisions and cases from other jurisdictions, the court said:
We are now squarely faced with the decision of whether or not to recognize the public policy exception to the employment-at-will doctrine. Following our lead in Counce, supra, we acknowledge that an employer should not have an absolute and unfettered right to terminate an employee for an act done for the good of the public. Therefore, we hold that an at-will employee has a cause of action for wrongful discharge if he or she is fired in violation of a well-established public policy of the state. This is a limited exception to the employment-at-will doctrine. It is not meant to protect merely private or proprietary interests. Wagner, supra.
It is generally recognized that the public policy of a state is found in its constitution and statutes. Kirsey v. City of Fort Smith, 227 Ark. 630, 300 S.W.2d 257 (1957).
The case at bar was sent to the jury on a general verdict. The jury was told nothing about public policy; it was instructed only that it might find for the plaintiff if his discharge was “wrongful.” No law was provided to the court that indicated in any way that the practice of the appellee was against the public policy of the State of Arkansas. The only evidence which might be said to relate to public policy was the appellant’s testimony that he read an article somewhere that said quoting car payments which included credit life and warranty had been found to be “illegal” in California.
Certainly if there were any dispute at all, it would be for the jury to determine the reason for the plaintiffs termination. But whether that reason was “in violation of a well-established public policy of the state” would seem ordinarily to be a question of law for the court. See Sterling Drug Inc. v. Oxford, supra; Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W. 2d 683 (1991); Jeffries v. State, 212 Ark. 213, 205 S.W.2d 194 (1947). The jury is simply not equipped to research the statutes in order to determine public policy.
There was no evidence at trial that Schilling instructed Koenighain to conceal from prospective purchasers the fact that the quoted monthly payments included credit life or warranty and we must agree with the trial court that the appellee’s instruction to include such amounts in monthly payment quotes does not violate any well-established policy of the State of Arkansas. Although we cannot agree with some of the statements made by the trial judge in his memorandum opinion, the statements do not mandate reversal. We will affirm a trial judge’s ruling if correct, even if a wrong reason is given. See West v. Searle & Co., 305 Ark. 33, 806 S.W.2d 608 (1991); All City Glass and Mirror, Inc. v. McGrow Hill Information Sys. Co., 295 Ark. 520, 750 S.W.2d 395 (1988).
Affirmed.
Cooper and Mayfield, JJ, dissent. | [
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Melvin Mayfield, Judge.
On June 16, 1989, appellant Julius C. Lyons entered a plea of guilty to battery in the second degree and was sentenced to five years in the Arkansas Department of Correction with four and one-half years suspended. On February 12,1990, the state filed a petition to revoke alleging that appellant had committed the offenses of theft of property and possession of drug paraphernalia. After a hearing held on March 9, 1990, the trial court revoked appellant’s suspended sentence and sentenced him to serve four and one-half years in the Arkansas Department of Correction, three and one-half years suspended. Appellant does not appeal the revocation of his suspended sentence; he argues only that the sentence the trial court imposed after revoking his suspended sentence was illegal. The state agrees and recommends that we affirm the revocation and modify the sentence.
In Gautreaux v. State, 22 Ark. App. 130, 736 S.W.2d 23 (1987), we said:
Under our criminal code, a sentence is imposed when the court pronounces a fixed term of imprisonment as opposed to simply specifying a definite period of probation. McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980). According to Ark. Stat. Ann. § 43-2332 (Supp. 1985), if sentence is imposed, then the probationer can only be required to serve the remainder of the time imposed. Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981).
22 Ark. App. at 131. The statute referred to in the above quotation, Ark. Stat. Ann. § 43-2332 (Supp. 1985), is now Ark. Code Ann. § 16-93-402 (1987). It reads, in pertinent part, as follows:
(e)(1) At any time within the probation period or within the maximum probation period permitted by § 16-93-401 [five years], the court for the county in which the probationer is being supervised or, if no longer supervised, the court for the county in which he was last under supervision may issue a warrant for his arrest for violation of probation occurring during the probation period.
(5) Thereupon, the court may revoke the probation and require him to serve the sentence imposed or any lesser sentence which might have been originally imposed.
Because the trial court, in the instant case, sentenced the appellant to five years imprisonment (with four and one-half years suspended), the court’s sentence was imposed under the statutes and cases cited above; therefore, he could not be required, after revocation, to serve more than the remainder of his original sentence. Although appellant did not make a specific objection that the sentence imposed at the revocation hearing was illegal, a defendant may challenge on appeal the validity of a sentence of imprisonment even in the absence of an objection at trial to the legality of the sentence. Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986); Palmer v. State, 31 Ark. App. 97, 788 S.W.2d 248 (1990); and Jones v. State, 27 Ark. App. 24, 765 S.W.2d 15 (1989).
We, therefore, agree with appellant and the state that appellant’s sentence upon revocation was illegal and must be modified. However, the record does not reveal when the appellant was released from the Arkansas Department of Correction. Ark. Code Ann. § 5-4-307 (1987), formerly Ark. Stat. Ann. § 41-1206(3)(Repl. 1977), provides as follows:
(c) If the court sentences the defendant to a term of imprisonment and suspends imposition of sentence as to an additional term of imprisonment, the period of the suspension commences to run on the day the defendant is lawfully set at liberty from the imprisonment.
In Vann v. State, 16 Ark. App. 199, 698 S.W.2d 814 (1985), the the court applied Ark. Stat. Ann. § 41-1206(3) to hold that the suspended portion of a sentence to imprisonment commences to run upon the release of the prisoner from confinement. See also Matthews v. State, 265 Ark. 298, 578 S.W.2d 30 (1979).
Thus, the suspended four and one-half year portion of appellant’s sentence began to run on the day that he was released from the Arkansas Department of Correction. Since we cannot determine from the record exactly when appellant was released from prison, we must remand this case for the trial court to enter a proper sentence in keeping with this opinion.
Affirmed as to revocation and remanded for resentencing.
Cooper and Jennings, JJ., agree. | [
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John E. Jennings, Judge.
Timothy Quinn was fired by the Little Rock Chief of Police for using excessive force against a suspect. The Civil Service Commission upheld the discharge, but on appeal the ciurcuit court reversed and ordered Quinn reinstated with back pay.
The city appealed to this court and Quinn cross-appealed, contending that the court erred in declining to award him attorney’s fees. In an unpublished opinion delivered May 1, 1991, we affirmed on both direct and cross-appeal.
Quinn has now filed a petition for rehearing, contending that the supreme court’s recent deicsion in City of Fort Smith v. Driggers, 305 Ark. 409, 808 S.W.2d 748 (1991), should cause us to alter our decision. We deny the petition.
In our original opinion we said:
On cross-appeal, appellee argues that the trial court erred in failing to award him an attorney’s fee. Clearly, under prior law the trial court was without authority to award attorney’s fees in such a case. Williams v. Little Rock Civil Serv. Comm’n, 266 Ark. 599, 587 S.W.2d 42 (1979). Appellee argues, however, that the award of an attorney’s fee is authorized by Ark. Code Ann. § 16-22-308 (Supp. 1989), which provides in part:
In any civil action to recover. . . for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.
We do not think that this proceeding will fit within the language of the statute. Quinn did not bring a civil action against the city to recover for breach of contract; rather, he filed an appeal from a decision of the Little Rock Civil Service Commission which had upheld the termination of his employment. Although it is true that in City of Fayetteville v. Bibb, 30 Ark. App. 31, 781 S.W.2d 493 (1989), we held that an attorney’s fee could be awarded against the city under Ark. Code Ann. § 16-22-308, in Bibb the action fell within the language of the statute.
Driggers was like Bibb, in that the employee brought a civil action against the city that employed him. Here, Quinn appealed from a decision of the Civil Service Commission. Again, this proceeding does not fit within the language of the statute. Even if the statute could be extended beyond its literal language by means of a liberal construction to apply to the facts here, we could not so extend it. In Williams v. Little Rock Civil Serv. Comm’n, the court said “We have consistently, for many years, held that attorney’s fees are not recoverable as an element of damages, except as specifically authorized by statute.” (Emphasis added.) 266 Ark. at 600, 601, 587 S.W.2d at 43; see also, Hall v. Thompson, 283 Ark. 26, 669 S.W.2d 905 (1984). Statutes in derogation of the common law are not liberally construed or extended beyond their express language by logic or analogy; indeed, the supreme court has long held that they are to be given a strict construction. See Wright v. Wright, 248 Ark. 105, 449 S.W.2d 952 (1970).
Petition denied.
Rogers, J., would grant. | [
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James R. Cooper, Judge.
The appellant in this workers’ compensation case injured his left knee in the course of his employment as a material handler with the appellee, Clarke Industries, Inc. The appellant received temporary total disability benefits through November 13, 1989, but those benefits were discontinued when the appellant refused to undergo arthroscopic surgery recommended by his treating physicians. The appellant then filed the claim which is the subject of this appeal, contending that he was entitled to additional temporary total disability benefits from November 13, 1989, through a date yet to be determined. In an opinion dated October 30, 1990, the workers’ compensation commission denied the appellant’s claim on a finding that the appellant unreasonably refused to undergo the recommended surgical procedure. From that decision, comes this appeal.
For reversal, the appellant contends that the Commission erred in finding that the appellant’s refusal of surgery was unreasonable. We agree, and we reverse.
Arkansas Code Annotated § 11-9-512 (1987) provides that:
Except in cases of hernia, which are specifically covered by § 11-9-523, where an injured person unreasonably refuses to submit to a surgical operation which has been advised by at least two (2) qualified physicians and where the recommended operation does not involve unreasonable risk of life or additional serious physical impairment, the Commission, in fixing the amount of compensation, may take into consideration such refusal to submit to the advised operation.
The appellant in the case at bar was injured when he stepped down from his fork lift and twisted his left knee. Dr. Randall Oates, the company doctor for Clarke Industries, Inc., treated the appellant for three weeks before referring him to Dr. Jim Arnold, a knee specialist. The appellant developed phlebitis and saphe-nous vein thrombosis during the early weeks of his injury. The appellant also suffers from diabetes and hypertension, for which he was treated by his family doctor, Dr. Philip Duncan. In addition, the appellant saw Dr. Marvin E. Mumme for an evaluation of his knee injury. All four of these physicians advised the appellant to submit to arthroscopic surgery for treatment of his injury. However, the appellant is afraid of surgery and has refused to submit to the procedure. It is undisputed that the appellant’s fear of arthroscopic surgery is genuine.
The appellant contends that the Commission erred in applying Ark. Code Ann. § 11-9-512 to the case at bar for a variety of reasons. Because we find it dispositive, we need only address the appellant’s contention that Ark. Code Ann. § 11-9-512 is inapplicable because the appellant’s doctors concur that a surgical procedure should not be performed on the appellant at this time. The Commission found that the medical evidence in this case is clear that arthroscopic surgery is recommended, but that the operation could not be performed due to the appellant’s fear. Although we agree that the record supports a finding that all four of the appellant’s physicians at one time recommended arthroscopic surgery as the preferred treatment for the appellant’s condition, we find no substantial evidence to support a finding that arthroscopic surgery had been advised by at least two qualified physicians at the time of the hearing. Instead, the record unequivocally shows that three of the appellant’s physicians later retracted their recommendation of surgery on the ground that the appellant’s subjective fear of surgery was so great as to jeopardize the chances of success. In a medical report dated January 17, 1990, Dr. Arnold withdrew his recommendation of surgery because the appellant “has a preconceived notion that a complication will occur. Patients are often prophetic and I am afraid that his complication rate would be higher if he indeed has his mind set on the same.” In a subsequent memo, Dr. Arnold stated that “I simply will not operate on someone who anticipates a poor result.” The appellant’s family physician, Dr. Duncan, stated in a medical report of January 5, 1990, that the appellant’s fear of surgery made it medically inadvisable for him to undergo the procedure. Even the company physician, Dr. Oates, stated in a report of January 8, 1990, that the appellant “would not be a surgical candidate presently due to his attitude and phobias.” Therefore, three of the four physicians who initially recommended the surgery had withdrawn their recommendations by the time of the hearing. On this record, we do not think that reasonable minds could conclude that arthroscopic surgery had in fact been recommended by two qualified physicians, and, in the absence of substantial evidence to support such a finding, we hold that the Commission erred in taking the appellant’s refusal to submit to surgery into consideration in fixing the amount of his compensation. We therefore reverse and remand to the Commission for further proceedings not inconsistent with this- opinion.
Reversed and remanded.
Cracraft, C.J., and Rogers, J., agree. | [
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John E. Jennings, Judge.
Ricky Levon Terrell was found guilty by a Faulkner County jury of possession of cocaine in violation of Ark. Code Ann. § 5-64-401 (1987) and possession of drug paraphernalia. He was sentenced to a term of twenty years imprisonment. On appeal, Terrell contends that the trial court erred in denying a motion in limine, erred in denying his motion for directed verdict, and erred in refusing a requested instruction. We find no error and affirm.
On August 26,1989, Conway police officers, responding to a domestic disturbance call, encountered Mr. Terrell and a woman arguing on the street. Appellant agreed to let officers search a pouch he was wearing around his waist. When an officer pulled some tissue paper from the pouch, appellant grabbed it and stuck it in his mouth. There was testimony that during the ensuing struggle a “powdery substance” fell out of Terrell’s mouth and he finally spit out the tissue. The state crime laboratory subsequently determined that the tissue contained .01 grams of crack cocaine. A glass vial and a plastic straw were also found on the appellant. Both contained cocaine residue.
Prior to trial, appellant’s counsel told the court: “[W]e therefore move in limine . . . that the state be prohibited from going into all the possession evidence, if they. . . know they don’t have . . . any proof of the impact [of cocaine] on the human system.” The court denied the motion and at trial both a narcotics officer and a chemist with the state crime lab testified that, in their opinion, .01 grams of crack cocaine was a “usable amount.” The state chemist testified that the quantity was “enough to light and get a hit off of.”
Appellant contends that Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990), stands for the proposition that only a toxicologist who is able to testify as to the effect of a given quantity of drugs on the human body is qualified to give an opinion as to whether the amount is “usable.” We do not agree that this is what the court in Harbison held. The court held only that “possession of a controlled substance must be of a measurable or usable amount to constitute a violation of § 5-64-401.” The Harbison court was not required to decide whether, and under what circumstances, expert testimony might be necessary to establish that a given amount of a drug is a “usable” quantity.
Whether a witness may give expert testimony rests largely with the sound discretion of the trial court and that decision will not be reversed absent an abuse of discretion. Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984). Rule 702 of the Arkansas Rules of Evidence provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Generally, the tendency is to permit the jury to hear the testimony of the person with superior knowledge in a given field unless clearly lacking in either training or experience, and too rigid a standard should be avoided. If some reasonable basis exists from which it can be said the witness has knowledge of the subject beyond that of persons of ordinary knowledge, his evidence is admissible. Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 780 S.W.2d 543 (1989). We find no abuse of the trial judge’s discretion in the admission of the opinion evidence and no error in denying the motion in limine.
Terrell’s argument that the trial court erred in denying his motion for directed verdict, and erred in refusing to instruct the jury that for a quantity of drugs to constitute a usable amount it must be sufficient “to have an effect on the human system,” are based on a similar misinterpretation of Harbison. In the case at bar, the trial judge instructed the jury that the state had to prove beyond a reasonable doubt that the defendant “possessed a usable amount of cocaine.” Although the court in Harbison did not consider or decide what might be an appropriate jury instruction under these circumstances, the instruction the trial judge gave here is similar to that approved in State v. Moreno, 92 Ariz. 116, 374 P.2d 872 (1962). The same argument made in the case at bar was rejected by the Arizona Court of Appeals in State v. Murray, 162 Ariz. 211, 782 P.2d 329 (Ariz. Ct. App. 1989). Appellant was entitled to neither a directed verdict nor the giving of his requested jury instruction.
Affirmed.
Danielson and Mayfield, JJ., agree. | [
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Elizabeth W. Danielson, Judge.
Appellant Harold Wayne Carroll appeals the ruling of the Garland County Circuit Court which found him guilty of refusing a breathalyzer test and suspended his driver’s license for six months. Carroll claims he was confused by the actions of the sheriffs deputies as to whether he had the right to consult an attorney prior to taking a breathalyzer test and should therefore not be held criminally responsible for refusing to take the test. We find no error and affirm.
Carroll was returning to Little Rock from Hot Springs when he was stopped by the state police and charged with speeding, passing on a double yellow line, and driving while intoxicated. He was later acquitted of the driving while intoxicated charge and paid fines for speeding and passing on a double yellow line. At the Garland County Sheriffs Department, Carroll was handed a form stating his Miranda rights, which he read, and then wrote at the bottom of the form, “I have an attorney.” Immediately after Carroll read his Miranda rights, the state trooper read Carroll the implied consent form, based on Ark. Code Ann. § 5-65-202 (1987), which explains that one who operates a motor vehicle in Arkansas is deemed to give his consent to a breathalyzer test to determine if he is legally intoxicated, explains the punishment for refusing to submit to such a test, and also explains that he does not have the right to speak with an attorney prior to deciding whether to take the test. Carroll subsequently refused to take the test.
Carroll claims that he was confused by the conduct of the law enforcement officers in that after being given his Miranda rights he was then read his rights under the implied consent statute and told that he did not have a right to consult with his attorney prior to taking the breathalyzer test. Carroll was then allowed to consult with a companion, an attorney, who was with him at the time he was arrested. This attorney was allowed to offer counsel to Carroll and on several occasions to consult another attorney by telephone. After about an hour, while the attorney was on the telephone, Carroll was again asked if he was going to take the test. Carroll asked to speak with his attorney and was told she had said he would have to make up his own mind about taking the test. Carroll claims that the officers’ actions were inconsistent, confusing him as to his right to counsel before a breathalyzer test, and because of this he should not be held criminally liable for the refusal to submit to the breathalyzer test. According to Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987), there is no constitutional right to counsel in connection with the test.
Appellant relies on Wright v. State, 288 Ark. 209, 703 S.W.2d 850 (1986), but there are important distinctions between that case and the one at bar. In Wright, the defendant was read his Miranda rights in connection with a law enforcement officer’s own explanation of the implied consent law, which did not inform the defendant that he did not have the right to counsel before deciding to take the test. Confusion resulted when the defendant in Wright was given two opportunities to reach his attorney, which confirmed his mistaken notion that he had a right to consult his attorney prior to taking a blood alcohol test. The supreme court held that the defendant in Wright should not be held accountable for a refusal to take the test because of the inherent confusion caused by reading the Miranda rights together with the officer’s version of the implied consent form.
Although appellant Carroll was read his Miranda rights and allowed to consult with his attorney companion, he was also explicitly told he did not have the right to consult an attorney before taking the breathalyzer test. The “inherent confusion” present in Wright was therefore not present in this case and the conviction is affirmed.
Affirmed.
Cracraft, C.J., and Rogers, J., agree. | [
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JAMES R. Cooper, Judge.
The appellant was convicted in a jury trial of committing permanent detention or restraint in violation of Arkansas Code Annotated § 5-11-106 (Repl. 1993). He was sentenced to seven years in the Arkansas Department of Correction. On appeal, he argues that the trial court violated Rules 401 and 403 of the Arkansas Rules of Evidence by admitting into evidence a statement in which he confessed to killing the victim; that the statement should have been suppressed because it was obtained after a pretextual arrest; that the statement should have been suppressed because it was obtained in violation of Rule 2.3 of the Arkansas Rules of Criminal Procedure; that the trial court erred in denying his motion for a directed verdict; and that the trial court abused its discretion in refusing to order a new trial pursuant to his request for relief under a writ of error coram nobis. We affirm.
For his fourth argument, the appellant contends that the trial court erred in denying his motion for a directed verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). Preservation of the appellant’s right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of trial errors. Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994).
In reviewing the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the State and affirm if the verdict is supported by substantial evidence. LaRue v. State, 34 Ark. App. 131, 806 S.W.2d 35 (1991). Substantial evidence is evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resort to speculation or conjecture. Kendrick v. State, 37 Ark. App. 95, 823 S.W.2d 931 (1992).
The victim, Leslie Akee Robie, is a mentally retarded woman who has a seizure disorder. The testimony indicated that Ms. Robie had to take daily medication in order to prevent potentially fatal seizures. The victim was born in 1957 and her mother, Reva Akee, is her legal guardian. Ms. Robie’s brother, Robert Akee, also assisted in supervising her; As a result of her disabilities, Ms. Robie was under twenty-four-hour supervision of employees from a company called Lifestyles, Inc., in Fayetteville, Arkansas. Lifestyles is a program designed to mainstream handicapped persons.
According to the employees of Lifestyles, as well as the victim’s mother and brother, Ms. Robie is incompetent to make major decisions for herself and is not allowed to make decisions regarding out-of-town travel. The testimony indicated, however, that Ms. Robie is capable of making some decisions regarding her daily activities and that she was employed through the Lifestyles program. The employees of Lifestyles testified that they assisted Ms. Robie in reading, shopping for groceries, maintaining personal hygiene, taking medication and behaving appropriately.
In November 1993, the appellant began spending time with Ms. Robie and expressed a desire to marry her. Lisa Marie Bostik, an employee of Lifestyles, testified that she suspected Ms. Robie was planning to sneak out of her apartment on the morning of December 16, 1993. Ms. Robie did leave her apartment early that morning with the appellant without notifying her mother or any employee of Lifestyles. Before leaving town, the appellant and Ms. Robie stopped by the appellant’s apartment to say goodbye to his roommate, George Maddock. Mr. Maddock testified that they told him they were going to Bakersfield, Oregon.
The appellant and Ms. Robie actually went to the West Memphis area where he obtained employment doing various odd jobs. The appellant testified that it was Ms. Robie’s idea to leave Fayette-ville. He stated that she did not express a desire to return and that had she done so, he would have returned her to her home. He testified that they were at a truck stop on December 24, when Ms. Robie decided to leave with a truck driver. The appellant subsequently returned alone to Fayetteville on December 25. The appellant testified that he was not aware that Ms. Robie has a legal guardian but stated he was aware that she is mentally retarded.
After his return to Fayetteville, the appellant initially related to Officer Robert Turberville that the victim was alive and that she had left with the truck driver. However, Officer Turberville testified that the appellant gave several statements which included different accounts regarding his involvement in Ms. Robie’s disappearance after he was arrested in March 1994. Officer Turberville testified that the appellant stated that Ms. Robie had actually been abducted by the truck driver and then later stated that she disappeared in the middle of the night after going to the restroom.
Officer Gary Crews also questioned the appellant after his arrest. He testified that at one point during the interview, the appellant began crying and admitted killing Ms. Robie. Officer Crews stated that the appellant explained that he and Ms. Robie argued over a radio, that he struck her in self-defense, and that she fell to the ground striking the back of her head. The appellant told Officer Crews that he performed CPR on Ms. Robie but that he could not revive her. The appellant stated that he then dug a shallow grave, placed the body in the grave and covered it with dirt. The appellant also drew a map indicating the location of the body. Officer Crews further testified that he, other police officers, and the appellant went to the West Memphis area but were unable to locate the body after a search.
Officer Crews testified that the appellant then recanted his story and stated instead that he had buried the body by the Mississippi River. Officer Crews testified that the appellant directed him to a specific location but they were again unable to find the body. The appellant testified that he made the different statements regarding Ms. Robie’s disappearance because he was afraid of the police.
The appellant argues that the State failed to prove that he did not intend to return or release Ms. Robie. Arkansas Code Annotated § 5-11-106 (Repl. 1993) provides:
(a) A person commits the offense of permanent detention or restraint if, without consent and without lawful authority, he restrains a person with the purpose of holding or concealing him:
(1) Without ever releasing him; or
(2) Without ever returning him to the person or institution from whose lawful custody he was taken.
Intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances surrounding the crime. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). The jury is allowed to draw upon its own common knowledge and experience to infer intent from the circumstances. Tiller v. State, 42 Ark. App. 64, 854 S.W.2d 730 (1993). Because of the difficulty in ascertaining a person’s intent, a presumption exists that a person intends the natural and probable consequences of his acts. Kendrick v. State, supra.
Here, the evidence shows that the appellant and the victim left town in the middle of the night. The victim, due to her disabilities, could not lawfully consent to the departure and the appellant did not receive permission from Ms. Robie’s guardian to take her away. Further, the appellant returned to Fayetteville with out Ms. Robie. There was evidence before the jury that the appellant gave several different accounts regarding Ms. Robie’s disappearance and that he confessed to killing her and disposing of her body. Thus, we find that there was sufficient evidence for the jury to infer that the appellant intended to take Ms. Robie away with the purpose of not releasing her or returning her to her legal guardian. Thus, we find the evidence sufficient to support the appellant’s conviction for permanent detention or restraint.
The appellant next contends that his statement in which he confessed to killing Ms. Robie is irrelevant and that its probative value was substantially outweighed by the danger of unfair prejudice. Relevant evidence means any evidence having the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. R. Evid. 401. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Ark. R. Evid. 403. Determining the relevance of evidence and gauging its probative value against unfair prejudice are matters within the trial court’s discretion, the exercise of which will not be reversed on appeal absent a showing of an abuse of that discretion. Armstrong v. State, 45 Ark. App. 72, 871 S.W.2d 420 (1994).
Here, the appellant’s statement was relevant to the circumstances surrounding the crime and was probative of his intent to not release or return Ms. Robie. Although his statement in which he admitted killing her may have been prejudicial, its probative value is not substantially outweighed by the danger of unfair prejudice. Thus, we cannot find that the trial court abused its discretion.
The appellant next argues that any statements he gave after being arrested should have been suppressed because his arrest for various traffic violations was pretextual. Officer Turberville testified that he attempted to question the appellant several times during the investigation but that the appellant did not keep his scheduled appointments. Officer Turberville stated he was aware that the appellant had a suspended driver’s license and that he did not have any vehicle insurance. Officer Turberville testified that he stopped the appellant while he was driving in order to take him into custody; however, he explained that he did so in order to speak with the appellant regarding Ms. Robie’s disappearance. Officer Turberville further testified that he advised the appellant of his Miranda rights and that the appellant gave his statement voluntarily.
In reviewing a trial court’s decision to deny an appellant’s motion to suppress, this Court makes an independent determination based on the totality of the circumstances and will reverse the trial court’s ruling only if it is clearly against the preponderance of the evidence. Roark v. State, 46 Ark. App. 49, 876 S.W.2d 596 (1994).
Pretextual arrests are unreasonable under the Fourth Amendment. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). An ulterior motive does not in itself render an arrest pretextual when there is a valid overt reason to make the arrest. Id. The reasoning is that the arrest for the overt violation would have taken place in any event; thus, there is no reason to bring the Fourth Amendment and the exclusionary doctrine into play. Id. The test is whether a “reasonable officer” would have made the traffic stop — not whether the particular officer would have made the stop absent his ulterior motive. Miller v. State, 44 Ark. App. 112, 868 S.W.2d 510 (1993), cert. denied, 114 S.Ct. 2137 (1994).
Officer Turberville testified that he arrested the appellant for the traffic violations for the specific purpose of questioning him about Ms. Robie’s disappearance. However, the arrest is not tainted by this fact so long as the arrest would have been carried out anyway. See Miller v. State, supra. Here, Officer Turberville knew that the appellant was driving without vehicle insurance and without a valid driver’s license. Thus, a valid objective reason existed for the stop and arrest. See Ark. Code Ann. § 27-16-303(a)(l) (Repl. 1994); Ark. R. Crim. P. 4.1 (a) (iii). Therefore, the trial court correctly refused to suppress the appellant’s statement on the ground that his arrest was pretextual.
The appellant also argues that any statements he made after his arrest should be suppressed because Officer Turberville did not comply with Arkansas Rule of Criminal Procedure 2.3. This rule requires an officer who asks a person to come to a police station to take reasonable steps to make clear that there is no legal obligation to comply with such a request.
As discussed under the previous point, the appellant was lawfully arrested for driving with a suspended driver’s license. Thus, the facts in the case at bar do not come within the ambit of Rule 2.3 and consequently no violation of that rule occurred.
The appellant asserts that the police officers failed to take reasonable steps to make it clear to him that he was under no obligation to talk to them about Ms. Robie. However, Officer Turberville testified that he advised the appellant of his Miranda rights, that the appellant waived them and that he voluntarily gave a statement. Thus, the appellant was informed of his right to remain silent. Moreover, the knowledge of an individual of all the crimes for which he is being investigated is not relevant to a valid waiver of his Miranda rights. Colorado v. Spring, 479 U.S. 564 (1987).
For his final argument, the appellant contends that the trial court abused its discretion in refusing to order a new trial pursuant to his petition for a writ of error coram nobis. The appellant filed his petition after the victim was found to be living in Wyoming and subsequently returned to Fayetteville. An affidavit by Officer Turberville, who interviewed Ms. Robie, stated that she could not remember any of the events leading to her disappearance or how she came to be in Wyoming.
The trial court denied the appellant’s petition for a writ of error coram nobis. The appellant then sought review of the trial court’s denial of his petition to this Court under a petition for a writ of certiorari. See Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). We denied the appellant’s petition on May 17, 1995; thus, we have previously reviewed and rejected the appellant’s argument.
Affirmed.
Robbins and Stroud, JJ„ agree.
Ms. Robie was subsequently found alive in Wyoming. | [
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John F. Stroud, Jr., Judge.
In August 1989, A. G. Weldon suffered compensable injuries when he was rear-ended in a company van owned by Voss Heating and Air Conditioning. He received medical treatment and in 1990 underwent lumbar surgery, resulting in restrictions on lifting and preventing a return to his job with Voss. He was rated with a ten percent permanent impairment rating in 1991. Two months later he began working for Pierce Brothers Construction. He was pulling electrical wires through a conduit on September 4, 1991, when he suffered a second back injury. That injury is the subject of Mr. Weldon’s appeal to this court. He contends that the Workers’ Compensation Commission erred 1) in finding that his September 4, 1991, injury was a recurrence of the August 28, 1989, injury; and 2) in denying his wage loss claim. We affirm.
Appellant did not work after his 1991 injury until March 1992, when he became a gate guard for T and T Security in Poteet, Texas. He quit that job in November 1991 because of his back problems. In December 1993 he began running a computer and maintaining inventory records for Compton’s Air Conditioning and Heating in Kerrville, Texas. Because he had no medical insurance, he arranged with his employer to be paid a wage which would not disqualify him from receiving social security and Medicare benefits. He was employed by Compton’s in June 1994 when a hearing was held before the administrative law judge on the compensability of the injury Mr. Weldon suffered in 1991 while working for Pierce Brothers.
The Workers’ Compensation Commission explained the findings of the law judge by stating: “The Administrative Law Judge held that claimant is entitled to an additional four percent permanent anatomical impairment rating for an overall permanent partial disability of 30 percent and that the Second Injury Fund is liable for the amount of 16 percent.” The Workers’ Compensation Commission reversed the decision, finding that the determination of the ALJ was not supported by a preponderance of the evidence.- The Commission stated:
A preponderance of the credible evidence indicates that the alleged incident that occurred in 1991 was a recurrence of his 1989 injury. Thus, the Second Injury Fund is not liable. Furthermore, there is insufficient evidence of an increase [sic] disability to hold respondent employer Hable [for] any additional benefits. Therefore, we reverse the decision of the Administrative Law Judge.
Furthermore ... a review of the evidence indicates that claimant has set himself up to earn less than [minimum] wage so that he can continue to receive $632 per month in social security benefits. While claimant should be commended for returning to work, claimant should not receive wage loss compensation where he is deliberately contributing to his loss of wage earning capacity. Therefore, we reverse the decision of the Administrative Law Judge.
Appellant’s first point is that the Commission erred in finding that the 1991 injury was a recurrence of his 1989 injury. He contends that there were no facts before the Commission from which reasonable minds could have concluded that this was a recurrence rather than an aggravation or a new injury. He points out that nowhere in the testimony or medical records does the term “recurrence” appear, and he has abstracted use of the term “aggravation” by the doctor who performed his surgery.
In determining the sufficiency of the evidence to sustain the findings of the Workers’ Compensation Commission, the appellate court reviews the evidence in the light most favorable to the Commission’s findings and affirms if they are supported by substantial evidence. Grimes v. North American Foundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). The Court of Appeals does not reverse a decision of the Commission unless it is convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. Wilmond v. Allen Canning Co., 38 Ark. App. 105, 828 S.W.2d 868 (1992). A recurrence exists when the second complication is a natural and probable consequence of a prior injury. Aetna Insurance Co. v. Dunlap, 16 Ark. App. 51, 696 S.W. 2d 771 (1985). Only where it is found that a second episode has resulted from an independent intervening cause is liability imposed upon the second carrier. Id.
The Commission need not base a decision on how the medical profession may characterize a given condition, but rather primarily on factors germane to the purposes of workers’ compensation law. Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990). As our supreme court has stated:
The Commission has never been limited to medical evidence only in arriving at its decision as to the amount or extent of a claimant’s injury. Rather, we wrote that the Commission should consider all competent evidence, including medical, as wéll as lay testimony and the testimony of the claimant himself. Further . . . while medical opinions are admissible and frequently helpful in workers’ compensation cases, they are not conclusive.
Wade v. Mr. C. Cavenaugh’s, 298 Ark. 363, 298 S.W.2d 521 (1989) (citations omitted). In fact, it is the duty of the Workers’ Compensation Commission to translate the evidence on all issues before it into findings of fact. Johnson v. General Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994). The specialization and experience of the Commission make it better equipped than this court to analyze and translate evidence into findings of fact. Second Injury Fund v. Robison, 22 Ark. App. 157, 737 S.W.2D 162 (1987).
Appellant’s first point of appeal is that the Commission erred in finding that the 1991 injury was a recurrence of the 1989 injury or the resulting surgery. There was evidence presented at the hearing, however, that appellant had been neither pain free nor without back difficulties after the 1989 accident. His orthopedic surgeon testified that he had assessed appellant’s condition after the 1991 injury as strained ligaments and possible flare-up of an epidural scar, and that there were no new restrictions or limitations on appellant’s activities from the time he was released after surgery until the last time the surgeon saw him in 1992. Appellant testified that after surgery he was never again one-hundred percent. Appellant’s housemate testified that his pain had not gone away nor had he been without problems after the surgery, and that he had never regained his strength and stamina after the 1989 accident. We hold that substantial evidence supports the Commission’s finding that the 1991 incident was a recurrence of the 1989 injury rather than an aggravation as contended by appellant.
Appellant’s second point of appeal is that the Commission erred in denying his wage loss claim. Wage loss is a component of permanent partial disability benefits under Ark. Code Ann. § 11-9-502(b). A claimant may receive permanent partial disability benefits to the extent that his disability exceeds his percentage of physical impairment. Id. In response to appellant’s claim for additional permanent partial disability benefits, the Commission found “there is insufficient evidence of an increase [sic] disability to hold respondent employer Hable of [sic] any additional benefits.”
In this case, appellant failed to prove that either his degree of permanent physical impairment or his degree of permanent partid disability increased as a result of his recurrence. Therefore, any wage-loss appellant has suffered is a result of his 1989 injury and not his 1991 recurrence. Thus, the Commission’s finding that he is not entided to wage-loss disability is affirmed.
Because we uphold the Commission’s finding that appellant sustdned a recurrence of his 1989 injury and suffered no additiond impdrment or disabifity as a result of that recurrence, we do not address his argument that the Commission erred in considering his deliberate suppression of his wages in determining whether he was entided to wage-loss disabifity.
Affirmed.
Cooper, Robbins, Rogers, and Neal, JJ., agree.
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John B. Robbins, Judge.
Appellant Sharron Smith suffered a back injury while working for appellee Gerber Products on July 30, 1993. Gerber Products accepted the injury as compensable and covered related medical expenses. However, Gerber Products contested Ms. Smith’s claim that she was entitled to permanent disability for her anatomical impairment and wage loss. After a hearing, the Workers’ Compensation Commission denied all permanent benefits. Ms. Smith now appeals, arguing that the Commission erred in finding that she failed to prove entitlement to benefits for her permanent impairment. Alternatively, Ms. Smith contends that, even if she is not entitled to permanent impairment benefits, the Commission erred in denying permanent partial wage-loss disability benefits. We find no error and affirm.
When reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if supported by substantial evidence. Welch’s Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). A decision by the Workers’ Compensation Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983).
Dr. James Standefer treated Ms. Smith for her back problems and ultimately concluded that she had a 9% impairment to the body as a whole. He noted that she had persistent low back and right hip pain as well as neck and shoulder pain. After conducting diagnostic tests, Dr. Standefer diagnosed a small disc herniation in addition to degenerative changes. He testified that “the degenerative changes definitely preceded the July, 1993 accident.”
In denying permanent anatomical benefits, the Commission did not find that Ms. Smith was not permanently anatomically impaired. Rather, it determined that the compensable injury was not the major cause of any permanent impairment. Arkansas Code Annotated § 11-9 — 102(5) (F) (ii) (Repl. 1996) provides:
(a) Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.
(b) If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability-or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.
Arkansas Code Annotated § 11-9-102(14) defines “major cause” as “more than fifty percent (50%) of the cause.” The Commission determined that Ms. Smith failed to prove entitlement to benefits for her anatomical impairment rating because she failed to prove that her compensable injury was the major cause of this impairment. Ms. Smith asserts that this finding was erroneous.
We find that substantial evidence supports the Commission’s finding that Ms. Smith’s compensable injury was not the major cause of her permanent impairment. Dr. Standefer, as well as another treating physician, opined that Ms. Smith’s complaints of pain were caused by degenerative changes. Although Dr. Standefer concluded that Ms. Smith’s back condition was aggravated by her work-related injury, he stated that he would have given Ms. Smith the same work restrictions solely on the basis of the degenerative changes which preceded her injury. Based on this testimony, the Commission concluded that Ms. Smith’s permanent condition was more a result of degeneration than an isolated incident. We find no error in this finding, and thus affirm the Commission’s denial of benefits fqr a permanent impairment.
Ms. Smith’s remaining argument is that, even if she is not entitled to permanent impairment benefits, she should have been given wage-loss benefits. She relies on Arkansas Code Annotated § ll-9-522(b)(l) (Repl. 1996) which provides:
In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent physical impairment, the commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee’s age, education, work experience, and other matters reasonably expected to affect his future earning capacity.
Without now deciding whether a claimant may ever be entitled to wage-loss benefits in the absence of a compensable physical impairment, we believe Ark. Code Ann. § ll-9-102(5)(F)(ii)(a), quoted above, is dispositive of Ms. Smith’s claim. Consequendy, because there is substantial evidence to support the Commission’s determination that Ms. Smith’s compensable injury was not the major cause of her disability she can not be entided to permanent benefits.
Affirmed.
Rogers and Neal, JJ., agree. | [
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JAMES R. Cooper, Judge.
The appellant in this unemployment compensation case was employed by the appellee, Duff-Norton Yale Hoists Co., on February 3, 1994. On that date she consented to be tested for drug abuse pursuant to the employer’s policy. The employer asserted that her test was positive, and she was subse-quendy discharged for failure to comply with company policy regarding actions to be taken following a positive drug test. After a hearing, the Board of Review found that the appellant was disqualified for unemployment benefits because she had been discharged for misconduct connected with the work. From that decision, comes this appeal.
For reversal, the appellant contends that there is no substantial evidence to support the Board’s finding that she was discharged for misconduct connected with the work. We do not agree, and we affirm.
On appeal, the findings of fact of the Board of Review are conclusive if supported by substantial evidence, i.e., by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. George’s Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). Our review is limited to determining whether the Board could reasonably reach its decision upon the evidence before it, and in making that determination, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Id.
Viewed in that light, the record shows that the employer’s drug policy required employees testing positive for drug use to accept treatment for substance abuse; failure to accept treatment was expressly provided to be insubordination subjecting the employee to discharge. In the event that an employee should disagree with the test results, the policy permitted a second test to be performed at employee expense, using the original specimen, within 30 days of the original test.
In the case at bar, there was evidence that the employer notified the appellant that a positive result was obtained on her drug test, and that the appellant neither obtained a retest within 30 days nor accepted treatment pursuant to the employer’s policy. Although there was evidence that would support a finding that the appellant had not been insubordinate, the scope of our review is limited to determining whether the Board could reasonably reach its decision on the evidence before it. Perry v. Gaddy, 48 Ark. App. 128, 891 S.W.2d 73 (1995). We hold that it could, and consequendy, we must affirm.
Affirmed.
Jennings, C.J., and Stroud, J., agree.
Mayfield, Neal, and Griffen, JJ., dissent.
The “facts” referred to in the dissenting opinions, it should be noted, were not facts found by the Board, but consist instead of evidence that the Board had before it to accept or reject. The Board rejected that evidence. | [
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JOHN B. Robbins, Judge.
This is an appeal from a decision of the Hempstead County Chancery Court, which awarded appellee Keith Steed custody of the parties’ minor child, Kelsey. Appellant Tammy Chambers Stone contends on appeal that the chancellor erred in allowing into evidence testimony concerning misdemeanor convictions of “non-party” individuals to show their bad character or reputation. Appellant also contends that the chancellor’s finding that a material change in circumstances occurred which justified a change of custody was against the preponderance of the evidence. We find no errors and affirm.
On March 4, 1991, a paternity complaint was filed by the Arkansas Department of Human Services Child Support Enforcement Unit which alleged that appellee Keith Steed was Kelsey’s father. In February 1992, a judgment of paternity was entered finding that the appellee was the father of Kelsey and awarded him liberal visitation. The evidence showed that appellee exercised his visitation on a regular basis and paid child support.
On May 1, 1995, appellee filed a petition to change custody in which he alleged a change in circumstances which necessitated that he be awarded custody. The petition included an affidavit from Cindy White, appellant’s sister, in which it was alleged that Kelsey’s health and welfare was being endangered because of the activities of appellant and Randal Stone, the man with whom she was living. Appellant married Stone twelve days prior to the hearing. On June 12, 1995, the chancellor found a material change in circumstances had occurred and that it was in Kelsey’s best interest that custody be awarded to the appellee, her biological father. From that decision comes this appeal.
Appellant first contends on appeal that the chancellor erred in allowing testimony concerning misdemeanor convictions of “non-party” individuals to show their bad character or reputation. At the hearing before the trial court, the appellee introduced testimony from the Hempstead County Municipal Court Clerk, Jo Ann Lively, that certain individuals who had been seen “hanging out” at the appellant’s house had prior misdemeanor convictions. Appellant objected and the court ruled as follows:
The reputation for being a law-abiding character perhaps. The Court having weighed the probative value on the issue of whether unwholesome or improper influences are present or have been present in the home finds that the probative value of these misdemeanors or uncharged conduct outweighs any prejudice to the individuals who are admittedly not on trial or being charged with criminal conduct. The objection is overruled.
After the chancellor overruled appellant’s objection, Ms. Lively testified about two misdemeanor convictions that appellant’s new husband had received: possession of a controlled substance, and harassment. Ms. Lively also testified that another person, who frequented appellant’s residence, had been convicted of assault in the second degree. Appellant stipulated that Charles Bomar, who also had been seen at her residence, had been found guilty of two counts of possession of a controlled substance (marijuana) with intent to deliver and had served time in the penitentiary.
Proof presented on behalf of the appellee included testimony that certain individuals had been seen in the appellant’s home smoking marijuana while the child was present. Appellee presented this testimony to show that certain individuals who frequented the appellant’s home had bad character and reputations, and that it was not in the child’s best interest to be around such individuals.
As the trial court correctly ruled, the misdemeanor convictions were neither used for impeachment purposes nor against a person on trial for criminal conduct. The persons found guilty of the misdemeanors were not on trial and were not even called as witnesses. Consequently, the prejudice, against which the rules of evidence seek to protect, was not present. The exceptions to the general rule of character evidence, set out in Ark. R. Evid. 404(1) and (2), have been held inapplicable to civil cases. Brown v. Conway, 300 Ark. 567, 781 S.W.2d 12 (1989). The court in Brown went on to state that the use “of the words ‘accused’ and ‘prosecution’ means that these two exceptions should be applied only in criminal cases.” In James v. James, 29 Ark. App. 226, 780 S.W.2d 346 (1989), we found that evidence concerning the moral character of a parent is relevant to the best interest of the child and the issue of parental custody. The evidence of misdemeanor convictions reflected on appellant’s morality in allowing persons of questionable reputation and character to be around her child. Such information was relevant in deciding the best interest of the child and who should have custody. The chancellor did not abuse his discretion in allowing the testimony.
The appellant secondly contends that the chancellor’s finding that a material change in circumstances had occurred which justified a change in custody was against a preponderance of the evidence. Appellant argues that she could spend more time with the child because both the appellee and his' present wife work. She also alleges that the accusations of her drug use and the bad reputations of individuals “hanging around” her home were unfounded in the evidence. She contends that the evidence was insufficient to show a change in circumstances which would justify a change in custody.
We have stated many times that a material change in circumstances must be shown before a court can modify an order regarding child custody, and the party seeking modification has the burden of showing such a change. Jones v. Jones, 51 Ark. App. 24, 907 S.W.2d 745 (1995). As in all custody cases, the primary consideration is the welfare and best interest of the child; all other considerations are secondary. Hoing v. Hoing, 28 Ark. App. 340, 775 S.W.2d 81 (1989). Custody awards are not made or changed to gratify the desires of either parent, or to reward or punish either of them. Fitzpatrick v. Fitzpatrick, 29 Ark. App. 38, 776 S.W.2d 836 (1989). Although we review chancery cases de novo, the chancellor’s findings will not be disturbed unless clearly against the preponderance of the evidence. Id. Since the question of the preponderance of the evidence turns largely on the credibility of witnesses, the appellate court defers to the superior position of the chancellor, especially so in those cases involving custody. Hoing v. Hoing, supra.
Appellee Keith Steed testified that he has exercised his visitation with Kelsey on a regular basis. Appellee is married and has one child with his current wife, Terry, who also has three children from a previous marriage. Appellee and Terry testified that the child would be well cared for in their home and that they had plenty of space for her.
Appellee testified that he became concerned for the child’s welfare when appellant began living -with Randal Stone, her current husband. Appellee testified, without objection, that when he returned the child after visitation he observed individuals at appellant’s home who had been arrested for marijuana use and other strangers whose identity was unknown to him. Appellee testified that, just prior to filing the petition in question, he was returning the child and observed appellant to be “wasted.” He testified that appellant was covered in mud, had a scar between her eyes, never spoke to the child, and never even raised her head to acknowledge their presence. Appellee testified that he believed that appellant was “wasted” and “high on something.” Appellee also testified, without objection, that appellant’s husband, Randal Stone, had pulled a gun on the appellant and put it to her head while the child was present.
Appellant’s husband, Randal Stone, testified that he had had many problems with appellant’s mother. He testified that he had been convicted of several crimes in which the appellant’s mother was the victim, including assault and criminal mischief. Mr. Stone admitted that he had previously been convicted of possession of a controlled substance and had “smoked a litde pot” in the past. Mr. Stone also admitted that several individuals, whose previous convictions were testified to, had been to his home where the child in question was residing. Mr. Stone denied ever having pulled a gun or knife on the appellant.
Cindy White, appellant’s sister, testified on behalf of appellee. She testified that Mr. Stone had beaten the appellant and she was concerned for the child’s welfare. Ms. White testified that she had personally observed Mr. Stone use marijuana several times at his home when both the appellant and the child were present. She went on to testify that she observed several people at the appellant’s home who had reputations for being “dopeheads.” The municipal court clerk testified that several of the people Ms. White had seen in appellant’s home had previous misdemeanor convictions.
The chancellor made his ruling in part as follows:
Clearly, if the testimony presented by Mr. Steed’s side of the case is believable there are material changes and material concerns that require, or certainly suggest, custody should change, and I do find that those witnesses, including but not exclusively Ms. White, were very believable, and I do believe them. Really, on a case like this, largely it turns on credibility or believability. I do believe that there were circumstances, including marijuana use, in at least close enough proximity to the child to put her at risk of physical harm while people were intoxicated, and certainly, the example of what society really finds to be criminal behavior. It’s wrong. There are other concerns, and this record is complete. Custody will transfer to Mr. Steed. I believe certainly full, and for the child’s benefit liberal visitation should be afforded, but with some structures, and those would be that none of the named felons, or the named felon or those identified as having broken the law in front of, in the household should be allowed to be around the child during periods of visitation, with the exception of Mr. Stone.
Based on the chancellor’s assessment of credibility and the evidence before him, we believe the chancellor correctly found that a material change in circumstances had occurred which warranted a change in custody. We do not believe the chancellor’s decision that it was in the child’s best interest for appellee to have custody was clearly against a preponderance of the evidence.
Affirmed.
ROGERS and Neal, JJ., agree. | [
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JACK W. Holt, JR., Special Judge.
Trustees on behalf of Bethel Missionary Baptist Church (Bethel Church) sued its property and liability carrier, Church Mutual Insurance Company (Church Mutual), for breach of contract and bad faith in not paying a fire loss that Bethel Church sustained to its building and property. After conducting a hearing on Church Mutual’s motion to dismiss, the trial court entered an order dismissing Bethel Church’s complaint without prejudice. An appeal followed, and an opinion was filed and published by the Arkansas Court of Appeals. Petition for rehearing was granted, and the Court’s opinion was vacated on May 8, 1996, and the appeal reinstated. As a result, we now have before us the question as to whether or not the trial court abused its discretion in dismissing Bethel Church’s lawsuit. The answer is yes.
In December 1990, the parties entered into a property and liability contract. In February 1993, while the policy was still in effect, Bethel Church sustained $80,000 in damage to its building and an additional $20,000 in property damage as a result of a fire. The loss was timely reported; however, disagreements arose over certain provisions of the policy relating to the insurance company’s investigation of the fire and the conducting of examinations of certain individuals under oath. Unable to resolve the dispute, Bethel Church filed its complaint alleging a breach of contract by refusing to pay its claim and that Church Mutual had exercised bad faith in its refusal to pay the claim.
After receiving the briefs for the parties and conducting a hearing on Bethel Church’s motion to dismiss, the trial court entered the following order: “Presendy before this Court is [Church Mutual’s] motion to dismiss. After consideration of the arguments of counsel, and a review of the evidence, the Court finds that the complaint should be dismissed without prejudice.”
Although the trial court failed to mention its authority for dismissing Bethel Church’s complaint, it is obvious to us that it was responding to Church Mutual’s formal “Motion to Dismiss” and “Brief in Support of Motion to Dismiss,” which brings into play Ark. R. Civ. P. 12(b)(6) inasmuch as the court used Rule 12(b)(6) language in its discussion as to whether or not the complaint was sufficient and in ultimately dismissing the lawsuit. See Poston v. Fears, 318 Ark. 659, 662, 887 S.W.2d 520 (1994).
Arkansas Rule of Civil Procedure 12(b)(6) provides the authority for the trial court to grant such a dismissal. However, in determining whether to dismiss a complaint under this rule, it is improper for the trial court to look beyond the complaint to decide the motion to dismiss, Guthrie v. Tyson Foods, Inc., 285 Ark. 95, 96, 685 S.W.2d 164 (1985), and for this reason, we disregard the fact that the trial court may have done so.
Simply put, in order to properly dismiss the complaint, the trial court would had to have found that the complaining parties either (1) failed to state general facts upon which relief could have been granted or (2) failed to include specific facts pertaining to one or more of the elements of one of its claims after accepting all facts contained in the complaint as true and in the light most favorable to the nonmoving party. See Perrodin v. Rooker, 322 Ark. 117, 120, 908 S.W.2d 85 (1995). This was not done.
Arkansas Rule of Civil Procedure 8(a) provides that a pleading “shall contain (1) a statement in ordinary and concise language of facts showing that the court has jurisdiction of the claim and is the proper venue and that the pleader is entitled to relief, and (2) a demand for the relief to which the pleader considers himself entitled.” In addition, it is well recognized that pleadings are to be liberally construed and are sufficient if they advise a party of its obligations and allege a breach of them. Deitsch v. Tillery, 309 Ark. 401, 405, 833 S.W.2d 760 (1992).
Bethel Church has asserted claims for breach of contract of insurance and bad faith on the part of Church Mutual. In both instances, requirements were met. Examination of the pleadings reflect that the complaint asserted jurisdiction, venue, the existence of a valid and enforceable contract between the parties, the obligations of the insurance carrier, a claim of violations by the carrier, and damages resulting to the claimant from the breach. See Rabalaias v. Barnett, 284 Ark. 527, 528-29, 683 S.W.2d 919 (1985). Likewise, the elements for a claim for bad faith were properly pled: affirmative misconduct by the insurance company, in bad faith, and malicious or oppressive attempt to avoid liability under the policy. See Williams v. Joyner-Cranford-Burke Constr. Co., 285 Ark. 134, 139, 685 S.W.2d 503 (1985).
Church Mutual’s contention that it cannot be sued for breach of contract because a condition precedent in the contract has not been complied with is of no moment. The complaints filed on behalf of Bethel Church state causes of action for which relief may be granted. Thus, the trial court was wrong in granting Church Mutual’s motion to dismiss.
Church Mutual further argues that the dismissal without prejudice is not a final order and is not appealable, citing numerous authorities to the effect that the test of finality, and thus of appealability, is whether the order ends the litigation or a substantial branch of it. Suffice it to say that the dismissal of this lawsuit ended the litigation. The trial court’s order is appealable.
Reversed and remanded.
Lessenberry and Price, Special Judges, agree. | [
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WENDELL L. Griffen, Judge.
Waymond Dugan (“Dugan” or “appellant”) suffered an electrical shock on September 7, 1993, while working for his employer, Jerry Sweetster, Inc. (“Sweetster” or “the employer”). Dugan was draining water from a hole with an electric pump when the pump stopped working. When Dugan reached down and touched the pump, he received a shock that lasted about ten seconds. He recalled a small explosion, recalled being knocked backwards, and recalled that he lay on a nearby pipe semiconscious for an estimated 15-20 minutes until help arrived. Dugan was admitted to Washington Regional Medical Center in Fayetteville where he presented with an “entry port” or burn site on his hand, but no exit port. He complained of anxiety and chest pains, but a battery of tests revealed nothing abnormal except for the 3-4 mm burn site on his hand. He remained at the hospital two days for observation and was discharged. Within hours of his discharge, he was readmitted after he began to stutter, had trouble walking, and lost consciousness again.
Dugan was then hospitalized for five days, and more diagnostic tests were performed. A CAT scan, EKG, MRI, and chest x-ray showed no abnormal findings. However, his stuttering and difficulty with walking became more pronounced over time. He was referred to a neurologist, Dr. Brown, and a clinical psychologist, Dr. Back. They agreed that Dugan suffered post-traumatic stress syn drome, a conversion reaction, and possibly depression — all psychological disorders. Both doctors were uncertain whether Dugan’s mental problems were caused by an organic source (i.e. a physical injury) or a psychological source. A speech pathologist opined that appellant's stuttering resulted from an organic source. Over time, Dr. Brown and Dr. Back concluded that Dugan’s mental illness was the direct result of the electrical shock.
The employer initially deemed Dugan’s problems compensa-ble, but later controverted all benefits related to his psychological problems. The administrative law judge found that Dugan’s psychological problems were compensable. The Workers’ Compensation Commission (the “Commission”) reversed, finding that Dugan failed to prove the requisite physical injury to make a mental injury compensable under Ark. Code Ann. § 11-9-113 (Repl. 1996). We disagree and reverse, holding that the Commission erred when it held that Dugan failed to prove that he received a physical injury so that his mental problems were compensable.
Workers’ compensation appeals are governed by the substantial-evidence standard of review. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). Where the Workers’ Compensation Commission has denied a claim, “substantial evidence” requires the appellate court to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Bussell v. Georgia-Pacific Corp., 48 Ark. App. 131, 891 S.W.2d 75 (1995) (emphasis added).
One of the significant changes to the Arkansas Workers’ Compensation Law made by Act 796 of 1993 was a new section that defined the compensability of mental injury or illness. Prior to Act 796, workers’ compensation benefits were upheld for mental illness in a variety of situations ranging from psychological disorders resulting from traumatic physical injury to nontraumatic experiences involving job stress. See, e.g., Wilson & Co. Inc. v. Christman, 244 Ark. 132, 424 S.W.2d 863 (1968); George W. Jackson Mental Health Ctr. v. Lambie, 49 Ark. App. 139, 898 S.W.2d 479 (1995); City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992); Boyd v. General Indus., 22 Ark. App. 103, 733 S.W.2d 750 (1987). Act 796 narrowed the definition of compensable mental illness or injury as follows:
(a)(1) A mental injury or illness is not a compensable injury unless it is caused by physical injury to the employee’s body, and shall not be considered an injury arising out of and in the course of employment or compensable unless it is demonstrated by a preponderance of the evidence; provided, however, that this physical injury limitation shall not apply to any victim of a crime of violence.
Ark. Code Ann. § ll-9-113(a)(l) (Repl. 1996)(emphasis added). We now must interpret this section and, particularly, the term “physical injury” as it relates to compensable psychological injury. Although we are construing an act of the General Assembly, our jurisdiction is proper under Rule l-2(a)(3) of the Rules of the Supreme Court.
The Commission denied compensation to Dugan because it held that the preponderance of the evidence failed to show “actual demonstrable damage, impairment, wound, or other bodily harm or disorder to the internal or external structure of the body.” For this definition of “physical injury,” the Commission relied on Larson’s workers’ compensation treatise and other medical and legal dictionaries. The Commission’s opinion also imported language from the statutory definition of “compensable injury” which requires medical evidence supported by objective findings. Ark. Code Ann. § ll-9-102(5)(D) and (16). We note that Webster’s defines injury as simply “harm or damage.” Webster’s New World Dictionary and Thesaurus 320 (1996). “Bodily injury” has been defined as “physical pain, illness or any impairment of physical condition.” Black’s Law Dictionary 786 (6th ed. 1990). One medical dictionary defines injury as “damage or wound or trauma.” Stedman’s Medical Dictionary 786 (25th ed. 1990). Another calls it “a disruption of the integrity or function of a tissue or organ by external means, which are usually mechanical but can also be chemical, electrical, thermal, or radiant.” International Dictionary of Medicine and Biology, 1443, Vol. II. (1986).
The undisputed facts of this case show that Dugan received a 3-4 mm burn (the entry port) to his hand when the shock occurred. That burn is documented in the medical records, and by all accounts was caused by the electrical shock. Hence, it is clear that Dugan received an electrical shock in the course of his employment that produced a physical injury. He suffered a 3-4 mm burn on his hand where the electric current entered his body. Even if the more elaborate diagnostic tests such as the MRI and the EKG produced no abnormal findings, it is inescapable that he suffered a wound to his hand.
Act 796 clearly shows that proof of a physical injury is now required before a psychological injury can be compensable in Arkansas. Here, we have a physical injury; namely, an observable wound to the external structure of the body. Other jurisdictions with similar statutory requirements have upheld benefits under similar facts. In Connecticut, inappropriate touching was held a sufficient basis for recovery for a mental disorder. Crochiere v. Board of Educ., 227 Conn. 333, 630 A.2d 1027 (1993). Although a Florida decision held that mere touching does not suffice, a bite and scratch on the hand of a paramedic was sufficient to support an award of workers’ compensation benefits for psychological injury. City of Hollywood v. Karl, 643 So.2d 34 (Fla. Ct. App. 1994).
It is true that Act 796 now requires us to construe the Workers’ Compensation Law strictly. Ark. Code Ann. § 11 — 9— 704(c)(3) (Repl. 1996). However, we find no substantial basis to uphold the denial of benefits to the appellant where the proof of his physical injury is present in the undisputed medical records.
We reverse and remand to the Commission with instructions to enter an award of benefits consistent with this decision.
Reversed and remanded.
Robbins and Stroud, JJ., agree.
The medical records clearly show that Dugan had an entry port, although the port was stated to be on his left hand in one paragraph but on the right hand according to a later paragraph in the same admission report authored by Dr. Bryan Abernathy and dictated on September 11, 1993. | [
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JUDITH Rogers, Judge.
This is an appeal from the Workers’ Compensation Commission’s order affirming and adopting the administrative law judge’s decision. The ALJ found that appellee sustained a compensable back injury on March 12, 1994, and awarded medical benefits and temporary total disability benefits from March 23, 1994, until a date yet to be determined. On appeal, appellant argues that there is no substantial evidence to support the Commission’s decision. We disagree and affirm.
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. St. Vincent Infirmary Med. Ctr. v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996).
Appellee testified that while working on Saturday, March 12, 1994, she replaced a canister of. coke syrup into a fountain machine and felt a burning pain down her right side to her foot. She said that she informed her co-workers Penny Howie and Janet George of the event. The record reveals that appellee was prescribed medication and was off work until the following Thursday. Appellee testified that while walking to work on March 22, 1994, she again felt burning pain in her right leg. She said that she called Bob Hardin, the regional manager, before going to the emergency room.
Ms. George testified that appellee called her on March 12, 1994, and reported that she had hurt her back.
The Commission found appellee’s testimony credible and concluded that the incident on March 12, 1994, aggravated appellee’s previous back condition. The Commission specifically found that appellee proved by a preponderance of the evidence that her injury was caused by a specific incident that was identifiable by time and place of occurrence.
On appeal, appellant contends that, because appellant had a preexisting back condition which was aggravated by an incident at work, she must prove that the incident at work was the major cause of her recent disability. We disagree.
Arkansas Code Annotated § 11-9-102(5)(A),(E), and (F) (Repl. 1996) provide in part:
(5) (A) “Compensable injury” means:
(i) An accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence; (ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
(a) ...
(b) A back injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence;
(E) Burden of Proof. The burden of proof of a compensable injury shall be on the employee and shall be as follows:
(i) For injuries falling within the definition of compensa-ble injury under subdivision (5)(A)(i) of this section, the burden of proof shall be a preponderance of the evidence;
(ii) For injuries falling within the definition of compen-sable injury under subdivision (5) (A) (ii) of this section, the burden of proof shall be by a preponderance of the evidence, and the resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment.
(F) Benefits.
(i) When an employee is determined to have a compen-sable injury, the employee is entided to medical and temporary disability as provided by this chapter.
(ii) (a) Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.
(b) If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.
“Major cause” means more than fifty percent (50%) of the cause. Ark. Code Ann. § 11-9-102(14)(A) (Repl. 1996).
In this instance, the Commission found evidence that appellee’s injury was caused by a specific incident. Therefore, there was no requirement for it to be shown that the compensable injury was the major cause of her disability. Under Ark. Code Ann. §11-9-102(5)(E)(ii), that becomes a requirement only when the injury was not occasioned by a specific incident. Consequently, we find no merit in appellant’s argument.
Also, Ark. Code Ann. §§ ll-9-102(5)(F)(i) & (ii) provide that when an employee is determined to have a compensable injury, the employee is entided to medical and temporary disability as provided by this chapter. It goes on to specifically provide that if any compensable injury combines with a preexisting condition, permanent benefits shall be payable only if the compensable injury is the major cause of the permanent disability or need for treatment. Therefore, when a claimant who has sustained a compensable injury is seeking permanent disability benefits there is a requirement to prove that the compensable injury is the major cause of the permanent disability. In this case, appellee was only seeking medical benefits and temporary total disability. Therefore, appellant’s argument is misplaced.
Appellant further contends that the Commission erred in finding that appellant’s injury was caused by a specific incident when there is an aggravation of a preexisting condition. Appellant argues that an aggravation rules out the possibility that appellee’s disability is caused by a single incident. We do not agree with appellant’s reasoning.
An aggravation is a new injury resulting from an independent incident. See Pinkston v. General Tire & Rubber Co., 30 Ark. App. 46, 782 S.W.2d 375 (1990). The independent incident must be shown to be work-related to establish compensability. In addition, under Ark. Code Ann. § ll-9-102(5)(A)(i), it must be shown that the accidental injury was caused by a specific incident identifiable by time and place of occurrence. In this case, the independent incident was appellee’s accident at work of moving the coke canis ter. The Commission found, and we have agreed, that the incident was compensable and that it met the definition of an “accidental injury” because it was a specific incident identifiable by time and place of occurrence. Therefore, an aggravation, being a new injury with an independent cause, must meet the requirements for a com-pensable injury and can be caused by a specific incident.
Affirmed.
Robbins and Neal, JJ., agree. | [
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Melvin Mayfield, Judge.
Sid Lytle has appealed a decision of the Workers’ Compensation Commission which held that he was not acting within the course of his employment when his automobile accident occurred and therefore his claim is not compensable.
The appellant, an over-the-road truck driver, testified that he was injured on July 3, 1992, when he topped a hill on 1-20 outside Meridian, Mississippi, and came upon an accident that had already occurred. According to appellant’s testimony, he was on his way from Center, Texas, to Metamora, Illinois, to deliver a load for his employer, the appellant. He said that he was scheduled to be in Metamora four days later; that he had an extra two-and-one-half days; and that he was making a side trip to visit friends when the accident occurred. After the visit, appellant planned to go to Metamora and unload.
Appellant testified the appellee is not a routed carrier, and he is paid a flat rate based upon the mileage for each trip. He said his job is to pick up a load on time; get it there on time by the easiest and best route; and that there are no set routes for him to take. He testified further that the shortest route from Center to Metamora is to take Highway 59 from Center to 1-30, then to 1-40, then to 1-55 and then straight up to Metamora which is just outside of Peoria. He testified that he took that route on a previous trip to Metamora passing up 1-20, but on this trip he deviated onto 1-20 before reaching 1-30 and was at least 100 miles out of route when he had the accident.
Mark Bottoms, appellee’s dispatch supervisor at the time of the accident, testified that company policy is for the driver to take the shortest route from Point A to Point B; to stay within that route; and to deliver to the destination. He said the appellee is a routed carrier which means you take the shortest route; that the carrier routes the driver; and that it gives him specific directions. He said the appellant deviated from his specific route on July 3, 1992, when he deviated onto 1-20 to Meridian, Mississippi. Bottoms testified he gave the appellant the dispatch on July 3, and appellant did not tell him he was going to take time off to go to Meridian. He said it is the general practice for a driver who has excessive time to call and if there is something en route he wants to do or deviate, appellee is' open to working with the driver.
Appellee’s “Policies, Procedures and Agreement” states that all trucks are routed over specific routes and that a driver agrees to accept all dispatch as given with no deviation from destination or route specified.
On this evidence the law judge held appellant’s injuries were not job related; that appellant was traveling away from his business route; and that his “clearly identifiable” personal side trip was a “substantial deviation” from his business trip and not in the course of his employment. The full Commission affirmed and adopted the law judge’s decision.
Appellant argues his claim is compensable under the “dual purpose” doctrine because he was serving both a business and personal motive en route to Meridian.
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979).
The dual-purpose doctrine is set forth in 1 Larson, The Law of Workmen’s Compensation, § 18.00 (1990) as follows:
Injury during a trip which serves both a business and a personal purpose is within the course of employment if the trip involves the performance of a service for the employer which would have caused the trip to be taken by someone even if it had not coincided with the personal journey. This principle applies to out-of-town trips, to trips to and from work, and to miscellaneous errands such as visits to bars or restaurants motivated in part by an intention to transact business there.
Arkansas Courts have recognized the “dual purpose” trip doctrine. This rule was adopted by Arkansas in Martin v. Lavender Radio & Supply, Inc. 228 Ark. 85, 305 S.W.2d 845 (1957), which embraced the “dual purpose” trip doctrine as enunciated by Judge Cardozo in Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929). Our supreme court held Judge Cardozo’s reasoning to be persuasive and worthy of adoption and held:
“The decisive test must be whether it is the employment or something else that has sent the traveler forth upon the journey or brought exposure to its perils. * * * We do not say that service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause, * * *” and sufficient within itself to occasion the journey.
228 Ark. at 92, 305 S.W.2d at 849.
The dual-purpose doctrine is one exception to the “going and coming” rule, which generally precludes recovery for an injury sustained while an employee is going to or returning from his place of employment; and a determination that a trip falls within this exception does not end the inquiry but merely serves to label the trip as either business or personal; deviations from the main purpose require a separate inquiry. See Day v. Central Day Care, Inc., 38 Ark. App. 241, 833 S.W.2d 783 (1992).
As stated in 1 Larson, The Law of Workmen’s Compensation, % 19.00 (1990):
An identifiable deviation from a business trip for personal reasons takes the employee out of the course of his employment until he returns to the route of the business trip, unless the deviation is so small as to be disregarded as insubstantial.
Here appellant testified that he was making a side-trip to take time off; that he was on his way to visit a friend when the accident happened; that he left the route to Metamora by deviating onto I-20; and that he was at least 100 miles out of route when he had the accident.
We think there is substantial evidence to support the finding of the administrative law judge, which was adopted by the Commission, that the appellant’s personal side-trip was a “substantial deviation” from his business trip and that appellant was “not in the course of his employment” when the accident occurred.
Appellant also argues that the “personal-comfort doctrine” applies. In 1A Larson, The Law of Workmen’s Compensation, § 21.00 (1990), Professor Larson states:
Employees who, within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred, or unless, in some jurisdictions, the method chosen is so unusual and unreasonable that the conduct cannot be considered an incident of the employment.
Section 21.10, which analyzes the “personal comfort problem” discusses “such incidental acts as eating, drinking, sleeping, resting, washing, smoking, seeking fresh air, coolness or warmth.”
In the case at bar, the law judge found that the appellant’s deviation was “substantial” and we cannot say that this finding, adopted by the Commission, is not supported by substantial evidence. Therefore, we cannot hold that this deviation was for “such incidental” purposes as discussed by Larson.
Affirmed.
Cooper and Stroud, JJ., agree. | [
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Wendell L. Griffen, Judge.
Following a trial on May 25 and 26, 1994, in the Pulaski Circuit Court, Fifth Division, a jury returned verdicts upon written interrogatories that Mark Weedman, Sr., deceased, intended that his son Mark Weedman, Jr., be the beneficiary of a $200,000 annuity issued by Financial Benefit Life Insurance Company, and that Douglas Easterling, the insurance agent who sold the annuity, negligently failed to implement that intent. The jury also found that Mark Weedman, Jr., was entitled to recover $225,692.04 in damages from Easterling because of his negligence concerning the Financial Benefit Life Insurance annuity. The jury further found that Mark Weedman, Sr., intended for Mark Weedman, Jr., to be the beneficiary of a $300,000 annuity issued by Metropolitan Life Insurance Company, and that Douglas Easterling had failed to implement that intent. The jury assessed Weedman’s damages for that negligence at $332,718.42. The trial court entered judgment in favor of Weedman and against Easterling for $558,410.46 in damages, prejudgment interest of $120,058.15, plus court costs of $45.00.
Easterling has appealed from the judgment entered against him and in favor of Weedman upon the verdicts, and contends that the trial judge erred by excluding proffered testimony concerning the decedent’s intent to give Weedman anything. Easterling also asserts that the trial judge erred by admitting into evidence a probate court estate inventory regarding the Estate of Inza Weedman, the decedent’s widow, for the purpose of proving Weedman’s damages. On cross-appeal, Weedman contends that the trial judge erred by granting summary judgment in favor of Financial Benefit Life Insurance Company and by granting a pretrial motion for dismissal filed by Metropolitan Life Insurance Company.
We hold that the trial court erred by excluding testimony from Easterling, Delores Waymire, and Hazel Cruthirds concerning the decedent’s intent not to give anything to Weedman, and that it erred by receiving the probate inventory into evidence. As to the cross-appeal, we hold that the trial court committed no error in granting the dismissal motion filed by cross-appellee Metropolitan Life Insurance Company. However, we hold that the trial court erred when it granted summary judgment in favor of Financial Benefit Life Insurance Company. Therefore, we reverse and remand for new trial as to Easterling’s direct appeal, reverse and remand for new trial as to Weedman’s cross-appeal regarding Financial Benefit Life Insurance Company, and affirm as to Weedman’s cross-appeal regarding Metropolitan Life Insurance Company.
FACTUAL HISTORY
In October 1987, Mark Weedman, Sr., purchased a $300,000 annuity from Metropolitan Life Insurance Company. In December 1988, the decedent purchased a $200,000 flexible premium annuity from Financial Benefit Life Insurance Company. Douglas Easterling sold both contracts to the decedent in his capacity as a licensed insurance agent appointed by Metropolitan Life Insurance Company and Financial Benefit Life Insurance Company. In January 1989, the decedent exercised the right to receive payments under the Metropolitan annuity. Mark Weedman, Sr., died February 17, 1990, survived by his widow, Inza Weedman, and his son, Mark Weedman, Jr., Inza Weedman, the decedent’s fifth wife and Mark Weedman’s step-mother, died on March 21, 1990, slightly more than a month later, and was survived by her sister, Hazel Cruthirds, and her brother, William (Bill) Selby.
Mark Weedman, Sr., died intestate, and Inza Weedman inherited the bulk of his estate. After Mark Weedman, Sr., died, his son discovered that the proceeds from the Metropolitan Life and Financial Benefit annuities were paid to Inza Weedman. This lawsuit arose from the dispute over the proceeds from those annuities and the confusion that exists because of the alleged negligence by Eas-terling in completing the annuity applications. Mark Weedman, Jr., is identified on each application as the annuitant (the person by whose life the term of the contract is measured). The application for the Financial Benefit flexible premium annuity contains the name of Mark Weedman or Inza Weedman as the beneficiary, and does not indicate which Mark Weedman was intended (Mark Weedman, Sr., or Mark Weedman, Jr.). That application listed Mark D. Weedman as the annuitant and contains a signature purporting to be that of Mark Weedman as annuitant. Easterling signed appellee Weedman’s name as annuitant without Weedman’s knowledge or consent. Although he listed appellee Weedman as the annuitant, Easterling inserted the decedent Weedman’s social security number on the Financial Benefit annuity application in the space that provided for the annuitant’s social security number.
Easterling also prepared a request for an optional income plan for the Metropolitan annuity in January 1989. That request listed “Mark Weedman” as payee, and listed Mark or Inza Weedman, father and stepmother of the payee, as contingent payees. It also showed the payee’s date of birth to be 1-11-27 (that of .appellee Weedman), but showed the payee’s address as 715 North University in Little Rock, an address where appellee Weedman had not lived since 1950. The request that Easterling prepared contains the purported signature of Mark Weedman as payee, and his correct birth date. However, appellee Weedman denied signing the request, consenting to his signature being placed on the application, or knowing that the request had been made. He also never received monthly payments from the Metropolitan annuity.
Appellee Weedman, acting in his personal capacity and as personal representative of the estate of decedent Weedman, sued Easterling, Metropolitan Life, and Financial Benefit in an declaratory judgment action, and alleged that because of the negligence, fraud, and misrepresentation of Easterling in his capacity as agent for Metropolitan Life and Financial Benefit, all benefits payable under the annuities had been wrongfully paid to other parties, including the administrator of Inza Weedman’s estate. Appellee Weedman contended that the benefits payable under the annuities were intended by decedent Weedman to go to appellee Weedman after the deaths of Mark Weedman, Sr., and Inza Weedman, and he requested that the court determine the rights to those benefits. Alternately, appellee Weedman contended that the annuities should be reformed to carry out the intent of the owner (decedent Weed-man) that appellee Weedman receive the benefits upon the death of Mark Weedman, Sr., and Inza Weedman. Easterling denied the allegations of fraud, misrepresentation, and negligence. Financial Benefit and Metropolitan Life denied liability to appellee Weedman on theories of vicarious liability. As trial approached, Financial Benefit filed a motion for summary judgment, and Metropolitan Life filed a motion to dismiss. The trial court granted both motions. For sake of clarity, we shall first address the issues in the appeal, followed by those presented by the cross-appeal.
EASTERLING’S APPEAL
Hearsay Testimony.
Easterling argues that the trial court erred by excluding his testimony concerning whether the decedent Weedman intended for appellee Weedman to receive the proceeds from the annuities. Before the trial began, the trial judge ruled that Easterling would not be allowed to testify about statements made by the decedent to the effect that he was purchasing the annuities to protect his wife (Inza Weedman), and that he did not want his son (appellee Weed-man) to receive anything. As the trial judge observed, the decedent’s intent was the crux of the lawsuit. A proffer was made of Easterling’s excluded testimony based upon the hearsay objection by appellee Weedman. Easterling’s proffered and excluded testimony, given during questioning by his counsel, was as follows:
Q. Mr. Easterling, when you met with Mark, Sr., and Inza in connection with the application for the Metropolitan annuity, did you attempt to discover from Mark, Sr., and Inza Weedman their intent with regard to the ownership and beneficiary interest of that annuity?
A. Yes.
Q. Did they expressly tell you what their intent was?
A. Their express intent was this was for the sole purpose of them and them only.
Q. And what (sic) was that intent expressed to you?
A. The intent was expressed that they were the sole owners and beneficiaries and future users of this annuity.
Q. Did they express any intent with regard to Mark, Jr., having an ownership interest?
A. Yes.
Q. What was that intent?
A. The intent was that he was not to even know that it existed, much less have any interest, future interest.
Q. So I would assume your testimony would also be that they expressed it was their intent that Mark, Jr., wouldn’t serve as a beneficiary or payee of the Metropolitan annuity?
A. True, yes.
Q. Did you have similar discussions with Mr. Weedman at the time the supplemental income policy under the Metropolitan annuity was taken out?
A. Yes.
Q. I’m talking about when that Metropolitan annuity was converted to a monthly pay. Okay. What intent did Mark, Sr., express to you?
A. First of all, that he wanted a monthly income stream and that it was his purpose and Inza’s purpose. He may have asked the question, in fact, he did, what happens if something happened to me, and I said, it would continue the income stream for Inza.
Q. Now, in connection with the Financial Benefit annuity, did you have similar discussions with Mark about the ownership interest and the beneficiary interest under that annuity?
A. Yes.
Q. Can you tell me what Mark, Sr.’s, expressed intent was in regard with that annuity in connection with the ownership and the beneficiary’s interest?
A. For simplistic sake, he wanted it done just like the other one. He didn’t want anyone else to know. It was for the ownership and use of himself and Inza.
Q. Did Mark, Sr., ever indicate to you his intentions with regard to Mark, Jr. In connection with the Financial Benefit policy, or Financial Benefit annuity, rather?
A. I’m sorry. Will you ask that question — I’m sorry, I didn’t - I’m sorry, will you ask the question - I’m sorry.
Q. Uh-huh. Did Mark, Sr., in connection with the Financial Benefit annuity, give you any indication that he ever wanted Mark, Jr., to have any rights as owner or beneficiary under that policy?
A. No.
Q. By no, are you telling me he told you that he did not want Mark, Jr., to have any benefits of ownership or any benefits as a beneficiary?
A. Yes.
Easterling also made a proffer concerning the substance of the testimony that would have been given by Hazel Cruthirds, Inza Weedman’s sister. The proffer regarding the testimony from Cruthirds was as follows:
MR. STRAUSS (counsel for Easterling): Your Honor, we anticipate that, if allowed to — if she had been allowed to testify, Mrs. Cruthirds’ testimony would have been that, in her presence, Mark Weedman, Sr., had made numerous disparaging remarks about Mark Weedman, Jr., including remarks much like, I don’t want him to get any of my money, I don’t want him to have anything of mine. There were numerous remarks of this nature, Your Honor, and we contend that they reflect an intent or a state of mind and, therefore, constitutes an exception to the hearsay rule.
Easterling also proffered testimony from Delores Waymire, a bank officer who had sold the decedent certificates of deposit and had discussed with him what would happen to those funds in the event that he predeceased his wife. The proffered testimony from Waymire was as follows:
Q. When you first met with Mr. Mark and were discussing with him the different investment options that he had, I believe that you testified that you disclosed to him that there were five options, three of which you’ve already testified to. What were the other two investment options regarding CD’s that you discussed with Mark, Sr., and Ms. Inza?
A. Mr. Mark had indicated that the funds were to be solely his or Ms. Inza’s. To eliminate any other part of the estate from obtaining any funds, the CD issued in one person’s name; a for instance, Mr. Mark, Sr., the — any other family members, if that went into — if it was issued in his name only, then the other family members could come in on that estate and obtain those funds. Mr. Mark had on numerous occasions indicated that he did not want Mark, Jr., to have, I quote, “a damn thing of his.” So, with the insurance of account, it had to be in — he had to have a will to eliminate this possibility, and that’s where the will came into existence.
Q. Now, let me summarize or try to summarize what you’ve told us about the five accounts, and if I go wrong, let me know. You’ve testified that there are three accounts that a depositor can take out without the necessity of writing a will, and one would be a joint account, one would be an account in the name of the husband payable on death to the wife, the third one would be an account in the name of the wife payable on death to the husband?
A. Right.
Q. I think your testimony is that a depositor can have two more accounts insured up to $100,000 each if there is a will. And the way those accounts would be handled would be in the name of the individual husband and the other account would be in the name of the individual wife. Is —
A. That is correct.
Q. So after that discussion — There were five CD’s issued. Is that right?
A. That is right.
Q. And I — Is it your testimony that the fourth and the fifth CD’s were named — were titled individually in Mr. Mark’s name and individually in Ms. Inza’s name?
A. That is correct.
Q. Was the will executed at the time those fourth and fifth CD’s were issued?
A. Yes, sir.
Q. So when Mr. Mark and Ms. Inza came in with their handwritten wills, they also came in with money to open up two additional accounts. Is that right?
A. Yes, sir.
Q. Do you recall the amounts of those accounts?
A. Ninety-five thousand.
Q. Ninety-five thousand dollars each?
A. Each, each. Yes, sir.
Q. At the time that Mr. Mark and Ms. Inza came in asking you to be a witness on their will, did they tell you what the contents of that will were?
A. Mr. Mark had indicated that he wanted everything that he had to go to Ms. Inza, this he had mentioned previously, and everything that was Ms. Inza’s was to go to him, eliminating Mark, Jr.
Q. Was there a specific reference in this conversation to Mark Weedman, Jr.?
A. Yes, sir.
Q. By whom?
A. Mr. Mark indicating he wanted to invest more money with us, but was there any way that he could do so and eliminate him. So, and —
Q. Now, when you say eliminate “him” ..
A. Mark, Jr. And I told him, I asked him at that point, did he have a will, and he said no. And I told him that the only way would be for him to have a will and he said, write me one, and I said, I can’t do it. And I said, I can give you a copy of my will and you can use that as — to go by to write your own will, but you must mention Mark, Jr.’s, name in the will.
Q. You explained that to him?
A. Yes, sir.
Q. That he needed to mention Mark, Jr., in the will?
A. In the will.
Q. Now, that was a meeting prior to the date that you actually witnessed the wills, right?
A. It — right.
Q. Were there any discussions about Mark, Jr., at the time the wills were executed?
A. No, sir.
Q. How did you become aware that he had a child?
A. I mentioned — He was asking about insurance of accounts again.
Q. Okay, that — Okay.
A. And I mentioned that he could have one covered under he (sic) with a child and he immediately became very enraged, he said, I don’t want — I have a son, but I don’t want him to get a damn thing of mine. He said he’s lazy and he’s no good and we never hear from him and we don’t want him to have any money.-
Appellee Weedman objected to the foregoing testimony on hearsay grounds. He also objected to Easterling’s proffered testimony concerning the decedent’s intent to leave nothing to his son on the ground that it was inadmissible pursuant to Rule 403 of the Arkansas Rules of Evidence because its probative value was outweighed by its prejudicial effect.
Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, that is offered in evidence to prove the truth of the matter asserted. Ark. R. Evid. 801(c). Hearsay is not admissible except as provided by law or by the rules of evidence. Ark. R. Evid. 802. Appellee Weedman argued successfully at trial and contends in response to Easterling’s appeal that the testimony from Easterling, Cruthirds, and Waymire was hearsay that is not excepted from the general rule of inadmissibility. Easterling argues, on the other hand, that statements made by the decedent concerning his intent insofar as appellee Weedman’s beneficiary status on the annuities amount to admissions of a party opponent because appellee Weedman sued as personal representative of the decedent’s estate as well as in his individual capacity. To that extent, Easterling maintains that the admissibility of the testimony concerning the decedent’s intent is governed by Rule 801(d)(2) of the Rules of Evidence, which states:
Statements Which Are Not Hearsay. A statement is not hearsay if: ... (2) Admission by party-opponent. The statement is offered against a party and is (i) his own statement, in either his individual or a representative capacity, (ii) a statement of which he has manifested his adoption or belief in its truth, (iii) a statement by a person authorized by him to make a statement concerning the subject, (iv) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (v) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.
We hold that the testimony by Easterling concerning the decedent’s statements to him that he did not want his son to be beneficiary or payee as to the annuities was not hearsay and, therefore, was improperly excluded. The decedent was the owner of the annuities in question. He made the purported statements to Easterling concerning his intentions that his son not benefit from the annuities, and that the annuities benefit his wife. The decedent’s statement was against the interest of his estate because the estate would not benefit from the annuities upon the decedent’s death based upon his decision to name his wife as the beneficiary. As personal representative of the decedent’s estate and as the decedent’s heir at law, appellee Weedman was a party against whose interest the decedent’s statements were directed.
To this extent, this case is similar to that of Inmon v. Southwest Auto Supply, Inc., 268 Ark. 1140, 599 S.W.2d 420 (Ark. App. 1980). That case involved a lawsuit against a man who wrote a check on a partnership account to settle a personal debt, and told the creditor’s manager to apply the partnership check to his past due personal account. The trial court allowed the creditor’s manager to testify concerning the man’s directions to apply the partnership check to his personal account. Our court upheld that ruling on appeal in an opinion written by Judge Marian Penix that concluded that the testimony from the creditor’s manager was not hearsay concerning the declarations by the debtor because he was an agent of the partnership, made the statement directing the application for the payment from partnership funds while the partnership existed, and the statement was against the interest of the partnership. For similar reasons, we find that the testimony from Easterling concerning the decedent’s statements that appellee Weedman was not to benefit from the annuities involved in this litigation was not hearsay, and was, therefore, admissible pursuant to Rule 801(d)(2) of the Rules of Evidence.
Although the proffered testimony from Hazel Cruthirds and Delores Waymire concerning the decedent’s statements to them concerning his desire that his son receive none of his property did not address the annuities, that testimony should not have been excluded. Rule 803(3) of our Rules of Evidence states:
Rule 803. Hearsay exceptions — Availability of declarant immaterial. — The following are not excluded by the hearsay rule, even though the declarant is available as a witness: ... (3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, . . .
The core of this litigation is whether the decedent intended to make appellee Weedman the beneficiary or payee for the annuities. The testimony from Cruthirds and Waymire regarding the decedent’s statements that appellee Weedman receive none of his assets is both admissible to show his then existing intent not to give appellee Weedman anything, as well as his motive for deciding as he did. In Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979), a dispute arose concerning the validity of an instrument that the testator signed leaving all his property to his second wife if she survived him. The instrument was in the handwriting of the second wife, and its validity was challenged by the testator’s first wife on behalf of a minor adopted child of the first marriage. After the probate court upheld the will against challenges of lack of testamentary capacity and undue influence, the challenger contended on appeal, in part, that testimony by the second wife regarding the testator’s statements made as to his intent was inadmissible. The Supreme Court refused to even consider that assertion because Rule 803(3) permits such statements concerning present intent. We believe that the Rule applies to the proffered testimony from Cruthirds and Waymire in this case.
The Rule 403 Objection.
The trial court also sustained Weedman’s objection to Easterling’s testimony about the decedent’s statements concerning the identity of the beneficiary for the annuities based upon Rule 403 of the Rules of Evidence. That rule provides that relevant evidence may be excluded if its probative value is substantially outweighed by its prejudicial effect. Relevant evidence may be excluded only if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852 (1980), 459 U.S. 1020 (1982). The trial court has discretion in determining the relevance of evidence and in gauging its probative value against unfair prejudice, and its decision on such a matter will not be reversed absent abuse of that discretion. Robinson v. State, 314 Ark. 243, 861 S.W.2d 548 (1993). The prejudice referred to in Rule 403 denotes the effect of the evidence upon the jury, not the party opposed to it. Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995).
After reviewing the record of Easterling’s proffered testimony, we conclude that it was an abuse of discretion for the trial court to exclude his testimony concerning the decedent’s statements about the intended beneficiary of the annuities. Easterling was accused of having negligently prepared the applications for the annuities so that the decedent’s alleged intent to benefit his son, appellee Weedman, was frustrated, resulting in monetary damage to the son. In order to render a verdict, the jury had to first decide whether the decedent intended to benefit his son insofar as the proceeds from the annuities were concerned. This necessarily meant that evidence relevant to the decedent’s intent, and especially his intent toward benefiting his son as opposed to his wife, was quite relevant for the jury to consider. As we observed in another context, the probative value of evidence correlates inversely to the availability of other means of proving the issue for which the allegedly prejudicial evidence is offered. Smith v. State, 19 Ark. App. 188, 718 S.W.2d 475 (1986). Under Rule 403, the probative value and alleged unfair prejudice of the evidence in question must somehow be assessed, and these values must be compared to determine which will advance the search for truth. Based on that comparison, the proffered evidence may be admitted or rejected.
The only other evidence of the decedent’s beneficiary intent concerning the annuities aside from Easterling’s testimony was the annuity applications. Easterling completed the applications and discussed their contents with the decedent. Whether he misrepresented the decedent’s intent by his mistakes was for the jury to decide. But the jury had the right to know what the decedent had told Easterling he wanted done with the annuity proceeds upon his death: Easterling’s testimony would have been unfavorable to appel-lee Weedman; however, that did not render it prejudicial to the jury, confusing, misleading, or burdensome to the trial process.
The Inza Weedman Estate Inventory.
Easterling also argues that the trial court erred when it admitted a probate inventory from the estate of Inza Weedman into evidence over his hearsay objection. Inza Weedman died within a month of her husband’s death, and her estate received the benefits from the annuities involved in this litigation. Appellee Weedman offered a certified copy of the probate inventory into evidence in an effort to show the extent of his damages, and relies upon Rule 902(4) of the Rules of Evidence in support of the trial court’s decision in favor of its admissibility. That rule, however, deals with the authenticity of documents, not admissibility. As Easterling correctly contends, Rule 902 does not except any document from the rules concerning hearsay. Authentic documents that constitute out of court statements offered for the truth of the matters asserted in them are merely hearsay and, pursuant to Rule 802, are inadmissible unless covered by an exception to the rules concerning hearsay evidence or by other law.
Appellee Weedman contends that the probate inventory was properly admitted pursuant to Rule 803(8), which provides that public records and reports that set forth the regularly conducted and recorded activities of a public office or agency are not excluded by the hearsay rule. However, the public records and reports exception to the general rule excluding hearsay evidence applies to public records and reports of governmental offices and agencies as to their activities. The exception exists because the law deems the reports from governmental offices concerning their regularly conducted and recorded activities to be trustworthy statements of what was done in the public interest. Private parties may not bootstrap what amounts to hearsay about private conduct merely by getting a private report of that conduct filed at a courthouse. The probate inventory was filed in a public office, to be sure, but it was not a record of or statement about anything that a public official or agency had done. It was, at most, a statement by Patrick J. Morrison, the administrator of Inza Weedman’s estate, concerning the property that Inza Weedman owned when she died. The inventory was offered to prove, as true, that Inza Weedman’s intangible personal property included the Financial Benefit Life Annuity with a net value of $225,692.04, and the Metropolitan Life Annuity having a value of $332,718.42.
Even if a representative from the office of the probate clerk had been present to testify, any testimony about the specifics of the inventory (and especially these annuities) would have been hearsay. The probate clerk had not observed or done anything regarding the annuities. The most that the clerk had done was to receive the administrator’s inventory and file-stamp it. That effort did not cause the inventory to be evidence of the probate clerk’s knowledge concerning the material issue of whether Inza Weed-man’s estate owned the proceeds from the annuities. Thus, the public records and reports exception was not met, and the inventory was improperly admitted.
WEEDMAN’S CROSS APPEAL
Financial Benefit’s Summary Judgment.
Weedman contends that the trial court erred by granting Financial Benefit’s motion for summary judgment. Financial Benefit filed the motion, supported by the affidavit of Jennifer Asewicz, its Assistant Vice-President, and contended that because Easterling was an independent contractor there was no basis for holding Financial Benefit vicariously liable for his negligence. In her affidavit, Asewicz asserted that Easterling was paid on commission, that no taxes or Social Security deductions were made from his earnings, that he was not provided workers’ compensation or errors and omissions coverage, and that he signed a contract that described his relationship with Financial Benefit as that of independent contractor rather than employee. Weedman contends that genuine issues of material fact were created by the conflicting provisions of the Managing General Agent Agreement that Easterling executed.
Of course, the object of summary judgment proceedings is not to try the issues, but to determine if there are issues to be tried, and if there is any doubt whatsoever, the motion for summary judgment should be denied. Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1981). On appellate review we must review the evidence in the light most favorable to the party against whom summary judgment was granted. Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994). The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed in a light most favorable to the party resisting the motion. Any doubts and inferences must be resolved against the moving party. Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988).
The question of duty owed by one person to another is ordinarily one of law. However, when the matter of a legal duty is the subject of a contract which is ambiguous as to the parties’ intent, a question of fact is presented. Elkins v. Arkla, Inc., 312 Ark. 280, 849 S.W.2d 489 (1993). That case involved review of an appeal from the entry of summary judgment in favor of a defendant in a wrongful death case brought by the administratrix of the estate of a construction worker whose employer had contracted with Arkla, Inc., to lay a pipe. The worker died when a 10-foot-deep ditch in which he was working collapsed and suffocated him. Arkla moved for summary judgment and argued that the construction company for whom the plaintiff’s decedent worked was an independent contractor responsible for supervising the job, thereby relieving Arkla of a duty to the decedent to assure that the work was performed safely. The trial court granted summary judgment. The Supreme Court reversed and remanded in an opinion written by Justice Newbern that contains the following pertinent statement:
Even though the owner of a construction project hires an independent contractor to do the work, the owner may retain the right and duty to supervise to the extent that it becomes responsible for injury resulting from negligence in performance of the work.
The Restatement (Second) of Torts § 414 (1965), provides:
One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
As Comment C to that section states,
In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.
312 Ark. at 282 (emphasis in opinion). The Supreme Court determined in Elkins that although some of the contractual provisions appeared to support Arkla’s argument that it had limited supervisory authority, other provisions appeared to give Arkla general authority to supervise the details of the work. Justice Newbern also observed that the Supreme Court has found in other cases that a contract with an independent contractor presented a question of fact with respect to the duty to supervise. See Erhart v. Hummonds, 232 Ark. 133, 334 S.W.2d 869 (1960); see also Walker v. Wittenberg, et al., 241 Ark. 525, 412 S.W.2d 62 (1966).
We believe that the holding in Elkins and the cases cited therein apply to this case. Granted, Article 2 of the Managing General Agent Agreement that Easterling signed with Financial Benefit provides that nothing in that agreement shall be construed to create the relationship of employer-employee or principal and agent between Financial Benefit and Easterling (referred to in the agreement as “the Agency”), and that Easterling’s relationship to Financial Benefit shall only be as an independent contractor. However, Article 3 of the agreement provides that Easterling (as the Agency) “shall be subject to rules and regulations as from time to time may be issued by Financial.” The fact asserted by Asewicz in her affidavit (that Financial Benefit never directed or supervised the means and manner of Easterling’s performance or his conduct) may support the argument that the agreement did not require such supervision or direction, but the apparent inconsistency between the provisions rendered them ambiguous on the question and made summary judgment inappropriate.
Even if the jury agreed with Financial Benefit that Easterling was an independent contractor, a genuine issue of material fact remained whether Financial Benefit had been negligent in supervising him, particularly where it had retained the right to issue rules and regulations concerning his conduct in procuring applications for the annuity policy that the decedent purchased through Eas-terling. The jury might have concluded that retention of the right to issue rules and regulations included the right to issue such rules and regulations necessary to prevent the kind of mistakes that appel-lee Weedman accused Easterling of making. It might have concluded that the retained right to issue rules and regulations did not go that far at all. However, that is the kind of inference drawing and proof weighing that belongs to the trier of fact and which makes summary judgment inappropriate.
The Metropolitan Motion to Dismiss.
The final issue on Weedman’s cross-appeal involves the trial court’s decision granting the motion to dismiss by Metropolitan Life Insurance Company. Pursuant to Rule 12(b)(6) of the Arkansas Rules of Civil Procedure, Metropolitan moved to dismiss certain counts of Weedman’s First Amended Complaint that alleged statutory liability of insurance companies for acts, omissions, or representations of agents. Alternatively, Metropolitan Life moved that Weedman be ordered to provide a more definite statement pursuant to Rule 12(e), including a citation to the statute relied upon. Weedman did not file a response to the motion to dismiss, and cited no statute that imposes liability on an insurer for the acts of its agent. The trial court ruled that no such statute existed, and granted the dismissal motion. We will not address the merits of that ruling because Weedman has neither cited us to authority nor put forth an argument concerning it in his cross-appeal. It is well settled that appellate courts will not consider a point raised on appeal where the appealing party does not cite authority for it, makes no convincing argument on it, and it is readily apparent that the argument has no validity. Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994). Therefore, we affirm, as to Weedman’s cross-appeal, the trial court’s ruling that granted the motion to dismiss filed by Metropolitan Life.
SUMMARY
We hold that the trial court erred by excluding the testimony from Easterling, Hazel Cruthirds, and Delores Waymire concerning the decedent’s intent, and that it erred by admitting into evidence the probate inventory of Inza Weedman’s estate over Easterling’s hearsay objection. Therefore, we reverse and remand as to Eas-terling’s appeal. We further hold that the trial court erred in granting summary judgment in favor of Financial Benefit because a genuine issue of material fact existed regarding Financial Benefit’s duty to supervise Easterling, even if the jury deemed him to be an independent contractor. Hence, we reverse and remand on Weed-man’s cross-appeal as to Financial Benefit. However, we affirm the trial court’s decision to grant the motion to dismiss by Metropolitan Life because Weedman has failed to cite any authority and offer argument on that point.
Pittman and Mayfield, JJ., agree.
Rule 902(4) reads:
Self-authentication. — Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) [of Rule 902], or complying with any law of the United States or of this State.
Rule 803(8) reads, in pertinent part:
Hearsay exceptions — Availability of declarant immaterial. — The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(8) Public records and reports. To the extent not otherwise provided in this paragraph, records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. | [
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John B. Robbins, Judge.
Appellant Glen Estes suffered a com-pensable shoulder injury and burns while working for appellee Cedar Chemical Company on September 25, 1989. Appellee accepted responsibility for a 19% permanent impairment rating, but Mr. Estes filed for additional benefits, specifically contending that he was entided to a 25% increase in compensation because his injuries resulted from a safety violation by the appellee. He also claimed that he was entitled to wage-loss benefits in excess of his permanent anatomical impairment rating. The Commission denied Mr. Estes’ claim for additional benefits, finding that he failed to prove a safety violation by clear and convincing evidence, and that he failed to establish entidement to wage-loss benefits because he had the ability to return to work for the appellee at the same wages he was earning prior to the accident. Mr. Estes now appeals, asserting that neither of these findings was supported by substantial evidence. We affirm.
When reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if supported by substantial evidence. Welch’s Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992). Substantial evidence is .that which a reasonable person might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). A decision by the Workers’ Compensation Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983).
Mr. Estes testified on his own behalf that he began working for the appellee in 1984 as a lead operator. He stated that, at the time of the accident, he was earning $11.43 per hour and working about 10 hours of overtime per week. His job included filling large drums with agricultural chemicals. These chemicals were contained in a reactor that was about two stories in height.
On September 25, 1989, Mr. Estes was working in close proximity to the reactor when it ignited. Upon noticing the ignition, Mr. Estes tried to run to safety. However, before he could clear the area the reactor exploded and knocked him down. As a result, he received severe burns and a shoulder injury. The medical evidence showed that he is 17% anatomically impaired as a result of the burns and 2% anatomically impaired because of the shoulder injury.
Mr. Estes acknowledged that an OSHA investigation of the accident did not establish a cause for the explosion. However, he noted that he was working alone at the time of the accident and the normal procedure was to work in two-man shifts. He testified that, because he was working alone, he was unable to monitor the temperature of the reactor. In addition, Mr. Estes asserted that, immediately prior to his work shift, a nickel-sized hole in the reactor had been repaired with a product called Devcon. He stated that this product is supposed to dry in 24 hours, but that a heat lamp was placed inside the reactor which purported to cure the Devcon in only 6 hours.
Since the accident, Mr. Estes has returned to work for the appellee as a storeroom clerk at exactly the same hourly rate that he was making before the injury. However, he testified that he now receives little or no overtime. Mr. Estes acknowledged that the appellee has offered him his old job of lead operator and that he is probably able to physically perform the job. Nevertheless, he declined to accept a job as lead operator for fear of another accident.
For reversal, Mr. Estes first argues that he should have been awarded a 25% increase in compensation because his injuries were the result of a safety violation. He cites Arkansas Code Annotated § 11-9-503 (1987), which provides:
Where established by clear and convincing evidence that an injury or death is caused in substantial part by the failure of an employer to comply with an Arkansas statute or official regulation pertaining to the health or safety of employees, compensation provided for by § 11-9-501 (a)-(d) shall be increased by twenty-five percent (25%).
Mr. Estes also refers to Arkansas Code Annotated § 11-2-117 (1987), which provides that an employer has a duty to provide a “safe work place.” He now contends that the court erred in refusing to allow the statutory award because he proved by clear and convincing evidence that his injury was substantially occasioned by his employer’s failure to provide a safe work place.
Specifically, Mr. Estes points to the OSHA investigative report. This report identifies three possible causes of the explosion: (1) faulty repair of the hole in the reactor, (2) introduction of other material in the reactor, or (3) overheating of the reactor. Mr. Estes argues that any of the above three causes would amount to a safety violation. According to Mr. Estes, the faulty repair of the hole and the introduction of foreign material into the reactor would both constitute safety violations. Also, he contends that overheating would constitute a safety infraction because the appellee never instructed its employees about the dangers of overheating and he was working alone on the day of the accident, thus preventing him from adequately monitoring the temperature.
Mr. Estes fails to recognize that, in later OSHA reports, the first two possibilities for the explosion were ruled out. Thus, it would appear that the most likely cause of the explosion was overheating. If this was the cause, it would seem that a safety violation may have taken place. This is because, after the OSHA investigation, OSHA advised appellee that it had failed to properly clarify to employees the hazards of extreme temperatures. In fact, there was evidence that an alarm was going off before the accident which indicated a high temperature, but that Mr. Estes continued to work under the assumption that the high temperature caused no threat. Even if employees had been informed about this danger, Mr. Estes may have had a difficult time avoiding injury because he was working alone and could not properly monitor the temperature.
Despite the fact that the appellee may have failed to educate its employees as to the hazards of overheating, the specific cause of the explosion was never isolated in the OSHA reports. An OSHA report listed three possible causes for the accident, but it also stated that these were only the “three main areas of potential cause.” It is possible that something else caused the accident and was not discovered, and because the specific cause of the accident was never ascertained with any degree of certainty, we cannot say that substantial evidence does not support the Commission’s finding that Mr. Estes failed to meet his burden of proving by clear and convincing evidence that his injuries were substantially occasioned by a safety violation.
Mr. Estes’ remaining argument is that the Commission erred in finding that he was not entitled to wage-loss compensation. He notes that, while he is now working at the same hourly rate as before the accident, he has lost income because he no longer works overtime. Mr. Estes asserts that it is of no consequence that he is probably physically able to perform his old job because his reasonable fear of another accident prohibits him from doing so.
Had the appellee not offered Mr. Estes his former job upon completion of his healing period, he would have had a claim for wage-loss disability due to the reduced hours that he is able to work as a storeroom clerk. Nevertheless, the appellee has established that, by offering him his former job, it has presented Mr. Estes with a “bona fide and reasonably attainable offer” to be reemployed at the same weekly wage as he was receiving before the accident pursuant to Ark. Code Ann. § ll-9-522(b) (1987). Mr. Estes claims that he is mentally incapable of returning to that job. However, he presented no medical evidence to support his claim that his psychological condition prevents him from doing so. Significandy, Mr. Estes never alleged a compensable psychological injury. The appellee did all that it was required to do by offering Mr. Estes his former job and the Commission correcdy determined that Mr. Estes could have returned to it had he so desired. Thus, he was given a bona fide offer of attainable employment at the same wages, and is not entided to wage-loss disability benefits.
Affirmed.
Pittman, Stroud, and Neal, JJ., agree.
Cooper and Mayfield, JJ., dissent. | [
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John B. Robbins, Judge.
Lorie Britain brought a workers’ compensation claim against Southern Hospitalities, alleging that she sustained a work-related back injury on July 3, 1993. The Commission found that Ms. Britain failed to prove a compensable injury and thus denied her claim for temporary total disability benefits. However, the Commission also held that Southern Hospitalities was responsible for medical treatment provided by Dr. Bruce Smith. Southern Hospitalities now appeals, arguing that the Commission erred in holding it liable for any medical expenses. On cross-appeal, Ms. Britain contends that the Commission erred in concluding that she failed to prove a compensable injury. We affirm on appeal and on cross-appeal. Specifically, we hold that Ms. Britain cannot prevail on cross-appeal because substantial evidence supports the Commission’s finding that she failed to establish a compensable injury under the new requirements set forth by Act 796 of 1993. Despite the fact that Ms. Britain cannot sustain her claim for a compensable injury, we agree with the Commission’s ruling that Southern Hospitality is responsible for those medical expenses which were incurred by Ms. Britain at her employer’s direction.
When reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if supported by substantial evidence. Welch’s Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). A decision by the Workers’ Compensation Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983).
The facts of this case are as follows. On July 3, 1993, Ms. Britain was working in the laundry room for Southern Hospi-talities pulling towels from a washer when she felt a pain in her lower back and right leg. Ms. Britain reported her injury to a coworker, and later informed management about the injury. She continued working that day, but took some pain medication for relief and did not do any more lifting. After work, she was examined by a doctor at a local hospital and was told that she appeared to have a lumbar strain. The doctor prescribed muscle relaxers and pain pills. Ms. Britain returned to the hospital two or three days later when her pain persisted, and was referred to Dr. James Arthur, a neurosurgeon. However, a representative from the employer’s compensation insurer informed her that she was not authorized to be treated by Dr. Arthur, and directed her to consult Dr. Bruce Smith, an orthopedic surgeon.
Ms. Britain complied with the direction from the compensation insurer to consult Dr. Smith, and he examined her on July 22, 1993. Dr. Smith diagnosed a mild back sprain, prescribed more pain medication and muscle relaxers, and directed her to return to work and contact him if she had any problems. Ms. Britain attempted to return to work but, after working for only a few hours, began experiencing additional pain in her lower back and legs. She telephoned Dr. Smith’s office, reported her symptoms, and was told to remain off work until an MRI study of her lumbar spine could be performed. That study was performed on August 11, 1993, and indicated evidence of a prior surgery. However, no recurrent disc herniation was detected, and no nerve-root impingement was found. Based upon that study, Dr. Smith released Ms. Britain to return to work effective August 12, 1993, without restrictions, and released her from care. On September 8, 1993, Dr. Smith again released Ms. Britain to work, but this time he directed that she restrict her lifting to no more than thirty pounds. Ms. Britain returned to work following the August 11, 1993, study and examination and continued to work through September 16, 1993, when she was fired.
It is undisputed that Southern Hospitalities accepted Ms. Britain’s July 3, 1993, back sprain as compensable, and that it paid for the medical treatment that Ms. Britain received from the hospital and paid temporary total disability benefits through July 21, 1993. The parties stipulated that an incident occurred on July 3, 1993, which Ms. Britain immediately reported as a work-related injury. The Commission found that the appellants initially accepted responsibility for the claim. Furthermore, it is undisputed that Southern Hospitalities and its insurance carrier refused to authorize medical treatment by Dr. Arthur, but instead directed Ms. Britain to obtain treatment from Dr. Smith. Nonetheless, Southern Hospi-talities denied liability for any of Ms. Britain’s medical care, including the cost of Dr. Smith’s services and the MR.I study that she received under his care, as well as her claim for temporary total disability benefits associated with the time that she was off work pursuant to Dr. Smith’s direction. Southern Hospitalities denied Ms. Britain’s claim by contending that her injury was not supported by objective findings so that it was not a “compensable injury” within the meaning of various provisions of Ark. Code Ann. § 11-9-102 (Repl. 1996), as amended by Section 2 of Act 796 of 1993.
As the Commission noted in its opinion, the only positive medical finding resulting from any of the examinations of Ms. Britain was that of lumbar tenderness. Following an examination which revealed a good range of motion and a negative straight leg-raising maneuver, Dr. Smith opined that Ms. Britain sustained a “mild sprain.” An MRI was also performed, but the results were negative. Under the new act, a compensable injury must be established by medical evidence supported by “objective findings,” which are findings “which cannot come under the voluntary control of the patient.” Ark. Code Ann. § ll-9-102(5)(D) (Repl. 1996); Ark. Code Ann. § 11-9-102(16)(A)(i) (Repl. 1996). The burden of proof of a compensable injury is on the employee. Ark. Code Ann. § 11-9-102(5)(E) (Repl. 1996). In the instant case, the Commission correcdy concluded that the medical evidence was not supported by “objective findings,” and that Ms. Britain thus failed to establish entitlement to compensation for a compensable injury.
After deciding to deny Ms. Britain’s claim for compensability, the Commission nevertheless awarded benefits against the appellants for medical expenses incurred under the treatment of Dr. Smith. In doing so, the Commission explained:
[W]e note that the respondents are seeking to avoid liability for medical treatment which was provided to the claimant at their direction during the time that they accepted the compensability of the claim. In this regard, the respondents initially accepted the compensability of this claim, and they accepted responsibility for the medical services provided to the claimant by and at the direction of Dr. Smith. Consequently, we find that they cannot now deny liability for those services, including liability for the expenses for the MRI.
An employer is generally only responsible for medical expenses when an employee is determined to have suffered a compensable injury. See Ark. Code Ann. § ll-9-102(5)(F)(i) (Repl. 1996). However, in this case the employer directed Ms. Britain to see Dr. Smith and led Ms. Britain to reasonably believe that such treatment would be covered by workers’ compensation. Although the Commission did not specifically state that it was invoking the equitable doctrine of estoppel, it is implicit in its opinion that it did so. In Snow v. Alcoa, 15 Ark. App. 205, 691 S.W.2d 194 (1985), we set out the elements of estoppel as follows:
1) The party to be estopped must know the facts; 2) he or she must intend that his or her conduct shall be acted upon or must act so that the party asserting the estoppel has a right to believe the other party so intended; 3) the party asserting the estoppel must be ignorant of the true facts; and 4) the party asserting the estoppel must rely on the other party’s conduct to his or her injury.
The facts of this case constitute substantial evidence in support of the Commission’s decision. The employer is estopped from denying responsibility for the cost of treatment rendered by Dr. Smith notwithstanding the fact that Ms. Britain’s back injury was ultimately deemed to be noncompensable. Southern Hospitalities directed Ms. Britain to visit a specific physician and represented that it was accepting her injury as compensable, thus prompting Britain to visit Dr. Smith and incur medical expenses. The Commission did not err in concluding that these expenses should be borne by the appellants.
Affirmed on direct appeal.
ROGERS, J., agrees.
Mayfield and Griffen, JJ., concur.
Jennings, C.J., and Cooper, J., dissent.
Affirmed on cross-appeal.
Rogers, J., agrees.
Jennings, C.J., and Cooper J., concur.
Mayfield and Griffen, JJ., dissent. | [
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JAMES R. Cooper, Judge.
The appellant was convicted in a jury trial of possession of a controlled substance and possession of drug paraphernalia. He was sentenced to one year in the county jail and fined $500.00 and was sentenced to six years in the Arkansas Department of Correction and fined $5,000.00, respectively. On appeal, the appellant argues that the trial court erred in denying his motion to suppress without conducting an evidentiary hearing on the motion. We affirm.
The appellant filed a motion to suppress on August 16, 1994. The trial court entered an order denying the motion to suppress after the appellant did not appear at the hearing held on November 2, 1994. On appeal, the appellant contends that the trial court erred in denying his motion without conducting a hearing because the State had the burden of proving the validity of the search and seizure. However, the appellant failed to raise this objection below.
Prior to trial, the appellant’s trial counsel stated:
We have a — we filed a Motion to Suppress the marijuana and the, well, just the marijuana in this case. We were set for a hearing, I think it was about a week ago yesterday. The defendant did not show up and that Motion to Suppress was denied.
Let me raise a Motion in Limine based largely on the same issue before the Court to deny — to suppress the introduction of the marijuana, let’s see. . . based on ... it is reported to me that Samantha Stevens was the person who opened the door and allowed the police officers into the apartment. The basis of our Motion in Limine to Suppress [is] that she had no authority to consent to the police officers to enter without a search warrant.
The appellant’s argument on appeal was not made to the trial court and hence it is not preserved for appeal. Walker v. State, 314 Ark. 628, 864 S.W.2d 230 (1993). This Court does not address arguments raised for the first time on appeal. Williams v. State, 320 Ark. 211, 895 S.W.2d 913 (1995). Moreover, the proponent of a motion to suppress has the initial burden of establishing that his own Fourth Amendment rights have been violated by the challenged search or seizure. Myers v. State, 46 Ark. App. 227, 878 S.W.2d 424 (1994).
Affirmed.
Pittman, Robbins, Stroud, and Neal, JJ., agree.
Mayfield, J., dissents.
The State asserts that we must dismiss the appellant’s appeal because he did not file a notice of appeal subsequent to the entry of an amended judgment and commitment order. The initial judgment and commitment order was entered on November 10, 1994, and the appellant filed his notice of appeal on November 14, 1994. The trial court entered an amended judgment and commitment order on November 16, 1994, which did not modify the appellant’s sentence but merely set out the presumptive sentence in the appropriate space on the order. However, the trial court subsequently recalled the amended commitment order. Thus, it was not necessary for the appellant to file a new notice of appeal. | [
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Melvin Mayfield, Judge.
Appellant, Louis G. Carraro, Jr., appeals a decision of the Arkansas Board of Review which found that he was discharged from his last work for misconduct connected with the work. The appellant is not represented by an attorney and neither party has filed a brief.
Appellant worked for Southwestern Bell for eighteen years. He was discharged for misconduct as a result of his refusal to follow the Employee Assistance Program’s (EAP) recommendations under the Workplace Violence Policy.
At the Appeal Tribunal hearing, appellant, a supply attendant who delivered materials for Southwestern Bell, testified that he was asked to submit to EAP counselling because of a misunderstanding which occurred on January 3, 1995, when a co-worker told him to “get off my ass and do my job.” Appellant said he came out of his truck and told his co-worker that “I could rip his head off and shove it down his neck, for him to get away from me, our business was done.” Appellant testified it was “just a figure of speech, how can you actually rip somebody’s head off and shove it down their neck, it can’t be done, I didn’t threaten to kick his butt, I didn’t threaten to shoot him or anything, you know it just came out of my mouth that way.” Appellant’s co-worker reported the incident and appellant’s supervisor Russell Hannahs told him he was suspended.
Appellant testified that on January 9, 1995, Hannahs told him he would be fired unless he signed a document referred to as “attachment three” relating to EAP counselling. This untided document is included in the record and is in essence a release. It asks whether appellant “intends to follow the recommendations of the EAP Counselor,” and, if he agrees to follow the recommendations, whether he is “getting the help” he needs or is “completing the agreed upon plan of action.” The document bears appellant’s signature, but the signature line for the EAP Counselor is blank. Appellant testified that he read the document; that he had a union representative with him; that he did not know what the document meant; and that he did not know what he was signing; however, when he was told he would be fired unless he signed, he had no other choice but to sign.
. Appellant said he went to counselling, and the counsellor asked inappropriate questions regarding whether he had been fondled, molested, or played with himself. He said he answered all her questions; that on January 10, she referred him to Dr. Owens; and that Dr. Owens asked the same inappropriate questions. Then Dr. Owens told appellant he did not need to see him any more, but appellant had to take a drug test. Appellant said he felt he had some constitutional rights “when it came to that”; that he had been asked a bunch of questions he should not have been asked; and he believed it was time to get his union involved and let them advise him on what to do. He said he told Dr. Owens he was going “straight to my union.”
On January 11, 1995, the EAP counsellor called appellant and asked whether he had taken a drug test. Appellant said that he told her he was not refusing anything; that he needed to “let someone know what I need to do on this”; that he was waiting for the union to tell him what to do; and that he would get back to her.
On Friday morning, January 13, the counsellor called again and told appellant he had from 8 a.m. until 10 a.m. to take the test. Appellant said he told her again that he was not refusing to take the test, and he testified that he went to the union hall to ask what he should do and he was told to go home until “you hear from us.” Appellant said he went straight home, and at 5 p.m. he received a call from the union telling him he’d been fired because he didn’t “take that drug test” and asking whether there was any way he could take a drug test “right now.”
Appellant testified that the next morning (Saturday) he went to his doctor’s office and had a drug test and took it to the union hall. On Monday he returned to the union hall and was told he needed to go where “they wanted you to take the drug test to begin with.” He said that he went and submitted to another test “which was my money” and that he went back to the union hall and gave it to them.
Appellant was fired on January 18, 1995, after a disciplinary hearing. Appellant said he did not inform the board that he had submitted to the test, but they would not let him say anything. He testified that he couldn’t believe he was fired and had he been told he would be suspended or fired if he failed to take the test, he would have taken it “right then, immediately.” He said the counsel-lor only said that if he did not take the test she would have “no alternative but to call Legal and say you refused,” but nobody said anything about getting fired.
When asked whether he knew that if he didn’t follow EAP recommendations he would be dismissed, appellant testified that he feels like he complied with the recommendations. He said that other than taking the drug test he complied one hundred percent. He said he did not refuse to take the test, the union told him to go to the house, and that is exactly what he did.
Russell Hannahs, the appellant’s supervisor in material management, testified that he suspended the appellant on January 9, 1995, after another employee reported being threatened. Hannahs said that the employer has a workplace violence policy which states that violence or threats to another employee are prohibited and will be dealt with “accordingly”; that he held an investigatory interview with appellant; and that appellant admitted making the threat. Han-nahs said he made the mandatory referral that appellant go to EAP and follow their recommendations. On Friday evening (January 13) about 7 p.m., Francine Barton, the EAP counselor, called him at home and said appellant had not followed the recommendations given him by EAP, but she did not tell him what appellant failed to do, and he did not inquire. Hannahs said he notified his supervisor and appellant was terminated on January 18, 1995, for “failure to follow the recommendations of the EAP.” Hannahs testified further that appellant knew he had to follow the EAP recommendations or be fired.
The Appeal Tribunal granted benefits on the basis that appellant did not willfully or intentionally violate a standard of behavior that the employer had a right to expect. It found that appellant’s reliance on the union representative’s advice was not unreasonable; that appellant’s behavior was a judgment call and not misconduct.
The Board of Review reversed the findings of the Appeal Tribunal holding appellant was discharged for misconduct connected with the work for failure to comply with the recommendations of the employer’s EAP. The Board held that appellant’s failure to follow the recommendation within the specified time frame resulted in his discharge for willful disregard of the employer’s interests, and the appellant’s duties and obligations to the employer.
Arkansas Code Annotated § ll-10-514(a)(l) (Repl. 1996) provides that an individual shall be disqualified for benefits if he is discharged from his last work for misconduct in connection with the work. However, as we explained in Nibco, Inc. v. Metcalf & Daniels, 1 Ark. App. 114, 613 S.W.2d 612 (1981):
To constitute misconduct, however, the definitions require more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good faith error in judgment or discretion. There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design.
1 Ark. App. at 118, 613 S.W.2d at 614.
On review of unemployment compensation cases, the factual findings of the Board of Review are conclusive if they are supported by substantial evidence; but that is not to say that our function on appeal is merely to ratify whatever decision is made by the Board of Review. See Shipley Baking Company v. Stiles, 17 Ark. App. 72, 703 S.W.2d 465 (1986). As we said in Shipley, “We are not at liberty to ignore our responsibility to determine whether the standard of review has been met.” 17 Ark. App. at 74, 703 S.W.2d at 467. When the Board’s decision is not supported by substantial evidence, we will reverse. Sadler v. Stiles, 22 Ark. App. 117, 735 S.W.2d 708 (1987). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Victor Industries Corp. v. Daniels, 1 Ark. App. 6, 611 S.W.2d 794 (1981).
After reviewing the evidence, we cannot conclude the Board’s finding of misconduct is supported by substantial evidence.
The employer stated that appellant was discharged for “failure to follow the recommendations of the EAP.” But, appellant went to counselling with both the counsellor and Dr. Owens, and they both asked what he considered to be inappropriate questions. When Dr. Owens asked him to take a drug test, appellant felt his constitutional rights were threatened and told Dr. Owens he was going “straight to my union.” Moreover, it is not disputed that appellant told the counselor he was not refusing to take the test; that he went to the union; and then went “straight home” on the union’s advice. While appellant’s reliance on the union’s advice may have been ill-advised, we do not think this conduct was sufficient for reasonable minds to conclude that appellant’s conduct exhibited “an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design.”
We finally note that the untided document referred to as “attachment three” states:
I hereby relieve and release the Southwestern Bell Telephone Company, my employer if other than the Telephone Company, and the Southwestern Bell Telephone Company EAP personnel from any and all claims, judgements [sic], damages and causes of action arising out of, or in connection with the aforementioned release of information.
Arkansas Employment Security Law provides that “[a]ny agreement by an individual to waive, release, or commute his rights to benefits or any other rights under this chapter shall be void.” Ark. Code Ann. § 11-10-107(a) (Repl. 1996).
The decision of the Board of Review is reversed and remanded for the Board to allow appellant unemployment compensation.
Reversed and remanded.
Stroud and Neal, JJ„ agree. | [
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John Mauzy Pittman, Judge.
Carroll General Hospital appeals from a decision of the Arkansas Workers’ Compensation Commission which found that the compensation benefits payable to appellee as a result of a hernia operation were not limited to twenty-six weeks as provided in the “hernia statute,” Ark. Code Ann. § ll-9-523(b)(l) (Repl. 1996), and which found that appellee was entitled to additional temporary total disability benefits. Appellant argues that the Commission’s failure to apply the limitation in § 11-9-523 is erroneous as a matter of law and that the award of additional benefits is not supported by substantial evidence. We find no error and affirm.
Appellee suffered a compensable bilateral inguinal hernia, which was surgically repaired by Dr. W. K. Flake on June 30, 1992. Dr. Flake released appellee to return to work without restriction on August 25, 1992. After working for five months, appellee began to have pain in his right groin. Dr. Flake stated that appellee’s discomfort was due to a nerve that became entrapped during appellee’s hernia surgery. When conservative measures did not relieve appellant’s problems, Dr. Flake referred him to Dr. C. R. Magness. Appellant was also evaluated by Dr. E. Stahl. Dr. Stahl referred appellant to Dr. John F. Eidt at UAMS. Appellee was seen by other doctors who agreed with Dr. Flake’s conclusions. On August 13, 1993, Dr. Eidt surgically repaired the entrapped nerve. Appellee then sought additional temporary total disability from August 20, 1993.
Compensation for hernia injuries may not exceed a period of twenty-six weeks. Ark. Code Ann. § ll-9-523(b)(l) (Repl. 1996). Appellant argues that the statute is applicable because appellee’s entrapped nerve is related to his hernia and that there is no statutory provision for additional benefits for disability resulting from a hernia surgery. The Commission, in finding that the hernia statute was not applicable, stated that appellee’s disability resulted from the hernia surgery and was “separate and distinct from the hernia.” It held that a disability resulting from “complications which are a consequence of the occurrence of the hernia but which are separate and distinct from the hernia itself” are not limited to a twenty-six week period as provided in § ll-9-523(b)(l).
The Arkansas Supreme Court has held that a severe or “slow to heal” hernia does not entitle a claimant to compensation benefits beyond the twenty-six week limitation, Jobe v. Capitol Products Corp., 230 Ark. 1, 320 S.W.2d 634 (1959). However, if the hernia results in “complications,” compensation beyond the twenty-six week limitation may be received. In Jobe, the court quoted the Commission, which held: “By ‘complications’ we mean infection, or damage to bodily organs or structures separated (sic) and distinct from the hernia itself...” Id., 230 Ark. at 2.
Appellant urges us to reverse the Commission’s decision based on our ruling in Tibbs v. Dixie Bearings, Inc., 9 Ark. App. 150, 654 S.W.2d 588 (1983). There, the claimant required an additional surgery to remove silk sutures used in the surgery to repair his hernia. Because of the claimant’s allergic reaction to the sutures which caused stitch infections, his hernia injury was slow to heal. We held that Tibbs was indistinguishable from Jobe and limited compensation to the twenty-six week period as provided in the hernia statute. We did so based in part on the medical evidence which did not reveal that the claimant’s failure to heal prompdy, because of complications from the hernia surgery, caused him to suffer “any greater disability than any other person sustaining a severe hernia injury,” and that the claimant failed to prove any disability “separate and distinct from the hernia itself.” Id., 9 Ark. App. at 153.
We find Tibbs, supra, distinguishable from the case now before us. Unlike the claimants in Jobe and Tibbs, appellee’s disability arose from a condition “separate and distinct” from the hernia injury itself, an entrapped nerve, and his failure to heal promptly was not related to the hernia but to damage to a “bodily structure” separate and distinct from the hernia. Jobe, 230 Ark. at 2.
Appellant also argues that our holding in Tibbs be interpreted as stating that the hernia statute precludes additional compensation for disability resulting from complications from a hernia surgery and is applicable to the case before us. However, in Tibbs, complications from the claimant’s hernia surgery caused his hernia injury to not heal promptly. Here, the medical evidence was that the entrapped nerve, not the hernia, caused appellee to be unable to work. Moreover, the Commission found that appellee’s disability resulted from the nerve entrapment and not from the hernia. Therefore, we affirm the Commission’s finding that compensation for appellee’s disability is not limited by the hernia statute.
Further, the Commission found that appellee’s disability was from the hernia surgery and not from the hernia. Dr. David Bauer and Dr. Flake related appellee’s condition to the surgery. When reviewing the sufficiency of the evidence to support a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the Commission’s findings and will affirm if the Commission’s decision is supported by substantial evidence. Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Cagle Fabricating & Steel, Inc. v. Patterson, 42 Ark. App. 168, 856 S.W.2d 30 (1993). The Commission’s findings on this issue are supported by substantial evidence.
Secondly, appellant argues that appellee’s healing period, following the second surgery on August 23, 1993, ended before September 22, 1993, because Dr. Stahl stated that all objective testing was normal. The Commission found that the healing period ended on November 23, 1993, and awarded additional temporary total disability benefits from August 21, 1993, through November 23, 1993.
Appellant also argues that there is no evidence that appellee was unable to work subsequent to August 20, 1993, other than his own testimony, and thus he is not entitled to temporary total disability benefits subsequent to August 20, 1993.
Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. J.A. Riggs Tractor Co. v. Etzhorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990). Arkansas Code Annotated § 11-9-102(13) (Supp. 1995) defines “healing period” as that period for healing of an injury resulting from an accident. The healing period continues until the employee is as far restored as the permanent character of his injury will permit, and if the underlying condition causing the disability has become stable and if nothing in the way of treatment will improve that condition, the healing period has ended. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996). The determination of when the healing period has ended is a factual determination for the Commission which is affirmed on appeal if supported by substantial evidence. Id.
Dr. Bauer’s August 18, 1993, report said that appellee’s entrapped nerve prevented appellee from working. On August 23, 1993, appellee had a second surgery for the entrapped nerve. Appellee testified that he has not worked anywhere since his August 23, 1993, surgery, has not been released to return to work, and did not think that he was able to perform his previous job with appellant. Appellee said that his right leg is weak and that he is unable to lift any weight or walk a significant distance. Although he helps his wife with some housework, he has to stop and rest.
Appellee continued to receive physical therapy and to be followed by Dr. Stahl after the second surgery. Dr. Stahl’s September 22, 1993, report said that appellee was healing well and all objective testing was normal. Dr. Eidt’s November 24, 1993, report stated that appellee continued to complain of pain in the right groin which affected his ability to walk and that appellee stated that he was unable to work. The Commission found, based on Dr. Eidt’s report and appellee’s testimony at the hearing, that the healing period ended on November 23, 1993. We cannot conclude that that finding is not supported by substantial evidence or that the Commission erred in awarding additional temporary total disability benefits.
Affirmed.
Neal and Stroud, JJ., agree.
The definition remained the same when the Workers’ Compensation law was amended in 1993. | [
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John F. Stroud, Jr., Judge.
Deborah Vanzant appeals from the trial court’s denial of her motion to vacate an order granting James Purvis’s petition for a change of custody of the parties’ minor children. She claims that the trial court erred in finding that she was represented by counsel and that she had been properly served with notice of the petition for change of custody. She also alleges that the trial court erred in refusing to grant a new trial. We agree and reverse.
On August 3, 1988, the District Court of Harrison County, Texas, entered a final decree of divorce, granting an absolute divorce to the parties. The decree granted custody of the parties’ minor children to the appellant and ordered the appellee to pay child support in the sum of ninety-five dollars per week.
As a result of the appellee’s failure to pay child support as ordered pursuant to the parties’ final decree of divorce, the appellant became a recipient of Aid to Families with Dependent Children (AFDC) benefits and subsequendy assigned her support rights to the State of Arkansas. On June 16, 1992, an order of registration was entered by the Chancery Court of Washington County, Arkansas, registering the divorce decree. On July 30, 1993, a petition for citation for contempt was filed by the State of Arkansas, Department of Finance and Administration, Division of Revenue, ex rel. Deborah Jean Purvis against James D. Purvis, alleging that Mr. Purvis had failed to pay his child-support obligation and had incurred an arrearage in the amount of $18,565.00 as of June 30, 1993. The State also alleged that he should be held in contempt of court as a result of his failure to pay his child-support obligation, and the State should be entided to a judgment on the total arrearage including a reasonable attorney’s fee and costs of the filing of the action.
The petition for citation of contempt was served on the appel-lee on September 3, 1993, and he subsequendy filed a response to the petition for citation of contempt and a counterpetition asking that custody of the parties’ minor children be awarded to him. A summons on the counterpetition for change in custody was prepared and filed with the court but was never served upon the appellant.
On September 7, 1993, the appellant wrote a letter to the Office of Child Support Enforcement advising that her case should be closed “as of today.” She was moving to Colorado and left a forwarding address of P.O. Box 26235, Colorado Springs, Colorado 80936. On September 23, 1993, George Butler, the attorney for the Arkansas Child Support Enforcement Unit, filed an answer to counterpetition on behalf of the appellant, denying those material allegations contained in the appellee’s counterpetition for change in custody. On September 23, 1993, the attorney for the Child Support Enforcement Unit sent a letter to the appellant at 741 Morn-ingside Drive #3, Fayetteville, Arkansas 72701, with a copy of the answer to counterpetition and a letter advising her that she would need to obtain another attorney to represent her in the matter of child custody.
On October 13, 1993, the Chancery Court of Washington County, Arkansas, entered an order dismissing the petition for citation of contempt on the appellee’s motion. On October 6, 1993, the attorney for the Arkansas Child Support Enforcement Unit sent a letter to the appellant at P.O. Box 26235, Colorado Springs, Colorado 80936, advising her that a custody hearing had been scheduled for November 10, 1993, at 10:00 a.m. in the Washington County Courthouse. The letter further advised that the Office of the Child Support Enforcement Unit would not be able to represent her in the matter and that she would need to obtain private counsel. On November 10, 1993, a trial on the merits was held in the Chancery Court of Washington County, Arkansas, on the appellee’s counterpetition for change in custody. The appellee appeared in person and by counsel. The appellant did not appear although the attorney for the Arkansas Child Support Enforcement Unit did appear to make a statement to the court. He advised the court that the appellant was not present and in fact had, by letter dated September 7, 1993, asked his office to close her case. He further stated that she had not given him authority to represent her in this matter although he did file an answer to the counterclaim. The court recognized his representation and advocacy to the extent stated and recognized his reply to the counterpetition for the change in custody. The court further stated that as an individual attorney and as attorney for the Child Support Enforcement Unit, he did not have authority to represent Ms. Vanzant on the counter-petition. Subsequently, evidence and testimony was taken by the court, the appellee was found to have presented a prima facie case for change of custody, and the court granted the appellee custody of the parties’ minor children. The attorney for the Arkansas Child Support Enforcement Unit offered no defense, made no cross-examination of any witnesses, and in fact left the courtroom prior to the completion of testimony.
On December 13, 1993, the Chancery Court of Washington County, Arkansas, entered an order and judgment granting judgment in favor of the Arkansas Child Support Enforcement Unit against the appellee in the sum of $3,000.00 for past due child support as of November 30, 1993. The Court further found that this sum did not include any “non-AFDC” arrears and directed the appellee to pay the sum of $25.00 per month until paid in full.
On November 13, 1993, the appellee appeared at appellant’s residence in Colorado Springs, Colorado, and took custody of the parties’ minor children pursuant to the order of the Chancery Court of Washington County, Arkansas.
On August 15, 1994, the appellant, acting pro se, filed a motion for change of custody in the Chancery Court of Washington County, Arkansas, asking that the custody of the parties’ minor children be awarded to her. On January 5, 1995, appellant filed a motion to vacate in the Chancery Court of Washington County, Arkansas, asking that the order entered on November 10, 1993, granting custody of the parties’ minor children to the appellee be vacated and a new trial on the merits be set on the appellee’s counterpetition for change in custody.
On March 21, 1995, the court denied the motion, finding that the appellant was represented by George Butler in the former proceeding regarding modification of custody and that she was not denied representation before or at the time of the hearing on November 10, 1993.
The appellant’s argument on appeal is that the trial court erred in finding that appellee’s service of the counterpetition on George Buder, attorney for the State of Arkansas Child Support Enforcement Unit, was sufficient. She argues that the trial court’s finding that she was represented by Mr. Buder is incorrect and that it was error for the trial court to deny her motion to vacate the order.
It is undisputed that the appellee served the counterpetition on Mr. Buder and not on the appellant. The appellant contends that she never received notice of the hearing which was held on November 10, 1993, and that the appellee was required to serve her personally. The appellee claims that service on Mr. Buder was proper under Ark. R. Civ. P. 5(b), which provides:
Whenever under this rule or any statute, service is required or permitted to be made upon a party represented by an attorney, the service shall be upon the attorney unless the court orders service upon the party himself.
Thus, whether service on Mr. Buder was sufficient depends upon whether he represented appellant.
Mr. Buder was the attorney who filed the original petition for contempt against appellee on behalf of the Arkansas Department of Finance and Administration. The scope of his representation is defined by statute. Arkansas Code Annotated § 9-14-210 provides:
(d) The State of Arkansas is the real party in interest for purposes of establishing paternity and securing repayment of benefits paid and assigned past due support, future support, and costs in actions brought to establish, modify, or enforce an order of support in any of the following circumstances:
(1) Whenever aid under §§ 20-76-410 or 20-77-109 is provided to a dependent child; or
(2) Whenever a contract and assignment for child support services has been entered into for the establishment or enforcement of a child support obligation for which an assignment under § 20-76-410 is not in effect; or
(3) Whenever duties are imposed on the state pursuant to the Uniform Interstate Family Support Act, § 9-17-101 et seq.
(e)(1) In any action brought to establish paternity, to secure repayment of government benefits paid or assigned child support arrearages, to secure current and future support of children, or to establish, enforce, or modify a child support obligation, the Department of Human Services, the Office of Child Support Enforcement, or both, or their contractors, may employ attorneys.
(2) An attorney so employed shall represent the interests of the Department of Human Services or the Office of Child Support Enforcement and does not represent the assignee of an interest set out in subsection (d) of this section.
(3) Representation by the employed attorney shall not be construed as creating an attorney-client relationship between the attorney and the assignee of an interest set forth in subsection (d) of this section, or with any party or witness to the action, other than the Department of Human Services or the Office of Child Support Enforcement, regardless of the name in which the action is brought.
(Emphasis added.)
In this case, the appellant executed a contract with the Child Support Enforcement Unit to assign her child-support rights. The State filed its petition pursuant to the statute, indicating in the style of the case that it was filed on behalf of the State. Clearly, Mr. Butler was prohibited, by statute, from representing the appellant, and the trial court’s finding that he did represent her was erroneous. Because we find that the trial court erred in finding that the appellant was represented by Mr. Buder, it is clear that service of the counterpetition on him by appellee was not valid service under Ark. R. Civ. P. 5.
A judgment rendered without notice to the parties is void. Sides v. Kirchoff, 316 Ark. 680, 874 S.W.2d 373 (1994). When there has been no proper service and, therefore, no personal jurisdiction over the defendant in a case, any judgment is void ab initio. Id. Thus, the original order changing custody of the parties’ minor children to the appellee was void ab initio.
Reversed and remanded for action consistent with this opinion.
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Judith Rogers, Judge.
Appellants appeal from an order granting appellees a nonexclusive easement by prescription in a driveway and also quieting tide in appellees to the strip of land lying south of the driveway. On appeal, appellants contend that both findings made by the chancellor are clearly against the preponderance of the evidence. Finding no error in the chancellor’s decision, we affirm.
The parties are adjacent landowners. The property they now own was once part of a single, thirteen-acre tract owned by Bill and Mary Harris. The Harrises lived in a home which was situated on the southern two acres, which was separated from the rest of the property by a fence. The entire tract was bordered on the west by Highway 71. When the Harrises purchased the property, access to the home was gained by a circular driveway off a tin-horn from Highway 71. Mr. Harris later constructed an “L” shaped road across the property from Highway 71 to what is known as Commission Road. The road was placed south and parallel to the fence mentioned above, running in an easterly direction from the highway. At a point just beyond the house, the road makes a ninety-degree turn to the north, crosses the fence line and continues until it intersects Commission Road. Mr. Harris put in a gate where the road crossed the fence and placed a lock on it. Mr. Harris also built a concrete pad connecting the road and the home. The driveway in question is that part of the road as it runs from Highway 71 to the house. Grass was allowed to grow over the original circular driveway.
In 1978, the Harrises sold the home and two acres to Harlan and Myra York. In dividing the property, the Harrises retained tide to the driveway with the location of the property line being some six feet south of the drive. After the sale, the Harrises rented the home from the Yorks for a year while they built their own home on the northern part of the property, including a separate driveway. During this time, Mr. Harris put in curbs and gutters along the driveway. The Yorks lived in the home and used the drive as the sole access to their property from 1979 to 1986, when the house was sold to the appellees, William and Sharon Ginger. Meanwhile, the Harrises divorced, and Mr. Harris later died in 1990. The Harrises’ home was then occupied by their daughter and her husband, Larry and Lynette Denton. Appellants, Eugene and Glenda Fields, bought the northern tract from Mr. Harris’s heirs in December of 1991.
Appellees received correspondence from appellant’s attorney in June of 1992 informing them that appellants considered appellee’s use of the drive as being permissive. In August of 1992, appellant’s attorney wrote another letter informing appellees that the appellant’s “future plans for the property are such that it is probable that [appellants] will be closing the driveway.” That same month, appel-lees filed this lawsuit claiming that they had acquired a prescriptive easement in the driveway. Appellees also contended that they had acquired the property south of the fence by adverse possession. The chancellor found that appellees had established their right to a permanent, nonexclusive easement by prescription in the driveway. The chancellor further determined that appellees had acquired the strip of land south of the driveway by adverse possession, but that appellees had failed to establish their claim to the property north of the drive to the fence. In his decision, the chancellor found that appellees had established their adverse claims by tacking their possession onto that of the Yorks.
Appellants first contend that the chancellor erred in finding that appellees had acquired a prescriptive easement in the driveway. Although we review chancery cases de novo, we will not reverse a chancellor’s findings unless they are clearly against the preponderance of the evidence, or clearly erroneous. Hutter v. Medlock, 29 Ark. App. 122, 777 S.W.2d 869 (1989).
Myra York testified that the property was not surveyed when she and her husband bought the house from the Harrises in 1978. She said that she believed that everything south of the fence was theirs and that she assumed that the driveway went with the house because there was no other access to the home. She further testified that Mr. Harris told them that the driveway was theirs, saying, “It’s your drive.” She related that Mr. Harris used the driveway to move equipment to his property and that she did not object to his use of the road. She said that they always got along well and never had any problems with each other. Mrs. York also stated that the Harrises had their own driveway and did not use the drive in question on a regular basis.
Mary Harris related that she and Mr. Harris were divorced in 1986 but that they had dated each other after the divorce until his death in 1990. She testified that when they sold the house to the Yorks they intended to keep the road and property south of the fence for future development. She testified, however, that Mr. Harris told her that “Before seven years is up we’ve got to sell part of this road to the Yorks or dedicate it to the county.” Mrs. Harris later acknowledged that Mr. Harris was “definitely aware” that the Yorks could claim the drive by adverse possession after a seven-year period and she said that, sometime before she left in 1986, he asked her not to let him forget to do something about it. She said that she was not aware that he had done anything while they were married or during the time that they dated one another.
Appellee William Ginger testified that, at the time of his purchase of the property in 1986, he drove with the realtor up the drive, which was the only means of getting to the house. He said that he saw the fence to the left of the drive and observed that the house was enclosed by fences on all but the western boundary, and he said that he assumed that the area south of the fence, including the driveway, was part of the property he was purchasing. He said that he had used the drive for access to his home since he had bought the house, just as his predecessors in tide had done.
Mr. Ginger recalled that Highway 71 was widened to four lanes in 1989. He said that Mr. Harris sought his cooperation in having the road dedicated to the county so that a left-hand turn lane for access to the drive could be placed on Highway 71. Mr. Ginger understood that a turnout could not be constructed for a private road, and he was amenable to the idea thinking it beneficial because it would increase the value of his property and also reduce the risk of having an accident. Ginger said that Mr. Harris also asked him to pay for paving his portion of the road. Ginger stated that the turn lane was built and a stop sign was placed at the opening of the drive by the county. He revealed that, during his discussions with Mr. Harris, a question arose as to who owned the road. Ginger said that he had believed the road was his and he looked at the survey, which had been done at the time he bought the property, and discovered that the Harris’s owned the road. He further testified that Mr. Harris had used the road sparingly prior to the placement of the turn lane but that afterwards his use of the road became more frequent. Mr. Ginger said that he did not object because as far as he was concerned the road had been dedicated to the county. He felt that this belief was confirmed when Mr. Harris’s daughter and her husband, the Dentons, asked him for permission to relocate their mailboxes onto the road, since the Post Office would not allow mailboxes to be placed on a private drive. He also said that the Dentons asked him for permission to name the road Dakota Drive, after their son, and for the road to be included in the 911 system, both of which were accomplished.
There was testimony that, although the county treated the drive as a county road, its dedication had never been formally accepted and that it was not, in fact, a county road.
An individual asserting an easement by prescription has the burden of proof to show by a preponderance of the evidence that use of the roadway has been adverse to the owner and his predecessors in title under claim of right for the statutory period. Wallner v. Johnson, 21 Ark. App. 124, 730 S.W.2d 253 (1987). In contesting the chancellor’s decision, appellants contend that the Yorks’ and the Gingers’ use of the drive was permissive and did not ripen into an adverse right. In so arguing, appellants, as well as the dissent, rely on the familiar rule of law spoken of in the decision of Manitowoc Remanufacturing, Inc. v. Vocque, 307 Ark. 271, 819 S.W.2d 275 (1991), where it is said:
Overt activity on the part of the user is necessary to make it clear to the owner of the property that an adverse use and claim are being exerted. Mere permissive use of an easement cannot ripen into an adverse claim without clear action placing the owner on notice.
Id. at 275-276, 819 S.W.2d at 278 (citations omitted). However, appellants and the dissent fail to acknowledge that the supreme court has long recognized a variation in the general rule. In Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954), the court, after reviewing the leading decisions in Arkansas concerning prescriptive rights, stated the exception to the rule as follows:
A consideration of the many opinions of this court regarding the acquisition of a right-of-way over lands makes it clear, in our opinion, that no real conflict exists. All our opinions are in harmony on one point, viz.: Where there is usage of a passageway over land, whether it began by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to his interest or where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, then such usage ripens into an absolute right.
Id. at 446, 266 S.W.2d at 283. One of the cases discussed and quoted at length by the court in Fullenmder was McGill v. Miller, 172 Ark. 390, 288 S.W 932 (1926), a case factually similar to the one at bar. There, the court affirmed the chancellor’s grant of a prescriptive easement in an alley to owners of adjoining property. The court said:
It is true that the use originated as a permissive right and not upon any consideration, but the length of time which it was used without objection is sufficient to show that use was made of the alley by the owners of adjoining property as a matter of right and not as a matter of permission. In other words, the length of time and the circumstances under which the alley was opened were sufficient to establish an adverse use so as to ripen into title by limitation.
It is true that the testimony of McGill establishes the fact that, after he became the owner of the property in 1910, the alley was frequently used, but that there was an embankment at the mouth of the alley, so that it was difficult to use it; and he also testified that one of his neighbors asked permission to dig down the alley and use it for the purpose of hauling manure. He stated that he agreed for his neighbor to so use the alley, but his own testimony shows that the alley was open and plainly marked prior to that time, and was occasionally used. His testimony is not sufficient to show that, prior to that time, during the years that the alley had been open, the use of it had merely been permissive, nor that those who used the alley after he acquired the property did so merely by permission.
We give full recognition to the principle of law established by the numerous decisions cited in the brief of appellants, to the effect that a permissive use cannot ripen into a legal right merely by the lapse of time, but we think that the evidence is sufficient to show that this use was made of the alley as a matter of right and in hostility to the right of the original landowner to close the strip and prevent its use. The open way was for the especial benefit of the owners of adjoining property, and is the only convenient access that they have to their properties, and this confers upon them such special right as enables them to maintain a suit to prevent an obstruction. We think that the chancellor was correct in holding that there was an easement for the use of the alley, and that neither McGill or Todd had the legal right to close it.
Id. at 394, 288 S.W. at 934. Given the principles upon which the McGill court based its opinion, it was not critical to the decision that there was no evidence of overt activity on the part of the adverse users alerting the owner of their adverse claim. Indeed, this was one of the complaints asserted in the dissenting opinion. See also Armstrong v. McCrary, 249 Ark. 816, 462 S.W.2d 445 (1971).
In Zunamon v. Jones, 271 Ark. 789, 610 S.W.2d 286 (Ark. App. 1981), we rejected the notion that it was necessary in all cases that persons claiming a prescriptive easement must openly communicate their intention to use the road adversely before a permissive use can ripen into an adverse right. Relying on Fullenwider v. Kitchens, supra, and McGill v. Miller, supra, we recognized that the length of time and the circumstances under which the roadway was opened and used is sufficient to establish an adverse claim, when those circumstances indicate that the true owner knew or should have known that the road was being used adversely. See also White v. Zini, 39 Ark. App. 83, 838 S.W.2d 370 (1992).
The determination of whether the use of a roadway is adverse or permissive presents a question of fact. Wallner v. Johnson, supra. In the case under consideration, it was shown that the driveway was the only means of access to the home. A review of the testimony reveals that, based on the location of the drive, both the Yorks and the Gingers assumed that they owned the driveway, with the Yorks’ belief being based in large part on Mr. Harris’s representation that the driveway was theirs. The testimony taken as a whole thus strongly indicates that their use of the drive was under a claim of right, as was found by the chancellor. It was also firmly established that Mr. Harris had actual knowledge of their adverse use of the road and, despite that knowledge, he never denied them access to the drive. We also regard as significant the testimony that Mr. Harris sought permission from Mr. Ginger in the effort to dedicate the road to the county, as well as the testimony that he asked Mr. Ginger to contribute to the cost of paving the road. Given the circumstances of this case, we cannot say that the chancellor’s decision is clearly against the preponderance of the evidence, or that it is contrary to settled law.
On this point, appellants further argue that the chancellor erred in failing to limit the purposes for which appellants can use the road. This issue was not raised at trial and we decline to address it for the first time on appeal. Barr v. Ark. Blue Cross, 297 Ark. 262, 761 S.W.2d 174 (1988).
Appellants next argue that the chancellor erred in finding that appellees and their predecessors in tide had adversely possessed the strip of land south of the driveway because of Mrs. Harris’s testimony that she planted a row of trees there which she watered and tended on a regular basis until 1986. However, there was conflicting evidence as to who maintained this strip of property. Appellees presented testimony that the Yorks and those hired by them mowed the strip, and Mr. Ginger testified he was the only one who mowed the strip from the time he bought the property until the appellants requested that he stop doing so in 1992. There was also evidence that an electric light pole was located on the strip prior to the Gingers’ purchase of the property. It was said that the switch for the light was inside the Gingers’ house and that they paid for the electricity to the pole. As with the first issue, we cannot say that the chancellor’s decision is clearly against the preponderance of the evidence.
Affirmed.
Jennings, C.J., and Cooper, Robbins and Mayfield, JJ., agree.
Griffen, J., dissents. | [
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JOHN B. Robbins, Judge.
Appellant Betty Carter Branch and appellee Kyle Carter were divorced on July 19, 1983. Pursuant to the divorce decree, Ms. Branch received custody of their three-year-old daughter and Mr. Carter was ordered to pay child support of $52.00 per week. For the first year following their divorce, Mr. Carter was current on his child-support payments. However, the court records indicate that, since July 19, 1984, Mr. Carter has continued to fall behind on his support obligation. On May 18, 1994, Ms. Branch filed a petition for relief alleging that Mr. Carter was delinquent on his payments. The parties stipulated that Mr. Carter was delinquent in the amount of $12,251.50 for the time period between July 19, 1984, and July 19, 1989, and $7,404.00 for the time period between July 20, 1989, and the date Ms. Branch’s petition was filed. The chancery court ordered Mr. Carter to pay $7,404.00 in delinquent child support. However, the court found that collection of delinquent child support which accrued prior to July 20, 1989, was barred by the applicable statute of limitations. Ms. Branch acknowledges that collection of the delinquent child support which accrued prior to July 19, 1986, is time-barred. However, she contends that the support which accrued between July 19, 1986, and July 19, 1989, should not have been barred by the statute of limitations. The parties stipulated that the amount which accrued during this three-year period was $5,562.00, and Ms. Branch appeals, asserting entidement to this amount. We agree and reverse.
In addressing this issue we have reviewed the recent changes that our legislature has made with regard to the limitations period for the collection of delinquent child support. Prior to 1989, the applicable statute of limitations for arrearages occurring as a result of failure to pay child support was five years. Ark. Code Ann. § 16-56-115 (1987). However, in 1989 the legislature changed the limitations period to ten years. This change was codified at Ark. Code Ann. § 9-14-236 (Supp. 1989). In Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990), the supreme court held that the ten- year statute did not apply retroactively, and all child support that had become due prior to the effective date of the 1989 act was still subject to the five-year limitations period. On March 29, 1991, the legislature again modified the limitations period through enactment of Act 870. This act, codified at Ark. Code Ann. § 9-14-236 (Repl. 1993), provides that any child-support action can be “brought at any time up to and including five (5) years beyond the date the child for whose benefit the initial support order was entered reaches eighteen (18) years.” The act also provides that the enlarged limitations period “shall retroactively apply to all child support orders now existing.”
Act 870 of 1991 was discussed in Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992). In that case, the supreme court acknowledged that the act applied retroactively. However, quoting Morton v. Tullgren, 263 Ark. 69, 563 S.W.2d 422 (1978), the court stated:
[N]o one has any vested right in a statute of limitations until the bar of the statute has become effective. It is also true that the General Assembly may validly enlarge the period of limitations and make the new stiatute, rather than the old, apply to any cause of action which has not been barred at the time the new statute becomes effective.
And see Chunn v. D’Agostino, 312 Ark. 141, 847 S.W.2d 699 (1993).
In the present case, the child-support arrearage that accrued between July 19, 1984, and the date the 1989 act became effective was subject to the five-year statute of limitations because the 1989 act did not have retroactive application. However, when the 1991 act, which was retroactive, became effective, its provisions applied to all delinquent child support which was not barred under previous statutes of limitations on the date of its enactment. Any cause of action for delinquent child support which was barred at the time Act 870 went into effect could not be revived by the act. Chunn v. D’Agostino, supra; Johnson v. Lilly, supra. Consequently, at the time Act 870 became effective by an emergency clause on' March 29, 1991, Ms. Branch could have brought an action for delinquent child support extending back to March 29, 1986, because an action for these accruals would not have been time-barred under prior law. Therefore, the 1991 act retroactively applies to all delinquent payments which accrued after March 29, 1986.
In her brief, Ms. Branch argues that the applicable statute of limitations does not bar recovery for any arrearage accrued after July 19, 1986. In actuality, only claims for arrearage that accrued prior to March 29, 1986, are time-barred. Nonetheless, we agree with Ms. Branch’s specific claim for relief. She contends that she is entided to unpaid child support which accrued between July 19, 1986, and July 19, 1989. Based on our review, we agree that she is entitied to such an award. Therefore, we reverse and remand to the trial court for an award of support to appellant for this additional period of' time, and for the statutory attorney’s fee and interest provided under Ark. Code Ann. § 9-14-233 on the total child support owed in the sum of $12,966.00.
Reversed and remanded.
Rogers and Neal, JJ., agree. | [
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Steele Hays, Judge.
The appellant was charged and convicted on two counts of rape, two counts of aggravated robbery and two counts of kidnapping. He was convicted by a jury and received a total of 135 years. The appellant raises three issues on appeal, none of which have merit.
The charges stemmed from a criminal episode that occurred sometime shortly after midnight on August 15 1981. The three female victims were accosted at gunpoint by two men as they were getting out of their car in a parking lot near a Little Rock nightclub. The two men, one holding a gun, the other a knife, robbed them of their purses and jewelry. The victims were then abducted and forced to drive to an isolated field where the assailant who had been holding the gun, forced them to engage in sex with them.
The robbery was reported immediately, but the victims said nothing about the rapes, attributing their reluctance to the fact that one of them was getting married the next day. When the appellant was picked up approximately a year later, they decided to pursue prosecution of the sexual assault.
Appellant first argues the trial court erred by not declaring a mistrial after the defendant was seen by members of the jury while wearing handcuffs. On returning from a lunch break, the bailiff and the appellant, who was handcuffed, were allegedly seen by some of the jurors as they passed through the corridor. Appellant requested a mistrial which was denied.
We have held it is not prejudicial per se when the defendant is brought into a courtroom handcuffed. Johnson v. State, 261 Ark. 183, 546 S.W.2d 719 (1977). In Johnson, we found the appellant was charged with being an escapee from the penitentiary, was an inmate at the time of trial and all of this would become known to the jury during the trial. Citing Gregory v. United States, 365 F.2d 203 (8th Cir. 1966), we said we would not presume prejudice when there was nothing in the record to indicate what impression may have been made on the jurors and where the appellant did not offer any proof of prejudice. In a more recent 8th Circuit decision, United States v. Carr, 647 F.2d 867 (1981), the 8th Circuit defendant was allegedly seen by several members of the jury panel while in handcuffs and a waist chain before trial. The court said, “a brief and inadvertent exposure of defendants to jurors is not inherently prejudicial. The defendant must bear the burden of affirmatively demonstrating prejudice.” The court said the defendant’s allegation that several prospective jurors “likely” saw him was an unsubstantiated allegation and did not satisfy his burden of affirmatively showing he was prejudiced. The court said he did not ask for a hearing or offer to prove the prejudicial effect of the encounter. Under these circumstances the court was not willing to presume any prejudice.
In this case, from the record of the in-chambers conference on the mistrial motion, it is not evident there was anything but a brief, inadvertent sighting by some of the jurors. The appellant offered no proof of any jurors having actually seen the appellant, nor was any voir dire requested to substantiate any allegation of prejudice. There was no affirmative showing of prejudice by the appellant. There was no alternative route to the courtroom from the lock-up area that was not visible to the public; the defense attorney had already told the jury that the defendant had been and was currently incarcerated; the bailiff testified he continued on with the appellant because, he thought it would distract more if he pulled back after he once walked in and saw the jurors; the bailiff was instructed to avoid the error in the future; and most significantly, the bailiff testified the appellant had attempted earlier to get out of the holding cell and for security reasons the bailiff felt it was necessary to handcuff him.
Appellant next submits prejudicial error occurred when the prosecutor commented on his failure to deny his guilt. Appellant took the stand in his behalf and on direct was questioned about how he happened to be brought up on the charges for this trial. He said he had been picked up by the police in Oklahoma, was told he was wanted for these charges in Arkansas, did not know anything about the rapes or robberies at that time, was extradited back to Arkansas and came back willingly. On cross, the prosecutor asked a series of questions about that testimony. Appellant admitted he knew he was wanted in Arkansas for these charges before he was picked up in Oklahoma. The following exchange took place:
Q. And when you got down to the [Little Rock] Police Department that’s the first time you found out what all this was about, why they wanted you?
A. No, that wasn’t the first time I found out.
Q. When did you first find out?
A. I found out when I was up in Lawton, Oklahoma but I didn’t have no money to come back and I said I wasn’t going to hide, wasn’t going to give no false ID or nothing. Whenever they stopped me that’s when I’m coming back to face this.
Q. So you knew about it before you got picked up, right?
A. Yes, I did.
Q. And the reason you didn’t try to clear it up was because you didn’t have any money?
A. ’Cause I didn’t have no money to come back on. ’Cause I knew I hadn’t done these charges.
Q. Did you ever go to any local authorities up there and tell them about it?
A. No, I did not.
Q. Did you call back down here and tell the police where you were?
A. No, I did not.
Q. You didn’t think they would have come and gotten you and helped you get back down here?
A. I didn’t have no idea.
Q. Okay, But you knew about it and didn’t say anything?
DEFENSE: Your honor, I’m going to object to that question I believe Mr. Hill has the right to remain silent.
We need not decide whether this line of questioning is proper under the “tacit admission” rule [see McCormick Evidence § 161 (2nd ed. 1972)] as the appellant is precluded from raising the argument. The question appellant objected to had already been asked in various forms without an objection. Failure to object at the first opportunity to do so waives any right to raise the point on appeal. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). Additionally, once the appellant takes the stand he has waived his right not to be a witness against himself and is subject to cross-examination, as any other witness. Horne v. State, 253 Ark. 1096, 490 5. W.2d 806 (1973) (cross-examination about appellant’s refusal to make statements or admissions to the sheriff); Spillers v. State, 268 Ark. 217, 595 S.W.2d 650 (1980). Here, the appellant had raised the subject on direct, hence, this was a proper line of questioning by the state. Ark. Unif. R. Evid. 611(b).
As a final point, appellant argues the testimony was insufficient to sustain a verdict of guilt. By the victim’s account three individuals were involved in the episode. The argument goes only to the identity of the appellant as being the one of the three who committed the rapes, or in any case to sufficient proof of his involvment in the incidents at all.
The strongest evidence adduced at trial was from Anthony Pike, an accomplice, and two of the victims. It is the rule that a felony conviction cannot be had on an accomplice’s testimony alone, it must be corroborated by other evidence tending to connect the defendant with the commission of the offense. Ark. Stat. Ann. § 43-2116; Bennett v. State, 284 Ark. 87, 679 S.W.2d 202 (1984). We said in Bennett, “The corroborating evidence need not be sufficient in and of itself to sustain a conviction, but it need only, independently of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the crime.” On appeal the evidence will be viewed in the light most favorable to the appellee and the verdict will be affirmed if there is substantial evidence to support it. The evidence is substantial if the jury could have reached its conclusion without having to resort to speculation or conjecture. Heard v. State, 284 Ark. 457, 683 S.W.2d 232 (1985); Boone v. State, 282 Ark. 274, 668 S.W.2d 217 (1984). We need only consider testimony lending support to the jury verdict and disregard any testimony that could have been rejected by the jury on the basis of credibility. Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1979). As to any individual witness, the jury may accept or reject any or all of a witness’ testimony. Bennett, supra, Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884(1974).
There was substantial evidence in this case to corroborate the accomplice’s testimony. Two of the victims testified and stated they had positively identified the appellant. Four days after the rape, one of the victims identified Dale Hayes, another accomplice, in a picture lineup, as the man with the gun, and at the same time tentatively identified the appellant. A few days later the same victim identified Hayes and Pike from an actual lineup. A year later she identified appellant in a physical lineup as one of the three, the one with the gun. She testified that after the lineup, she reconsidered her earlier identification by picture only. She said, “After seeing all three of them physically there was no doubt in my mind. . . There’s no doubt in my mind. He is the one.”
The other victim who had made no earlier identification viewed a physical lineup a year later and positively identified appellant. She said she remembered the gunman because his eyes “kind of bug out.” The appellant said he was known as “Popeye” because of his eyes.
These two victims testified the parking lot was well lighted, the light was on in the car during the robbery, and there was a full moon.
The appellant’s defense was that he knew nothing of the crimes and had spent the evening and night with his girlfriend. However, in addition to the victims’ testimony, a mutual friend of the appellant and Pike testified that on the night of the episode he had loaned his car to Pike around midnight and sometime after two in the morning Pike returned the car in the company of appellant and Hayes.
There was also testimony of one of the police officers working on the case that one of the victim’s purse was recovered from a drainage ditch beside appellant’s residence.
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Per Curiam.
This appeal of a conviction under the new Omnibus DWI law is affirmed. All the arguments raised have been rejected in prior or contemporaneous cases.
The act is not void for vagueness. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984) reh. den. 283 Ark. 434, 681 S.W.2d 395 (1984); Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984); Steele v. State, 284 Ark. 340, 681 S.W.2d 354 (1984). Doty’s argument that the act violates his Sixth Amendment right to confrontation was rejected in Southern v. State, 284 Ark. 572, 683 S.W.2d 933 (1985), and Wells v. State, 285 Ark. 9, 684 S.W.2d 248 (1985). The act does not unconstitutionally shift the burden of proof, Lovell v. State, supra, or violate the separation of powers doctrine. Lovell v. State, supra; Lovell v. State, 283 Ark. 434, 681 S.W.2d 395 (supplemental opinion on rehearing) (1983); Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985); Southern v. State, supra; Tausch v. State, 285 Ark. 226, 685 S.W.2d 802 (1985).
Doty’s argument that the intoximeter test violates his right against self-incrimination has been considered and rejected. Steele v. State, supra. He argues that convictions under the former driving under the influence law should not be used to enhance a sentence under the new act. That argument was rejected in Lovell v. State, supra.
Affirmed. | [
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Darrell Hickman, Justice.
Barry Carter, through his attorney, negotiated a plea of guilty to a first degree murder charge for a sentence of 40 years imprisonment, consecutive with one he was serving. Thirteen days later, with new counsel, Carter sought to set aside the plea and sentence. The ground for the motion was essentially mental incompetence. The trial judge, noting a review of the record, denied the motion without a hearing.
On appeal it is argued that the court should have held a hearing before acting, and, further, the motion should have been granted. It was filed pursuant to A.R.Cr.P. Rule 26.1, which provides that a plea may be withdrawn upon a timely motion to correct a manifest injustice. The motion was meritless as a matter of law because it must be made prior to sentencing. Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979); A.R.Cr.P. Rule 26.1 (e).
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Battle, J.
The German National Bank brought this action against the Emonson Mercantile & Manufacturing Company, G. M. Echlin, %. N. Estes & Co., and other creditors of the Emonson Company, to foreclose a lien on certain lands lying in Prairie county, in this state. The pleadings in the case present the following state of facts:
1. In behalf of plaintiff, it was alleged that the Emonson Company, being the owner of the lands before mentioned, sold them in good faith to G. M. Echlin, for the consideration of $21,200, and conveyed them to him by a deed duly executed, acknowledged and recorded ; that Echlin executed to the company seven notes for the purchase money, payable respectively at two, three, four, five, six, seven and eight years after date, which were described in the deed.
2. That these notes were transferred by the Edmonson Company to the bank as collateral security for a large sum of money loaned, before maturity, for a valuable consideration, and “without any notice whatever of any irregularity, illegality or fraud in reference thereto by anyone;” and that of the sum loaned and secured, as stated, $11,400 was due by the company to to the bank at the commencement of the suit.
In behalf of %. N. Edstes & Co., they being the only defendants who answered, it was alleged :
“ 1. That on the 6th of January, 1891, they began a suit in the circuit court against the Edmonson Company to recover a debt of $6,547.88, and sued out an order of attachment that was on that day levied on the lands in controversy ; that they recovered judgment for the amount sued for on the 25th of July, 1891, and the court sustained the attachment, and ordered the lands to be sold to satisfy the same, which remains unpaid and in full force.
“2. That the Edmonson Company was a corporation created by the laws of Arkansas ; that its officers were a president, vice-president, secretary and treasurer, and that it had a corporate seal; that the deed set up in the complaint was made by A. Edmonson, the president of the company, without consultation with his co-directors, without any meeting of the directors, and without any authority from them ; that the deed was wholly unauthorized by the company ; and that in executing it Edmonson was acting in his individual capacity solely, there never having been any meeting of the directors for the purpose of considering the matter of the sale of the lands, or at which the same was considered ; that the transaction was wholly unknown to the stockholders of the corporation ; that the minutes and records of the board of directors fail to show that any action was ever taken concerning this pretended sale and conveyance ; and that the appellee acquired no title thereby.
“3. That G. M. Echlin never took possession of the lands, and never exercised any control over them ; that, after the said pretended sale, the Emonson Company continued irf possession of them, paid taxes on them up to the time that they were attached by the appellants, and continued to receive the rents and profits thereof, which facts were notorious, and were known to the appellee, or would have been learned if proper inquiry had been made.
“4. That the pretended deed to G. M. Echlin was made long after its date ; that it was executed solely for the purpose of using the notes mentioned in the complaint as collateral security for a loan from appellee, and that, after it was executed, it was deposited in a private drawer of A. Emonson in the safe of the Emonson Company, and was never delivered to G. M. Echlin, who was not aware of its existence ; that the deed was filed for record without the authority of the grantee; that it was not filed until after the attachment of appellants was sued out, when the appellee procured its filing by Emonson, the appellee being then aware of these facts.
“5. That in the meantime, before the filing of the deed, and in ignorance of it, the appellants, on the faith that the Emonson Company owned the lands, extended credit to it, and permitted it to contract the debt for which they recovered judgment.”
The facts, as we find them, are substantially as follows : The Emonson Company was a corporation, formed and organized under the laws of the state of Arkansas. Its stockholders were A. Emonson, who owned more than one-half of the stock subscribed, G. M. Echlin, Caroline Shipness, W. C. Shipness, and W. J. Johnson. A. Emonson, P. W. Echlin, and G. M. Echlin were its board of directors. A. Emonson was its president, G. M. Echlin, vice-president, and P. W. Echlin was its secretary and treasurer, and Carlisle, in Prairie county, Arkansas, was its place of business.
The purposes of the corporation, as stated in its articles of association, were as follows : “The company shall be, and is hereby, authorized to do a general mercantile and manufacturing business in all its branches, making and manufacturing hay, ginning and pressing cotton, operating flour and grist mills, establishing and operating oil mill and saw mill, making and manufacturing staves, barrels and farming implements, buying and selling real estate, owning and operating . farms, raising, buying and selling live stock, running a banking and brokerage business, publishing a newspaper, and running a job office.”
The duties and authority of the president of the company were defined by the articles of association as follows: “ The president shall preside at all meetings of the board of directors, and be recognized as the superior officer of the company, and shall give such attention to its affairs as may be necessary for its success. He may borrow money for and in the name of the company, shall sign all checks and drafts, execute papers, and endorse notes for and in the name of the company; shall, in connection with the secretary and treasurer, sign all certificates of stock, and such other documents as may be necessary or required by t^ board of directors; shall have general management, supervision, and control of the employees ;■ have charge of all credits, purchases, sales, freight rates and commission sales ; shall conduct all the correspondence, and perform all other duties not otherwise provided for in these articles.”
The president being vested with extensive authority, and the board of directors being composed of only three members, — the president, vice-president, and secretary (who was also treasurer), — the management of the business of the company was left largely to the president and secretary. The board usually met only once a year, and then to elect officers, and to investigate any business which it deemed proper, and always adjourned subject to the call of the president. They never had any meeting of the board to authorize the president and secretary to borrow money, and yet the president borrowed money. They sold land, but never had a meeting of the board in relation to the same.
In the course of ts business the company acquired a large area of lands, among which was the land in controversy. On the second day of January, 1888, the lands which are the subject of this litigation were sold to G. M. Echlin, at and for the price and sum of $21,200, for which he executed to the company his seven promissory notes, payable, respectively, to the order of the company, two, three, four, five, six, seven and eight years after date; and stated in each one that it was given in part payment for the lands, describing them. P. W. Echlin, secretary and treasurer, and a member of the board of directors, prepared the deed for the conveyance of the lands by the company to G. M. Echlin. The notes, which were described, were stated to be the consideration of the deed, which was signed as follows : “Emonson Mercantile & Manufacturing Company. (^. S.) A. Emonson, President. P. W. Echlin, Secretary.”
On the 17th of January, 1888, A. Emonson, as president, and P. W. Echlin, as secretary, of the company, appeared before a notary public, and stated that they had executed the deed for the consideration and purposes therein mentioned and set forth, and he so certified in a certificate annexed to the deed. There was no meeting of the president and directors to authorise the conveyance of the lands, or to authorize the officers of the company to mortgage real estate to secure the payment of borrowed money.
Most of the land in controversy was fenced for hay purposes. It produced annually from 500 to 700 tons of hay, which sold from $5 to $8 per ton. The company cut this hay after it sold the land to G. M. Echlin, and never allowed any credit for it on his notes, and he never asked any compensation, and paid the taxes on the land, and never charged him for them.
On the 17th of January, 1888, fifteen days after the sale and conveyance to Echlin, the- Emonson Company being indebted to the German Natitínal Bank, and, desiring to borrow money, pledged to it the notes of Echlin to secure the company’s present and future indebtedness to the bank, — which notes were received in good faith, without any notice that the sale and conveyance of the lands were in any way irregular, illegal, or fraudulent. Upon this security, the bank continued to advance money to the company until its indebtedness to the bank at the commencement of this action amounted to $11,400, which, with the Echlin notes, remains wholly unpaid.
About three years after the execution of the deed to Echlin, in a conversation about the payment of the notes given for the land in controversy, the cashier of the bank asked the president of the company if the deed was recorded, and he replied that he did not remember, but would find out when he returned home, and, if it was not, he would either have it recorded or send it to the cashier. The presumption is, the president returned to Carlisle, the place of his company’s business and of the residence of G. M. Echlin ; for in a few days he sent the deed to the cashier of the bank, who, finding that it had not been recorded, filed it for record on the 9th of January, 1891.
¿'resumption as to delivery of deed.
Power oí corporate officers to -execute deed.
There is no controversy about the judgment recovered by Estes & Co., or the validity of the attachment in their favor, which was sustained by the court.
The circuit court decreed that the notes executed by G. M. Echlin were a lien on the lands, that it be foreclosed by a sale of the lands, and that the proceeds be applied to the payment of the debt due to the German Bank, and, if there was any residue, that it be applied to the payment of the company’s indebtedness to Estes & Co.; and they appealed.
Appellants insist that this decree should be reversed, for the reason, among others, there was no legal sale of the lands to Echlin. They contend that the deed was never delivered to the grantee. In disproof of this contention, the certificate of the acknowledgment of the deed shows that the president and secretary of the Emonson Company appeared before a notary public, and stated that they had executed it for the consideration and purposes therein mentioned and set forth. The deed having been recorded, this is at least prima facie evidence of its delivery. (Sandels & Hill’s Dig. sec. 721; Jacoway v. Gault, 20 Ark. 190; Wilson v. Spring, 38 Ark. 181; Meyer v. Gossett, Ib. 377). But it is said that the deed was in possession of the company, and was delivered by it to the bank. But that fact does not show that the deed had not been delivered to Echlin. When or how the president of the company got possession of it is not shown. He could have received it from Echlin on his return home, after he promised to ascertain whether it was recorded.
Another reason advanced by appellants for their contention is there was no meeting of the directors or stockholders of the company to authorize the sale of the land or the making of the deed. This is true. But the articles of association show that one of the purposes of the incorporation of the company was to buy and sell real estate ; and that the president was thereby authorized to borrow money for and in the name of the company, to sign all checks and drafts, to execute papers, and indorse notes for and in the name of the company; and that he had charge of all purchases and sales. In connection with this, the evidence shows that the management of the business of the company was largely left to the president and secretary ; that the board' of directors usually met only once a year, and always adjourned subject to the call of the president; that the president borrowed money without a meeting of the board to give him the authority; and that land was sold without convening the directors to authorize the sale. From this course of conduct, it seems that the president, who owned a majority of the stock subscribed, and the secretary, had the entire management and control of the business of the company, and that no meeting of the directors was thought necessary to confer authority on them, except when the president saw fit to call the board together, which was seldom done. Upon these facts and this evidence, the question presented by the contention of appellants should be considered.
In Simon v. Sevier Association, 54 Ark. 58, the rule which controls corporations like the Emonson Company, and the reason for it, are stated as follows: “The act * * provides that the stock, property, affairs, and business of siich corporations shall be under the care of, and shall be managed by, not less than three directors, and that a majority of the directors, convened according to its by-laws, shall constitute a quorum for the transaction of business. Such directors constitute a board, and, in the management of the property, affairs, and business of their corporations, can only act as a board. They have no authority to act save when convened in a board meeting: The separate, individual action of each' director is not the action of ' the corporation. Less tha,n all do. not, under the statute, constitute a quorum for the transaction of business, unless they are legally convened. No director is required to attend a meeting of directors held without authority. Bvery one of them is entitled to vote and be heard in all the proceedings of the board. The shareholders in the corporation are entitled to the influence and advice, of every director in the management of their affairs. Hence, in order to accomplish the object for which each director was elected, a mere majority of the directors cannot constitute a majority of the board for the transaction of business, unless they meet according to, and by authqrity of, the by-laws or rules of the corporation, or are called together upon due and legal notice given to all of them.”
The object of this rule is the benefit and protection of the share-holders of the corporation. The duties of the board are imposed upon more tha.n one member, in order that they may be discharged with that wisdom derived from a conference, discussion, and a comparing of views upon business affairs ; and for this- purpose they are required to meet and take counsel of eachiother. As all this, is for the benefit of the shareholders, who constitute the corporation, they may waive the necessity of the meeting of the board for the transaction of business within their corporate powers. They can do so by permitting the directors to establish a habit or usage of assenting separately to the making and performance of contracts by their agents. By permitting such usages or habits to be formed by a long course of business, they adopt and become bound by them, so long as they acquit esce. If this were not so, great injustice might be done to parties contracting with them in their usual way. “Hence there follows a necessity of giving effect to acts of such corporations, according to the mode in which they allow them to be transacted. If this were not done, it would become impossible to dispose of such contracts with any hope of reaching the truth and justice of the rights and duties of the several parties involved. And this is certainly nothing of which the corporation can complain. It is merely holding them to such rules of action as they see fit to adopt for their own guidance and the transaction of their business.” Bank of Middlebury v. Rutland & W. R. Co., 30 Vt. 158, 170; 3 Thompson, Corporations, sec. 3938, and cases cited.
In this case, the president and secretary of the Fmonson Company, constituting a majority of the directors, were intrusted with the management and transaction of the business of the corporation, a part of which was the purchase and sale of land. For several years the company continued in existence. In that time, as before stated, the board usually met once a year, and then chiefly for the purpose of electing officers. The inference from this and the other evidence in the case is, the directors adopted the practice of assenting separately to the making and execution of contracts by their agents, and the corporators ratified it by long acquiescence. After the corporation had been in existence for more than four years, and continued this practice, presumably, for that length of time, it sold the land in controversy' to G. M. Fchlin, two of the board assenting, and the other purchasing. After this, the president, in the exercise of the power vested in him by the articles of association, borrowed money, for and in the name of the company, from the German National Bank, by depositing notes given for this purchase as collateral security. Believing that the notes were secured by liens on the lands sold, the bank advanced large sums of money to the company, in good faith, and without any notice of any infirmity in their security. The company has never repaid the money, but, on the contrary, was indebted therefor at the commencement of this action in the sum of $11,400. Under these circumstances, the sale of the land was valid as to the bank, and the lien for the purchase money passed with the notes as collateral security; and the action of the company, and the nouaction of Fchlin, in reference to the land after the trans-r fer of the notes, did not affect the lien held by the bank.
Esectof !andSpurchase
The other questions discussed by counsel in their briefs have heretofore been decided by this court in reported cases.
Decree affirmed. | [
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Battle, J.
When two creditors have sued out orders of attachment against a debtor, and caused them ievje¿ 0n the same property, has the junior the right to file a complaint in the action instituted by the senior, thereby claiming the first lien, and to have the first attachment set aside by showing that it was known at- the commencement thereof by both parties to the same to be without legal grounds, that it was based on an affidavit known to be false by both parties to the action in which it was filed, that it was made for the purpose of obtaining a preference over creditors, and that it was permitted by the debtor for that purpose, he and the first attachment creditor knowing at the time that he was in failing circumstances ?
No creditor has the right to defend an action or proceeding against his debtor, to which he is not a party, on the ground that, if the suit or proceeding is maintained, he will not be able to recover the whole of his debt. Having no right to interpose a defense in such an action, he could not, for the same reason, have a judgment rendered therein set aside by a motion or other original proceeding at law or in equity, “on the ground that the defendant had defenses which he might have asserted, or that, in the transaction between the plaintiff and the defendant out of which the judgment grew, the former overreached the latter.” But if he is injuriously affected by the judgment, he may obtain relief by showing that it was procured by fraud and collusion, or suffered for the purpose of hindering, delaying or defrauding the creditors of |he defendant.
It has been held that he is entitled to relief against judgments by confession or default against his insolvent debtors for amounts larger than were actually due the plaintiffs, on the ground they are fraudulent and void as to creditors. So it has been held that he is entitled to relief against a judgment which is not founded on an actual debt, or other legal liability, in existence at the time of its entry, and was suffered by the defendant on the ground that it is invalid against the creditors of the judgment debtor. But if the judgment be only constructively fraudulent, like mortgages, in like manner affected, it may stand good in equity for what is actually due.
The interference of creditors in attachment proceedings is controlled by the same rule. A junior attaching creditor cannot take advantage of irregularities or informalities in the proceedings in a prior attachment, though constituting good grounds for setting aside the attachment on the motion of the defendant. The reason for this is, “priority is in the gift of the debtor;” and when it is obtained from him by means of an irregular or informal attachment, with which both parties to the same are content, no one has room to complain of it. “The formality and regularity of such proceedings, the rightful issuing the attachment, in the absence of fraud and collusion between the plaintiffs and defendants, are matters pertaining exclusively to the defendants.” Bona fide advantages obtained thereby by one creditor over the others, which entitle him to the satisfaction of his claim out of the debtor’s property in preference to and before the remaining creditors, are sustained by the law, although by such payment the collection of other debts will be defeated. But if, in obtaining such advantages, there is any collusion between the debtor and creditor for the purpose of hindering, delaying, or defrauding other creditors, their' rights are thereby affected, and they have the right to interfere in the disposition of the property attached for the purpose of asserting and protecting them.
Attachments levied in proceedings instituted by debtors against themselves in behalf of certain creditors, and ratified by such creditors, in the absence of fraud, have been sustained by courts.
In First Nat. Bank v. Greenwood (Wis.), 45 N. W. Rep. 810, which was a contest between creditors over a fund held by an attachment, the court said: “The existence of the alleged grounds for the attachment cannot be controverted by the bank. The right to do so is given to the attachment debtors alone, and it is entirely competent for them to abstain from interposing traverses, or to waive the same after they have been interposed, as was done in all the attachment suits.”
In First Nat. Bank v. Cochran (Miss.), 14 Southern Rep. 439, creditors intervening under a statute of Mississippi sought to set aside an attachment for fraud. Judge Cooper, in delivering the opinion of the court, said: “During the investigation it was made to appear that the plaintiffs in the attachment had paid to the defendants, or to their attorneys for them, $300 in cash, in consideration of the withdrawal by the defendants of the-, plea traversing the grounds upon which the attachment, was sued out. The interpleaders thereupon asked to be-permitted to so amend their petition as to charge that; the attachment had been sued out by collusion between the plaintiffs and defendants. The court refused to permit this to be done, and this is assigned for error. The action of the court in this- respect was correct. The fact that the plaintiffs, after the institution of their suit, found themselves unable to maintain the truth of the averments upon which the attachment was sued out, and thereupon paid the defendants not to interpose or to withdraw their plea putting in issue the said grounds of attachment, does not suggest that it had been sued out by collusion with the defendants. On the contrary, it suggests that the defendants were thriftily making profit of their advantage over their creditors by converting into concrete cash the abstract rights of defending the suits brought against them.”
But it has been held that subsequent attaching creditors are entitled to relief against attachments based on demands not due, when there is no statute .authorizing it, or on one which has no existence, or on one for which an attachment could not lawfully issue, they being fraudulent and void as to such creditors. And in Peirce v. Partridge, 3 Met. (Mass.) 44, it was held that “where a debtor submits to judgment by default, and the creditor (intentionally) takes judgment for the whole claim in suit, without deducting therefrom the amount of articles received by him from the debtor in part payment of such claim, the judgment is void in toto as against other attaching creditors of the same debtor.” See Drake, Attachments (7th Ed.), secs. 273-275.
As to the manner in which subsequent attaching creditors may assert their rights in this state, a statute upon this subject says: “Any person may, before the sale of any attached property, or before the payment to the plaintiff of the proceeds thereof, or of any attached debt, present his complaint, verified by oath, to the court, disputing the validity of the attachment, or stating a claim to the property, or an interest in or lien on it under any other attachment, or otherwise, and setting forth the facts upon which such claim is founded, and his claim shall be investigated.” Sand. & H. Dig. sec. 372.
The construction of this statute has been so far in harmony with the law as held in the cases we have cited. In construing it in Sannoner v. Jacobson, 47 Ark. 31, Chief Justice Cockrill, speaking for the court, said : “The object of letting the second attacher into the suit of the first is declared * * to be to enable him to procure ‘such order as may be necessary to protect his rights.’ No new right is conferred upon him by the statute, but only a privilege granted of availing himself of the new and expeditious remedy provided for the protection of whatever right he may have acquired by suing out his attachment. It cannot with propriety be contended that the intervener is let in for the purpose of defending the suit, and disputing the grounds of attachment in lieu of the defendant, although that might be an efficacious method of invalidating the attachment. That would involve the practice in manifold difficulties, and even in legal absurdities, without any nearer approach to substantial justice. Such a practice prevailed at an early day in Massachusetts under a statute expressly conferring upon the intervener the right to defend for the defendant, whether the latter desired it or not; but it was abolished a long time ago, after condemnation by the courts in severe terms. Baird v. Williams, 19 Pick. 381.”
In Hardware Company v. Deere, Mansur & Co., 53 Ark. 140, an order of attachment was sued out without the knowledge of the plaintiff. After this, another creditor sued out a second order against the same debtor, and caused it to be levied on the same property as the first, before he knew the first action had been brought in his name. Thereupon the creditor who instituted the second suit claimed the prior lien, and the court sustained his contention, and held that the first attachment was of no effect until the plaintiff in it ratified it, when it became second in priority. Sannoner v. Jacobsony supra, was cited to sustain the priority of the first; but the court said that the objection urged against it did not go to the grounds of it or the irregularities of the proceeding, but denied the validity of the attachment, and attacked the groundwork of the lien.
In Rice v. Dorrian, 57 Ark. 541, an indorser on seven promissory notes commenced suit against the maker of the notes, and sued out an order of attachment for the purpose of securing for himself indemnity, and caused the property of the defendant to be attached. Creditors of the maker subsequently brought suit against him, and caused the same property to be attached; and after-wards, by complaint filed in the first suit, denied the the validity of the indorser’s attachment, and asked that their claim be first satisfied. This court held that the junior attacher had the right to dispute the validity of the first attachment, and to establish the right of his own to precedence, by showing that the first existed without the authority of law.
According to the rule we have stated, which has been followed by this court, a junior attaching creditor cannot controvert the existence of the grounds of a prior attachment. As was said in First Nat. Bank v. Greenwood, supra, “the right to do so is given to the attachment debtors alone, and it is entirely competent for them to abstain from interposing traverses, or to waive the same after they have been interposed.” The statute expressly provides: “If judgment is rendered in favor of the plaintiff, and no affidavit or answer, verified by-oath, by the defendant is filed, denying the statements of thé affidavit upon which the attachment was issued, or motion made to discharge it, the court shall sustain the attachment.” Sand. & H. Dig., sec. 395. In the mere failure to file the controverting affidavit, the defendant commits no fraud upon his creditors; He has the right to prefer his creditors in this manner.
when misrepresentation ^tfraudu"
We answer the question propounded in the beginning of this opinion in the negative.
The bill of exceptions filed by appellants shows that evidence was adduced at the trial tending* to prove, and that evidence was also adduced tending to disprove, the following statement; “That Rice, Stix & Co. and Bamberger, Bloom & Co., two of the interveners herein, were falsely informed by the First National Bank, after it had. prepared its attachment, that C. Tilles & Co. were in solvent circumstances, and that it did not intend to press said C. Tilles & Co. for the debt due it, and that such representations were made in order to gain precedence of said interveners in the order of attachment; that said representations, if made, were false; that, by reason of said representations, said interveners granted C. Tilles & Co. extension upon their debts then due, which occurred after the bank attachment was prepared, and its attorneys were under instruction to file the suit and cause the attachment to issue.” Upon this evidence, appellants asked the court to instruct the jury that, if this statement were true, the attachment by the bank was fraudulent as to the creditors misled by the representations. But the court refused to give the instruction, and this is assigned for error. The action of the court in this respect was correct. The bank was under no obligation to indicate to appellants what course it would pursue as to its debtor. It might not have been prudent, but, on the contrary, against its interest, to inform them. They had no right to rely upon its representations, and it was their own folly to have done so. Bardwell v. Perry, 19 Vt. 292, 302. The evidence, clearly shows that, if they did, they were not injured thereby. They were then too far outstripped in the race of diligence to reasonably hope to overtake their competitor.
Judgment affirmed.
Mayes v. Woodall, 35 Texas, 687; Drexel’s Appeal, 6 Pa. St. 272; Hauer’s Appeal, 5 Watts & Serg. 473; Packard v. Smith, 9 Wis. 184; 1 Black on Judgments, sec. 317, and cases cited.
Meckley’s Appeal, 102 Pa. St. 536; Dougherty’s Estate, 9 Watts & Serg. 189; Thompson’s Appeal, 57 Pa. St. 175; McAlpine v. Sweetser, 76 Ind. 78; Sidensparker v. Sidensparker, 52 Me. 481.
Peirce v. Partridge, 3 Met. (Mass.) 44; Palmer v. Martindell, 43 N. J. Eq. 90; Dickinson v. Way, 3 Rich. Eq. 412.
Palmer v. Martindell, 43 N. J. Eq. 90; Taaffe v. Josephson, 7 Cal. 352; Ayres v. Husted, 15 Conn. 504; 2 Bigelow, Fraud, p. 132.
Parker v. Holmes, 2 Hill, Ch. 95; Ayres v. Husted, 15 Conn. 504; Davenport v. Wright, 51 Pa. St. 292.
Meinhard v. Youngblood, (S. C.) 15 S. E. Rep. 950; Gilkerson-Sloss Commission Co. v. Bond, (La.) 11 Southern Rep. 220; Claflin v. Sylvester, (Mo.) 12 S. W. Rep. 508.
First National Bank of Madison v. Greenwood (Wis.), 45 N. W. Rep. 810; Bayley v. Bryant, 24 Pick. 198; Hardware Co. v. Deere, Mansur & Co. 53 Ark. 140.
Taaffe v. Josephson, 7 Cal. 352; Walker v. Roberts, 4 Rich. Law, 561; Palmer v. Martindell, 43 N. J. Eq. 90. | [
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Riddick, J.,
(after stating the facts). The question in this case is whether Eighth street of the city of Little Rock extends across the land claimed by appellant. The appellant, Waring, contends that it does not, and brought this suit to enjoin the city from interfering with his possession, and from keeping open a street across said property. On the other hand, the city contends that such street does extend across the land claimed by Waring; that it was platted across such land over a quarter of a century ago, and has been used continuously since as one of the public streets of the city; and that now it is established by prescription. It is settled law in this state that a street or highway may be established by prescription. “If the public, with the knowledge of the owner of land, claim and continuously exercise the right of using the same for a public street or highway for a period equal to that fixed by the statute for the limitation of real actions, which in this state is seven years, the highway thereby becomes established, unless it appears that such use was by leave, favor, or mistake.” Howard v. State, 47 Ark. 431; Patton v. State, 50 id. 53; Onstott v. Murray, 22 Iowa, 458.
Eighth street was platted over the land in controversy, as shown by the plat of Johnson’s addition to the city of Little Rock, in the year 1868; and the proof tends to show that it was used as a street long before it was platted as such. The plat was made by the sheriff of the county, and duly recorded. It is said that the sheriff had no authority to make and record this plat, and that his action in that regard could not affect the owners of land who never assented to its execution. There is nothing to show whether or not the sheriff had authority to make and record this plat. Such an act, if unauthorized, could of itself alone have no effect upon the right of non-assenting land owners, but we find here that the land owners recognized this action of the sheriff by describing such lands in all subsequent conveyances executed by them as located in “Johnson’s Addition.” This shows conclusively that they knew of the existence of this record, and tends to show that they assented to its execution. From 1868, the time when said plat of Johnson’s addition was made and recorded, the public have continuously exercised the right of using Eighth street, as shown on said plat, over the land in controversy as a public street, and it is now too late to deny that right. There is nothing in the evidence to show that such use was by leave, favor or mistake. On the contrary, we think the evidence shows that such use was under a claim of right, and adverse to the claim of appellant. A plat made and recorded by the sheriff of the county showed Eighth street as extended across the land. The city exercised the right of controlling the street across the land, as it did other portions of Eighth street, by permitting a street railway company to lay its tracks and operate its cars over said street and the land in controversy. A telephone company was allowed to erect its poles along the street, and over this property. The street railway was laid in the year 1882, and one of the witnesses testified that, “before the street railway was built, Eighth street was worked by the city over the property in controversy, as much as^other streets.” This action of the city in permitting a street railway company to lay its rails and operates its cars along this street, and over the property in controversy, was adverse and opposed to the claim of appellant, and shows clearly that the city and public claimed a street over this land.
The testimony of Fletcher, the grantor of appellant, that, a year after the street railway had been built, he gave notice to the company that he claimed the land, and that the president of the company acknowledged his claim, to the extent of promising not to plead the statute of limitations, can have but little effect upon the right of the city or public to use such street, for the president was the agent of neither city nor public. The action of the city in granting the right to the company to lay its tracks along Eighth street on this property was known to Fletcher, the grantor of appellant, and was notice to him of the adverse claim and use by the city and public, and this was over ten years before suit was brought. Fletcher afterwards, in 1887, made application to the city council to be allowed pay for the use of this property by the city. But the city ignored his claim, and the public continued to use the street. This application of Fletcher shows that he knew that the city had taken possession of the property as a street, and the fact that the city ignored the application tends to show that the use of the street was under a claim of right. In the year 1887, Fletcher, before selling to Waring the land in controversy, sold and conveyed him other lots adjoining and bounded on the north by this land, which the city now claims as Eighth street. In the deed which Fletcher then executed to Waring, he described such land as in “Johnson’s Addition,” and bounded on the north by Eighth street. It is apparent from this that both Fletcher and-Waring then knew of the plat of Johnson’s addition, and recognized the fact that the public were using a street across this land. They located it exactly as it is shown on the recorded plat of Johnson’s addition, and as the city now claims that it is located. This tends to contradict their statement that the public had not been using the land as a street. If it was not known and used as a street, why should they call it a street, and describe land bounded on the north by this property as “bounded on the north by Eighth street?” This knowledge on their part is again shown by the fact that, when Waring purchased the land in controversy from Fletcher, it was conveyed by quit-claim deed, and for a consideration dependent upon the result of this lawsuit, which was then in contemplation.
When necessary to accept street by ordinance.
It is said that there is no proof of the acceptance of the street by the city. If this was necessary to be proved, it is shown by the action of the city in controlling it, and by the continuous use thereof by the public for a long period of time. People v. Loehfelm, 102 N. Y. 1; Elliott, Roads and Streets, 115, and cases cited.
Section 5209, Sand. & H. Dig., which provides that no street dedicated to public use by the proprietor of ground in any city shall be deemed a public street unless the dedication shall be accepted by an ordinance, does not apply to streets established by prescription. The object of that statute was to prevent the public from being burdened with the care of unnecessary streets. The long and continuous use by the public of a street or highway affords conclusive evidence of its necessity and usefulness. It was probably for this reason that the statute was confined in its operation to streets “dedicated by the proprietor of ground.” Jennings v. Inhabitants of Tisbury, 5 Gray, 73; Commonwealth v. Coupe, 128 Mass. 63; Patton v. State, 50 Ark. 53.
In their motion for rehearing, counsel for appellant contend that there is no evidence to establish the width of this street, and ask, why has the court not adopted sixty feet as the width of the street, instead of fifty feet? The answer to that is that the court has not determined, nor is it necessary to determine, what is the width of this street, whether fifty or sixty feet. Appellant built a fence across this street, and it was removed by the city, and he thereupon brought a suit to enjoin the city from entering upon or interfering with his possession of the land. There was no allegation concerning the width of the street made by either plaintiff or defendant. The only question at issue between the parties was whether Eighth street extended across the land of appellant.
sufficiency l^prescr^11* tlo“'
We fully agree with counsel that the doctrine that roads may be established by prescription should be cautiously applied to roadways across wild land or vacant city blocks, but the argument does not apply to the facts of this case. Judge Dillon stated the rule in Onstott v. Murray, 22 Iowa, 457, as follows : “A block of land often lies open in a town or city, and, for mere convenience, foot passengers or even wagons may pass over it diagonally, making thereon a well-defined path or road. Ordinarily, there would be no dedication, however long this continued. But if the same amount of travel was at the end of a recorded street, and between that and another street, long use and long acquiescence would be evidence, and, if continued sufficiently long, might be conclusive evidence, of a dedication.” If the contention of appellant is correct; Eighth street was never properly laid out or established over the land in controversy, but was cut in two parts, bisected by such laud. There is no dispute that the street came up to the land on both sides, and that, if continued in a straight line until the two ends met, it would pass over this land. Without the use of a street across this land, the two parts of the street would be separated by a space of 150 feet, and the public would be put to much inconvenience. The roadway or street used by the public connected the two ends of the street, and made the street continuous. Under these circumstances, the use of this land by the inhabitants of the city as a part of a public street was, when taken in connection with the control exercised by the city, well calculated to notify the owner, who knew of such use, that it was done under a claim of right. As there was no gate, nor anything to show to the contrary, he ought to have known that the public would reasonably suppose that all portions of such street were owned by the city, and would use it as a public street. But the same grounds for such a belief would not exist in the case of a road passing across a vacant block. Public streets do not usually run diagonally across blocks, and the indications in such a case would be that the use of the road was permissive, and not adverse to the rights of the owner of the block. Por this reason, it requires less proof to establish a street in a case of this kind than when one undertakes to show that a road has been established by prescription across vacant land in the country, or where the street claimed runs diagonally across a block. Harding v. Jasper, 14 Cal. 647; Onstott v. Murray, 22 Iowa, 457.
We are not called on to determine whether a street can be established by mere use on the part of the public without evidence of any control or acceptance by the city, for such control is shown here. The city exercised the same control over this land as it did over other portions of pighth street.
This case seems to be one to which the doctrine of prescription is peculiarly applicable. We find here an ancient recorded plat of Johnson’s addition, made by the sheriff of the county, showing the street as it is now located, and afterwards long and continuous use by the public. It is not unreasonable to believe that the sheriff had authority to make and record this plat, but the evidence of that authority is lost. The doctrine of prescription, which rests on the presumption, arising from long and continuous use by the public, “that the street was at some anterior period laid out and established by competent authority,” may, under such circumstances, justly be invoked to supply the place of this lost evidence, and to show that the right to the use of the street is now established. Reed v. Northfield, 13 Pick. 98.
[Note — For public user as acceptance of dedicated highway, see note to Southern Pac. R. Co. v. Ferris (Cal.), 18 L. R. A. 510. — Rep.]
We have twice considered this case and the learned briefs furnished us by counsel for appellants, but we still feel convinced that the chancellor properly refused to enjoin the city from the use of a street»over the land claimed by appellant. The decree is affirmed, and motion to rehear denied. | [
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Wood, J.
The defendant was convicted of murder in the first degree, upon an indictment which charged that he “did unlawfully and feloniously, with malice aforethought, and with premeditation and deliberation, assault, kill, and murder one Rufus Harris by shooting him with a pistol, * * * with the felonious intent to kill and murder,” etc. Does the omission of the word “wilfully” render the indictment defective as a charge for murder in the first degree ? A wilful killing is an intended killing. Both the words “deliberation” and “premeditation” involve a prior purpose to do the act in question. And it is impossible to conceive of a murder committed with a “felonious intent” that is not wilful. State v. Townsend, 24 N. W. Rep. 535; Leonard v. Territory, 7 Pac. Rep. 872, and authorities cited; State v. Shelton, 64 Iowa, 333; State v. Stackhouse, 24 Kas. 445; 1 Wharton, Cr. Law, sec. 380. We conclude therefore that the word “wilful” finds its equivalent in the other terms employed.
We cannot say that the verdict is without evidence to support it.
Affirmed. | [
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George Rose Smith, Justice.
This is another case involving a due-on-sale clause — a provision in a mortgage entitling the mortgagee to accelerate the maturity of the entire debt if the debtor sells the property without the mortgagee’s consent. Several similar foreclosure suits were consolidated for trial. The chancellor entered a summary judgment dismissing all the suits, on the ground that the due-on-sale clauses are not enforceable. The appeal comes to us under Rule 29(1 )(c). The issue is whether under the controlling federal statute the clauses can be enforced.
The various cases are similar. All the mortgages were made to the appellant, a federal savings and loan association, and were secured by liens on real property. All the mortgages were executed during the “window period” between July 31, 1976, and October 15, 1982. (For an explanation of the window period, see Abrego v. United Peoples Sav. & Loan, 281 Ark. 308, 664 S.W.2d 858 [1984].) All the debtors sold their property without the Association’s consent. Presumably the purchasers refused to refinance the loans at a higher interest rate; so the Association declared the debts immediately due and filed these foreclosure suits upon default. The chancellor, considering the federal statutes not to be applicable, refused to allow the acceleration of maturities, in accord with our holding in Tucker v. Pulaski Fed. Sav. & Loan, 252 Ark. 849, 664 S.W.2d 858 (1972).
The due-on-sale innovation has had its ups and downs. Arkansas was one of several jurisdictions that by statute or court decision refused to allow a lender to exercise such an option without some equitable reason for the acceleration. Congress, however, was concerned that such restrictions might impair the stability of the national real estate financing market and therefore passed the Garn-St. Ger-main Depository Institutions Act, effective October 15,1982. See Geier, Due-On-Sale Clauses, 17 San Francisco L. Rev. 355 (1983). The issue here is whether that federal act permits the acceleration of maturities in this case.
The statutory language pertinent to this case is set forth in Section 341 of the Garn-St. Germain Act. 12 U.S.C.A. § 1701 j-3. (WestSupp. 1984). Subsection (b)( 1) provides that notwithstanding any state law or decision to the contrary, a lender may enforce due-on-sale clauses with respect to real property loans. Subsection (c)(1) establishes the window period during which state laws are permitted to remain in force for a limited time. Next, however, is subsection (c)(2), which contains the two subparagraphs on which this case hinges.
(B) A lender may not exercise its option pursuant to a due-on-sale clause in the case of a transfer of a real property loan which is subject to this subsection where the transfer occurred prior to October 15, 1982.
(C) This subsection does not apply to a loan which was originated by a Federal savings and loan association or Federal savings bank.
The appellees contend that subparagraph (B) is applicable, because the transfers to them were prior to October 15, 1982. They, in effect, disregard subparagraph (C) by saying that it does not apply to these mortgages. The appellant, on the other hand, argues that subparagraph (C) confirms the enforceability of due-on-sale clauses, as declared in subsection (b)(1), with respect to all loans originated by a federal savings and loan association such as this appellant.
We think the appellant’s position is clearly right. As Geier, supra, points out, the reference in subparagraph (C) to “[t]his subsection” was sloppy draftsmanship, because of its lack of precision. Even so, we think the reference is necessarily to all of subdivision (c), for several reasons. First, no other workable meaning can be ascribed to the reference to “this subsection.” Second, throughout the section all cross references are to lettered subsections, as to subsection (b), subsection (c), and subsection (d). Hence the reference to “this subsection” evidently follows the same pattern and means all of subsection (c).
Finally, the pertinent Senate committee report pretty well puts the question at rest. That report reads in part:
The United States Supreme Court, in Fidelity Federal Savings and Loan Association v. De La Cuesta, [458 U.S. 141] (1982), recently upheld the right of federally chartered savings and loan associations and federal savings banks to include and enforce due-on-sale clauses pursuant to a 1976 regulation issued by the Federal Home Loan Bank Board. Hence, the due-on-sale practices for federally chartered thrifts, for loans originated by those thrifts, will continue to be subject to the Federal Home Loan Bank Board’s exclusive regulatory authority. The identity of the lender at the time the loan was originated determines whether or not a loan is subject to window period restrictions.
S. Rep. No. 97-536, 97th Cong., 2d Sess. 24, reprinted in 1982 U.S. Code Cong. & Ad. News 3054, 3078.
We have no hesitancy in agreeing with Geier’s conclusion that the window period exception applies only to non-federal loans, so that the due-on-sale clause in loans originated by a federal savings and loan association such as the appellant continues to be enforceable regardless of state law.
Reversed and remanded for further proceedings. | [
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Darrell Hickman, Justice.
The general rule is that once a child reaches majority and is physically and mentally normal, the legal duty of the parents to support that child ceases. The question in this case is whether that duty can be reimposed later if the adult child becomes disabled and needs support. The answer is that the law imposes no such duty regardless of what the moral obligation may be. The facts in this case are largely undisputed.
Timothy Dewitt Towery was 17 when his parents divorced in August, 1980. The Towerys had two other grown children and no provision for their care and support was ordered. Franklin Towery, the father and appellant, pursuant to court order, provided support for Timothy until he reached his majority. Timothy graduated from high school in May, 1981, and legally became an adult on his 18th birthday, June 16,1981. Timothy attended Henderson State College on a football scholarship and completed three semesters. During summer vacation of 1982, he worked full time in the Texas oil fields. On a visit to Arkansas in June, 1982, he was injured in an automobile accident which left him a quadriplegic. It was stipulated that Timothy was emancipated before the accident. In January, 1984, Timothy’s mother petitioned the Polk County Chancery Court to require Franklin to resume contributions toward Timothy’s support. She testified Timothy’s monthly needs totaled $625, of which $229 is paid by social security. Timothy had dropped out of college but intended to return. Timothy did not join in this suit although it is undisputed that he is mentally competent.
After hearing testimony, the chancellor ordered the father to pay the mother $215 a month support. No time lilmit was placed on the order. The appellant’s main argument on appeal is that the law cannot require a parent to support an adult child who has become emancipated. Under these circumstances, we agree.
All family members have some legal obligations to each other. Often what are generally recognized as moral obligations among family members are also recognized by the common law or by statutes to be legal obligations. For instance, children must generally obey their parents and have their consent in legal matters. 59 Am. Jur. 2d, Parent and Child, §§ 8-24. Also, it is elementary that parents must support their minor children. Johnson v. Mitchell, 164 Ark. 1, 260 S.W. 710(1924). This duty of support was thecommon law and has become codified; in Arkansas the law is Ark. Stat. Ann. § 57-633 (Repl. 1977). The legal obligation ceases at some point, just as the duties of the child to the parent cease. While the statutory law in Arkansas does not expressly state when the duty ceases, we have easily found it to be at the age of majority. Hogue v. Hogue, 262 Ark. 767, 561 S.W.2d 299 (1978); Worthington v. Worthington, 207 Ark. 185, 179 S.W.2d 648 (1944); Missouri Pacific Railroad Co. v. Foreman, 196 Ark. 636, 119 S.W.2d 747 (1938). The rule which we and most, if not all, states follow is that “[o]rdinarily the legal obligation of a parent to support a normal child ceases upon majority of the child.” Worthington v. Worthington, supra. In Arkansas a child reaches majority at age 18. Ark. Stat. Ann. § 57-103 (Supp. 1983).
We have recognized some exceptions to the general rule. We have held the duty to support a child does not cease at majority if the child is mentally or physically disabled in any way at majority and needs support. Eskridge v. Eskridge, 216 Ark. 592,226 S. W.2d 811 (1950) (physically injured at birth); Petty v. Petty, 252 Ark. 1032, 482 S.W.2d 119 (1972) (epilepsy); Elkins v. Elkins, 262 Ark. 63, 553 S.W.2d 34 (1977) (dyslexia). A great number of states also recognize that exception. Note, Duty of Continued Child Support Past The Age of Majority 1 UALRL.J. 397 (1978); 1 A.L.R.2d 910, 921 (1948). Some states have founded this duty on common law, as we have. Brown v. Brown, 474 A.2d 1168 (Pa. Super. 1984); Grapin v. Grapin, 450 So.2d 853 (Fla. 1984). The Missouri Supreme Court pointed out the need to stray from the common law rule and to support disabled children when they reach majority stating that “our courts should depart from the common law rule of nonliability to support an adult child if that rule is not suited to the conditions and needs of the people of the state.” State v. Carroll, 309 S.W.2d 654 (Mo. 1958). The court further recognized that the majority of the states were negating the common law rule and “following the ‘dictates of humanity’ by enforcing the exception.” Other states have based this duty on statute. Stern v. Stern, 58 Md. App. 280, 473 A.2d 56 (1984); Miller v. Miller, 62 Or. App. 371,660 P.2d 205 (1983); State v. Panzeri, 76 Ida. 211, 280 P.2d 1064 (1955); Hight v. Hight, 5 Ill. App. 3d 991, 284 N.E.2d 679 (1972).
In only one case have we extended the duty of a parent to support a child beyond majority who did not have a handicap or disability. In Matthews v. Matthews, 245 Ark. 1, 430 S. W.2d 864 (1968), we required a father to continue child support for six months after his daughter reached majority so she could finish high school. We considered this exception as only a “slight extension” of the father’s duty and noted that a high school diploma is extremely important to a person seeking to support herself. Beyond these deviations we have not extended the parental duty beyond majority.
All of these cases which found a legal parental duty deal with unemancipated children who reached their majority unable to care for themselves. The question before us is unique because the legal duty has been severed. Should a court, absent statutory guidelines, reimpose that duty?
In examining the decisions of other courts which have been faced with that question, we find the attempts to reimpose a duty to support, absent a statutory provision, have been rejected. Florida found no such legal duty for the parent to provide support for an adult child even though the court believed parents should provide their children with as much formal education as possible. In Keenan v. Keenan, 440 So. 2d 642 (Fla. App. 5 Dist. 1983) the court said:
While we firmly believe that parents, divorced or undivorced should provide their children with as much formal education as each child can absorb and the parents can afford, this court cannot create a legal duty to do so where none exists. That power rests in the legislature.
In a similar case involving college education costs, the Florida court said:
While most parents willingly assist their adult children in obtainig a higher education that is increasingly necessary in today’s fast-changing world, any duty to do so is a moral rather than a legal one. Parents who remain married while their children attend college may continue supporting their children even beyond age twenty-one, but such support may be conditional or may be withdrawn at anytime, and no one may bring an action to enforce continued payments. It would be fundamentally unfair for courts to enforce these moral obligations of support only against divorced parents while other parents may do as they choose.
Grapin v. Grapin, supra.
In Breuer v. Dowden, 207 Ky. 12, 268 S.W. 541 (1925), the Kentucky court held that the parent was not liable for his disabled adult child’s debts in the absence of a statute to the contrary. The court stated:
That if at the time the child becomes of age he is reasonably physically and mentally sound and able, if willing, to make and earn his own support, the parent is not liable for his debts or obligations thereafter contracted, even though he should later become sick or mentally unbalanced and therefore incapacitated to earn a livelihood.
The Indiana appellate court held in Pocialik v. Federal Cement Tile Co., 121 Ind. A. 10, 97 N.E.2d 360 (1951), that once the parent’s liability of support terminated, the liability will not be restored due to a subsequent change in the condition of the child. In this case, the appellant was seeking compensation for her father’s death. The court held that she was not able to recover under the Compensation Act because she was not a presumptive dependent within the Act’s definition. The court did not find any statute which imposed a duty on the deceased father to support his adult daughter under the facts of this case.
In State v. Panzeri, supra, the Idaho court held there was no duty on a parent to support an adult child who was mentally competent when he attained majority but later became disabled. There was no such duty at common law, and for one to exist, it must be created by statute. This case was an action against the estate of a mother of an adult insane person for the cost of care and treatment of an adult in the state hospital. There was a statute providing for the recovery of costs for the care of insane persons. The suit was brought pursuant to that statute.
The Maryland Court of Special Appeals decided that their statute requiring a parent to support dependent children could be construed to require support of an adult child who became disabled after emancipation. There was nothing in the wording of the statute which precluded its application to an emancipated child who later becomes a dependent adult child. Stern v. Stern, supra. In Oregon the court held a father could not be ordered to support a mentally handicapped child that had reached majority and was not attending school. This was despite an Oregon statute that provided: “Parents are bound to maintain their children who are poor and unable to work to maintain themselves; and children are bound to maintain their parents in like circumstances.” Haxton v. Haxton, 68 Or. App. 218,680 P.2d 1008(1984). In Koltay v. Koltay, 667 P.2d 1374 (Colo. 1983), a father was ordered to continue to support a handicapped child beyond majority because the child was not “emancipated” under Colorado law. But in dictum, the court observed that “the Uniform Dissolution of Marriage Act does not provide for the support of a child who is emancipated at the age of majority and later becomes disabled.”
The appellee is asking us to reimpose a legal duty that no longer exists. It was stipulated that the child in this case was emancipated before the accident. He was not living with his father. That means he had no legal duty to his father and the father had none to him. If any obligation exists it is moral, not legal. Arkansas has no statute that imposes a legal duty on this father. We take the same view that other states do; absent a statute, we cannot interfere for to do so would be to impose our personal moral judgment on the father as to what he ought to do, rather than what the law requires he do.
Timothy decided, as he well should have, where he wanted to live, where he wanted to go to college, and how he would live. Undoubtedly, his case is tragic, and he needs some financial assistance. Perhaps his father ought to help; perhaps he will. That is for him to decide, not this court.
Since there is no statutory or constitutional authority for the court’s order of support, it must be reversed. We need not address the other issues raised which are jurisdiction and standing of the mother to bring the suit.
Reversed and dismissed.
Hays, J., dissents.
That does not mean, however, that the legislature is blind to all cases of special need. Ark. Stat. Ann. § 59-115 (Repl. 1971) provides that the parents of an insane child shall maintain it if financially able, and the children of insane parents shall provide for them, if able.
Actually, the testimony is not entirely unfavorable to the father. He said he bought an expensive van, had it equipped for a handicapped person, and arranged for driving instructions. Timothy said he had used the van about a dozen times but declined the lessons because his father would not let him drive alone. The father wanted Timothy to attend the local community college; Timothy wanted to enroll at Henderson State University. Timothy chose to live with his mother and his social security benefits were reduced because it was found he was a dependent of his mother’s. Timothy’s mother brought the suit; he didn’t. A majority of the court chooses not to rule on the standing issue to avoid a remand which would delay but not resolve the main issue. See Upchurch v. Upchurch, 196 Ark. 324 117 S.W.2d 339 (1938). | [
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Robert H. Dudley, Justice.
Appellants, Chester Cato and Verna Cato, were participants in the health insurance program of appellee, the Arkansas Municipal League. Verna Cato suffered a self-inflicted gunshot wound to the head which required that she be hospitalized. Her hospital charges were $26,206.89. Appellants both signed a standard form which authorized the Municipal League’s insurance carrier to pay benefits directly to the hospital. Appellants later filed a claim for the hospital expenses which was denied on the basis that an intentional self-inflicted injury was excluded from coverage. Appellants then retained attorneys on a 40% contingent fee basis. The attorneys filed suit for appellants. After service of process and a denial of liability, appellee settled directly with the hospital for $13,103.45, or 50 cents on the dollar. Neither appellants nor their attorneys were notified of the settlement until after it had been completed. Appellants then amended their complaint to allege that appellee owed them an attorney’s fee equal to 40% of the hospital bill, before settlement, under the attorney’s fee lien statute, Ark. Stat. Ann. § 25-301 (Repl. 1962), and also the 12% penalty plus attorney’s fees as set out in Ark. Stat. Ann. § 66-3238 (Repl. 1980). Additionally, appellants amended their complaint to allege that the refusal to pay hospital expenses directly to appellants constituted the tort of bad faith. Both parties filed motions for summary judgment. The trial court awarded to appellants an attorney’s fee of $10,407.76, or 40% of the $26,206.89 originally billed by the hospital; denied appellants’ claim for the 12% penalty and attorney’s fees; and denied appellants’ claim based upon the tort of bad faith. We reverse and remand on the amount of attorney’s fees, but affirm on all other parts. Jurisdiction to interpret the statutes at issue is in this Court. Rule 29(l)(c).
Appellants first argue that the trial court erred in refusing to award the 12% penalty plus attorney’s fee. Where an insured loss occurs and an insurance company fails to pay the loss within the time specified in the policy, the insurance company is required to pay, in addition to the loss, a 12% penalty plus a reasonable attorney’s fee. Ark. Stat. Ann. § 66-3238 (Repl. 1980). Since this statute is penal in nature, it is to be strictly construed. Callum v. Farmers Union Mutual Ins. Co., 256 Ark. 376, 508 S.W.2d 316 (1974). The plaintiff must recover the exact amount claimed in order to collect the penalty and attorney’s fees. Farm Bureau Ins. Co. v. Paladino, 264 Ark. 311, 571 S.W.2d 86 (1978). In this case, appellants’ complaint and amended complaint asked for a greater amount than was finally recovered. It was only after appellee confessed judgment and tendered $916.83 into the registry of the court that the appellants reduced their claim to the correct sum, the amount which had already been tendered. Even so, appellants argue that they are entitled to penalty and attorney’s fee because they recovered the exact amount finally claimed. The argument is without merit because the insurance company confessed judgment for the correct amount before appellant filed claim for the correct amount. See Broadway v. The Home Ins. Co., 203 Ark. 126, 155 S.W.2d 889(1941).
Appellants next contend that the trial court erred in not awarding punitive damages based upon the first party tort of bad faith. In an unusual proceeding, the appellants filed a motion for summary judgment following a similar motion by appellee, but neither party contended below, nor contends on appeal, that there is any issue of material fact. The trial judge decided the question on the affidavits. We affirm as the decision is not clearly erroneous.
An insurance company may incur liability for the first party tort of bad faith when it affirmatively engages in dishonest, malicious, or oppressive conduct in order to avoid a just obligation to its insured. Employers Equitable Life Ins. Co. v. Williams, 282 Ark. 29, 665 S.W.2d 873 (1984). However, mere refusal to pay a claim does not constitute the first party tort of bad faith when a valid controversy exists with respect to liability on the policy. Findley v. Time Ins. Co., 264 Ark. 647, 573 S.W.2d 908 (1978).
The only provision in appellants’ affidavit which can be construed as a fact showing affirmative conduct designed to avoid a just obligation is the statement that appellee settled the hospital claim directly with the hospital rather than with the appellants. However, in response the appellee, in its affidavit, stated:
5. It is undisputed that Mrs. Verna Cato, Plaintiff herein, suffered a gunshot wound to the head on or about March 12, 1982. From the claim forms, medical reports from doctors at the Corning hospital and the Baptist Memorial hospital, and two investigative reports from Equifax Services Inc., the claim was initially denied based on the exclusion contained in our benefits excluding coverage for self-inflicted wounds. Copy of the above mentioned documents have previously been filed herein.
6. The claim was ultimately appealed to the Municipal Health Benefit Fund’s Board of Trustees who upheld the decision to deny the claim. This lawsuit followed.
7. After commencement of this suit, further investigation undertaken by trial counsel, and research of the applicable Arkansas law, trial counsel advised that the Municipal Health Benefit Fund faced a difficult burden of proof in maintaining that Mrs. Cato suffered an intentional self-inflicted wound. Whereupon a decision was reached to settle this claim.
8. A settlement has been arrived at with the Baptist Memorial hospital and a full release of claims obtained therefor. We have submitted sums in the registry of the court representing payment for claims received by us and for which we provide benefits, up to the limits of our policy. We continue to deny liability for any nursing home or disability income benefits since these claims are not covered by our benefits. In addition, we are due a setoff in the sum of $75.00 which represents the remainder of the deductible provision under the terms of our benefit program.
Upon this evidence we cannot say the trial court’s ruling was clearly erroneous.
The appellee has filed a cross-appeal. The trial court found that when the appellee settled the $26,206.89 debt directly with the hospital for $13,103.45 after suit had been commenced, the appellants’ attorneys held a lien against appellee for 40% of $26,206.89, or a lien for an attorney’s fee in the amount of $10,482.76. We modify and remand for further evidence on this point.
The cross-appellant insurer argues that the crossappellees, the Catos, assigned their medical benefits to the hospital, and therefore, there is nothing to which the lien could attach. While the argument may have some theoretical merit, it is immaterial since the statute does not create a lien against the cross-appellant under the facts of this case.
After an attorney files suit, a party litigant may settle the cause of action without notice to the attorney, but if he does so, the attorney is entitled to a fee. Ark. Stat. Ann. § 25-301 (Repl. 1962); Jarboe v. Hicks, 281 Ark. 21, 660 S.W.2d 930 (1983). In order to collect the fee the attorney may proceed in either of three ways: he may proceed against his client, he may proceed against the other party, or he may proceed against both parties. If the proceeding is against the client the amount of the fee is governed by their agreement and, to insure payment of that fee, the attorney is entitled to a lien upon the client’s cause of action which attaches to any settlement recovered by the client. Ark. Stat. Ann. § 25-301; Baxter Land Co. v. Gibson, 236 Ark. 664, 367 S.W.2d 741 (1963). However, when the attorney only proceeds against the other party litigant, as here, the statute contains no provision for a lien on the cause of action for the agreed fee, but provides that the attorney is entitled to a reasonable fee which shall not necessarily be limited to the amount of the settlement. Thus, the attorney is rewarded to the extent of services performed, even though he has no lien until judgment. Jarboe v. Hicks, 281 Ark. 21, 660 S.W.2d 930 (1983). In discussing a reasonable fee we have stated:
The statute in question provides for a reasonable fee for the attorney against the parties to said action and that the amount of such fee shall not necessarily be limited to the amount of compromise or settlement between the parties litigant. We think this provision of the statute in question, in providing that the fee be reasonable and not limited to the amount of the compromise or settlement, in effect, provides for a fee on a quantum meruit basis. In determining what would be a reasonable fee we take into consideration the amount of time and labor involved, the skill and ability of the attorneys, and the nature and extent of the litigation.
Jarboe v. Hicks, supra, quoting from St. Louis-San Francisco Ry. Co. v. Hurst, 198 Ark. 546, 129 S.W.2d 970 (1939). See also St. Louis S.W. Ry. Co. v. Poe, 201 Ark. 93, 143 S.W.2d 879 (1940); Slayton v. Russ, 205 Ark. 474, 169 S.W.2d 571 (1943).
Because the reasonable fee is not necessarily limited by the amount of settlement, or the contract, we have authorized a $750.00 fee when the settlement was for $1,000.00 and the contingent fee contract called for 40% or a $400.00 fee contract. Jarboe v. Hicks, supra. We allowed a $1,500 fee when the contingent fee contract called for 50% of all sums collected and the authorized settlement was for $1,000.00. St. Louis S.W. Ry. Co. v. Poe, supra. Similarly, a fee of $318.54 was allowed when the case was settled for $50.00. Slayton v. Russ, supra. In the latter case we unequivocally held that proof of a settlement without the attorney’s consent, after the suit is filed, constitutes the only prerequisite to the attorney having his fee fixed on a quantum meruit basis.
Here, the cross-appellee’s attorneys filed suit, and the cross-appellant settled without the consent of the attorneys. Therefore, the attorneys were entitled to a judgment against cross-appellant for a reasonable fee based upon quantum meruit. Instead of basing the attorney’s fee upon quantum meruit, the trial court based the fee upon the contingent fee contract. Since this proceeding was not against the client, but only against the adverse party, the trial judge used the wrong standard to fix the fee, and the record does not contain sufficient evidence for us to set a reasonable fee. Therefore, we must modify and remand for the trial court to set a reasonable fee.
Affirmed on direct appeal.
Modified and remanded on cross-appeal. | [
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Steele Hays, Justice.
Bob Davis appeals from an order of the Chancellor of Hot Spring County finding that Arkansas has no jurisdiction to decide a custody dispute between Davis and his former wife, Debra, involving their son, Bradley. We agree with the appellant that under the Uniform Child Custody Jurisdiction Act the Chancellor should have heard the case on its merits. Accordingly, we reverse and remand.
Bob and Debra Davis are longtime residents of Arkansas, with ties to Clark and Hot Spring Counties. They married in Clark County and Bradley was born there on July 5, 1977. They seem to have lived at times in Clark County and in the neighboring county of Hot Spring, where Debra Davis owned a mobile home on lands belonging to her parents.
In September of 1980 Bob Davis went to Texas to work as a welder. Debra joined him later, leaving Bradley in Hot Spring County with her parents. Bradley came still later and lived there just over a year. In March of 1982 a decree of divorce was entered in the District Court of Harris County, Texas, awarding a divorce and custody of Bradley to Debra Davis.
Some months after the divorce Debra came back to Arkansas with Bradley and resumed habitation in Hot Spring County. Bob Davis also returned to Arkansas and neither party has had any further residence in Texas. After Bob’s return he lived in Arkadelphia and, by agreement between the parties, Bradley spent weekends and summers with his father on a.regular basis.
Debra began selling real estate and in April, 1983, she went to Florida, where opportunities seemed brighter, again leaving Bradley in Arkansas with her parents. In the fall Debra was back in Arkansas hoping to find work. Bob told her he would oppose any effort to remove Bradley to Florida, if that was her aim. Evidently this conversation, which occurred on October 8, 1983, alarmed Debra and she suddenly removed Bradley from school and left for Florida “within the hour.”
Bob Davis immediately petitioned the Chancery Court of Clark County for a change of custody and the Chancellor issued a temporary order for Bradley’s return to Arkansas, which a Florida court honored. Bradley was returned to Arkansas where he remained until December 6, 1983, when the Clark Chancery Court held a hearing in the matter. There is some indication from the record that Debra Davis, while objecting generally to jurisdiction in Arkansas, argued that as between Clark and Hot Spring County, venue lay in Hot Spring County. At any rate, the Chancellor determined that Hot Spring County had more significant connections with the family and ordered the proceedings transferred.
When the case came before the Chancellor of Hot Spring County in January, 1984, he held there was no jurisdiction in Hot Spring County and attempted to transfer the case back to Clark County. With the entry of that order, Bob Davis moved the Clark Chancellor to reconsider his original order of transfer, which was refused. Davis then filed a new petition in Hot Spring County on March 12,1984 and it, too, was dismissed by the Chancellor for lack of jurisdiction in Arkansas. On appeal, that order is reversed.
The basic purposes of the Uniform Child Custody Jurisdiction Act are to provide a forum with the closest connection to the child and his family, to deter the abduction and shifting of children from state to state, and to promote interstate cooperation in adjudicating custody matters . Other purposes stated in the act are to “discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child,” and to discourage the “unilateral removal of children undertaken to obtain custody awards.” Ark. Stat. Ann. § 34-2701 (Supp. 1983). The frustration of most of the goals of the act is demonstrated to a significant degree by this record. The parties have litigated in Arkansas and Florida over the past eighteen months without ever getting beyond the threshold issue of jurisdiction to the merits. Bradley has been shuttled between Arkansas and Florida, away from family, school and friends, substituting instability for a relatively stable environment . Bob Davis has been shunted back and forth between the courts of Clark and Hot Spring Counties, Arkansas, as well as Florida, in a futile effort to obtain a custody ruling on the merits of the case.
The Uniform Child Custody Jurisdiction Act recognizes that circumstances can occur after an initial custody award which affect jurisdiction for purposes of modifying custody. A second state, in order to modify the custody award of another state, must first have jurisdiction under one or more of those provisions listed in § 3 (Ark. Stat. Ann. § 34-2703), which include being the “home state,” defined in § 2 as: “The state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months. . .” Plainly, Arkansas was the home state in this cáse. It is undisputed that Bradley had been back in Arkansas for considerably longer than six months when his father filed the original petition in October, 1983. And while appellee suggests that Florida had become the “home state” by March, 1984, when the “new” petition was filed in Hot Spring County, we cannot sustain that contention.
Debra Davis argues thatTexas has retained jurisdiction over Bradley’s custody. She cites Blosser v. Blosser, 2 Ark. App. 37, 616 S.W.2d 29(1981), as being‘‘almost exactly” the situation before us, and Rodriguez v. Saucedo, 3 Ark. App. 43, 621 S.W.2d 874 (1981) and Caskey v. Pickett, 274 Ark. 383, 625 S.W.2d 473 (1981). None of these cases govern. In Caskey v. Pickett, supra, we reversed the trial court’s preemption of jurisdiction over the jurisdiction of Texas, where the parties had lived at the time of the divorce and custody award, and where the custodial parent and child still lived. The noncustodial parent had moved to Arkansas and refused to return the child to the Texas parent at the end of a visitation period, claiming an emergency existed pursuant to § 3 [Ark. Stat. Ann. § 34-2703(a)(3)]. The Chancellor upheld the claim but the finding was not sustained on appeal to this court. We determined that Texas had continuing jurisdiction because of its status as the “home state” of the custodial parent and the child.
In Blosser, the Court of Appeals affirmed an Arkansas Chancellor’s refusal to assume jurisdiction under the act on the petition of a father who had. wrongfully removed the child from Oklahoma for almost a year to prevent the enforcement of an Oklahoma custody order. A similar wrongful removal of the child occurred in Rodriguez, supra. Thus, in Blosser and Rodriguez, one parent, in contravention of § 34-2708(b) attempted to defeat jurisdiction by the wrongful removal of the child and urged Arkansas to assert jurisdiction adverse to the jurisdictional rights of the original states. In both cases the child was wrongfully removed in violation of § 34-2708(b), but in Rodriguez, Texas remained the home state under § 34-2703(a)( 1) and (2), and in B losser, Oklahoma would have also been the home state but for the wrongful removal by the non-custodial parent.
The factual differences between Blosser and Rodriguez, and the case before us need little elaboration. There were no circumstances in this case requiring deference to the jurisdiction of any other state. Arkansas was clearly the home state and there was no improper conduct by one parent in removing the child to this state.
Blosser and Rodriguez were correctly decided, jurisdiction in the foreign states resting firmly on § 34-2708(b) and home state considerations, but reference in both decisions to “continuing jurisdiction” in the state which grants a divorce and awards custody, could lead to confusion. Blosser and Rodriguez referred to§ 34-2706(a), which provides that one state will not exercise jurisdiction under the act if at the time of filing the petition a custody proceeding is pending in another state exercising jurisdiction substantially in conformity with this act unless the first state recognizes that this state is the more appropriate forum. In the setting of those cases, we would be reluctant to label such “continuing jurisdiction” as constituting a “pending proceeding” as contemplated in § 34-2706. If that were so, the court of a state granting custody in the first instance would always retain “pending” jurisdiction for later modification of custody, irrespective of subsequent developments, and even if the parties and children were, as here, living in another state. Hence, the “home sate” provision of § 2(5) of the act [Ark. Stat. Ann. § 34-2702(5)] would have little meaning. See In Re Marriage of Steiner, 89 Cal. App. 3d 363, 152 Cal. Rptr. 612 (1979); Wheeler v. District Court of Denver, 186 Colo. 218, 526 P.2d 658 (1974); Williams v. Zacker, 35 Or. App. 129, 581 P.2d 91 (1978); 96 A.L.R.3d 959; “The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws,” 22 Vand. L. Rev. 1207, at page 1236. Therefore, while Texas in this case had jurisdiction initially over these parties when granting the divorce there is no “pending proceeding” there to qualify that state for jurisdiction over this cause under § 34-2706(b).
For the foregoing reasons we reverse the order of the Hot Spring Chancery Court and remand for further proceedings.
Newbern, J., concurs.
Ark. Stat. Ann. §§ 34-2701 et seq. (1983 Supp.).
Affidavit of Debra Davis’s father, R., p. 94.
Shively, Survey of Family Law, 3 UALR L.J. 223 (1980).
The National Conference of Commissioners on Uniform State Laws, which approved the Act, has aptly noted that the harmful consequences of such experiences on children cannot be over emphasized. See Uniform Laws Annotated, Master Edition, Vol. 9, p. 112.
§ 34-2708(b). Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. . . . | [
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Robert H. Dudley, Justice.
Amendment 60, which amended Article 19, § 13 of the Constitution of Arkansas, became effective on December 2,1982. On July 11,1983, this court interpreted Amendment 60 as having a two-fold limitation on the maximum amount of interest a lender can charge on a consumer loan or credit sale — the lesser of 17% or 5% over the Federal Reserve Discount Rate. Bishop v. Linkway Stores, 280 Ark. 106, 655 S.W.2d 426 (1983). A petition for rehearing was denied on September 12, 1983. Petitioner, Ford Motor Credit Co., interpreted Amendment 60 as permitting a maximum of 17% interest on consumer contracts and purchased thousands of installment contracts bearing the 17% rate between December 2, 1982 and July 11, 1983. A March 4, 1983 contract between Plaintiff, Ross Nesheim, and Union Lincoln Mercury in Little Rock provided for the purchase of a used 1979 Mercury Marquis automobile to be financed at 17% annual percentage rate. According to the decision, the maximum lawful annual percentage rate was 13.5%, which was the 8.5% Federal Reserve Discount Rate plus 5%. On September 14, 1983, two days after the petition for rehearing was denied, petitioner notified Nesheim and 6,000 other customers of our ruling of Ford Motor Credit’s intention to correct the contract to comply with the ruling. On October 25, 1983, Ford Motor Credit sent a follow-up letter advising that the change lowered the annual percentage rate, balance due, and the monthly payment amount.
On October 25, 1983, Nesheim filed his complaint for a class action under ARCP 23 against petitioner to recover Amendment 60’s penalties on his contract and on the contracts of all other consumers similarly situated. Petitioner, Ford Motor Credit, asserted that ARCP 23 could not be constitutionally applied to allow this case to be maintained as a class action. On October 16, 1984, the chancellor ruled that common questions of law or fact predominated, that a class action was superior to other forms of relief, and granted the request for class certification under ARCP 23.
Ford Motor Credit Co., pursuant to Rule 29(l)(f), seeks a writ of prohibition directed to the trial court. It contends, that, in cases which involve a class based on separate claims with common questions of law or fact, the chancery court does not have authority to certify this case as a class action because ARCP 23 cannot be constitutionally applied since it fails to provide for mandatory notice to class members which, it argues, offends due process. We hold that petitioner has no standing to question the constituionality of ARCP 23 and, accordingly, we decline to issue the writ.
Those persons who have allegedly been denied due process are those absent class members who will receive directory rather than mandatory notice of the action. Their right to due process is a personal right, and it may not be asserted by their adversary, Ford Motor Credit Co. In Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981), we wrote:
Constitutional rights, including the guarantee of due process, are personal rights and may not be asserted by a third party. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), and Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed.2d 1586 (1953). A very narrow exception exists where the issue presented to the court would not otherwise be susceptible of judicial review and it appears that the third party is sufficiently interested in the outcome that the rights of the other party would be vigorously asserted and, thus, adequately represented. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), and Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510(1965).
This petition does not fit within the narrow exception set out above because the issue of due process can be raised later by the absent class members. In the event the class loses at the trial on the merits, an absent class member can contend that the judgment on the merits is not entitled to res adjudication effect because of the directory, rather than the mandatory, notice provision of ARCP Rule 23.
Writ denied.
Newbern, J., not participating. | [
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George Rose Smith, Justice.
The State of Arkansas, like most states, assists its counties financially by distributing part of the State’s revenues, called county turnback funds, to the counties every year. Since the enactment of the 1973 Revenue Stabilization Act, the formula for distribution has been to divide 75% of the funds equally among the 75 counties and to divide the other 25% proportionately by population according to the most recent federal decennial census. Ark. Stat. Ann. § 13-523 (C) (Repl. 1979).
This suit for a declaratory judgment invalidating the statute was brought by certain Pulaski County taxpayers, who assert that the distribution formula has no rational basis and is therefore an illegal exaction and a denial of equal protection. The original defendants were the State Treasurer and other state officers. Pulaski County intervened as a plaintiff, and the other 74 counties were brought in as defendants. After a trial during which much testimony and many exhibits were introduced, the chancellor dismissed the suit with prejudice, finding that the plaintiffs had not sustained their burden of proving that there is no rational basis for the formula.
The single argument for reversal is that the trial court’s finding is clearly erroneous. We cannot agree.
The plaintiffs admittedly had the burden of proving the absence of any rational basis for the formula. Schweiker v. Wilson, 450 U.S. 221 (1981); Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). In Schweiker the court pointed out that if a classification in economic legislation has some reasonable basis, it is not invalid even though it lacks mathematical nicety and results in some inequity. It was also said:
This inquiry employs a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary.
Pulaski County’s grievance centers on proof that, although its population gives it the largest sum received by any county in turnback aid, on a per capita basis it received, in 1982 for example, only $2.63 per person, the lowest amount for any county, in contrast with the maximum of $33.24 per person received by Calhoun County. If the counties are classified in larger groups, in 1980 those having a population of more than 45,000 received an average of $3.65 per person, those in the middle group an average of $7.34 per person, and those below 20,000 in population an average of $14.68 per person.
All the proof shows, however, that population is by no means the only factor to be considered. Primarily, turnback funds reimburse the counties at least in part for the cost of services that counties are required by state law to provide. Among the services specifically mandated are the administration of justice by means of the courts, law enforcement protection, the maintenance of jails, the assessment and collection of property taxes, the keeping of public records, and all services required to be performed by county officers and departments. Ark. Stat. Ann. § 17-3802 (Repl. 1908). In addition to the costs of the required services, the maintenance of each county’s road system creates a financial problem that varies from county to county. Other services provided voluntarily by some counties include fire protection and waste disposal.
The existing formula undoubtedly benefits the poorer and less populous counties at the expense of the richer and more populous ones, but the evidence does not show that such a state policy is without a rational basis. Moreover, there are indications that still other weighty factors to be considered in arriving at a fair distribution formula include comparative local wealth, total assessed property values with possible adjustments for differences in the percentage of market value being assessed, the extent to which the residents of each county have taxed themselves to the full extent allowed by state law, and the total area of federally owned tax-exempt land within each county. For the most part, those important elements in the general problem cannot be determined with any measure of certainty, so that among many possible formulas there is necessarily much leeway for the exercise of sound legislative judgment.
The plaintiffs’ two principal witnesses both testified that in their opinion there is. no rational basis for the existing formula, but neither witness was a disinterested expert. Rather tó the contrary, one was the incumbent Pulaski County county judge and the other a professor who had worked for four years in Little Rock’s budget department and for two years as the county’s budget director. Their opinions were opposed by that of Dr. Frank Trout-man, who testified that there is a rational basis for the State’s policy and who supported his conclusion with calculations tending to demonstrate a close inverse correlation between the ranking of the counties in order of wealth and their ranking in the amount of turnback funds being received.
The chancellor was right in concluding from the proof that the plaintiffs had failed in their difficult task of proving a negative, that the legislative formula has no rational basis whatever. In closing, we emphasize two matters that are of particular significance. One, no witness for the plaintiffs suggested a specific formula that would be superior to the one that has been in force for more than ten years. There were many general criticisms of the State’s formula and much discussion of the factors that ought to be considered, but no concrete remedy was offered. Two, of all the important factors that have been brought up for consideration, the only one that can be determnined with certainty is comparative population. It is also a factor that affects many other lesser elements in the problem, such as the need for courts, for police protection, and indeed for most county services. And that very factor is the one selected by the legislature as part of a formula otherwise based on numerical equality. Perhaps a larger allocation on the basis of population might have been more equitable, but that is a determination to be made by the General Assembly, where all the counties are represented by comparative population, not by the courts on the basis of the testimony in this case.
Affirmed. | [
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Jack Holt, Jr., Chief Justice.
This is a divorce case which has previously been appealed to this court. Webb v. Webb, 262 Ark. 461, 557 S.W.2d 878 (1977). On remand, in 1979, the trial court issued a supplementary decree. Almost five years later the appellee filed a “Motion to Expunge” certain portions of that decree which was granted by the trial court. It is from that order of expungement that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29 (1) (j) as this is a second appeal.
The parties were divorced on September 26, 1976. The decree awarded property which had not previously been divided by the parties and $400 per month alimony for the appellant until February 1, 1977; provided for the payment of bills and insurance premiums; and ordered the appellee to pay the appellant one-third of his net income beginning February 1, 1977 through December21,1977 as alimony. An amended decree also awarded attorney’s fees and deposition costs. Jurisdiction was retained by the trial court for the February 1 through December 21 period to consider any petitions for modification and/or extension.
On October 21, 1976, the appellee filed a notice of appeal from that part of the decree relating to permanent alimony, support and.maintenance. This court reversed the decree on November 28, 1977. Webb, supra.
The trial court, on August 8, 1979, issued a supplementary decree based on the pleadings, previous orders, this court’s opinion, and stipulations of counsel. The supplementary decree found that due to the change in circumstances, no alimony should be awarded and instead the appellant was to receive a total of $4,025.00 for her interest in the appellee’s property, unpaid expenses under the original decree and attorney’s fees.
On June 21, 1984, the appellee filed a “Motion to Expunge” in which he argued that the portions of the supplementary decree of 1979 not relating to alimony were barred by the trial court’s prior decision since the case was remanded by the Supreme Court on the alimony issue only.
In granting the motion, the trial court agreed that it was bound by the supreme court “to make appropriate orders on the issue of alimony only” and was without jurisdiction on the other matters. The trial court was without jurisdiction to entertain this motion.
Appellee’s relief, if any, from the trial court’s order of August 8,1979, should have been sought through appeal or the procedure for modification of judgment. An appeal must be filed within 30 days from the entry of a decree or judgment. Ark. R. App. P. 4(a). The procedure for modifying a judgment is governed by Ark. R. Civ. P. 60(b) which provides that the judgment may be modified within 90 days after it’s entered. Appellee should have acted within the time allowed, rather than five years later. Accordingly, the trial court is reversed and the order of expungement of the August 8, 1979 order is dismissed. | [
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George K. Cracraft, Chief Judge.
Reginald Reed appeals from his convictions of burglary and theft of property, for which he was fined $5,000.00. He contends that the trial court erred in denying his motion to dismiss for failure to grant him a trial within twelve months of the date of his arrest. We agree and reverse.
Appellant was charged by separate informations with having committed two counts of both burglary and theft. One episode occurred on November 23, 1988, and was referred to in the proceedings as the “Andrews burglary.” The second one, which is the subject of this appeal, occurred on November 30, 1988, and was referred to as the “Wells Oil Company burglary.” Appellant was arrested for both criminal episodes on December 7,1988, and both parties agree that the twelve-month period allowed for a speedy trial began running on that date, subject to any excludable periods as provided in the Arkansas Rules of Criminal Procedure.
The Andrews burglary and theft charges were tried first and resulted in a hung jury and mistrial on October 24, 1989. There, after the court had declared the mistrial, the question of the continuance of the existing bond was discussed. The court stated:
Now, the — Is there anything else really that we need to do? I guess the next move is up to the State, if any, as to whether or not to ask for another trial after a new jury is impaneled after the first of the year.
Mr. Reed [appellant], you’ve been in the courtroom. You’ve heard that the jury has been unable to reach any verdict one way or the other in your case. You are not discharged. You are still subject to possible retrial on this case [Andrews burglary]. But Mr. Deen [appellant’s attorney] will notify you when and if any order for another jury trial in this case [Andrews burglary] is entered.
That trial could not occur until after January 1st when we impanel a brand new jury in this county.
All right. Ladies and gentlemen, court is adjourned, then. Thank you very much. [Emphasis added.]
The trial judge then made an entry, not in the official criminal docket, but in his so-called “pocket docket,” which he maintained for his own use in order to keep him abreast of the status of the cases in the various counties of his district. That “pocket docket” entry to the Andrews case, dated October 24, 1989, provided: “10/24/89 — 2/21 /90 excluded to permit trial of R. Reed in CR-89-11-2MC [Wells Oil Company burglary].”
On January 10, 1990, appellant filed his motion to dismiss the Wells Oil Company charges for failure to afford him a trial within twelve months as required by Ark. R. Crim. P. 28.1(c). At a hearing held on appellant’s motion on February 15,1990, it was shown that no written orders had been entered or docket entries made on the official criminal docket excluding any period of time for purposes of extending the time for speedy trial. At that same hearing, however, the record in this case (Wells Oil) was supplemented by including those portions of the record from the Andrews burglary trial quoted in the preceding paragraph. At the conclusion of the hearing, the trial court denied appellant’s motion to dismiss, excluding the period of time from October 24, 1989 to February 20, 1990, on the following finding:
This case [Wells Oil Company burglary] and defendant’s companion felony case [Andrews burglary] were both set for trial October 24, 1989. The other case [Andrews] was tried to the jury, necessitating a continuance in this case [Wells Oil] until a new jury panel was available after January 1, 1990.
This court’s first time to be in the McGehee District of Desha County after January 1 will be February 20, 1990. Trial of this case [Wells Oil] is set for February 21, 1990.
Per the court’s order entered today, 119 days from October 24,1989, to February 20,1990, are excluded from “speedy trial” in this case [Wells Oil], extending the deadline for trial to April 5, 1990.
On the same date that appellant’s motion was denied, February 15,1990, the trial court made the following entry to the Wells Oil Company burglary case in his “pocket docket”: “10/24/89 — 2/ 20/90 excluded from S.T. due to trial of 89-14-2MC [Andrews burglary] & need for new jury panel for 89-11-2MC [Wells Oil Company burglary].” On February 21,1990, appellant was tried, convicted, and sentenced for the Wells Oil Company burglary and theft, and this appeal follows.
Appellant contends that the court’s oral ruling and pocket-docket entry made at the February 15, 1990, hearing on his motion to dismiss were insufficient to extend the speedy-trial period because they were not made until after the period had expired and after the appellant’s motion to dismiss was filed. We agree.
When compared to the facts of this case, the applicable rules are relatively clearly established. Rule 28.1(c) of the Arkansas Rules of Criminal Procedure provides:
Any defendant charged after October 1, 1987, in circuit court and held to bail, or otherwise lawfully set at liberty, including released from incarceration pursuant to subsection (a) hereof, shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3. [Emphasis added.]
Rule 28.2 provides in pertinent part:
The time for trial shall commence running, without demand by the defendant, from the following dates:
(a) from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest. . . .[Emphasis added.]
Rule 28.3 provides in pertinent part:
The following periods shall be excluded in computing the time for trial:
(a) The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on the competency of the defendant and the period during which he is incompetent to stand trial, hearings on pretrial motions, interlocutory appeals, and trials of other charges against the defendant. [Emphasis added.]
(i) All excluded periods shall be set forth by the court in a written order or docket entry.
Once it has been shown that the trial is to be held after the speedy trial period has expired, the State has the burden of showing that any delay was the result of the appellant’s conduct or that it was otherwise legally justified. McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990).
Here, we do not need to decide whether the court’s February 15, 1990, “pocket docket” entry to the Wells Oil case was a “docket” entry of the type contemplated by Ark. R. Crim. P. 28.3(i). Although not expressly stated in the rule, the supreme court has said that “a court should enter written orders or make docket notations at the time continuances are granted to detail the reasons for the continuances and to specify, to a day certain, the time covered by such excluded periods.” Hicks v. State, 305 Ark. 393, 397, 808 S.W.2d 348, 351 (1991) (emphasis in original); see also McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). The court has also said that this language must be adhered to in order to provide any impetus behind Rule 28.3 Hicks v. State, supra. Here, the entry was made several months after the delay occurred, two months after the twelvemonth period had elapsed, and six weeks after appellant filed his motion to dismiss. As such, it was untimely and ineffectual. See Hicks v. State, supra.
The State contends that the lack of any timely written orders or docket entries is not fatal in this case. It argues that the court’s pronouncements at the close of the Andrews case and the pocket-docket entry relative thereto were sufficient to constitute a “memorialization in the record” within the meaning of Key v. State, 300 Ark. 66, 776 S.W.2d 820 (1989). We cannot agree.
Key holds that when a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy Ark. R. Crim. P. 28.3(i) and to allow the time to be attributed to the defendant. See also Hicks v. State, supra. Here, trial of the Wells Oil case was not delayed by appellant. While it might be prudent in some instances for a defendant to request a continuance of this trial in one case because of a hung j ury in a separate case, that was not done here. The continuance was ordered on the court’s own motion in a proceeding entirely unrelated to the case now on appeal. The fact that appellant did not affirmatively object to the court’s statement does not alter our conclusion. See Hicks v. State, supra. In the first place, the statement itself referred not to the Wells Oil case, which is on appeal, but only to “this case,” i.e., the Andrews case. Therefore, appellant was not given cause to object with regard to the Wells Oil. Secondly, this case is to be contrasted on its facts with those cases that have held delays to be attributable to defendants. See, e.g., Key v. State, supra (defendant was asked about and agreed to a continuance requested by a co-defendant); Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989) (defendant explicitly agreed to continue his case and expressly waived any speedy trial claims).
Nor can we agree with the State’s argument that the delay in this case was permissible under Ark. R. Crim. P. 28.3(a) as we cannot conclude that the delay “result [ed] from” the trial of appellant on the Andrews charges, as required by that rule, or that the delay was “necessary” under Ark. R. Crim. P. 28.1(c). The only case cited by the State in support of its proposition, Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988), is clearly distinguishable. In Allen, the appellant was arrested in Texas for a robbery committed in Arkansas and an aggravated robbery committed in Tennessee. He was extradited to Tennessee, where he was held for approximately six months before being tried for and acquitted of the Tennessee offense. When he was finally returned to Arkansas, the supreme court held that that six-month period during which the appellant was held outside this jurisdiction was excludable from the speedy trial period for the Arkansas offense under Ark. R. Crim. 28.3(a). Here, on the other hand, appellant was charged with two sets of crimes in the same county and in the same court. Aside from the court’s sua sponte decision, there was no reason why appellant could not have been tried for the Wells Oil burglary and theft before the speedy trial period elapsed.
We conclude that the trial court’s exclusion of the period from October 24, 1989, to February 20, 1990, cannot be sustained, and that appellant’s motion to dismiss should have been granted. Therefore, his convictions for the Wells Oil Company burglary an theft are reversed and the case is dismissed.
Cooper and Rogers, JJ., agree.
It is significant to note that as a mistrial had been declared, the speedy trial period for the Andrews burglary case was extended for a period of a full year under Rule 28.2(c). It did not result in such an extension for the case now being reviewed. | [
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