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George K. Cracraft, Chief Judge.
Barbara Loftin Lee appeals from a decree of divorce entered in Washington County Chancery Court. She contends that the chancellor erred in enforcing an antenuptial agreement and, in the alternative, that the chancellor erred in his determination of the amount of property that she was entitled to receive under the agreement. Appellee, Robert J. Lee, Jr., cross-appeals, contending that the chancellor erred in dividing certain nonmarital property. We affirm the decree to the extent that the chancellor found the antenuptial agreement to be valid and enforceable, but we find sufficient merit in appellant’s second point on appeal to warrant reversal and remand. We find no merit in appellee’s cross-appeal.
This court reviews chancery cases de novo on the record. However, we will not reverse the findings of the chancellor unless they are clearly erroneous or clearly against the preponderance of the evidence, giving due deference to the superior position of the chancellor to judge the credibility of witnesses and the weight to be given their testimony. Walker v. Hubbard, 31 Ark. App. 43, 787 S.W.2d 251 (1990); Ark. R. Civ. P. 52(a).
The record indicates that the parties were married on July 18, 1980. Both parties had been married previously and had children by those marriages. They had known each other for about five weeks before they were married. Prior to their marriage, the parties signed an antenuptial agreement, which had been prepared at the direction of appellee. The agreement indicated a desire by the parties that their individual estates descend to their respective children and heirs, and provided that the property owned by each party at the time of the marriage would remain his or her separate property and that neither party would acquire, as a result of the marriage, any interest in the property or estate of the other, or right to control any interest in income, rents, and profits derived therefrom. The agreement provided that all property acquired by the parties subsequent to the marriage would be owned jointly by them. It further provided that, in the event of divorce, appellant was entitled to receive $ 1,000.00 in full satisfaction of any interest in appellee’s property that she might have acquired under the law.
The parties separated in January 1987 and were divorced by a decree entered July 23, 1990. The chancellor found that the antenuptial agreement was valid and that the fair market value of all property acquired subsequent to the marriage, which was not replacement property, was $62,800.00. Appellant was awarded $31,400.00 plus $1,000.00 as her share under the agreement.
Appellant first contends that the chancellor erred in finding that the antenuptial agreement was valid and enforceable. We disagree.
Our law recognizes that parties contemplating mar riage may, by agreement, fix the rights of each in the property of the other differently than established by law. Such agreements must be made in contemplation of the marriage lasting until death, rather than in contemplation of divorce. Oliphant v. Oliphant, 177 Ark. 613, 7 S.W.2d 783 (1928); Gooch v. Gooch, 10 Ark. App. 432, 664 S.W.2d 900 (1984). However, an agreement that is not solely intended to be operative upon divorce is not void merely because it mentions or is operative upon divorce among other contingencies. Dingledine v. Dingledine, 258 Ark. 204, 523 S.W.2d 189 (1975); Babb v. Babb, 270 Ark. 289, 604 S.W.2d 574 (Ark. App. 1980). Marriage is sufficient consideration for such agreements. Comstock v. Comstock, 146 Ark. 266, 225 S.W.2d 621 (1920); Babb v. Babb, supra. An antenuptial agreement will be enforced by the court where the agreement was freely entered into by both parties, and is not unjust, inequitable, or tainted with fraud. Faver v. Faver, 266 Ark. 262, 583 S.W.2d 44 (1979); Arnold v. Arnold, 261 Ark. 734, 553 S.W.2d 251 (1977); Davis v. Davis, 196 Ark. 57, 116 S.W.2d 607 (1938); Gooch v. Gooch, supra.
At the hearing, appellant testified that appellee wanted her to sign an agreement before they were married but did not explain to her the effect of such an agreement or the rights that she would be relinquishing under it. She testified that, approximately one hour before the wedding, she received a call from appellee’s attorney’s office, advising her that she needed to sign the agreement before the wedding. Appellant stated that she went to the attorney’s office in her wedding dress and signed the document, without having it explained to her and without reading it. She testified that she was not made aware of the extent of appellee’s property before the marriage.
Appellee testified that he and appellant had discussed the antenuptial agreement before they were married and that he advised appellant that he would not get married without such an agreement. He stated that appellant told him that she “would be glad to sign it” and “didn’t want me for anything I have.” Appellant admitted on cross-examination that there was no pressure put on her to sign the agreement. There was evidence that the agreement had been prepared and was ready for signing several days prior to the wedding. Attached to the agreement was a detailed list of all of appellee’s property and the value thereof. The list showed that, at the time the agreement was executed, appellee had a net worth in excess of $600,000.00.
Relying on Faver, Arnold, and Davis, appellant argues that because appellee’s wealth and means were so disproportionate to the provisions made for her, it must be presumed that there was a designed concealment by appellee of his assets. Those cases held that, where the provisions for the wife are disproportionate to the means of the husband, a presumption arises that there has been a designed concealment. Such presumption places a burden on the husband to show by a preponderance of the evidence that the wife had knowledge of the character and extent of his assets, or ought to have had such knowledge at the time the agreement was signed. Faver v. Faver, supra; Arnold v. Arnold, supra; Davis v. Davis, supra. Here, unlike in those cases, the presumption was overcome by proof. There was made available to appellant a complete list of appellee’s assets, the value thereof, and appellee’s estimated net worth. There was evidence that, before the marriage, appellant had been on appellee’s farm, knew that he had chicken houses and cattle, and had seen appellee’s company trucks on his property. She admitted that no pressure had been applied to force her to sign the agreement.
We agree with the chancellor that appellant’s failure to read the proposed agreement before she signed it did not excuse her from its consequences. It is a rule of general application that one is bound to know the content of a document signed by her and if she has the opportunity to read it before she signs it, she cannot escape the obligations imposed by the document by merely stating that it was signed without reading it. See Stone v. Prescott School Dist., 119 Ark. 553, 178 S.W. 399 (1915); Lambert v. Quinn, 32 Ark. App. 184, 798 S.W.2d 448 (1990). When all of the facts and circumstances are considered, we cannot conclude that the chancellor’s findings that there had been full disclosure by the parties of their respective financial conditions, that appellant entered into the agreement freely and voluntarily, and that the provisions of the agreement were fair and equitable are clearly erroneous.
Appellant next contends that the trial court erred in its determination of the amount of property she was entitled to receive under the agreement. We agree.
With regard to after-acquired property, the agreement provided:
[A]ny property acquired by them subsequent to the contemplated marriage, not including the increase in presently owned property either by way of appreciation of [sic] payment of outstanding indebtednesses, shall be owned jointly by them and that in the event of divorce or death, each of them shall be entitled to the ownership of one-half of any such property acquired subsequent to the date of the contemplated marriage.
At the conclusion of the hearing, the chancellor stated:
There was discussion, some, about the value of all of it. (I sort of lumped it all together at the very end and I said, “Lee, what in your judgment is the value of that property today, because it’s the value today that I have to go by?” If the property is worn out and not in use, I can’t go back and pick up what it costs then and try to divide it in that way. He talked about the tractor, about a new chicken house, about some barns, about some other stuff the court considers rather minor and he says “Judge in my judgment, all of that is worth the sum of $60,000.00.” That’s the figure I wrote down after I added what he had said. In addition to that, he said, “I don’t know any other major items,” and I went back looking to see if I could find any and I found $2800.00 from Tyson stock that had been purchased since that time. So, all in all I find there’s been $62,800.00 that I think we could call a new acquisition.
This finding was carried forward in the judgment and appellant was awarded the sum of $31,400.00 as her share of the property.
From our review of the entire record, the figure of $60,000 given by appellee as the total present value of all property acquired subsequent to the marriage is not permissibly deducible from the evidence presented on that issue. Our de novo review discloses testimony concerning a number of other items of personal property acquired subsequent to the marriage that were not included in that $60,000 figure, and we are unable to conclude that they were “minor items” or presently valueless. As the testimony is not clear as to the present value of some of those items, we are unable, on de novo review, to make an accurate determination of those values.
We conclude that the chancellor’s finding that the total present value of all property acquired subsequent to the marriage was $62,800.00 is clearly against the preponderance of the evidence, and we reverse that portion of the decree. The cause is remanded for further proceedings to determine the present value of all “property acquired by them subsequent to the contemplated marriage, not including the increase in presently owned property either by way of appreciation [or] payment of outstanding indebtedness,” and for entry of an order awarding appellant an amount equal to one-half of the total present value thereof.
On cross-appeal, appellee contends that the trial court erred in its determination that appellant was entitled to certain property under the agreement. He argues that although the paragraph to which the court referred in its conclusion does state that property acquired subsequent to the marriage was to be divided equally, the provisions of preceding sections provide that each will retain his or her separate property and that the other will have “no interest in the income, increased rents, or profits, or dividends arising therefrom.” He argues that these preceding provisions eliminate from consideration any property purchased with monies produced by his separate property. We disagree. The agreement clearly states that property acquired subsequent to the marriage shall be owned jointly, with each party entitled to one-half ownership in any such property. If there is any ambiguity created in another portion of the agreement, it must be resolved in favor of appellant. Appellee prepared the agreement and any ambiguity must be resolved against him. Williams v. Cotten, 9 Ark. App. 304, 658 S.W.2d 421 (1983).
Reversed and remanded on appeal; affirmed on cross-appeal.
Cooper and Rogers, JJ., agree. | [
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George K. Cracraft, Chief Judge.
J.W. Dobbins appeals from a judgment entered against him in favor of appellees Don Lacefield and L & L Oil Company for conversion of personal property. We find sufficient merit in one of appellant’s points advanced on appeal to warrant reversal.
The record indicates that appellant was the owner of a sixty-acre tract of unimproved and undeveloped land. In 1987, appellant leased five acres of the tract to Floyd Pittman, who desired to erect a building on the land and operate a convenience store and gas station. The lease provided for an initial term of two years at an annual rental of $1800.00, with the option to renew for an additional five years at a substantially higher annual rental. The lease further provided that “Any improvements placed on the premises by Lessee shall become the property of Lessor upon termination of this leáse.”
Pittman constructed a building on the property and appel-lees, as petroleum distributors, supplied him with certain equipment to be used in connection with his business, including three 6,000-gallon underground gasoline storage tanks and a 24-foot by 32-foot canopy, which are in issue here. The gasoline tanks were installed by digging a 20-foot by 30-foot hole, 10 feet deep, with a backhoe. The tanks were placed in the hole by use of heavy equipment, packed with washed sand, and attached to underground electrical cables and pipes that connected the tanks to the above-ground dispensers. In order to remove the tanks, a backhoe and other heavy equipment would be required. The canopy was erected on two poles set in concrete with underground cables running to the canopy from the gasoline dispensers. In order to remove the canopy, a cutting torch must be used to cut the two steel poles, leaving the concrete island. It would take three people two days to disassemble the top portion of the canopy.
Pittman closed the business prior to the expiration of the initial lease term and did not exercise his option to renew. Several months later, appellees advised appellant that they claimed all of the equipment that they had furnished to Pittman under an alleged oral agreement between appellees and Pittman in which appellees retained ownership of the equipment. Appellant refused to return the equipment to appellees, claiming that it constituted fixtures that had become part of the realty owned by appellant pursuant to the written lease agreement he had with Pittman. Appellees then secretly entered appellant’s property and removed all of the disputed items except the above-described canopy and gasoline tanks.
Appellant brought this action against appellees for damages in the amount of the value of the equipment that appellees had removed and for a preliminary injunction prohibiting appellees from entering his property and removing the tanks and canopy. Appellees counterclaimed for the value of the tanks and the canopy, relying on their alleged agreement with Pittman. At trial, appellant’s motion for directed verdict was denied and the jury found against appellant on his complaint and in favor of appellees on their counterclaim. After remittitur, judgment was entered against appellant for $16,000.00. This appeal is taken only as to the judgment on appellees’ counterclaim.
On appeal, appellant contends that the trial court erred in denying his motion for judgment notwithstanding the verdict, arguing that the finding that the tanks and canopy had not become part of the realty by annexation was not supported by substantial evidence and that they were fixtures as a matter of law. We agree. A trial court may enter a judgment notwithstanding the verdict only if there is no substantial evidence to support the verdict and one party is entitled to judgment in his favor as a matter of law. On appeal, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the party against whom the judgment notwithstanding the verdict is sought. Johnson Timber Corp. v. Sturdivant, 295 Ark. 622, 752 S.W.2d 241 (1988); McCuistion v. City of Siloam Springs, 268 Ark. 148, 594 S.W.2d 233 (1980).
The test for determining whether items are fixtures is; (1) whether the items are annexed to the realty; (2) whether the items are appropriate and adapted to the use or purpose of that part of the realty to which the items are connected; and (3) whether the party making the annexation intended to make it permanent. McIlroy Bank and Trust v. Federal Land Bank, 266 Ark. 481, 585 S.W.2d 947 (1979). The issue of whether chattels that have been firmly affixed to the real estate have retained their character as movables is ordinarily one for the jury to resolve. Thomas Cox & Sons Machinery Co. v. Blue Trap Rock Co., 159 Ark. 209, 251 S.W. 699 (1923).
The rule applicable to the facts of this case is best stated in Thomas Cox & Sons Machinery Co. v. Blue Trap Rock Co., supra. There, a lessee purchased machinery from a supplier who retained title. The lessee firmly affixed the machinery to the realty with the full knowledge of the supplier. Whether or not the landowner had knowledge of, or acquiesced in, the agreement for retained title between the lessee and supplier was questioned in the evidence. The trial court found the machinery to be fixtures and directed a verdict against the supplier and in favor of the lessor. On appeal, the supreme court ruled that whether the articles were fixtures was an issue of fact for the jury to determine. The court stated that, if the lessor permitted the machinery to be firmly affixed to his realty with knowledge of the fact that the supplier had retained title, the lessor would be estopped to assert that the articles in controversy were fixtures and that he had acquired title to them by virtue of his ownership of the land to which they were affixed. The court further stated that, on the other hand, if the supplier furnished the machinery to the lessee knowing that it would be affixed to the realty in such a manner that it could not be removed without damage to the realty, and if the lessor was ignorant of the fact of the retained title, the supplier could not recover the machinery. See Peck-Hammond Co. v. Walnut Ridge District, 93 Ark. 77, 123 S.W. 771 (1909); Brannon v. Vaughan, 66 Ark. 87, 48 S.W. 909 (1898).
At trial, appellee Lacefield testified that he had placed the disputed items on the premises for Pittman’s use with Pittman’s understanding that appellee could remove the property at any time. Appellee did not know appellant and had no dealings with him prior to the termination of the Pittman lease. Appellee stated that appellant was never a party to any agreement he had with Pittman and that, at the time that the items were furnished to Pittman, he (appellee) thought that Pittman owned the land but had not checked to find out. Appellee further offered testimony of custom and usage among petroleum products distributors for the limited purpose of proving his intention and understanding with Pittman.
Appellant testified that Pittman told him that he (Pittman) was buying the disputed items but that appellant had no knowledge from whom Pittman was purchasing them. He testified that he did not know appellee and had no dealings with him at anytime prior to the termination of Pittman’s lease. Appellant’s first knowledge of appellee came when claim was made for the removal of the equipment after Pittman abandoned the property. Appellant had no knowledge of any agreement between appellee and Pittman. Appellant testified that because Pittman had agreed in the lease to give him the improvements at the termination of the lease, appellant had agreed to take less rent than the property was worth.
The written lease agreement between appellant and Pittman provided that any improvements placed on the premises by Pittman shall become the property of appellant upon termina tion of the lease. There is no evidence to the contrary that appellees’ equipment had been attached to appellant’s real estate in such a manner that it could not be removed without serious injury to the realty and was appropriate and adapted to the use or purpose of that part of the realty. There is no evidence that appellant had any knowledge of, or that he acquiesced in, any agreement between appellee and Pittman. Therefore, on the facts of this case, we conclude that the finding that this property so firmly affixed to the land had retained its character as chattels is not supported by substantial evidence.
Reversed and dismissed.
Jennings and Mayfield, JJ., agree. | [
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James R. Cooper, Judge.
The appellees in this chancery case are general partners in a business operated under the trade styles of Ace Hardware and Huntsville Lumber Company. On August 1, 1988, a truck owned by Huntsville Lumber Company and operated by the appellees’ employees was delivering lumber on a State highway when part of the load fell off the truck, landed on the highway, and collided with a van traveling in the opposite direction, resulting in property damage to the van and personal injury to its occupants. The occupants of the van filed a negligence action against the appellees d/b/a Huntsville Lumber Company. At the time of the accident, the appellees’ truck was an insured vehicle under an automobile liability policy issued by State Farm Mutual Automobile Insurance Company. On notification of the accident by the appellees, State Farm provided a defense and paid a portion of their policy limits. The appellees were also covered under a commercial general liability policy issued by the appellant, Columbia Mutual, covering the business premises occupied by the hardware store. The appellees made demand on Columbia, which asserted that the accident was excluded under the terms of its policy. The appellees then filed a declaratory judgment action against Columbia seeking a declaration that the accident was a covered occurrence under Columbia’s policy. The trial court concluded that Columbia was obligated to provide both a defense and coverage under the commercial liability policy. From that decision, comes this appeal.
The appellants contend that the trial court erred in concluding that the accident was not excluded under the auto exclusion of Columbia’s commercial liability policy. We agree, and we reverse.
The automobile exception in question provided that the insurance did not apply to:
“Bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any aircraft, “auto” or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and “loading or unloading.”
“Loading or unloading” is defined in the policy as follows:
“Loading or unloading” means the handling of property:
a. After it is moved from the place where it is accepted for movement into or onto an aircraft, watercraft or “auto;”
b. While it is in or on an aircraft, watercraft or “auto;” to the place where it is finally delivered;
c. While it is being moved from an aircraft, watercraft or “auto” to the place where it is finally delivered;
Finally, the policy defines “auto” as:
a land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment.
The underlying lawsuits filed against the appellees allege negligence in the operation of the vehicle, in securing the load, and in maintenance of the straps used to secure the load. The trial judge concluded that the policy exception was ambiguous, and construed it against the appellant insurer. He found that, although the policy excluded coverage for the alleged negligence in the operation of the vehicle, the policy covered the alleged negligence in the maintenance of the straps used to secure the load, and in securing the load.
We hold that the trial judge erred in ruling that the allegations of negligence gave rise to coverage and the duty to defend under the policy. The language in an insurance policy is to be construed in its plain, ordinary, popular sense. CNA Insurance v. McGinnis, 282 Ark. 90, 666 S.W.2d 689 (1984). Resort to rules of construction is unnecessary if the terms of an insurance contract are not ambiguous, and in such cases the policy will not be interpreted to bind the insurer to a risk which it plainly excluded and for which it was not paid. Baskette v. Union Life Insurance Co., 9 Ark. App. 34, 652 S.W.2d 635 (1983). Significantly, the insurer in the case at bar did not limit coverage for injury or damage caused by the operation, maintenance, use, or entrustment of a vehicle, but instead excluded coverage for injuries “arising out of’ such operation, maintenance, use or entrustment. This is virtually identical to the exclusionary language at issue in Aetna Casualty & Surety Co. v. American Manufacturers Mutual Insurance Co., 261 Ark. 326, 547 S.W.2d 757 (1977), where a declaratory judgment action was brought to interpret a homeowner’s insurance policy with a recreational motor vehicle exclusion. The underlying action in Aetna was premised on allegations that the homeowner negligently entrusted a minibike to a minor child who injured a person while operating the minibike on a sidewalk. The Supreme Court affirmed the trial court’s finding of no coverage, stating that:
Aetna’s argument that the “negligent entrustment”, rather than the “use” of the minibike, is the negligent act ignores the clear language of the exclusionary clause.
Aetna, 261 Ark. at 328. In the case at bar, whether or not the lumber briefly came to rest before being struck by the van, and whether the negligent act was the operation of the vehicle, the securing of the load, or the maintenance of the straps securing the load, the injury and damage clearly arose out of the ownership, maintenance, or use of the truck or attached equipment and was therefore not covered by the policy.
Reversed and dismissed.
Danielson and Rogers, JJ., agree. | [
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John E. Jennings, Judge.
Harvey Sumner was found guilty by a Hempstead County jury of possession of marijuana with intent to deliver and possession of cocaine with intent to deliver. Sumner was sentenced to a total of nineteen years imprisonment.
On appeal four arguments are made: (1) that the trial court improperly refused to instruct the jury on entrapment; (2) that the court improperly commented on the evidence; (3) that the court erred in denying appellant’s motion for directed verdict; and (4) that the court improperly failed to consider probation as an alternative. We must reverse and remand on the last point; otherwise we affirm.
At trial, Wesley Sossamon, the enforcement director for the Ninth East District Drug Task Force, testified that he was operating as an undercover officer in February 1989. Sossamon was introduced to the appellant and asked him if he had any marijuana for sale. Sumner told Sossamon that he thought he could locate some in Hope, Arkansas. Sossamon testified that he, Mr. Sumner, and several others got into the officer’s car and went to Hope. They went to several houses and when Mr. Sumner could not find any marijuana, Sumner asked Sossamon if he would be interested in buying some crack cocaine. Sossamon said that he would.
The group then went to another house in Hope. Sossamon gave Sumner $100.00 and asked him to buy two twenty-five dollar “rocks” of cocaine. Sumner went into the house and returned with the cocaine and the officer’s change.
Approximately two weeks later Sossamon asked Sumner to buy him two “quarter bags” of marijuana and gave him $60.00. Sumner obtained the marijuana and delivered it to Sossamon.
During his opening statement, appellant’s counsel began to discuss the defense of entrapment with the jury. The trial court, on its own motion, then ruled the defense should not refer to the word entrapment during the trial because entrapment had not been pled. This ruling was made despite the state’s acknowledgement that it had been put on notice that the defense would be raised. We agree that this ruling was error. Ark. Code Ann. § 5-1-111 (1987) provides that a defendant must prove an affirmative defense by a preponderance of the evidence. Rule 18.3 of the Arkansas Rules of Criminal Procedure provides that the prosecuting attorney shall, upon request, be informed as soon as practicable before trial of the nature of any defense. In a civil case, affirmative defenses must be pled. Ark. R. Civ. P. 8(c); Mercer v. Nelson, 293 Ark. 430, 738 S.W.2d 417 (1987). We can find no corresponding requirement in the criminal law requiring the pleading of affirmative defenses.
Nevertheless, we hold that the ruling was harmless error. It is clear from the record that appellant was permitted to put on his evidence relating to the claimed defense. His theory of the case was that because the officer simulated smoking marijuana with him, the appellant did not believe Mr. Sossamon was a police officer, so the appellant was not afraid to obtain drugs for him. According to Ark. Code Ann. § 5-2-209 (1987), “Entrapment occurs when a law enforcement officer or any person acting in cooperation with him induces the commission of an offense by using persuasion or other means likely to cause normal law-abiding persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.” Here, as in Hill v. State, 13 Ark. App. 307, 683 S.W.2d 628 (1985), there was no evidence that the officer promised anything to the appellant, nor that he used “persuasion or other means likely to cause [a] normally law-abiding” person to commit the offense. Where there is no evidence to support the giving of an instruction, it is not error to refuse it. Hill, supra; see also Parks v. State, 11 Ark. App. 238, 669 S.W.2d 496 (1984). Because appellant was permitted to put on his evidence relating to his theory of entrapment and because the trial court was correct in declining to instruct the jury on the defense, the court’s error in its initial ruling was harmless. See Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984).
After the jury had retired to deliberate, the court was informed that they had a question to ask. When they were returned to the courtroom, the foreman stated:
[T] he simulation practice given in the testimony, is that we notice the word he used was practice. Is that a legal practice? I mean, is it covered? Is it a law that covers that or states that? Is that done under the law?
The court advised the jurors that it would need to confer with counsel before it could answer the question. After that conference, which apparently was not recorded, the court advised the jury, without objection, “Ladies and gentlemen of the jury, as to the first question, the simulation of the use of drugs by law enforcement is an accepted law enforcement practice.” Appellant now claims that this amounts to a comment on the evidence. We agree with the state that this situation is governed by the principal that appellant cannot agree with the ruling made by the trial court and then attack that ruling on appeal. See Gilbert v. State, 277 Ark. 61, 639 S.W.2d 346 (1982).
Appellant contends that the evidence is insufficient to support the verdict. His specific argument is that there was insufficient evidence to establish his intent to deliver. Intent, being a subjective matter, is ordinarily not susceptible to proof by direct evidence but usually must be established by circumstantial evidence. Taylor v. State, 28 Ark. App. 146, 771 S.W.2d 318 (1989). We hold that under the facts in this case the jury could permissibly infer that the appellant intended to deliver the controlled substances.
At the time of sentencing, appellant asked the court to consider probation as an alternative. The court responded that probation was not an option available under the law. Sumner contends on appeal that the court abused its discretion in failing to consider probation. This issue was decided in appellant’s favor in Pennington v. State, 305 Ark. 507, 808 S.W.2d 780 (1991). On virtually identical facts, the court in Pennington held that it was error for the circuit court to fail to consider a request for probation following a conviction of possession of cocaine with intent to deliver. We therefore reverse and remand this case to permit the trial court to consider appellant’s request.
Affirmed in part; reversed and remanded in part.
Danielson and Mayfield, JJ., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from a decision of the Workers’ Compensation Commission. The administrative law judge found that the appellant was permanently and totally disabled as a result of a gradual work-related injury to his back. The Commission reversed and dismissed the claim on the basis that it was not work-related. The appellant claims the Commission’s decision is contrary to the law and evidence. We agree.
The appellant testified by deposition that he is a 61 -year-old man who left school after the fourth grade and worked in the logging industry all his working life. He said that when he was 12 years old he began working with his dad driving a team of mules and skidding logs. For the last 20 years, he worked for appellee driving a service truck and a log skidder. He said it took him only thirty minutes to an hour a day to service the equipment and fill the trucks with gasoline, and the rest of the time, 10-12 hours a day, five days a week, he was operating the log skidder. Appellant described the log skidder as a 518 Caterpillar with winch controls. He said his job was to drive to an area where trees had been cut down, pull the cable out of the winch (which for the last couple of years, had been hard to pull) and hook up six logs. Once the logs are hooked up, the skidder pulls them to the truck where another machine picks them up and stacks them on the truck. Appellant said riding the skidder was very rough, going over stumps and ditches, whipping the driver backward and forward, with the skidder seat, which was steel with a short back, constantly hitting him low in the center of his back.
According to appellant, on weekends he rested and went to church. He said if he did anything at all on weekends he would go into the woods to repair his employer’s equipment. Appellant said he has no hobbies, does not hunt or fish, and the only thing he does around the house is mow the lawn on a riding mower. Appellant testified that before his back surgery, he had never been ill in his life, had never been in a hospital, had never been in an automobile accident or had trouble with his back or neck, and had never filed a workers’ compensation claim.
Appellant could not relate a specific injury to his back or just when it started to bother him. At first he thought he might have bumped it, but it kept getting worse. Finally he went to see his family doctor, Dr. Phillip L. White, in Murphreesboro, who eventually referred him to Dr. James Arthur, a neurosurgeon in Hot Springs.
Dr. Arthur testified by deposition that he first examined appellant on January 27, 1988, and ordered a lumbar CT scan and myelogram. He reviewed the results of those tests and diagnosed appellant as having degenerative and osteoarthritic changes involving the facets at virtually every level, most signifi cantly at L3-4 where a significant stenosis was seen and at L4-5 where a very severe stenosis was suspected related to disc bulging, lateral facet hypertrophy and spurring of the facets as well as thickening of the longitudinal ligaments. Dr. Arthur testified he thought that the degeneration in appellant’s spine had been going on for some time, and could have been going on as long as ten years. He was then asked what was the most common cause of degeneration and he said:
Repeated trauma as well as a breakdown in supporting structure such as ligaments; a breakdown in joint function in the form of loss of synovial fluid in the joint that allows the bones instead of being lubricated and no friction being present, to rub together and form calcification; a general thickening of ligaments and shortening of ligaments and thinning of discs in the back; and production of calcium spurs.
When questioned as to the cause of appellant’s condition and whether or not it was a function of age, Dr. Arthur stated:
The narrowing in his back was due to a certain extent to the arthritis in these facet joints on the side, that’s true; and that is partly at least a result of the aging process. But it was also due to a significant amount of bulging of the disc at the L5 level which would be more traumatic in other words than the facet arthritis was. In addition, the ligament on the back was very thick, which is not a result of the aging process but rather is something that we see in men that work very hard during their life, do a- lot of lifting and pulling and take a lot of trauma to their back. So there were a couple of things about this narrowing that weren’t due to the arthritic process of aging, although some of the narrowing I’m sure is due to that as well.
When questioned as to whether an individual could suffer from the condition without any trauma whatsoever, even if he had a sedentary job, Dr. Arthur said the appellant’s case was interesting from the standpoint of “why he has this,” and explained:
I haven’t ever treated a doctor that had this or a lawyer or an accountant or anyone who does a sedentary-type job. Those people are very susceptible to getting acute ruptured disc because of what I said. They’re sedentary during the week and they go out on the weekend and do something. On the other hand, the man that carries the 100-pound sack of cement or feed or picks up a cross tie and does it for 20, 30, 40 years, a man that operates — in this case — a log skidder, which is very rough, one of the roughest machines you can operate, he’s getting a repeated trauma to his back. That’s the man that’ll develop lumbar canal stenosis from the bony changes and the ligament hypertrophy and the bulging disc. He also had arthritis in his spine which might have contributed somewhat to this condition but certainly all these other things were a result, I believe, of his job.
Dr. Arthur performed surgery on appellant’s back and testified he expected appellant’s healing period to end approximately July 1, 1988. He estimated appellant would have a 25% disability rating to the body as a whole as a result of his residual decreased range of motion and pain.
The deposition of Dr. Thomas M. Fletcher, a Little Rock neurosurgeon, who examined appellant at the request of the employer’s insurance carrier, was introduced into evidence. He related that appellant gave him a history of gradual onset of burning back pain with no specific incident of trauma. He said appellant is a heavy man, weighing about 230 pounds, with a surgical scar in his lower back and restriction of motion. He testified that from X-ray studies he determined that appellant’s difficulty was spinal stenosis, which is the narrowing of the spinal canal diameter due to thickening of the bone. In association with this, he had a disc protrusion at L4-5. Dr. Fletcher said the thickening is caused by wear and tear, thickening and bending due to arthritis and takes several years to develop. When asked whether the cause was appellant’s weight, Dr. Fletcher said there were several factors involved including weight, posture, work activity, and family history. The following question and answer then occurred:
Q Insofar as the relationship of the problems you observed and which are described in your report, can you state to any kind of medical certainty or degree or probability that they were related to his work activities?
A Well, I don’t specifically relate it to a specific incident of trauma. I think that repeated trauma and activity over a long period , it can certainly be related to that. I mean, for instance, in working a log skidder, for instance.
When asked on cross-examination by appellant’s counsel if the history of driving a log skidder 10,12,14 hours a day, five days a week for 20 years would contribute to appellant’s disease process, Dr. Fletcher answered, “I would say that it may contribute, and probably did contribute.” Asked about the jarring and the seat hitting appellant in the back, Dr. Fletcher answered, “Y es, sir. I think that that type of activity is more likely to produce. It doesn’t produce it in all people, but it can aggravate it.” Dr. Fletcher also testified, “I would say that the — that the work activity would be as important as the age factor.” Dr. Fletcher was asked by the employer’s attorney:
Q And you’re not testifying that if this man hadn’t worked on a log skidder in his life, if he had gone into some other occupation, he wouldn’t have the problems that he is having today, are you?
A No, sir. I am not saying that.
Q Okay.
A I think that it occurs in people with other types of physical activity and even lighter forms of activity. But I stated that I thought that that type of work was more strenuous and therefore more likely to contribute to it.
Then when questioned again by appellant’s attorney:
Q Can you say with a reasonable degree of medical certainty that the disc bulging or protruding is work related in this case, given the history of skidder operation?
A I would — it would be my opinion that it would be work related. The disc protrusion.
The medical records included in the transcript show that appellant first consulted Dr. White complaining of back pain on August 16, 1986. Dr. Arthur’s hospital discharge summary of appellant relates that he first saw appellant on January 27,1988; that he had been referred by Dr. White; that he was admitted to the hospital for surgical intervention; that he had an L4, 5 laminotomy and foraminotomy bilaterally on January 28, 1988; and that he was discharged on February 1,1988. In a letter dated March 28, 1988, written to Silvey Companies (which apparently is the employer’s insurance agent or carrier), Dr. White stated:
I strongly disagree with your determination that Mr. Lockeby’s back problem is not work related. I drove a log skidder before I went to medical school, and the mechanic’s involved, etc., will cause back problems in the form of strain/bulging discs, etc. In addition, these machines are very rough to ride, have no shock absorbers other than in the seat, and generally will eventually cause and/or aggravate degenerative spine changes.
Any of the activities involved in this gentleman’s daily work routine could have caused his ruptured disc. Please reconsider this case. I will be happy to talk with you about this and/or explain my reasons for feeling that this is a workers’ compensation case.
On the above evidence the administrative law judge held that the appellant had “more than adequately established” that he had sustained an injury of gradual onset out of and during the course and scope of his employment; that he was permanently and totally disabled; and that his healing period ended on June 30, 1988. On appeal the Commission reversed, with one commissioner dissenting. The majority opinion, signed by the two commissioners who agreed, concluded as follows:
In summary, the medical testimony is that Lockeby’s work might' or might not have caused the injury. Although it is possible that the employment activities were responsible, there are other possible explanations, and we are not allowed to speculate as to what precipitated the medical disc protrusion.
We believe that the above summary by the Commission reveals three conclusions that are not supported by the evidence and the law.
First, the Commission finds that the medical testimony only opines that appellant’s work might or might not have caused his injury. We do not think that this is a correct evaluation of the medical testimony. We have already set out portions of testimony from the three doctors who testified, in which they express the opinion that the disabling condition of the appellant’s back was work-related.
Dr. Arthur, a neurosurgeon who did a lumbar laminectomy on appellant, said the narrowing in his back “was due to a certain extent to the arthritis in these facet joints on the side. . .and that is partly at least a result of the aging process. But it was also due to a significant amount of bulging of the disc at the L5 level which would be more traumatic in other words than the facet arthritis was.” Dr. Arthur also said that appellant’s arthritis “might have contributed somewhat to this condition but certainly all these other things were a result, I believe, of his job.”
Dr. Fletcher, a neurosurgeon who examined appellant at the request of the appellee’s insurance carrier, was asked if he could say “with a reasonable degree of medical certainty that the disc bulging or protruding is work-related in this case, given the history of skidder operation, “ and the doctor’s answer was “it would be my opinion that it would be work-related.”
Dr. White, appellant’s family doctor, wrote the insurance carrier’s representative and said, “I strongly disagree with your determination that Mr. Lockeby’s back problem is not work-related.”
Thus, the Commission’s first conclusion that the medical testimony is that appellant’s work might or might not have caused his injury is not supported by the record. Each doctor testified that in his opinion the disabling condition of appellant’s back was work-related.
Second, the Commission’s summary states that while “it is possible” that appellant’s employment activities were responsible for his back condition, there were “other possible” explanations. Here, we think the Commission erred in its application of the law. It is not necessary that employment activities be the sole cause of a worker’s injury in order to receive compensation benefits. It is enough if there is “a substantially contributory casual connection between the injury and the business in which the employer employs the claimant.” American Red Cross v. Wilson, 257 Ark. 647, 649, 519 S.W.2d 60 (1975). See also McGregor & Pickett v. Arrington, 206 Ark. 921, 175 S.W.2d 210 (1943). But the Commission’s real problem here, we think, is its failure to accept the proposition that an accidental injury may result from repeated trauma upon the worker’s body over an extended period of time. This is the problem that the third member of the Commission spoke of, in her dissent, when she said “the majority could deny benefits only by abandoning the long-standing recognition of gradual onset injuries.”
This has been a long-standing rule in Arkansas. In Batesville White Lime Company v. Bell, 212 Ark. 23, 205 S.W.2d 31 (1947), the court said:
[Tjhere is much authority for a holding that an injury, not necessarily the result of one impact alone, but caused by a continuation of irritation upon some part of the body by foreign substances may properly be said to be accidental.
212 Ark. at 26. In that case the medical evidence was that inhalation of dust over a twenty-three year period had aggravated the employee’s heart condition. The Commission found that there was no trauma; therefore, there was no accidental injury. On appeal to circuit court, the Commission’s denial of compensation was reversed. That action affirmed by the Arkansas Supreme Court, “even though,” the opinion stated, “the evidence did not show the exact instant at which the disability of appellee could be said to have occurred . . . .”
In Bryant Stave & Heading Company v. White, 227 Ark. 147, 296 S.W. 2d 436 (1956), the employee was engaged in his usual job of loading stave bolts when he noticed a pain in his right side, leg and back. The next morning he could “hardly get out of bed.” His problem was diagnosed as an aggravation of a preexisting back condition, and the Commission awarded compensation. In affirming, the Arkansas Supreme Court reviewed its prior cases, and many other authorities, and concluded:
Notwithstanding anything we may have said in prior cases, we hold that an accidental injury arises out of employment when the required exertion producing the injury is too great for the person undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or a contributing cause of the injury.
227 Ark. at 155. See also Tri State Insurance Company v. Mutual Liability Insurance Company, 254 Ark. 944, 497 S.W.2d 39 (1973). And in St. Vincent Infirmary v. Carpenter, 268 Ark. 951, 597 S.W.2d 126 (Ark. App. 1980), we said:
The Arkansas case law has long upheld the compen-sability of gradual injuries which arise out of and in the course of employment. In W. Stanhouse & Sons, Inc. v. Simms, 224 Ark. 86, 272 S.W.2d 68 (1954), the Supreme Court said:
We have long adhered to the rule that an accidental injury may stem not only from a specific incident or a single impact, but also may result by a continuation of irritation upon some part of the body. — Neither do we require the injured workman to make inescapable proof that said accidental injury occurred on a date ceitain. A reasonable definite time is all that is required.
268 Ark. at 955
We believe the Commission’s second conclusion “although it is possible that the employment activities were responsible, there are other possible explanations” demonstrates a failure to apply the law which we have just discussed.
Finally, the third conclusion in the Commission’s summary is that “we are not allowed to speculate as to what precipitated the medical disc protrusion.” Although the word “medical” may be a typographical error, the answer to the statement is that no speculation is required. When deciding appeals from the Arkansas Workers’ Compensation Commission, we must view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Phillips v. State, 271 Ark. 96, 607 S.W.2d 664 (1980). However, those standards must not totally insulate the Commission from judicial review and render this court’s function in these cases meaningless. Boyd v. General Industries, 22 Ark. App. 103, 733 S.W.2d 750 (1987). Before we will reverse a decision of the Commission, the court must be convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. International Paper Co. v. Tuberville, 302 Ark. 22, 786 S. W.2d 830 (1990). When viewed in the light of the rules just stated and the law we have discussed, we do not think the Commission’s decision is supported by substantial evidence.
The decision of the Commission is reversed and this matter is remanded for further proceedings consistent with this opinion.
Cracraft, C.J., and Jennings, J., agree. | [
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George K. Cracraft, Chief Judge.
Jerry Lee Ward appeals from his conviction of criminal attempt to commit burglary for which he was sentenced as a habitual offender to a term of twenty years in the Arkansas Department of Correction. He contends that the evidence was insufficient to support his conviction and that the trial court erred in permitting the introduction of physical evidence found near the scene of the crime. We find no error and affirm.
Where the sufficiency of the evidence is challenged on appeal of a criminal conviction, our rule requires a review of that issue prior to consideration of asserted trial error. This rule is based on double jeopardy considerations, which would preclude a second trial where a conviction is reversed for insufficient evidence. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). On appeal, this court views the evidence and all permissible inferences deducible therefrom in the light most favorable to the State, and will affirm if there is any substantial evidence to support the findings of the factfinder. Sullivan v. State, 32 Ark. App. 124, 798 S.W.2d 110 (1990); Harris v. State, 15 Ark. App. 58, 689 S.W.2d 353 (1985). In making this determination, we do not weigh evidence on one side against the other but simply determine whether the evidence presented by the State will support the verdict. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987).
Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without requiring one to resort to speculation or conjecture. Booth v. State, 26 Ark. App. 115, 761 S.W.2d 607 (1989). The fact that evidence is circumstantial does not render it insubstantial. Sweat v. State, 25 Ark. App. 60, 752 S.W.2d 49 (1988). When circumstantial evidence alone is relied upon, it must indicate the accused’s guilt and exclude every other reasonable hypothesis. It is only when the circumstantial evidence leaves the jury solely to speculation and conjecture that it is insufficient as a matter of law. Cristee v. State 25 Ark. App. 303, 757 S.W.2d 565 (1988). The action of an accused fleeing from the scene of a crime is a circumstance that may be considered with other evidence in determining guilt. Murphy v. State, 255 Ark. 90, 498 S.W.2d 884 (1973); Cristee v. State, supra.
Arkansas Code Annotated § 5-3-201(a)(2) (1987) provides that a person attempts to commit an offense if he purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense, whether or not the attendant circumstances are as he believes them to be. A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment. Ark. Code Ann. § 5-39-201 (1987).
Here, the evidence viewed in the light most favorable to the State discloses that Lafayette Champagne lived across the street from the Sonic Drive-In on Highway 161 in North Little Rock. Champagne testified that he is a “volunteer neighborhood-watcher” and that on February 19, 1990, at approximately 3:00 a.m., he saw appellant walking in his (Champagne’s) neighborhood, in an “alley” that runs between a pawn shop and an apartment building. Champagne stated that appellant stopped and looked inside the pawn shop, but made no effort to enter the building. Champagne then observed a white pickup truck come out of the same alley and pass by appellant. Appellant waved at the driver who waved back at appellant as if they were communicating in some way. Champagne testified that he observed appellant carrying a set of keys and “something long” in his hand. Within minutes, the white pickup truck again passed by, and appellant and the driver waved to each other. Champagne testified that appellant then went to the front of the Sonic Drive-In and stood there for several minutes looking inside. Suspicious that appellant was about to break into the Sonic, Champagne called the police.
Champagne testified that the area around the Sonic was well-lighted and that he could see clearly from his vantage point. He stated that he saw appellant put a key into the door lock, shake the door, and then proceed to walk around to the back of the building. At about that time, a police car arrived. When appellant saw the lights on the car, he crouched down, “crawled like a jackrabbit,” and jumped over a chain-link fence into the yard of the residence next to the Sonic, where he was apprehended by the police.
Officer Scott Hasselbach testified that he was in the immediate area when he got a call regarding suspicious activity at the Sonic and was there “in a matter of seconds.” He stated that Officer Laurie Robinson arrived shortly thereafter. Hasselbach first saw appellant running toward a chain-link fence separating the Sonic property from the backyard of an adjacent private residence. He and Officer Robinson apprehended appellant in the backyard of that residence. Officer Hasselbach testified that the area was well-lighted and that he did not observe appellant carrying anything in his hands.
After apprehending appellant, Officer Hasselbach found a white pickup truck matching the description given by Champagne parked at an apartment building “just to the south of the pawn shop and the Sonic.” The officer testified that he determined from the heat of the engine and the absence of dew on the hood that the pickup truck had been driven a short time before he found it. Appellant’s automobile was found at the same location. There was evidence that appellant made a statement to Officer Eugene Tyree that, on the night of his arrest, appellant had gone for a walk and was sitting in the driveway of the Sonic when he saw some headlights and ran. Appellant told the officer that he was walking from a friend’s house located on Taylor Street. Appellant advised that the white pickup truck, which had been observed in the area, belonged to his friend who lived on Taylor Street. Officer Tyree testified without objection that Champagne told him that he had seen appellant exit the white pickup truck “just prior to him prowling around the area.”
Flora Mae Whitlock testified that she lived next door to the Sonic Drive-In but was unaware of the events of February 19 until a few days later. She stated that the first time she went into her backyard after that date she found a screwdriver, chisel, hammer, and pair of black socks near the fence adjacent to the Sonic Drive-In. She testified that the items brought to the courtroom that morning by police officers were the ones that she had found in her yard, even though she could not testify to any identifying marks.
Appellant makes two sufficiency arguments. First, he argues that there was insufficient evidence that he took a substantial step toward unlawfully entering the building. We disagree. There was evidence that appellant made an attempt to enter the Sonic by the use of a key and that he had no permission to make such an entry. We conclude that this evidence is sufficient to support the finding that appellant took a substantial step toward committing the offense of burglary.
Second, appellant argues that there was insufficient evidence that he had attempted to enter the Sonic for the purpose of committing an offense punishable by imprisonment. We cannot agree.
In Grays v. State, 264 Ark. 564, 572 S.W.2d 847 (1978), the supreme court stated that “the fundamental theory, in absence of other intent or explanation for breaking or entering an occupiable structure at night, is that the usual object or purpose of burglarizing an occupiable structure at night is theft.” 264 Ark. at 568, 572 S.W.2d at 849. There, the court upheld a burglary conviction where the appellant had illegally entered a seed company when it was not open for business and fled from the premises when he was discovered by the police. The court concluded that, “even when we consider the facts in the light most favorable to appellant, we can find no rational basis for a verdict acquitting him of the offense of burglary.” 264 Ark. at 568, 572 S.W.2d at 849.
In Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1988), the supreme court stated that due process requires that the prosecution prove beyond a reasonable doubt every element of the crime charged. As specific criminal intent and illegal entry are both elements of the crime of burglary, the existence of intent may not be presumed from the mere showing of the illegal entry. In Norton, the court reversed a burglary conviction because there was no evidence from which a jury could find that the appellant had entered the building for an illegal purpose, noting that “[a]t most, the evidence revealed that appellant was standing inside the doorway of an office building which he had illegally entered and from which nothing was taken, speaking to his friends passing by.” 271 Ark. at 454, 609 S.W.2d at 3. The court recognized its decision in Grays, pointing out that in Grays, unlike in Norton, the appellant fled the scene when he was discovered by the police.
In Cristee v. State, supra, a burglar alarm at a lumber company was activated and the appellant was observed trying to climb over the fence that enclosed the lumberyard. When a witness yelled at him, the appellant started running but was apprehended by the police shortly thereafter. The appellant was observed wearing gloves and carrying a crowbar just prior to his arrest and a large hole was discovered in the side of the lumber company office building the next morning. The appellant was convicted of attempted burglary and the main issue on appeal was whether the evidence was sufficient to support a finding that the appellant had attempted to enter the lumber company’s office building with the intent to commit an offense punishable by imprisonment. Affirming the conviction, this court recognized the proof requirements outlined in Norton and the fact that, as in Grays, the accused fled from the scene. Following Grays, we found no rational basis for the appellant in Cristee to enter the building during the night that would warrant acquittal.
Here, even when we consider the facts in the light most favorable to appellant, we can find no rational basis for a verdict acquitting appellant of the offense of burglary. Appellant attempted to enter the Sonic at 3:00 a.m. As this was in the middle of the night when the Sonic was closed to the public, appellant could not have been seeking to enter the building for the purpose of purchasing food. It cannot be said that his purpose was to seek a place to make a telephone call or to sleep as there is evidence from which the jury could find that appellant had an acquaintance in the area with whom he had been seen only a short time prior to his arrest. Nor was there any evidence that the weather was such that would require him to seek shelter. It is undisputed that appellant fled the scene immediately upon the arrival of the police. When all of the facts and circumstances in this case are considered, we cannot conclude that there was any reasonable basis for the attempted illegal entry other than for the purpose of committing a theft therein or that the evidence is insufficient to support that conviction.
Appellant next contends that the trial court erred in admitting into evidence the hammer, screwdriver, chisel, and pair of socks that were found by Ms. Whitlock. He argues that because these items were not discovered until several days after the incident, there was no evidence of any attempted entry other than with a key, and the tools were found in a high-crime area, their probative value is greatly outweighed by their prejudicial effect, and that they should have been excluded under Ark. R. Evid. 403. We find no error.
“Relevant evidence” is any evidence having the tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Flowers v. State, 30 Ark. App. 204, 785 S.W.2d 242 (1990); 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 whether the probative value of the evidence is outweighed by its prejudicial impact is within the sound discretion of the trial court, and we will not reverse its decision absent a showing of an abuse of that discretion. Flowers v. State, supra; Miller v. State, 19 Ark. App. 36, 715 S.W.2d 885 (1986).
Here, there was evidence that appellant scaled a chain-link fence adjacent to the Sonic and was apprehended within that enclosure, and that the items in question were found along a chain-link fence adjacent to the Sonic. Officer Tyree testified that appellant was arrested in the backyard of 2116 Highway 161, the address of Ms. Whitlock’s residence. Although Officer Robinson testified that appellant was arrested at 2122 Highway 161, there was evidence that Officer Hasselbach was standing on the other side of a chain-link fence, in a neighboring backyard, when he apprehended appellant. Although the record indicates that appellant attempted to enter the Sonic with a key, as opposed to a tool such as one of those found by Ms. Whitlock, there was evidence that appellant was carrying a long object just prior to his flight from the police. Although the items were not discovered by Ms. Whitlock until “a few” days after the incident, the record indicates that she lived at a private residence not open to the general public and that she discovered the items the first time that she went into her backyard after the incident. When all of these facts and circumstances are considered, we cannot conclude that the trial judge abused his discretion in admitting the items into evidence for the consideration of the jury.
Affirmed.
Cooper and Rogers, JJ., agree. | [
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Melvin Mayfield, Judge.
Jeffery Woodberry has appealed a conviction of failing to support his dependent spouse. Appellant was first convicted in Crossett Municipal Court. He then appealed to the Ashley County Circuit Court. Upon an appeal from municipal court to circuit court, a defendant “shall be tried anew as if no judgment had been rendered.” Ark. Code Ann. § 16-96-507 (19S1). See also Hogan v. State, 289 Ark. 402, 712 S.W.2d 295 (1986). This means that the trial in circuit court is de novo; the parties are in the same position as if there had been no trial in municipal court; all the evidence must be produced anew in circuit court; and the decision in circuit court must be based on the evidence introduced in that court. Strickbine v. State, 201 Ark. 1031, 148 S.W.2d 180 (1941).
This case was tried in circuit court without a jury in February of 1990. The evidence and the court’s ruling is abstracted in appellant’s brief as follows:
Direct Examination of Donna Woodberry
I am Donna Woodberry; married Jeffery Woodberry in November 1987. We separated in May or June 1989.1 can not work because I have high blood pressure and back problems. (T. 28-29) Mr. Woodberry does not work and has not supported me since our separation. He works for Carl J. Bierbaumb when he is able to work. (T. 30)
I have had to go the doctor three (3) times since our separation. I worked a little while we were living together and quit because he didn’t want me working at night. (T. 33)
Cross Examination of Donna Woodberry
I have not filed for Social Security and am not under the care of a doctor. I just have to take high blood pressure medicine. (T. 33)
Mr. Woodberry has been ill or sick as a result of an injury, and I don’t know whether he is drawing compensation or not.
Redirect Examination of Donna Woodberry
I received $162.00 per month for AFDC for my little girl, and Mr. Woodberry is not the father. (T. 39)
Findings, Application of Law and Judgment
The Court: Now, its the order of the court that the order of the Municipal Court of Crossett be affirmed. I don’t know what Mr. Woodberry’s condition is, but if he has been injured on the job, certainly he is drawing compensation. Now, Mrs. Woodberry is entitled to the same type of support as long as she’s married to Mr. Woodberry and he is able to provide that support. I have no proof here that he is not able, so the Municipal Judge’s judgment will be affirmed. (T. 42)
The offense of which appellant was convicted is set out in Ark. Code Ann. § 5-26-401 (1987) as follows:
(a) A person commits the offense of nonsupport if, without just cause, he fails to provide support to:
(1) his spouse who is physically or mentally infirm, or financially dependent; ....
The only argument for reversal is that the evidence is insufficient to sustain the conviction. Appellant contends he was found guilty on evidence which did not establish that he was able to work or had any source of income. The appellant says “speculation cannot serve as a substitute for proof,” and his conviction should be reversed. He also contends that the trial court has erroneously shifted the burden of proof to appellant.
The state responds by citing Nelke v. State, 19 Ark. App. 292, 295, 720 S.W.2d 719 (1986), which held that the phrase “without just cause,” used in Ark. Code Ann. § 5-26-401 (a), means “the inability to pay,” and that the inability cannot be brought about intentionally and willfully by the defaulting party. The state also argues that it introduced evidence from which the trial court could find that the appellant had the duty and ability to provide support to his spouse but had failed to do so. The state does not think it should be required to “negate any possible excuses for nonpayment” because this “would create a burden it could never meet.” Our case of Reese v. State, 26 Ark. App. 42, 759 S.W.2d 576 (1988), and the case of Wisconsin v. Duprey, 149 Wis. 2d 655, 439 N.W.2d 837 (Wis. Ct. App. 1989), are cited in support of the state’s position.
In Reese the issue was whether the defendant’s suspended sentence should be revoked for inexcusably failing to make monthly payments on his restitution and fine as required by the conditions of his suspension. We said “once the state has introduced evidence of non-payment, the burden of going forward does shift to the defendant to offer some reasonable excuse for his failure to pay.” 26 Ark. App. at 44. The case of Wisconson v. Duprey relied upon Davis v. Barber, 853 F.2d 1418 (7th Cir. 1988), for the statement in Duprey that “[a] state may require a defendant to prove an affirmative defense provided it does not serve to negate any elements of the crime that the state is to prove in order to convict.” 439 N.W.2d at 839.
In reaching our decision in the present case, we do not need to discuss the question of “shifting the burden of proof’ or the problems associated with requiring a defendant to prove an affirmative defense. Here, the case was tried without a jury and the question before us is whether there is substantial evidence to support the appellant’s conviction. On appeal in criminal cases, whether tried by a judge or jury, we review the evidence in the light most favorable to the state and affirm if there is any substantial evidence to support the trial court’s judgment. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Substantial evidence is evidence 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. Id. Based upon our standard of review, we do not believe the judgment in this case is supported by substantial evidence.
According to Nelke v. State, supra, the phrase “without just cause,” used in Ark. Code Ann. § 5-26-401, means “the inability to pay” and that cannot be brought about “intentionally and willfully.” There is testimony in the record to support a finding that the appellant and his spouse were separated, that she was dependent, and that he had not supported her since the separation. However, on the issue of whether he had the ability to pay and whether any inability in that regard was intentionally or willfully caused by appellant, the evidence produced by the state simply is not, in our judgment, “of sufficient force and character that it will, with reasonable certainty, compel [the trial judge’s conclusion] without resorting to speculation or conjecture.”
The problem is that appellant’s spouse testified that appellant “has been ill or sick as a result of an injury, and I don’t know whether he is drawing compensation or not.” She also testified that “he works for Carl J. Bierbaumb when he is able to work.” Obviously that testimony will not support a finding that appellant has been intentionally or willfully failing to work. And as to whether the appellant has been drawing some kind of compensation while he has been unable to work — the trial judge’s finding that “if he has been injured on the job, certainly he’s drawing compensation” is clearly speculation or conjecture. Although appellant’s spouse testified he had been ill or sick as a result of an injury, we do not know whether or not the injury was job-related. And even if it was job-related, we can take judicial notice of the fact that there are reasons why one who is hurt on the job may not draw compensation. Therefore, we do not think the trial court’s decision is supported by substantial evidence.
In Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), the court held that where the appellate court finds the' evidence insufficient to support the judgment of conviction it would be double jeopardy to allow the case to be tried again.
Reversed and dismissed.
Cracraft, C.J., agrees.
Jennings, J., concurs. | [
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Elizabeth W. Danielson, Judge.
Appellant Donaldson Brown was convicted of burglary, felon in possession of a firearm, and theft of property. He was sentenced to ten years on each count, with the three ten-year terms to be served concurrently. On appeal, appellant argues there was insufficient evidence to support the burglary conviction. We affirm.
On November 13, 1989, three police officers of the North Little Rock Police Department observed appellant pushing a shopping cart through an alley between the 1900 block of Magnolia and Olive Streets in North Little Rock. Because appellant’s description fit that of a suspect they were seeking at that time, they approached him in the unmarked police car. As the police car turned toward him, appellant deserted the shopping cart and fled. Two of the officers, one in uniform, pursued appellant on foot and the third pursued him in the car.
Appellant was apprehended nearby and the shopping cart was recovered. The cart contained a crossbow and a rifle, which were visible to an officer when appellant was initially sighted in the alley, and other items, including a cable box from Storer Cable, a hunting knife, arrows, .22 shells, a Nintendo game, a cassette player, items of jewelry, and items of clothing.
The police traced the registration number on the cable box to 318 East 21 st Street, which was about two blocks from where the shopping cart was located. The police proceeded to that address and discovered the door locks had been pried open. The residents were contacted and verified, upon arrival, that the house had been broken into and that several items of personal property were missing. The residents later identified as theirs the items found in the shopping cart appellant was pushing.
Appellant testified that he did not burglarize the residence, but instead found the items in a dumpster and carried them away in a shopping cart he had taken from a nearby grocery store lot. Appellant admitted to fleeing from the police but claimed he only ran from them because he was on parole and was supposed to be in Oklahoma rather than in Arkansas.
A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment. Ark. Code Ann. § 5-39-201 (a) (1987). Appellant contends the evidence was insufficient to prove beyond a reasonable doubt that he had entered the residence from which the property was taken.
When the sufficiency of the evidence is challenged on appeal, we review the evidence in the light most favorable to the appellee, and affirm if there is any substantial evidence to support the verdict. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991). Substantial evidence is evidence of sufficient force and character that it will compel reasonable minds to reach a conclusion without resort to speculation and conjecture. Id.
Circumstantial evidence may constitute substantial evidence and be sufficient to sustain a conviction. Summers v. State, 300 Ark. 525, 780 S.W.2d 540 (1989). When circumstantial evidence alone is relied upon, it must indicate the accused’s guilt and exclude every other reasonable hypothesis. Hutcherson v. State, 34 Ark. App. 113, 806 S.W.2d 29 (1991) . Whether the evidence excludes every other reasonable hypothesis is for the factfinder to decide. Summers, 300 Ark. 525, 780 S.W.2d 540.
Appellant was in possession of the stolen property when he was first observed by the officers. Unless there is a satisfactory accounting for the property being in one’s possession, possession of recently stolen property is prima facie evidence of guilt of burglary, even if there is no direct evidence of breaking or entering by the appellant. Stout v. State, 304 Ark. 610, 804 S.W.2d 686 (1991). Appellant contends he gave a satisfactory accounting when he testified that he found the items in a dumpster and that he never entered the residence. However, decisions regarding the credibility of a witness are for the trier of fact. The judge was not required to believe the explanation given by appellant, who was the person most interested in the outcome of the trial. Muhammed v. State, 27 Ark. App. 188, 769 S.W.2d 33, cert. denied, _ U.S. _, 110 S. Ct. 142, 107 L. Ed. 2d 101 (1989).
Appellant also abandoned the shopping cart and fled when he saw the police car. In Cristee v. State, 25 Ark. App. 303, 757 S.W.2d 565 (1988), the court stated that the action of an accused in fleeing from the scene of a crime is a circumstance that may be considered with other evidence in determining probable guilt. Appellant claimed that he was running because he was on parole and supposed to be in Oklahoma; again, this presented a credibility question for the judge to decide.
Appellant relies on Ward v. Lockhart, 841 F.2d 844 (8th Cir. 1988), in which the Eighth Circuit reversed a decision of the Arkansas Supreme Court and found that the evidence was insufficient to support a burglary conviction. As in this case, the appellant in Ward had been convicted of burglary based on circumstantial evidence. Here, however, there are additional corroborating circumstances of appellant’s guilt. In Ward the burglary took place sometime between Friday afternoon and the following Monday morning in West Memphis, and appellant was found in possession of the stolen property on that Monday, as he attempted to sell it at a pawn shop in Memphis. Here appellant was first observed with the shopping cart full of stolen property at about 9:30 a.m. on November 13, 1989. The residence from which the property was taken was burglarized on November 13, 1989, between 7:45 a.m., when the residents left for work, and 10:45 a.m., when the police arrived at the house. Also, the shopping cart appellant was pushing was located about two blocks from the residence that was burglarized.
Because the due process clause of the fourteenth amendment requires that the prosecution prove beyond a reasonable doubt every essential element of the crime charged, it was necessary in this case to prove beyond a reasonable doubt that appellant unlawfully entered the residence in question with the intent to commit an offense punishable by imprisonment. Ark. Code Ann. § 5-39-201 (1987). As phrased by the Eighth Circuit in Ward, the question before us is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could prove found beyond a reasonable doubt that it was appellant who made the unlawful entry into the residence and that he did so with the intent to commit theft. See Ward, 841 F.2d 844 at 847.
The court in Ward held that the circumstantial evidence in that case was not sufficient to establish the essential element of entry. In Ward it was not known exactly when the burglary took place, only that it took place sometime over the weekend between the time the school was locked up on Friday and the time it was reopened on Monday. There was, therefore, no established proximity between the time of the burglary and the time Ward was found in possession of the stolen property. Additionally, the burglary took place in one city and the defendant was found in possession of the stolen property within the three-hour time frame in which the burglary occurred and within a couple of blocks of the burglarized residence. We find that these additional factors provide sufficient evidence from which a rational trier of fact could find beyond a reasonable doubt that it was appellant Brown who had unlawfully entered the residence, and appellant’s due process rights were therefore not violated.
Given appellant’s possession of the stolen property, his flight from the police, and the close proximity in time and distance linking the appellant, the stolen property, and the burglarized residence, we believe the evidence is sufficient to support the burglary conviction.
Affirmed.
Jennings and Mayfield, JJ., agree. | [
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Judith Rogers, Judge.
Appellee, Tri Tech, Inc., filed suit against appellant, American States Insurance Co., seeking to recover on a payment bond issued by American in favor of E.M. Rader, Inc., as principal, pursuant to Ark. Code Ann. § 18-44-503 (Supp. 1989). Both parties moved for summary judgment, and the case was submitted to the trial court for decision based on an agreed statement of facts. The trial court granted Tri Tech’s motion, and awarded it judgment in the amount of $41,042.42, in addition to an attorney’s fee of $2,000.
American raises five issues for reversal, the first four of which can be pared down to the single issue of whether the trial court erred in holding American liable to Tri Tech as surety on the bond. In its remaining issue, American challenges the award of attorney’s fees. We reverse.
According to the stipulation, E.M. Rader, Inc., was the prime contractor on an expansion project of the Wastewater Treatment Plant in Harrison, Arkansas. Rader contracted with B&D Welding Co. for B&D to supply “miscellaneous” metals for use in the project, including certain prefabricated handrails. B&D in turn entered into a contract with Tri Tech to furnish the handrails. The job specifications required the handrail drawings to be approved by both Rader and the project architect/engineers. The drawings were drafted by Tri Tech, and gained the necessary approval. The handrails were shipped by Tri Tech directly to the project site with the bill of lading bearing the notation of Tri Tech as shipper. Neither B&D nor Tri Tech was required to provide any labor or to take part in the installation of any materials on the project, and neither did, in fact, perform labor or install any materials at the job site. Rader paid B&D for these materials; however, B&D failed to pay Tri Tech for the handrails.
Recovery on bond in this situation is based on the concept of privity between the supplier seeking recourse and the original contractor. Sweetser Construction Co. v. Newman Brothers, Inc., 236 Ark. 939, 371 S.W.2d 515 (1963). In Sweetser, the supreme court observed:
While the privity of contract is necessary it need not be directly with the original contract but it must spring out of it. That it is not derived directly from the original contractor does not destroy the privity. It may come through contract with the subcontractor, as, in mechanic’s lien cases it frequently does. The contract and bond require the principal and surety to respond for claims for labor and material furnished under the contract, and whether that claim for labor and material comes directly from the original contractor or from a subcontractor, or from a laborer or materialman under the subcontractor is immaterial, so long as its origin is called for in the original contract and grows out of the original contract.
But it is at this point that privity of contract ends, and one who supplies material to materialman, who in turn supplies the subcontractor, is to be relegated to the status of a stranger to the original contract, since such person’s contract or undertaking is neither with the principal contractor, or with the one who, as in the case of a subcontractor, deals directly with the principal contractor. Such person’s contract is therefore but indirect and collateral to the original contract, and for want of privity does not serve to bring such party within the purview of the principal contractor’s bond.
In this opinion we do not mean to hold that a person who furnishes material to a subcontractor is not in privy with the prime contractor, but just the contrary. . . It is generally held that persons supplying materials and labor to a subcontractor, rather than directly to the general contractor, may recover on a bond given pursuant to such a statute.
Id. at 943-44, 371 S.W.2d at 517-18.
Thus, two general principles emerge from the Sweetser decision: A materialman who furnishes material to a material-man has no recourse against the bond for lack of privity with the prime contractor, while a materialman who supplies material to a subcontractor in privity with the contractor may recover on the bond. As said by the Sweetser court, the rationale supporting these principles is to afford a reasonable degree of certainty with regard to the extent of liability under the bond.
The parties are in agreement as to the governing law, but disagree on its application to the facts of this case. As do the parties, we acknowledge that Tri Tech’s recovery is dependant on the status of B&D; thus, the issue here is whether B&D is to be considered a materialman or a subcontractor. The holding in Sweetser has been followed in subsequent cases; however, these decisions offer no real guidance in determining whether one occupies the status of either a subcontractor or materialman. See e.g. River Valley, Inc. v. American States Insurance Co., 287 Ark. 386, 699 S.W.2d 745 (1985); Valley Metal Works, Inc. v. A.O. Smith-Inland, Inc., 264 Ark. 341, 572 S.W.2d 138 (1978); General Electric Supply Co. v. Downtown Church of Christ, 24 Ark. App. 1, 746 S.W.2d 386 (1988).
Where a distinction is made between a subcontractor and a materialman, a person, to become a subcontractor rather than a materialman, must generally do something more than merely furnish materials. 53 Am. Jur. 2d Mechanics’ Liens § 72 (1970). Under the authorities, one who takes no part in the construction of a building, but merely furnishes material for use in a building, is not a subcontractor, and if the claimant is employed to furnish material only, whether fabricated or made ready for use or not, he cannot be regarded as a subcontractor. J.W. Thompson Co. v. Welles Products Corp., 243 Kan. 503, 758 P.2d 738 (1988). One who is simply employed to furnish materials, whether such materials be manufactured or not and whether he be required to transform or fabricate such materials into a condition where it meets the requirements of the contract, or the specifications, is nonetheless a materialman. Leonard B. Herbert, Jr. & Co., Inc., 336 So. 2d 922 (La. Ct. App. 1976). Conversely, one who not only furnishes materials, but installs them, is a contractor or a subcontractor, and not a materialman, within the meaning of mechanics’ lien laws. American Buildings Co. v. Wheelers Stores, 585 P.2d 845 (Wyo. 1978).
A case factually similar to the one at bar is J.W. Thompson Co. v. Welles Products Corp., supra. The case involved the construction of an additional “digester” for operation at a city wastewater treatment plant. Penta Construction Company, Inc., was the principal contractor on the project, which contracted with Welles Products Corp. to provide materials and equipment, including the necessary compressor systems. These systems were to be made to specification with the requirement that shop drawings be approved by the engineering firm in charge of the project. Penta was responsible for installing the entire system, although Welles was to provide a representative to inspect the installation and to train city personnel in use of the equipment. Welles contracted with J.W. Thompson Co. to supply certain components needed to fulfill its purchase order with Penta. Thompson shipped the equipment to the project site. At issue was whether Thompson could recover on Penta’s bond, the resolution of which depended on the legal relationship between Penta and Welles. On these facts, the court held that Welles was a materialman, and thus denied recovery.
We do not set aside findings of fact by a circuit judge sitting as a jury unless they are clearly erroneous. Taylor’s Marine, Inc. v. Waco Manufacturing, Inc., 302 Ark. 521, 792 S.W.2d 286 (1990). A finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been committed. Sugarloaf Development Co., Inc. v. Heber Springs Sewer Improvement District., 34 Ark. App. 28, 805 S.W.2d 88 (1991). Based on the authorities mentioned above, we conclude that B&D was a materialman, and not a subcontractor; therefore, the trial court erred in allowing Tri Tech recovery under the bond.
American’s final argument questions the authority of the trial court to award an attorney’s fee in this case under Ark. Code Ann. § 16-22-308 (Supp. 1989), which provides for an award of a fee to the prevailing party in certain civil actions. Since the judgment in favor of Tri Tech is reversed, the award of the attorney’s fee is also reversed. Brookside Village Mobile Homes v. Meyers, 301 Ark. 139, 782 S.W.2d 365 (1990). Therefore, we do not reach the merits of American’s argument.
Reversed.
Cooper and Danielson, JJ., agree. | [
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George K. Cracraft, Chief Judge.
Rodney Maurice Raglin appeals from his conviction of the crime of possession of a controlled substance with intent to deliver. The sole issue on appeal is whether he was denied his right to a speedy trial under the Arkansas Rules of Criminal Procedure. We conclude that he was and reverse the conviction.
It is undisputed that appellant was arrested for possession of a controlled substance with intent to deliver on May 12,1989. On October 18, 1989, while on bail, appellant was arrested for an unrelated homicide. On January 2, 1990, appellant was arraigned on both charges and entered pleas of not guilty by reason of mental disease or defect. As a result, a psychiatric examination of appellant was ordered. On January 30, 1990, the psychiatric evaluation of appellant was received by the court and the court found him fit to proceed. On April 25, 1990, appellant was tried for the homicide, convicted of murder, and sentenced to forty years in the Arkansas Department of Correction.
At some point thereafter, appellant’s trial on the charge of possession with intent to deliver was set for August 3, 1990. On August 2,1990, appellant filed a motion to dismiss that charge for lack of a speedy trial. Although the court’s reasons are not clearly stated in the record, appellant’s motion was denied after a hearing on August 3. Appellant was thereafter tried and convicted of possession with intent to deliver, and this appeal followed.
The parties agree that, under Ark. R. Crim. P. 28.1(c) and 28.2(a), appellant was entitled to have the drug charge dismissed with an absolute bar to prosecution if not brought to trial within twelve months of the date of his arrest, May 12,1989, subject only to any excludable periods authorized under Rule 28.3. It is undisputed that appellant’s trial on this charge was not held until eighty-three days after the twelve-month period had elapsed. The parties further agree that the twenty-eight day period between January 2 and January 30, 1990, was properly excludable. Therefore, it is the exclusion of an additional fifty-five days that is at issue on this appeal.
Appellant contends that the trial court erred in denying his motion to dismiss. He argues that, because no written orders were entered or docket entries made concerning any delays in trying him on the drug charge, the court erred in excluding the additional fifty-five days. We agree.
Once it has been shown that a 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 defendant’s conduct or that it was otherwise legally justified. McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). Rule 28.3(i) of the Arkansas Rules of Criminal Procedure provides that “[a] 11 excluded periods shall be set forth by the court in a written order or docket entry.” 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). Our courts have also said that this language must be adhered to in order to provide any impetus behind Rule 28.3. Hicks v. State, supra; Reed v. State, 35 Ark. App. 161, 814 S.W.2d 560 (1991). Here, although appellant failed to abstract the docket sheet, it is clear from the court clerk’s extensive testimony from the docket and the statements made by the trial judge at the hearing on the motion to dismiss that no such orders were entered or docket entries made.
The State contends that the trial court’s ruling was correct because the eighty-five day period between January 30,1990, and April 25, 1990, was excludable despite the lack of any appropriate written orders or docket entries. According to the transcript of the hearing of January 30, the trial court stated that it was going to set appellant’s murder trial first. The transcript of a short hearing held on February 2, 1990, shows that the court set the murder trial for April 25. The State argues that, because appellant failed to object when these statements were made, he “tacitly agreed” to the delay caused by holding the murder trial first and, thereby, lost his right to contend that the delay violated his right to a speedy trial. We cannot agree.
The State’s reliance on Jenkins v. State, 301 Ark. 586, 786 S.W.2d 566 (1990), and Key v. State, 300 Ark. 66, 776 S.W.2d 820 (1989), is misplaced. Those cases hold 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 the. requirements of Ark. R. Crim. P. 28.3(i). In Jenkins, the defendant had been offered a speedy trial but his attorney requested and received a continuance to a date beyond the end of the twelve-month period. In Key, upon being asked by the court for her views, the defendant’s attorney stated that she “had no problems with” the court granting a continuance requested by a co-defendant. See also McConaughy v. State, supra (defendant delayed the proceedings by changing his plea to not guilty by reason of mental defect on the original trial date, thus necessitating an excludable committment to the State Hospital); 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). Here, on the other hand, appellant’s trial on the drug charge was not delayed by him. He made no request for a continuance in either this case or the murder case. The record is clear that holding the murder trial first was ordered on the court’s own motion. Appellant was not consulted. See Reed v. State, supra.
The fact that appellant did not affirmatively object to the court’s statements in question does not alter our conclusion. Rule 28.2 provides that the speedy trial period commences to run “without demand by the defendant.” The State’s argument that a defendant must protest court-ordered delays, whether or not he is responsible for the delays or is even consulted about them, would place the burden on the accused to demand a speedy trial at every stage of the proceedings. Moreover, the court’s decision to hold appellant’s murder trial on April 25 would not cause appellant to know that his drug case would be continued past the required time period. See Hicks v. State, supra; Reed v. State, supra. In light of the admittedly excludable twenty-eight day period in January 1990, appellant’s trial in this case would have been timely if held at any time prior to June 10, 1990.
It was argued at the hearing on appellant’s motion to dismiss that appellant’s failure to appear for his originally scheduled arraignment in this case created an additional excludable period. However, the evidence showed, and the prosecuting attorney had conceded at a previous hearing, that appellant was not properly notified of that arraignment. Appellant’s notice had been sent to the wrong address. In any event, the argument is not presented on appeal, and we need not address it further.
We conclude that the State failed to show that the remaining fifty-five day delay was attributable to appellant or was otherwise legally justified. Therefore, appellant’s conviction for possession of a controlled substance with intent to deliver is reversed and the case is dismissed.
Cooper and Rogers, JJ., agree. | [
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Melvin Mayfield, Judge.
This suit was filed on behalf of Cory Hood, a minor, by his father, as next friend, against the Arkansas School Board Insurance Cooperative (ASBIC), the Russellville Public School, and Gallagher Bassett Services, Inc. The complaint alleged that the Russellville Public School is a school district for the State of Arkansas, that its insurance carrier is the ASBIC, and that Gallagher Bassett Services, Inc. is a foreign corporation licensed to do business in the State of Arkansas.
It is then alleged that Cory Hood, while riding on a bus owned and operated by the Russellville Public Schools, was assaulted and sustained severe damage to his right eye, and that his injuries and damages were caused by the negligence of the school bus driver acting as agent for the school district. The complaint also alleged that as a direct and proximate result of the bus driver’s negligence the plaintiff suffered damages and expended monies for treatment of injuries, and judgment is prayed against the defendants for these damages and expenses.
None of the defendants filed an answer within the proper time after service of summons but eventually they filed a pleading entitled “Response to Motion for Default Judgment and Motion to Permit Defendants to Answer.” In this response, the defendants admitted that they did not timely respond to the complaint filed by the plaintiff “due to an administrative oversight.” But it was alleged that “it would be inappropriate for the court, to enter default judgment against the defendants in that none of [them] is a proper party under the circumstances of the case and, therefore, the entry of default judgment would produce an unjust result.” This pleading also alleged that the Russellville Public School was an entity immune from suit for tort liability, that the ASBIC “is not an insurer and is an unincorporated association,” and that Gallagher Bassett Services, Inc. is a “foreign corporation which provides services on claims to the Russellville School District” and does not provide insurance. The prayer of this pleading is for the court to deny the motion for default judgment and that the defendants be permitted to answer or otherwise respond to the complaint.
Approximately ten days after the above described response and motion was filed on behalf of the defendants, the court entered an order denying the plaintiffs motion for default judgment. Shortly thereafter, a separate answer was filed by ASBIC alleging that it was an unincorporated association through which participating school districts “manage risk and self-insure.” The answer also denied most of the allegations of the complaint except it did admit that Cory Hood while riding on a bus operated by the Russellville Public School District was struck by another student. The answer further stated that ASBIC was not amenable to suit under Ark. Code Ann. § 23-79-210 (1987) (which provides for a direct action against the liability insurer of a school district or other organization not subject to suit for tort), and that ASBIC would file a motion for summary judgment on that basis.
Because of our view of the matter before us, we will not describe in detail the motions filed by the other two defendants but suffice it to say that by orders filed on April 27,1989, the court granted motions to dismiss both the Russellville Public School and Gallagher Bassett Services, Inc. The record reflects no notice of appeal was ever filed from these orders of dismissal.
On August 21, 1989, a motion for summary judgment was filed by ASBIC alleging it is not an insurance company but “a self-funded risk management pool which does not offer insurance for tort liability” and that it is not subject to suit under the Arkansas Direct Action statute, Ark. Code Ann. § 23-79-210 (1987). While a brief in support of the motion for summary judgment was filed, no affidavit was filed in support of the motion, there is no deposition in the record, and the record does not reflect any answers to the interrogatories which were filed by ASBIC. The record does contain, however, an order by the court filed on March 28, 1990, which states that the motion for summary judgment filed by ASBIC has been presented to the court and is “hereby granted and the complaint is dismissed.”
On April 17, 1990, a notice of appeal and designation of record was filed by the plaintiff, and it specifically states that the plaintiff is appealing from the order entered on March 28, 1990. Thus, what we have before us is an appeal by the plaintiff from an order granting a summary judgment to ASBIC, and the plaintiffs argument that the trial court erred in failing to grant plaintiffs motion for default judgment against ASBIC.
We discuss the summary judgment issue first. Under Ark. R. Civ. P. 56(c), summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” There were no depositions or answers to interrogatories or admissions on file; therefore, we can only look at the pleadings. As pointed out above, the complaint filed by the plaintiff alleged that ASBIC was the insurance carrier for the Russellville Public School District; that the plaintiff was injured and sustained damages caused by the negligence of the driver of a school bus for the Russellville Public School District; and that the driver of the school bus was acting as an agent for the school district at the time the plaintiff was injured.
Under these circumstances, we think the trial court clearly erred in granting the motion filed by ASBIC for summary judgment. The motion alleged that ASBIC was “a self-funded risk management pool which does not offer insurance for tort liability” and, therefore, “an action against ASBIC is inappropriate under the Arkansas Direct Action Statute [Ark. Code. Ann.] § 23-79-210.” Of course, the problem with that allegation is that it raises an issue of fact. “Summary judgment is only proper when a review of the pleadings, depositions or other filings reveal that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Woods v. Hopmann Machinery, Inc., 301 Ark. 134, 137, 782 S.W.2d 363 (1990). Here, there is nothing to support ASBIC’s motion for summary judgment other than the bare allegations in the motion itself.
On appeal, ASBIC cites Coffelt v. Arkansas Power & Light Co., 248 Ark. 313, 451 S.W.2d 881 (1970), for the proposition that ASBIC’s “bare allegations” should stand as undisputed in the present case because the plaintiff (appellant) did not file a response to (ASBIC’s) appellee’s motion for summary judgment. Appellee is mistaken in the holding of that case. In that case Coffelt filed a class action suit for a declaratory judgment seeking a ruling that “our constitutional prohibition against usury is violated by the utility company’s authorized practice of imposing a ‘late charge’ against customers who do not pay their monthly bills within ten business (fourteen calendar days) after the due date.” 248 Ark. 313-14. The power and light company filed a motion for summary judgment. The court’s opinion states: “We take the controlling facts from the affidavit and exhibits accompanying the defendant’s motion for summary judgment.” Id. at 314. After discussion, the opinion states that the facts set out in the power and light company’s affidavit and exhibits are undisputed, and the opinion then makes this pertinent observation: “We should add that the appellant is mistaken in suggesting in his brief that the facts supporting the motion for summary judgment must be treated as being disputed by the plaintiff’s verified complaint.” Id. at 315-16.
Thus we see the statement in Coffelt does not support the argument made by ASBIC in the present case. The matter is made clear in Ark. R. Civ. P. 56(e) which states that when a motion for summary judgment is made and properly supported the adverse party may not rest upon the mere allegations or denials of his pleadings but must respond by affidavits, depositions, answers to interrogatories or otherwise as provided in the rule and show that there is a genuine issue for trial. Moreover, the burden is on the moving party to show that there is no genuine issue of fact for trial. Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986).
Because of the allegations made in the complaint filed by the plaintiff in the present case, it was necessary for ASBIC to support its motion for summary judgment in some manner authorized by Ark. R. Civ. P. 56 in order for the summary judgment motion to be granted. The mere statement in the motion alleging that it was not an insurance company and, therefore, was not subject to suit under the direct action statute, Ark. Code Ann. § 23-79-210 (1989), was not sufficient to establish that there was no genuine issue of material fact to be tried under the allegations of the plaintiff’s complaint. Thus, the trial court’s order granting ASBIC’s motion for summary judgment must be reversed.
Appellant also argues that the trail court erred in refusing to grant appellant’s motion for default judgment against appellee ASBIC. Appellant could not, of course, appeal from the trial court’s order denying appellant’s motion for default judgment because that was not a final, appealable order. Associates Financial Services Company of Oklahoma v. Crawford County Memorial Hospital, 297 Ark. 14, 759 S.W.2d 210 (1988). However, once a final order was entered, an appeal could be taken. Heber Springs Lawn & Garden, Inc. v. FMC Corporation, 275 Ark. 260, 628 S.W.2d 563 (1982). Therefore, since the appellant has appealed from the granting of appellee’s motion for summary judgment and the dismissal of appellant’s complaint, we can consider appellant’s argument that his motion for default judgment should have been granted.
Appellee again argues that it was not an “insurer” and therefore not subject to direct suit under the direct action statute; that this is a jurisdictional matter; and even though it did not file an answer, jurisdictional issues may be raised at any time. The cases of Cigna Insurance Company v. Brisson, 294 Ark. 504, 744 S.W.2d 716 (1988), and Head v.Caddo Hills School District, 277 Ark. 482, 644 S.W.2d 246 (1982), are cited in support of appellee’s position. Cigna’s holding was rendered moot by the supplemental opinion issued in that case, see 294 Ark. 506-A, 746 S.W.2d 558 (1988), holding that the original opinion dismissing the appeal was in error as the appeal was from an order setting aside a default judgment, and the order had been entered more than 90 days after the entry of the default judgment. However, the holding in the original opinion is of no comfort to the appellee in the present case.
The original opinion in Cigna held that the denial of a motion to dismiss was not an appealable order because it did not conclude the case. That opinion also pointed out that while a question of jurisdiction can be “raised at any time,” that is not to say the issue can be “appealedat any time, only that the objection may be raised even though it has not been raised at a previous point in the proceedings. The Head v. Caddo Hills School District case is cited in Cigna as support for the point that the question of jurisdiction can be raised at any time. The Head case held that a probationary tedcher’s remedy for an illegal termination is a suit for breach of contract and not an appeal to circuit court from the school board’s termination of the teacher’s contract. The appellate court said this was a question of jurisdic tion and could be raised for the first time on appeal.
Thus, the jurisdictional question in those two cases involved the power of the court to act. In the supplemental opinion on rehearing in Cigna, the court held that the motion to set aside an order of dismissal which had been entered more than 90 days could not be granted except for the reasons set out in Ark. R. Civ. P. 60(c). And in Head the probationary teacher could not appeal directly to circuit court from the school board’s termination of the teacher’s contract because the statutes- did not allow such an appeal; therefore, the court had no power to act on such an appeal. In the present case, however, there is no question of the power of the trial court to grant the appellant’s motion for default judgment. The power of a court to act was discussed in Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986), where it was claimed that the chancery court, which set aside a property settlement made in contemplation of divorce, did not have jurisdiction to also award damages to the wife for the fraud the husband perpetrated against her in connection with the divorce litigation. The court said, “[W]e 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.” 289 Ark. at 175-76, 711 S.W.2d at 456. See also Hooper v. Ragar, 289 Ark. 152, 711 S.W.2d 148 (1986), and McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989), where the court said:
A court or agency is said to have subject matter jurisdiction of an action if the case is one of the type of cases that the court or agency has been empowered to entertain by the sovereign from which the court or agency derives its authority.
29 Ark. App. at 225, 780 S.W.2d at 38.
The question in the present case is not of the power of the court to act but whether, as alleged in appellant’s complaint, ASBIC is an insurance company which insured the Russellville School District’s tort liability and, therefore, can be sued directly under the provisions of Ark. Code Ann. § 23-79-210 (1987). No timely answer was filed to appellant’s complaint by ASBIC, and its “Response to Motion for Default Judgment and Motion to Permit Defendants to Answer” admitted it did not timely respond to the complaint “due to administrative oversight.” The brief filed with the motion stated that this administrative oversight “probably did not come under the heading of ‘excusable neglect.’ ” At the time the trial court denied the plaintiff’s motion for default, January 18, 1989, Ark. R. Civ. P. 55 provided that where a defendant does not appear or otherwise defend, a judgment by default shall be entered. In Webb v. Lambert, 295 Ark. 438, 748 S.W.2d 658 (1988), the Arkansas Supreme Court cited DeClerk v. Tribble, 276 Ark. 316, 637 S.W.2d 526 (1982), in support of the statement: “In the absence of excusable neglect, unavoidable casualty, or other just cause, it is an abuse of discretion for the trial court to refuse to grant a default judgment.” And in Allstate Insurance Co. v. Bourland, 296 Ark. 488, 758 S.W.2d 700 (1988), the Arkansas Supreme Court, in affirming the trial court’s refusal to set aside a default judgment, said: “We have been strict in our interpretation of Rule 55 where there has been a failure to make any sort of timely filing or appearance in the trial court.”
However, on December 10, 1990, Ark. R. Civ. P.55 was amended by a per curiam order of the Arkansas Supreme Court. The amendment changed the language in Rule 55(a) to provide that, where a party has failed to appear or defend, a judgment by default may (instead of shall) be entered by the Court. The “Addition to Reporter’s Note, 1990 Amendment” states that under revised Rule 55(a) the entry of a default judgment is discretionary rather than mandatory, and certain factors are mentioned that should be considered in deciding whether to grant the default judgment. The per curiam order states that the changes in Rule 55 will become effective February 1, 1991. The question is therefore presented as to whether the changes in Rule 55 should be given a retrospective effect by applying the provisions of Rule 55 as amended by the per curiam of December 10, 1990.
According to the Reporter’s Notes, the changes in Rule 55 are intended to help make it consistent with the applicable Federal Rules of Civil Procedure. In Klapprott v. United States, 335 U.S. 601 (1949), the United States Supreme Court held that an amended Rule 60 of the Federal Rules of Civil Procedure should be given a retrospective effect to set aside a default judgment. In Arkansas, our supreme court has also given a retrospective effect to procedural or remedial legislation. See Forrest City Machine Works v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981), where the court gave retroactive application to an act that stated, “This enactment is remedial in nature”; and in Harrison v. Matthews, 235 Ark. 915, 362 S.W.2d 704 (1962), where the court said:
The rule by which statutes are construed to operate prospectively does not ordinarily apply to procedural or remedial legislation. “The strict rule of construction contended for does not apply to remedial statues which do not disturb vested rights, or create new obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation.
235 Ark. at 917. And in Spires v. Russell, 300 Ark. 530, 780 S.W.2d 547 (1989), the court considered a legislative act which amended an existing stature by raising from $300.00 to $ 1,000.00 the amount of damage, resulting from motor vehicle collision, to which penalty and attorney’s fee could be assessed. The court held the amendment applicable to damages caused by collision which occurred before the amendment was enacted; however, the amendment provided it applied upon the denial of liability and the filing of suit — both of which occurred after the amendment was adopted by the legislature.
In the present case, we think Rule 55 as amended should be applied by the trial court. This conclusion is reached by either of the routes taken by the above cases: (1) the amendment of Rule 55 is remedial or procedural, or (2) the amendment has no application to the trial court’s refusal to grant default judgment on January 18,1989, but will apply if that issue is again presented to the trial court.
We reverse the summary judgment entered against the appellant and remand for further proceedings in keeping with this opinion.
Cracraft, C.J., and Danielson, J., agree. | [
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Per Curiam.
Porter Everett, Mr. Bass of Arkansas, and Boat and Tackle Mart have appealed from a judgment in favor of appellee Mike Wingerter in the amount of $3,458.00 plus costs. The judgment was not superseded, and appellee caused a writ of garnishment to be served on a banking institution, which has in its hands assets and things of value belonging to appellants. The garnishee is now holding those assets subject to further proceed ings to foreclose the lien of that attachment.
The transcript has now been lodged in this court. Appellants have filed with the clerk a cashier’s check in the amount of $3,750.00 and petition us to approve the deposit as a supersedeas bond, authorize the issuance of an order staying all proceedings pending appeal, and direct the garnishee to release appellants’ assets from the lien of the garnishment.
The issuance of an order staying proceedings pending appeal is governed by Ark. R. App. P. 8(c), which requires that one seeking such supersedeas file a bond having “such surety or sureties as the court may require.” The rule further provides that the bond be to the effect that the appellant shall pay to the appellee all costs and damages, and otherwise perform the judgment or order, if the case is affirmed on appeal, or if the appellant fails to prosecute the appeal or it is dismissed. In Ryder Truck Rental, Inc. v. Sutton, 305 Ark. 374, 807 S.W.2d 909 (1991), the supreme court held that the language of the rule allows the court discretion as to the type of surety it will require for a supersedeas bond, and that sureties other than personal or corporate bonds may be considered, including a pledge of collateral so long as the property pledged is deemed of sufficient value to adequately secure the payment of the judgment. A pledge of cash in an amount sufficient to satisfy the judgment if affirmed on appeal is such an alternative to a personal or corporate bond. We therefore approve the cash bond and authorize the issuance of a supersedeas by the clerk.
Appellants’ motion for an order directing the garnishee to release appellants’ assets from the lien of the garnishment, however, is denied. The effect of a valid supersedeas bond does not have the effect of releasing the lien of prior attachments. Where, as here, the lien of the writ of garnishment has attached before a supersedeas bond is filed, the bond has only the effect of staying further proceedings to enforce the lien. See Ryder Truck Rental, Inc. v. Sutton, supra. | [
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Melvin Mayfield, Judge.
Appellant Ben Undernehr appeals from a decision of the Benton County Chancery Court dismissing his “Petition to Reform Deed” against Shirley Sand-lin, Benton County Assessor and Charlie Daniels, Commissioner of State Lands. We find no error and affirm.
The evidence shows that on May 17, 1988, appellant purchased a parcel of land in the City of Bentonville, Benton County, Arkansas, at a tax forfeiture sale conducted by the State Land Commissioner, Charlie Daniels. The Limited Warranty Deed issued to him contained the following description:
Pt. Lot 2 Beg 50’ W NE/C E60’ S2471/2> W30’ N110’ S247'/2’ W30’ N110’ Etc. Dickson
A close examination of this description reveals that it is incomplete and does not “close.” A search of the records in the county assessor’s office revealed an error, which was made in 1978, when the assessor’s office was converting to computers. This resulted in certain property being double taxed. The taxes on that property, which was owned by Dynamic Enterprises, were not delinquent. This was a larger parcel that included the smaller parcel Underhehr thought he had purchased.
This suit was brought by Dynamic Enterprises against Undernehr to have his tax deed declared void and title to the property quieted in Dynamic. The trial court found for Dynamic Enterprises and ordered Undernehr to quitclaim his interest in the property to Dynamic. The court’s order also granted Un-dernehr twenty days to file a third-party complaint against the State of Arkansas or any of its political subdivisions. Undernehr then filed a third-party complaint against the appellees asking for reformation of his tax deed. Both appellees filed answers admitting that an error had been made and that Undernehr had received a tax deed with an incomplete description, and they asked that his petition for reformation be dismissed. Extensive evidence was taken from Ms. Sandlin regarding the tracing of the parcels of property from 1978 forward. At the close of the case the judge dismissed the petition for reformation and this appeal followed.
The record clearly shows that the description of the property which appellant purchased at the tax sale was defective: the description goes north then south along the same line; it does not return to the point of beginning and, therefore, does not “close”; it ends with “Etc.”; and it does not say that “Dickson” is a subdivision.
It has long been held that a tax sale which contains an incomplete or defective description is void. In Sutton v. Lee, 181 Ark. 914, 28 S.W.2d 697 (1930), the appellant had ascertained that certain real estate was unoccupied and had been forfeited to the state for nonpayment of taxes for 1917 and 1921 under the indefinite description: “Parts of lots 3 and 4 in block 36 in the city of Hot Springs, Arkansas.” The appellant had the land surveyed, purchased it at a sheriffs sale, and received a certificate which contained a definite description in keeping with the survey. Appellant then paid the purchase price, presented her certificate to the State Land Commissioner, and applied for a deed. The Land Commissioner refused to issue a deed containing the survey description, but he did issue a deed containing the description by which the land had been forfeited and conveyed to the state for nonpayment of taxes. Appellant took possession of the land and made valuable improvements on it. Appellee then filed an ej ection action against appellant contending she held title to the property by inheritance. The suit was transferred to chancery by consent and a decree was rendered for the appellee for possession. On appeal the court stated:
In the instant case the sale was unauthorized because the description of the land in the assessment and all proceedings involved was insufficient to identify it. It amounted to no description at all.
Appellant also contends for a reversal of the decree because the certificate of purchase acquired under a compliance with the requirements of act 365 of the Acts of 1923, contained a definite and certain description of the real estate in controversy. This act only applies to purchasers of lots from the State to which it has acquired title. The State acquired no title to the real estate in controversy in the instant case as the assessment and forfeiture were void from the want of a description by which same might be located. The certificate was issued without authority, and could not and did not confer color of title to said real estate although definitely describing it.
181 Ark. at 918-19.
In Gardner v. Johnson, 220 Ark. 168, 246 S.W.2d 568 (1952), the court said:
The tax sale was invalid by reason of the defective description. The law is firmly established in this State that in order to make a valid sale of land for taxes, the land must be described with certainty upon the assessment rolls, and all subsequent proceedings for the enforcement of payment of taxes, Wilkerson v. Johnston, 211 Ark. 170, 200 S.W.2d 87. In that case the court said:
“It is well settled, not only by the decisions of this court, but by the adjudged cases in the courts of other states, as far as we can discover, that, in order to make a valid assessment and sale of land for taxes, the land must be described with certainty upon the assessment rolls and in all.subsequent proceedings for the enforcement of payment of the tax. The chief reason for this requirement is that the owner may have information of the charge upon his property. It has sometimes been said that a description that would be sufficient in a conveyance between individuals would generally be sufficient in assessment for taxation. We do not, however, consider that a safe test. The description in tax proceedings must be such as will fully apprise the owner, without recourse to the superior knowledge peculiar to him as owner, that the particular tract of his land is sought to be charged with a tax lien. It must be such as will notify the public what lands are to be offered for sale in case the tax be not paid. In Cooper v. Lee, 59 Ark. 460, 27 S.W. 970, this court said: ‘A description which is intelligible only to persons possessing more than the average intelligence, or the use and understanding of which is confined to the locality in which the land lies, is not sufficient.’ These statements have been cited with approval in many subsequent cases.”
220 Ark. at 171-72.
The law as set out in the above cases has recently been applied in the case of Liggett v. Church of Nazarene, 291 Ark. 298, 724 S.W.2d 170 (1987). Thus, it is clear that the appellant in the instant case acquired no title by the tax sale as it was void because of the incomplete description under which the land was assessed and sold. It is also clear that appellant’s tax deed, based upon the void tax sale, could not be reformed.
Appellant argues, however, that “Where separate defendant, Charlie Daniels, State Land Commissioner, admitted that legal description on limited warranty deed was inaccurate and further admitted that the deed should be reformed, it was error for the chancellor to dismiss the amended petition to reform deed.” Appellant contends that there was a mutual mistake, and the tax deed should be reformed. He says there is no such thing as a legal description being bought or sold; rather, it is the underlying land that is bought or sold. He then quotes from several cases which hold that reformation of a deed can be had in cases of mutual mistake.
Appellant’s argument ignores the law cited above which holds that the State acquires no title to real estate forfeited under an incomplete and defective description as the assessment and forfeiture in that situation are void. Therefore, reformation simply does not apply where land has been forfeited to and sold by the State under an incomplete and defective description.
Appellant is, however, entitled to have his money refunded. Ark. Code Ann. § 26-37-204(a) (1987) provides that “in the event the sale is set aside by legal action or if the land is proven to be nonexistent or double assessed, the purchaser shall be entitled to reimbursement of moneys paid.” And Ark. Code Ann. § 26-37-206 (1987) states:
If the taxes charged on any land or lot, or part thereof, are regularly paid, and the land or lot [is] erroneously returned delinquent and sold for taxes, the sale of the land or lot shall be void and the money paid by the purchaser at such a void sale shall be returned to him by the officer having the money in charge, on the order of the county court that the land was erroneously returned delinquent and sold for taxes.
The decision of the trial court is affirmed, but this case is remanded for the entry of an order for refund of the amount paid for the tax deed.
Danielson and Rogers, JJ., agree. | [
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Elizabeth W. Danielson, Judge.
Appellants appeal from the full commission’s award of benefits to appellee Tammy Glover following the death of her husband, Lois Glover. Because we agree with appellants’ contention that there is not substantial evidence to support the commission’s finding that Glover’s death arose out of and in the course of employment, we reverse.
A claimant seeking benefits before the Workers’ Compensation Commission must prove by a preponderance of the evidence that the injury or death arose out of and in the course of the employment. J & G Cabinets v. Hennington, 269 Ark. 789, 600 S.W.2d 916 (1980); Morrow v. Mulberry Lumber Co., 5 Ark. App. 260, 635 S.W.2d 283 (1982). “Arising out of the employment” refers to the origin or cause of the accident. In order for an injury to arise out of the employment, it must be a natural and probable consequence or incident of the employment and a natural result of one of its risks. J & G Cabinets, 269 Ark. 789, 600 S.W.2d 916. “In the course of the employment” refers to the time, place, and circumstances under which the injury occurred. Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 882 (1985). The court in Howard v. Arkansas Power & Light Co., 20 Ark. App. 98, 724 S.W.2d 193 (1987), notes that Larson’s formulation for the test for 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.
At the time of his death on January 4,1988, Lois Glover was an employee of appellant Arkansas Department of Correction. Glover reported to work that morning for a shift that began at 6:15 a.m. and was scheduled to end at 6:30 p.m. At approximately 3:45 p.m., Glover was released from work by his supervisor, Lieutenant Mixon, at the request of Lieutenant Spradlin, a Department of Correction officer who was superior in rank to Glover, but who was not Glover’s supervisor. Spradlin had requested that Glover be released in order to help him with a personal errand; there was differing testimony as to the purpose of the errand, but no contention that they were engaged in any work-related business. After Spradlin picked up Glover in his vehicle, the two men began riding around and drinking beer. Spradlin was intoxicated at the time he picked up Glover, and Glover was subsequently killed in an accident in which Spradlin was driving.
For an accident to be compensable, there must be a causal connection between the accident and a risk that is reasonably incident to the employment, and that connection cannot be supplied by speculation. Gerber Products, 15 Ark. App. 226, 691 S.W.2d 882. Employment is not limited to that which the person was actually hired to do; whatever the normal course of employment may be, the employer and its supervisory staff have it within their power to enlarge the course of the employment by assigning tasks outside the usual scope of the employment. See Crouch Funeral Home v. Crouch, 262 Ark. 417, 557 S.W.2d 392 (1977); Edwards v. Johnson, 227 Ark. 345, 298 S.W.2d 336 (1957). However, thecourtin Crouch dismissed the proposition that an order directing an employee to do something outside the usual scope of the employment need not take the form of an outright command if the employee has the impression the task was expected of him or that it would be in his best interest to perform it; the court stated that this seemed to be too frail and flimsy a basis for extension of a course of employment.
Although the commission should construe the provisions of the workers’ compensation act liberally, see Act 10 of the Second Extraordinary Session of 1986, there is no presumption that an injury arose out of and in the course of employment, and the claimant has the burden of establishing his claim by a preponderance of the evidence. Howard v. Arkansas Power & Light Co., 20 Ark. App. 98, 724 S.W.2d 193 (1987); Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984).
The administrative law judge and the full commission found that it was the practice of higher ranking correction officers to use lower ranking officers to assist them with personal errands; that lower ranking officers perceived performing these personal errands as a means of rapid career advancement; that the venture engaged in on January 4, 1988, while personal in nature to Spradlin, was not personal to Glover, who was a passenger in a vehicle driven by a supervisor over whom he had no control; and that the accident therefore arose out of and in the course of his employment. We hold there was not substantial evidence to support these findings.
The evidence reflects that before Lt. Spradlin called Lt. Mixon requesting that Glover be released, he had called Glover to see if he wanted to leave work early and accompany Spradlin. Spradlin and Glover had been friends in high school, and though they had not socialized since that time, they had begun to renew their friendship since Glover had started work with the Department of Correction, and spoke with each other on a daily basis.
On the day of the accident, Spradlin was off duty. Mixon testified that Spradlin told him he needed Glover to go with him because he needed some money and Glover was the only one who could get it. When Mixon told Glover he was being logged off duty, Glover responded that he already knew about it. Spradlin testified that he wanted Glover to help him load his four-wheeler. He testified that when he picked up Glover, he asked him if he wanted to load the four-wheeler first or drink beer first and Glover replied he wanted to drink beer first. Spradlin testified that he did not have any authority over Glover that day, and that he didn’t necessarily expect Glover to agree to help him because he was a superior officer, but because they were friends.
In Crouch, 262 Ark. 417, 557 S.W.2d 392, the supreme court reversed a finding that an injury arose out of and in the course of employment where the claimant had suffered injuries in an accident on a return trip from the airport, where he had voluntarily gone to pick up his mother, the president of the company for which he worked. Among other factors considered by the court were the facts that there was no evidence the claimant had ever previously performed this service; there was no direction or order for the employee to go on this mission; and the claimant’s mother had been on a personal visit and was not acting in the scope of her employment.
The findings of the commission must be upheld unless there is no substantial evidence to support them. Scarbrough v. Cherokee Enterprises, 33 Ark. App. 139, 803 S.W.2d 561 (1991). Substantial evidence exists only if reasonable minds could have reached the same conclusion without resort to speculation or conjecture. Id.; Pickens-Bond Constr. Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979).
The evidence in this case does not support a finding that Glover’s accident arose out of and in the course of his employment. Instead, it shows that two friends, one of whom happened to be a superior-ranking officer, decided to spend the afternoon drinking beer and perhaps taking care of some personal business. There is no substantial evidence to support a finding that Glover felt obligated to assist a superior ranking officer. Such a finding would be based on conjecture and speculation. Conjecture and speculation, even if plausible, cannot take the place of proof. Dena Constr. Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1979).
An employer should not be expected to bear the burden of compensating injuries to the employee when the whole errand is unrelated to and disconnected from the employment. Crouch, 262 Ark. 417, 557 S.W.2d 392. Accordingly, we reverse the finding of the commission and dismiss the claim.
Reversed and dismissed.
Lawson Cloninger, Special Judge, agrees.
Jennings and Mayfield, JJ., dissent.
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JIM GUNTER, Justice.
| ¡Appellant Larry Neely appeals the grant of summary judgment to the State on appellant’s complaint for declaratory judgment and writ of habeas corpus. Appellant argues that the trial court erred in holding that (1) appellant failed to present a justiciable issue with regard to his declaratory judgment action, and (2) appellant was in “constructive custody” for purposes of habeas corpus and denying the habeas writ on the merits. We granted appellees’ motion to transfer this case to our court; therefore, we have jurisdiction pursuant to Ark. Sup. Ct. R. 1 — 2(b). We affirm the grant of summary judgment.
In October 2003, several young men in the Lonoke area, ages fourteen to seventeen, received telephone calls from an unknown individual. In these phone calls, the caller |2sexuaIIy propositioned the boys, specifically suggesting that they engage in oral sex with him. The calls were reported to the Lonoke Police Department and were traced to appellant, who was living in Albuquerque, New Mexico. On August 12, 2005, appellant pled guilty to five misdemeanor counts of harassing communications and two felony counts of sexual indecency with a child. Appellant was sentenced to five years’ probation, including three years’ supervised, and ordered to pay $1900 in costs and fees. Pursuant to an agreement with the prosecuting attorney, the supervision of appellant’s probation was transferred to New Mexico.
On June 29, 2006, the Lonoke prosecuting attorney filed a petition to revoke appellant’s probation, alleging that he had (1) refused to wear a GPS device as required by the New Mexico Probation Department; (2) violated the condition that he not live within 1000 feet of a school; and (3) failed to cooperate with his supervising officer. On August 11, 2006, appellant filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Arkansas, alleging, in ter alia, that the statute under which he was convicted, Ark.Code Ann. § 5-14-110 (Supp. 2007), was unconstitutional, and that his felony convictions violated due process because the crimes did not occur within Arkansas’s territorial jurisdiction. The district court, however, held that appellant had not |3met his burden of showing that he had exhausted his state remedies; therefore the district court stayed and held in abeyance appellant’s federal petition pending his pursuit of state-court remedies.
Thereafter, on February 12, 2007, appellant filed a complaint for declaratory judgment and writ of habeas corpus in the Lonoke County Circuit Court. In his action for declaratory judgment, he first argued that Ark.Code Ann. § 5-14-110 was unconstitutionally vague and overbroad. Arkansas Code Annotated section 5-14-110(a) provides that a person commits sexual indecency with a child if: “Being eighteen (18) years of age or older, the person solicits another person who is less than fifteen (15) years of age or who is represented to be less than fifteen (15) years of age to engage in: (A) Sexual intercourse; (B) Deviate sexual activity; or (C) Sexual contact.” Appellant argued that the term “solicits” in the statute was vague, and he asserted that the statute was overbroad because it criminalized speech that would not constitute a felony if addressed to a person over fifteen years of age. Appellant also argued that his due process rights had been violated because Arkansas never had territorial jurisdiction over him; that § 5-14-110 impermissibly authorizes conviction on a strict liability basis because it fails to require proof that he knew or should have known the victim was under the age of fifteen years, which is contrary to the requirement of proof of culpability in the criminal code; and that § 5-14-110 improperly places the burden of proof on the element of knowledge of the victim’s age on the accused if the affirmative defense of lack of knowledge or mistake is to be used, which also | compromises the accused’s Fifth Amendment right to remain silent. In his petition for a writ of habeas corpus, appellant repeated his territorial jurisdiction argument, contending that his criminal acts were not performed within the State and that the State’s improper exercise of jurisdiction violated his federal constitutional protections.
The complaint named the State of Arkansas and Lona McCastlain, in her capacity as prosecuting attorney of the 23rd Judicial District, Lonoke County, Arkansas, as defendants. On August 20, 2007, the defendants/appellees filed a joint motion for summary judgment. At a hearing on the motion held March 20, 2008, the parties agreed that no additional evidence in the form of witness testimony or briefs was necessary, that no facts were in dispute, and that it was a “clear-cut case of just deciding matters of law.” Appellant initially argued that the court may find that it had no jurisdiction to grant either the declaratory judgment or the writ of habeas, because appellant was not “in custody,” but the court ruled that the prosecuting attorney had “constructive custody” of appellant because his probation was established in Arkansas. In its written order, entered on May 8, 2008, the court held that, with respect to the habeas portion of appellant’s petition, the State had constructive custody over appellant until the supervised portion of his probation has ceased and that the motion for summary judgment was granted in its entirety, the issues were moot, and the habeas petition was denied on its merits. Regarding the declai'atory judgment portion of appellant’s petition, the court held that there was no justiciable controversy, which was required for declaratory relief, and there were no more issues for the court to 1 r,decide because appellant had entered into a negotiated plea. A notice of appeal from this order was filed on June 2, 2008.
The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Jackson v. Blytheville Civ. Serv. Comm’n, 345 Ark. 56, 43 S.W.3d 748 (2001). The evidence is viewed most favorably for the person resisting the motion, and any doubts or inferences are resolved against the moving party. Id. But in a case where the parties agree on the facts, this court simply determines whether the appellee was entitled to judgment as a matter of law. Id.
For his first argument on appeal, appellant asserts that the trial court erred in holding that no justiciable issue existed in the complaint for declaratory judgment and granting summary judgment on that basis. Our statute on the right to a declaratory judgment states:
Any person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.
Ark.Code Ann. § 16-111-104 (Repl. 2006). While this section recognizes a party’s right to a declaratory judgment, a justicia-ble controversy is required. Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002). A case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. Shipp v. Franklin, 370 Ark. 262, 258 S.W.3d 744 (2007). In other words, a moot case presents no justiciable issue for ^determination by the court. Id.
Appellant argues that just as in Jegley, supra, in which private citizens were allowed to challenge the constitutionality of a criminal statute through a declaratory judgment action, he should be allowed to challenge the constitutionality of the statute under which he was convicted through a declaratory judgment action. In response, appellees assert that appellant’s claims are not cognizable in a declaratory action, citing to Bailey v. State, 312 Ark. 180, 848 S.W.2d 391 (1993), in which this court held that Bailey was not allowed to challenge, via a declaratory judgment or writ of mandamus, the constitutionality of the sentences he received after being found guilty and sentenced for drug crimes. In Bailey, this court noted that a petition for post-conviction relief attacking a judgment, regardless of the label placed on it by the petitioner, is considered pursuant to our post-conviction rule, Ark. R.Crim. P. 37. Id. at 182, 848 S.W.2d at 392. A petitioner seeking Rule 37 post-conviction relief must be incarcerated in order for the rule’s remedies to be available, and a person on parole or probation is not in custody for purposes of Rule 37. See Bohanan v. State, 336 Ark. 367, 985 S.W.2d 708 (1999) (holding that paroled inmate did not meet the “in custody” requirement for post-conviction relief); Reeves v. State, 339 Ark. 304, 5 S.W.3d 41 (1999) (noting that a person on probation is, by definition, not in custody). Because appellant is on probation, and therefore clearly not in custody, we hold that he is not entitled to any post-conviction relief pursuant to Rule 37 and affirm the grant of summary judgment with regard to the declaratory judgment action.
|7The lack of custody is also dis-positive of appellant’s second argument regarding his habeas corpus petition. Arkansas law is clear that a circuit court does not have jurisdiction to release on a writ of habeas corpus a prisoner not in custody in that court’s jurisdiction. Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999). For his second point on appeal, appellant takes issue with the court’s finding that the State had “constructive custody” of appellant, thereby making jurisdiction proper in appellant’s habeas corpus action. Appel-lees agree with appellant that he was not in custody, citing Reeves, supra. Therefore, appellees contend that the circuit court properly denied appellant habeas relief, albeit for a different reason than the one articulated by the court. We agree that appellant was not in custody for purposes of habeas corpus and therefore affirm the grant of summary judgment on the habeas corpus claim. See Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006) (holding that a trial court’s judgment can be affirmed as reaching the right result for the wrong reason).
Affirmed.
. This petition to revoke has since been dismissed.
. Arkansas Code Annotated section 5-14-110 has been amended subsequent to appellant’s conviction in 2005; however, the subsection under which appellant was convicted, subsection (a)(1), has remained unchanged. | [
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BILL H. WALMSLEY, Judge.
|, This appeal involves a dispute over the ownership of a piece of artwork created by Alexander Calder. Robert Peck was the owner of the artwork before his death in 2006. Appellant Capi Peterson is Robert Peck’s daughter. Appellee Hannah Peck is Robert Peck’s widow. After a bench trial, the Pulaski County Circuit Court found that the artwork was not the subject of an inter vivos gift to Peterson from Robert Peck and that it was not given to Peterson through Peck’s trust. The court also found that Peterson had forfeited her interest as a trust beneficiary by questioning the actions of the trustee, Hannah Peck. Peterson argues three points challenging those rulings. We affirm.
Peterson’s grandparents purchased a mobile by Alexander Calder known as “Autumn Leaves” (“the Calder”) in the 1950s. Robert Peck had possession of the Calder after the deaths of his parents. Peck created the Peck Family Trust, a revocable trust, on May 8, 2001. |2The purpose of the trust was to provide for the support, education, maintenance, and preservation of the health of Hannah Peck during her lifetime. Robert Peck was to be the trustee during his lifetime, with Hannah Peck named as trustee upon his death.
On June 15, 2001, Robert Peck created another Peck Family Trust that appears to be identical to the May 8, 2001 trust. Also on June 15, 2001, Peck executed a Declaration of Trust Ownership conveying “[a]ll tangible articles of a household or personal nature ..., including ... works of art” to the trust. The declaration also stated that it was intended to revoke all prior declarations of ownership.
In January 2005, Robert Peck amended and restated the May 2001 trust. He also executed a will that left all artwork and most of his other personal property to Hannah Peck if she should survive him. The rest of Robert Peck’s property was to pour over into the trust. The will specifically referenced the May 2001 trust and incorporated it by reference.
Robert Peck passed away in 2006 while living in Hawaii and married to Hannah Peck. Hannah Peck maintained that she received the Calder mobile under her husband’s will and sold it for $3.7 million.
On October 25, 2010, Peterson filed suit against Hannah Peck, as trustee, alleging that she was the owner of the Calder mobile and that Hannah Peck wrongfully sold it to a third party and was liable to Peterson for its value. Peterson sought an accounting for the Peck Family Trust and damages for the sale of the mobile.
Hannah Peck answered the complaint and counterclaimed for a declaratory judgment to determine (1) that ownership of the Calder was in the Peck Family Trust, (2) that Peterson |3had violated the terms of Paragraph 4.9 of the trust, and (8) for her attorney’s fees and costs. She contended that, in June 2001, Robert Peck transferred his tangible personal property to the trust and, upon Robert Peck’s death, the trust was to be distributed per memorandum signed by Robert Peek, and if no memorandum, by her as trustee with proceeds distributed as residue of the trust. Hannah Peck acknowledged that she sold the mobile and invested the proceeds in what turned out to be Allen Stanford’s offshore Ponzi scheme. She also stated that the trust was a party in a class-action suit against Stanford.
On October 25, 2011, Peterson filed an amended and substituted complaint, again asserting ownership of the Calder mobile, asking for an accounting, and seeking to replenish the trust for damages caused by Hannah Peck’s investments with Stanford. She also alleged that Hannah Peck used trust funds to purchase a luxury automobile at no benefit to the trust. The purpose of the amendment was to make Hannah Peck, as an individual, a defendant.
The case proceeded to trial on March 4, 2012. At trial, Peterson asserted that she was the owner of the mobile by virtue of an inter vivos gift from her father. This assertion was based on an April 2001 letter Robert Peck wrote to Peterson, stating that he gave Peterson the Calder artwork, although he retained the right to display it during his lifetime. In the letter, Peck characterized it as “an attachment to, and pursuant to Section 3.3 of the Peck Family Trust created in April of 2001.”
In the alternative, Peterson asserted that she received the artwork under the June 2001 trust. In doing so, she relied on another letter from her father, written in July 2004 to attorney Joe Polk in which he reaffirmed that he had given the Calder to Peterson. The letter |4also suggested changes to Peck’s trust and will.
At the close of the evidence, the parties asked that they be allowed to submit post-trial briefs. On September 13, 2012, the circuit court entered its order dismissing Peterson’s complaint. The court found that there was no valid inter vivos gift of the Calder mobile and that it was not given to Peterson through the trust. The court further found that there was no evi-dentiary support that Hannah Peck acted in bad faith or reckless indifference with regard to her trust duties, and thus Peterson forfeited her interests in the trust through the share-cancellation provision. As a result, Peterson lacked standing to sue as a beneficiary of the trust. This appeal followed.
The exclusive jurisdiction in cases involving trusts, and the construction, interpretation, and operation of trusts lies with courts of equity, In re Ruby G. Owen Trust, 2012 Ark. App. 381, 418 S.W.3d 42, and courts of equity have inherent and exclusive jurisdiction of all kinds of trusts and trustees. Id. Our appellate courts have traditionally reviewed matters that sounded in equity de novo on the record with respect to factual and legal questions. Id. We have stated repeatedly that we will not reverse a finding by a trial court in an equity case unless it is clearly erroneous. Id. We have also stated that a finding of fact by a trial court sitting in an equity case is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been committed. Id.
|fiPeterson’s first two points are argued in the alternative. In those points, she contends that she is the owner of the artwork as a result of an inter vivos gift from her father or, that she received the artwork under the June 15, 2001 trust.
Under Arkansas law, a valid inter vivos gift is effective when the following elements are proved by clear and convincing evidence: (1) the donor was of sound mind; (2) an actual delivery of the property took place; (3) the donor clearly intended to make an immediate, present, and final gift; (4) the donor unconditionally released all future dominion and control over the property; and (5) the donee accepted the gift. O’Fallon v. O’Fallon, 341 Ark. 138, 14 S.W.3d 506 (2000). The rule with respect to delivery of gifts is less strictly applied to transactions between family members. Chalmers v. Chalmers, 327 Ark. 141, 937 S.W.2d 171 (1997). Even so, delivery must occur for a gift to be effective. Id. Our supreme court further explained in Chalmers that the gravamen of delivery is a showing of an act or acts on the part of the putative donor displaying an intention or purpose to part with dominion over the object of the gift and to confer it on some other person. Id. Express words or particular conduct are not required when reasonable minds would conclude from attending circumstances that the purpose was present. Id.; Carlson v. Carlson, 224 Ark. 284, 273 S.W.2d 542 (1954). An inter vivos gift may be delivered in a constructive manner. See Carlson, supra; Gross v. Hoback, 187 Ark. 20, 58 S.W.2d 202 (1933).
The circuit court found that the facts fell short of satisfying two of the inter vivos gift elements, specifically, that Peck lacked the intent to make an immediate, present, and final gift, and that by retaining the right to display the Calder mobile, Peck did not [(¡unconditionally release all future dominion and control over the property.
Citing Bellis v. Bellis, 75 Ark.App. 213, 56 S.W.3d 396 (2001), and Gruen v. Gruen, 68 N.Y.2d 48, 505 N.Y.S.2d 849, 496 N.E.2d 869 (1986), Peterson argues that one may make a present inter vivos gift of personal property while retaining a life estate in the property. Neither Beilis nor Gruen helps Peterson.
In Beilis, a father gave a music box to his son. The son decided that, for safekeeping purposes and his mother’s enjoyment, the music box would be best left temporarily with his parents. The circuit court distinguished the present case from Beilis by noting that, in Beilis, it was the donee who decided to leave the music box with his parents, while here, the donor decided he would retain possession of the Calder for display purposes. Gruen is not persuasive because New York does not require proof of the same inter vivos gift elements as Arkansas law requires.
Peterson testified that she never had possession of the Calder itself, just the April 2001 letter purporting to give her the artwork. She acknowledged that her father had possession of the piece. Peterson also testified about a conversation with her father where her father told her that he wanted her to have the Calder after his death. Peterson’s argument focuses on evidence of Robert Peck’s intent to give her the Calder; however, that is only one of the elements necessary to establish an inter vivos gift. A gift inter vivos cannot be made to take effect in the future, as such a transaction would only be a promise or an agreement to make a gift. Howard v. Weathers, 55 Ark.App. 121, 932 S.W.2d 349 (1996). Peterson’s own testimony showed that Robert Peck had not unconditionally released all future dominion |7and control over the Calder. She testified in her deposition that Peck could have transferred possession of the Calder to anyone. Based on our standard of review, we cannot say that the circuit court was clearly erroneous in determining that the elements of an inter vivos gift of the Calder had not been established.
In the alternative, Peterson argues that she received the Calder under the June 2001 trust. In making this argument, Peterson relies on a July 2004 letter her father wrote to attorney Joe Polk about changes he wanted to make to his will and trust. The letter provided, in pertinent part:
After Hannah’s death, I want to divide the trust into two equal parts. One part is to be equally divided by my children— Capi Peck Peterson, Ashley O’Dell, Alison Bisno, Tony Peck. The second half is to be divided into equal parts among Hannah’s children — Christy Schmidt, Michael Lasiter, and Holly Woprice.
I have not allocated where I want various pieces of furniture and artwork to go with the exception of the Calder Mobile which I have given my daughter Capi in a letter as an attachment to section 3.3 of the Peck Family Trust. In the letter I state that I give her the Calder but retain the right to display it during my lifetime. As to other works of art and furniture, I plan to photograph them and write on the back of the photograph the name of the individual who will receive that particular object. What is not photographed, I want all of these objects to receive a number and the seven children will draw for them. Since I have left all of these things to Hannah, I guess this is something that should be stated in her will but am not sure. Should it also be written in my Will or in the Trust? Let me know. I will send you Hannah’s Will later on this week as it needs revising and would like for you to handle that for us.
Peterson contends that the provisions of the June 2001 trust permit such a letter to make an effective disposition of personal property. Section 3.3 of the June 2001 trust provides as follows:
3.3 Specific Gifts. I reserve the right pursuant to Section 4 of the Act 814 of the Acts of the General Assembly of the State of Arkansas for 1979 Ark. Code Ann. § 27-25-107 (1987) to make disposition of tangible personal property by attaching or | «associating with this trust subsequent to its execution a written, dated statement and list signed by me or in my handwriting designating the devisees of items of tangible personal property.
Peterson does not argue that the July 14, 2004 letter was attached to the June 15, 2001 trust instrument. Nor does she argue that the April 2001 letter was effective under the provisions of the June 15, 2001 trust because it clearly predated the establishment of any of the trusts. Her argument is that the July 2004 letter post dated and was associated with the June 2001 trust. The circuit court found that the July 2004 letter was not attached to, nor did it reference, the June 15, 2001 Peck Family Trust. Instead, the court found that Peck referenced the April 16, 2001 letter in which he attempted to gift the Calder to Peterson. Due to our holding on Peterson’s next point on appeal, it is unnecessary to determine if the July 2004 letter was effective under Section 3.3 of the trust.
Peterson’s third and final point is that she did not forfeit her interest in the trust. The circuit court found that Peterson lacked standing to sue as a beneficiary of the trust because of the share-cancellation provisions of the trust.
The June 15, 2001 trust instrument contains the following provision:
4.8. Share Cancellation. Should any of my children, or their issue, institute any action to challenge the provisions of the trusts established by this document, or to attack the validity of such trusts, or to remove HANNAH KAY PECK as Trustee, or question her actions as Trustee, then, and in that event, the share to which such child (or his or her issue) would otherwise be entitled shall be forfeited and added to the shares of the remaining children and grandchildren.
The May 8, 2001 trust instrument as amended and restated in January 2005 contained a similar provision:
|fl4.9. Share Cancellation. Should any of Grantor’s children, or their issue, institute any action to challenge the provisions of the trusts established by this document, or to attack the validity of such trusts, or to remove Hannah Kay Peck as Trustee, or question her actions as Trustee, then, and in that event, the share to which such child (or his or her issue) would otherwise be entitled, shall be forfeited and added to the shares of the remaining beneficiaries.
The circuit court found no evidence that Hannah Peck acted in bad faith or with reckless indifference with regard to her trust duties and that, as a result, the share-cancellation provisions remained in effect and Peterson had forfeited her interest in the trust.
Our supreme court has recognized the validity of no-contest clauses since at least 1937. E.g., Seymour v. Biehslich, 371 Ark. 359, 266 S.W.3d 722 (2007); Jackson v. Braden, 290 Ark. 117, 717 S.W.2d 206 (1986); Lytle v. Zebold, 235 Ark. 17, 357 S.W.2d 20 (1962); Ellsworth v. Ark. Nat’l Bank, 194 Ark. 1032, 109 S.W.2d 1258 (1937). However, because such clauses work a forfeiture, they are strictly construed. Restatement (Third) of Property (Wills & Don. Trans.) § 8.5 cmt. d (2003); Hamm v. Hamm, 2013 Ark. App. 501, 429 S.W.3d 384.
Courts in other jurisdictions have determined that no-contest clauses are not triggered by proceedings brought by beneficiaries to assert claims outside of a will or trust, i.e., based on a source of right independent of the will or trust. Jacobs-Zorne v. Superior Court, 46 Cal.App.4th 1064, 54 Cal.Rptr.2d 385 (1996); Wright v. Cummins, 108 Kan. 667, 196 P. 246 (1921); In re Estate of Friedman, 146 Misc.2d 91, 549 N.Y.S.2d 353 (Surr.Ct.1989); Haley v. Pickelsimer, 261 N.C. 293, 134 S.E.2d 697 (1964); Doelle v. Bradley, 784 P.2d 1176 (Utah 1989); Boettcher v. Busse, 45 Wash.2d 579, 277 P.2d 368 (1954). Peterson’s claim of ownership of the Calder by inter vivos gift is independent of the trust and would not trigger the share-cancellation provisions. There are, however, other allegations in her complaint that do trigger the share-cancellation provisions of the trusts.
ImPeterson argues that her actions in filing her complaint did not attack the validity of the trust. Citing Jackson, supra, she further contends that questioning the actions of the trustee is not a violation of the no-contest clause. While Jackson did hold that questioning the acts of the executor in selling assets was not an attack on the validity of the will that would trigger the no-contest clause, the specific provision at issue only prohibited attacks upon the will. Peterson’s argument ignores the specific language of the share-cancellation provisions set out above. Those provisions are triggered if the grantor’s children, including Peterson, question Hannah Peck’s actions as trustee. Here, Peterson’s amended complaint asserts that Hannah Peck failed to provide proper accountings; that she used trust funds to purchase herself a luxury automobile for $100,000; and that she depleted trust funds by investing in a fraudulent Ponzi scheme. The complaint sought to have Hannah Peck provide accountings and to pay damages to replenish the trust. Clearly, these allegations questioned Hannah Peck’s actions as trustee and asked the court to control her actions as trustee, triggering the share-cancellation provision.
Peterson also argues that her complaint was aimed at the June 2001 trust, not the January 2005 trust, and that she should remain a beneficiary of the January 2005 trust. However, both trusts (June 2001 and January 2005) contain share-cancellation provisions that are triggered if anyone questions Hannah Peck’s actions as trustee. The circuit court’s finding that Peterson forfeited her interest was not clearly erroneous. Because Peterson forfeited her interest in the trust, she cannot take the Calder or its proceeds through the trust.
Affirmed.
HIXSON and BROWN, JJ„ agree.
. On November 28, 2012, the court ordered Peterson to pay attorney’s fees of $38,515 to the trust. Peterson does not develop an argument challenging the fee award. | [
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COURTNEY HUDSON GOODSON, Justice.
| Appellant Virginia McCreary Skalla appeals an order of the Crittenden County Circuit Court granting a motion for summary judgment filed by appellee Joseph F. Canepari. For reversal, Skalla argues that the circuit court erred in dismissing her claims that Canepari breached his fiduciary duty to her as a tenant in common and that Canepari was liable for tortious interference and deceptive trade practices. We have jurisdiction pursuant to Arkansas Supreme Court Rule 1 — 2(b)(5) (2013), as this appeal presents a significant issue needing clarification or development of the law. We affirm.
I. Facts
Skalla, a resident of Georgia, and her uncles, Albert McCreary, a resident of Alabama, and Charles McCreary, a resident of Texas, each owned an undivided one-third interest in two tracts of farmland totaling approximately 960 acres in Crit-tenden County. One 640-acre tract lies north of Earle (the “North Farm”), while the second tract includes approximately |2320 acres and lies south of Earle (the “South Farm”). Skalla’s grandparents originally owned the 960-acre farm, and after Skalla’s father, William McCreary, died when she was a minor, she inherited her father’s one-third share. With Skalla, her uncles each inherited an undivided one-third interest in the North and South Farms as tenants in common. Skalla, Albert, and Charles never farmed the land but leased the farms to two groups of farmers, the Hood family and the Bramuc-ci family. The Hoods leased the North Farm while the Bramuccis leased the South Farm.
Skalla and her uncles allegedly operated the two farms through an unwritten partnership agreement whereby Charles served as the managing partner. Throughout the 1990s, Albert allegedly told Skalla that she had a right of first refusal for his interest in the two farms, but this agreement was never reduced to writing. By 2002, the North Farm had fallen into disrepair. As a result, Charles hired George Baird to manage the North Farm per a written farm-management agreement. In 2003, Skalla sought advice from Baird about further improvements to both farms. Baird explained to Skalla that certain portions of the undulating farmland were not well-suited for farming and that, because those portions would need leveling and irrigating at great expense, she would be unwise to spend additional money on further improvements. Baird allegedly advised her to sell her one-third interest, but Skalla insisted on gathering more information for future improvements to the farms. In May 2004, Baird sent Skalla a letter outlining a preliminary estimate of $250,000, which included installing two wells and leveling portions of the farms. According to Baird, Charles did not agree with these improvements, and Baird did not submit a letter to Albert. Skalla never Issought approval for a loan to finance the plan.
Subsequently, in 2004, Albert agreed orally to give Skalla the right of first refusal and offered to sell his one-third interest. Skalla asked Charles to join her in buying Albert’s interest, but Charles declined. When Canepari learned that Albert’s son, Bert McCreary, who acted as his father’s power of attorney, was interested in selling the property, Canepari contacted Bert. Subsequently, on August 20, 2004, Canepari contracted to purchase Albert’s one-third interest in the 960 acres for the sum of $217,600.
On September 19, 2004, Canepari wrote a letter to his real estate agent, Powell Jennings, instructing him to deliver the contract to Skalla’s farm manager. Cane-pari’s letter stated that he had no interest in being partners with other owners and that he understood that he must wait three years to sue for a partition. He claimed that he was prepared to challenge the validity of the management agreement and leases and that he was interested in farming the property himself. In order to avoid an expensive legal conflict, Canepari proposed that he take the South Farm and that Skalla and Charles could take the North Farm, but such an exchange never happened. On September 24, 2004, Skalla responded, stating that she was willing to continue the leases of the farm for the next farming cycle and offered to sell her undivided one-third interest to Canepari for $1,050 per acre. Skalla also stated that if Canepari was not interested in purchasing her interest or leasing his interest, then she was prepared to file a partition action. Skalla’s attorney also reminded Canepari of his fiduciary duty as a tenant in common.
In January 2005, Skalla informed Cane-pari that she leased the farms to the Hoods and |4the Bramuccis. As a result, Canepari entered into separate leases for his one-third interest with the Hoods and the Bramuccis, and the Hoods’ attorney later informed Skalla that she had no right to lease Canepari’s one-third interest without his permission. Skalla amended her leases, and the Hoods and the Bramuccis later renewed.
After Albert sold his interest to Cane-pari, Charles entered into a contract with Skalla, giving her a right of first refusal to purchase Charles’s one-third interest and vice versa. In late 2005, Charles met Ca-nepari and offered to sell his one-third interest in the farms. According to Cane-pari, he agreed to purchase Charles’s interest but stated that Charles must first satisfy his right-of-first-refusal agreement with Skalla. On December 23, 2005, Charles gave Skalla thirty days to exercise her right of first refusal, and she declined to accept his offer. Subsequently, Cane-pari entered into a contract with Charles to purchase his one-third interest for $240,000.
On June 26, 2006, after Canepari purchased Charles’s one-third interest, his counsel received a letter from Skalla’s counsel, stating that Canepari prevented the McCreary Partnership from entering into seven-year-renewal leases with the Hoods and the Bramuccis. Skalla’s counsel maintained that Canepari limited the lease terms to three years, prevented the partnership from implementing the long-term plan, and forced Charles to sell his one-third interest. In the letter, Skalla offered to sell her one-third interest to Canepari for $450,000 and agreed to a voluntary partition allocating the South Farm to her and the North Farm to him, plus $50,000 in damages. According to Canepari, this letter signified the first time that he had heard of any such improvement plan.
IsOn May 29, 2007, Skalla filed a complaint, seeking a partition of the lands and damages for interference and breach of fiduciary duty. In her complaint, Skalla alleged that Canepari first purchased an undivided one-third interest from Albert and then an undivided one-third interest from Charles. Skalla further asserted that, at the time of the second purchase, Canepari owed an existing fiduciary duty to her as a cotenant, had breached his fiduciary duty, tortiously interfered with a business expectancy; and had violated the Arkansas Deceptive Trade Practices Act (ADTPA). She sought $75,000 in actual damages, punitive damages, and attorney’s fees.
On June 27, 2007, Canepari responded by letter that he was amenable to partition and that Skalla could take any 320 acres of the farms. In February 2008, Skalla agreed to exchange deeds with Canepari, and on February 6, 2008, the deed transferring the North Farm to Canepari was executed. Skalla then took possession of the South Farm but did not dismiss her claims. Canepari subsequently sold the North Farm to the Hoods for $960,000 plus $12,478.08, the prorated soybean crop rent, for a total of $972,478.08. The sale concluded on April 8, 2008, when Canepari transferred title to Casa Bean, LLC, a company created by the Hoods to hold title.
In her fourth amended complaint, Skalla alleged the three claims of breach of fiduciary duty, tortious interference with a business expectancy, and violation of the ADTPA. She also sought “actual damages in an amount [in] excess of $75,000.00, for enhanced civil penalties, for punitive damages in an amount in excess of $75,000.00 and for attorney[’s] fees pursuant to [Arkansas Code Annotated section] 44-88-113(f) and for all other proper relief.” | (¡However, in discovery responses and interrogatories, Skalla asserted that she was entitled to damages equal to the amount of profit that Canepari realized when he sold the North Farm. She estimated her damages to equal $502,400, or the amount of the sale of $960,000 minus $457,600, the amount that Canepari paid for his two-thirds interest in the farms.
On July 10, 2012, Canepari filed a motion for summary judgment, noting that there was no authority to support Skalla’s theory of lost-profit damages. In his brief in support of the motion, Canepari argued that he was entitled to summary judgment (1) on Skalla’s claim for breach of fiduciary duty because he had no duty to lease his interests or make improvements to the two farms; (2) on Skalla’s claim for tortious interference because the leases were not terminated or breached by the tenants and because he had a right to refrain from leasing his interest in the two farms; (3) on Skalla’s business-expectancy claim because the long-term improvement plan was not a business expectancy; and (4) on Skalla’s ADTPA claim because his business practices were not consumer-oriented. In his prayer for relief, Canepari requested that the court grant summary judgment, dismiss Skalla’s complaint with prejudice, and award him costs and attorney’s fees.
Skalla responded to Canepari’s motion for summary judgment and filed a cross-motion for partial summary judgment. In her first response, Skalla listed the exhibits supporting her motion as follows: (1) plat of property; (2) real estate contract dated August 20, 2004; (3) letter from Canepari to Jenkins; (4) letter between the parties’ counsel; (5) warranty deed from Albert to Canepari; (6) warranty deed from Charles to Canepari; (7) lease agreement from Canepari to the Hoods; (8) real estate contract between Canepari and the |7Hoods; (9) warranty deed from Canepari to Casa Bean; (10) deposition of Michael Hood; (11) deposition of Saul Skalla; (12) deposition of Canepari; (13) complaint; (14) deeds between Skalla and Canepari; and (15) deposition of Skalla. In her second response, she filed a brief in support, arguing first that Canepari owed a duty to her after he purchased Albert’s undivided one-third interest, thereby becoming a cotenant with Charles and her. She maintained that Canepari breached that duty to her when he purchased the second one-third interest from Charles. Second, Skalla argued that Clement v. Cates, 49 Ark. 242, 4 S.W. 776 (1887), controlled as the rule of property in Arkansas. Third, she contended that, in purchasing the second one-third interest, Canepari interfered with her contractual relationship or business expectancy. Fourth, she made a claim of damages based on Canepari’s breach of fiduciary duty. Lastly, she asserted that Canepari violated the ADTPA because he engaged in unconscionable business practices.
On September 5, 2012, the circuit court heard oral arguments on Canepari’s motion for summary judgment and Skalla’s motion for partial summary judgment. Subsequently, on September 28, 2012, the circuit court entered an order finding that Clement, supra, was not dispositive; that the ADTPA did not apply; and that there were no genuine issues of material fact remaining for trial. The court granted summary judgment in Canepari’s favor, denied Skalla’s motion for partial summary judgment, and dismissed the action with prejudice. The order was signed by the judge on September 25, 2012, and filed on September 28, 2012. Skalla filed her notice of appeal on September 27, 2012. On appeal, Skalla makes three allegations that the circuit court erred in granting summary judgment. Specifically, she | ^contends that she was entitled as a matter of law to summary judgment on the basis of Canepari’s alleged breach of fiduciary duty, his tortious interference, and his alleged violation of her ADTPA claim.
II. Breaeh-of-Fiduciary-Duty Claim
For the first point on appeal, Skalla argues that the circuit court erred in granting summary judgment on her claim for breach of fiduciary duty. Specifically, Skalla claims that, as a matter of law, Canepari owed her a fiduciary duty as a tenant in common and that he breached that fiduciary duty for three reasons: (1) by purchasing a cotenant’s interest; (2) by refusing to participate in her long-term improvement plan for the two farms; and (3) by not agreeing to lease his interest in the farms for seven years.
The law is well settled that summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Harrisburg Sch. Dist. No. 6 v. Neal, 2011 Ark. 233, 381 S.W.3d 811. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits hand documents filed by the parties. Cent. Okla. Pipeline, Inc. v. Hawk Field Servs., LLC, 2012 Ark. 157, 400 S.W.3d 701.
A characteristic of a tenancy in common is that each tenant has the right to occupy the premises, and neither tenant can lawfully exclude the other. Graham v. Inlaw, 302 Ark. 414, 790 S.W.2d 428 (1990); Franklin v. Hempstead Cnty. Hunting Club, 216 Ark. 927, 228 S.W.2d 65 (1950). The occupation of one tenant in common is deemed possession by all. Graham, supra. A tenant in common has the right to make improvements on the land without the consent of his cotenants, and, although he has no lien on the land for the value of his improvements, he will be indemnified for them, in a proceeding in equity to partition the land between himself and cotenants, either by having the part upon which the improvements are located allotted to him or by having compensation for them, if thrown into the common mass. Welch v. Burton, 221 Ark. 173, 252 S.W.2d 411 (1952); Kelley v. Acker, 216 Ark. 867, 228 S.W.2d 49 (1950); Bowers v. Rightsell, 173 Ark. 788, 294 S.W. 21 (1927).
Skalla cites Clement, supra, to support her argument that Canepari breached his fiduciary duty as a tenant in common. In Clement, appellant inherited a cotenancy with his siblings, and his father’s title to the property was ultimately defective. After discovering this defect, appellant purchased a third party’s outstanding, adverse title in the property in order to claim a fee-simple ownership in the property. Appellant ousted his siblings and leased the property as if he were the sole owner. Skalla cites Clement, supra, for the following proposition:
|inThe law forbids a trustee, and all other persons occupying a fiduciary or quasi fiduciary position, from taking any personal advantage touching the thing or subject as to which such fiduciary position exists; or, as expressed by another: “Wherever one person is placed in such relation to another, by the act or consent of that other, or the act of a third person, or of the law, that he becomes interested for him, or interested with him, in any subject of property or business, he is prohibited from acquiring rights in that subject antagonistic to the person with whose interest he has become associated.” If such a person acquires an interest in property as to which such a relation exists, he holds it as a trustee for the benefit of those in whose interest he was prohibited from purchasing, to the extent of the prohibition. This rule applies to tenants in common by descent with the same force and reason as it does to persons standing in a direct fiduciary relation to others; for they stand, by operation of law, in a confidential relation to each other, as to the joint property, and the duty is imposed on them to protect and secure their common interests. They have a community of interest which produces a community of duty, and imposes on each one the duty to exercise good faith to the others. Neither one can take advantage of the others by purchasing an outstanding title or incumbrance, and asserting it against them. Such an act would be inconsistent with good faith, and “against the reciprocal obligations to do nothing to the prejudice of each other’s equal claims which” their relationship created.
Id. at 245-46, 4 S.W. at 777. We held that appellant was barred from asserting an adverse title against his siblings as coten-ants. Id.
We agree with the circuit court that Clement, supra, does not apply to the case at bar. In her response to Canepari’s motion for summary judgment, Skalla cites the Clement holding for the proposition that Canepari should have been prevented from purchasing Charles’s interest in the farms. However, the Clement case stands for adverse title, and here, no such adverse title exists. Skalla’s title to her one-third interest is not inherently defective, and Canepari simply purchased Albert’s and Charles’s one-third interests in the farms after the uncles offered to sell their respective interests to her, and she declined. Accordingly, we agree with the circuit court that Clement, supra, was not disposi-tive of Skalla’s case.
| uFurther, we have stated that, in matters related to an undivided share of real estate, the tenant in common has absolute dominion over his property and may dispose of it as he sees fit so long as he does not interfere with the rights of others. O’Connor v. Patton, 171 Ark. 626, 286 S.W. 822 (1926). Here, with regard to Skalla’s argument that Canepari should have participated in her long-term improvement plan, her argument fails because Canepari was under no obligation to contribute funds to her long-term improvement plan. In fact, Canepari had no knowledge of the plan until he received the letter from Skalla’s counsel in June 2006. Additionally, Skalla’s claim that Canepari breached his fiduciary duty by refusing to agree to lease his interest for seven years must also fail. Canepari never interfered with Skalla’s rights as a cotenant, particularly when the farm leases at issue continually remained in place. Moreover, Skalla failed to submit supporting material setting forth specific facts to support each of these claims. Based on these reasons, we hold that the circuit court properly granted summary judgment on Skalla’s breach-of-fiduciary-duty claims.
III. Tortious-Interference Claim,
For the second point on appeal, Skalla argues that the circuit court erred in granting summary judgment on Skalla’s claim for tortious interference of a business expectancy. Skalla asserts that Ca-nepari tortiously interfered with (1) her leases with the Hoods and the Bramuccis; (2) her long-term improvement plan established with Baird; and (3) her uncles’ selling their interests in the two farms to her. She further asserts that Canepari tortiously interfered by writing a letter that challenged her right to seizen.
To prove tortious interference under Arkansas law, a plaintiff must prove the following | ^elements: (1) the existence of a valid contractual relationship or a business expectancy; (2) knowledge of the relationship or expectancy on the part of the interfering party; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. Crockett v. C.A.G. Invs., Inc., 2010 Ark. 90, 361 S.W.3d 262. Our law requires that the conduct of the defendants be at least “improper.” K.C. Props, of Nw. Ark., Inc. v. Lowell Inv. Partners, LLC, 373 Ark. 14, 26, 280 S.W.3d 1, 11 (2008).
In the present case, Skalla failed to prove tortious interference on her four claims because, as a matter of law, Skalla did not meet proof with proof that Canepari interfered with or acted improperly toward Skalla’s alleged business expectancies. First, Skalla’s claim of Ca-nepari’s interference with her lease agreements fails because the Hoods and the Bramuccis never terminated their leases and continued to farm the property throughout the litigation. Second, Skal-la’s claim for tortious interference with the improvement plan fails because, as a matter of law, a tenant in common has the right to make improvements on the land without the consent of his cotenants. Graham, supra. Some precise business expectancy or contractual relationship must be obstructed in order to commit the tort of interference with a business expectancy. Stewart Title Guar. Co. v. Am. Abstract & Title Co., 363 Ark. 530, 215 S.W.3d 596 (2005). Here, Skalla’s proposed plan did not qualify as a sufficiently concrete business expectancy to survive summary judgment, as she never applied for the $250,000 financing loan to support the improvement plan that she devised with Baird. Further, Skalla simply chose not to pursue the improvements on her own, and she admitted that she did not tell |1sCanepari about her proposed long-term plan until her counsel sent Cane-pari’s counsel a letter in June 2006.
Third, Skalla’s claims that Cane-pari interfered with her business expectancy as a cotenant in purchasing Albert’s and Charles’s two one-third interests fails because both uncles did make an offer to sell to her first. With regard to Albert’s interest, Skalla’s claim is not supported because an oral right of first refusal on an interest in land does not comport with the statute of frauds. Lee Wilson & Co. v. Springfield, 230 Ark. 257, 321 S.W.2d 775 (1959). Thus, as a matter of law, Skalla cannot claim that Canepari tortiously interfered with Albert’s interest. Further, with regard to Charles’s interest, Charles complied with the agreement by giving Skalla thirty days to accept his offer to purchase his interest, and she refused.
Lastly, Canepari is entitled to summary judgment on Skalla’s seizen argument because she has not met proof with proof that Canepari caused a termination of her right to possession of the farms throughout the litigation. The undisputed evidence shows that Skalla leased her interest, collected her rents, and was never denied access to the two farms during her cotenancy. For these reasons, we hold that the circuit court properly granted summary judgment on Skalla’s tortious-interference claims.
IV. ADTPA Claim
For the third point on appeal, Skalla argues, without analysis, that the circuit court erred in granting summary judgment on her claim of Canepari’s violation of the ADTPA. Canepari responds that Skalla failed to produce evidence of a “deceptive consumer-oriented act or practice which is misleading in a material respect,” pursuant to the ADTPA.
| uThe Arkansas Deceptive Trade Practices Act provides a private right of action to “any person” who suffers actual damage or injury as a result of a violation of the Act. See Ark.Code Ann. § 4-88-113(f). The Act prohibits a variety of list ed practices, including “[kjnowingly making a false representation as to the ... sponsorship ... of goods or services” and a catchall provision prohibiting “any other unconscionable, false, or deceptive act or practice in business, commerce, or trade.” Ark.Code Ann. § 4-88-107(a)(l), (a)(10). The elements of such a cause of action are (1) a deceptive consumer-oriented act or practice which is misleading in a material respect, and (2) injury resulting from such act. See Ark.Code Ann. § 4 — 88—113(f). A private cause of action does not arise absent a showing of both a violation and resultant damages. Wallis v. Ford Motor Co., 362 Ark. 317, 208 S.W.3d 153 (2005).
Here, Skalla’s claim fails to assert that Canepari engaged in any type of consumer-oriented act or practice that caused damages. His business practices involved farming rather than consumer-oriented acts. Based on the language of section 4-88 — 113(f), there must be a causal connection between the violation of the ADTPA and the injury. Because Skalla simply failed to allege facts setting forth a cause of action for violation of the ADTPA, the circuit court properly granted summary judgment on Skalla’s claim under the ADTPA. Thus, the circuit court properly ruled as a matter of law that the ADTPA was not applicable to the case at bar.
In sum, we conclude that Skalla failed to meet proof with proof that she sustained any damages as a result of Canepari’s alleged breach of fiduciary duty, alleged tortious interference, and alleged violation of the ADTPA. Skalla, in her attempt to meet proof with 115proof in the exhibits attached to her response to Canepari’s motion for summary judgment, offered no evidence to support her claims of Cane-pari’s interference with her rights and obligations as a cotenant. Thus, we hold that the circuit court properly granted summary judgment as a matter of law on Skalla’s three claims. Accordingly, we affirm the circuit court’s ruling.
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WAYMOND M. BROWN, Judge.
|,Gail Parkerson, pro se, appeals from the Garland County Circuit Court’s ruling that she failed to establish adverse possession or a boundary by acquiescence of a small tract of land adjacent to Lake Hamilton, and that she had abandoned an earlier-acquired prescriptive easement over that property for the purpose of ingress and egress to the lake. This court remanded for rebriefmg because of multiple deficiencies in the abstract and argument in the [¡¡.statement of the ease on May 1, 2013. Appellant has adequately corrected those deficiencies and now we address the merits of this case.
This case has been before this court before. There we set forth the lengthy history of litigation among the parties:
Gail Parkerson appeals from an order denying her motion to intervene in a title confirmation action filed by appellee Janet Brown. Brown petitioned the circuit court to confirm title to land she bought at a tax sale, but she did not join Parkerson, who had an easement over the property, or appellees Thomas and Blanche Choate, who owned part of the properly. The Choates eventually intervened in the action and executed a consent judgment with Brown that divided the land between them. Parkerson discovered the consent judgment and moved to intervene, but the circuit court denied her motion, leading to this appeal. We reverse and remand with directions to allow Parkerson’s intervention.
Parkerson owns a lot in Hot Springs that has been in her family since the 1950s. The lot is bordered on the east by Bayshore Drive and on the west by Lake Hamilton. Parkerson’s neighbors to the southwest are the Choates. Between the two lots is a triangular tract of land whose owner has not been identified. In 1990, Parkerson filed suit in Garland County Chancery Court claiming adverse possession of the tract. In a 1992 order, the chancellor denied Par-kerson’s claim but ruled that she and three other persons had an easement over the majority of the properly. The chancellor directed the Garland County tax assessor to determine who owned and used the easement and to prorate the taxes accordingly. The chancellor also quieted title in a portion of the property to the Choates’ predecessors, Samuel and Phyllis Fullerton. The portion was described as the “real property evidenced by a line in a southwesterly direction from the metal pin on the road to the end of the rock sea wall.” The court’s order stated that the exact description of the Fullerton property and the disputed easement would be established by a future survey. The record does not indicate that the survey ever took place.
The county assessor attempted to follow the court’s order by listing Parker-son and others as the owners of an easement, described on some records as Parcel 4688. According to Parkerson, she duly paid her taxes on the parcel. In 1997, the Choates bought the Fullerton property and commissioned a survey, which reflected their |sownership of a strip of land along their eastern border that was “obtained in Chancery Court No. 90-453-J.” The survey made no findings regarding the easement.
At some point thereafter, the county assessor forfeited Parcel 4688 to the State Land Commissioner for nonpayment of taxes. The assessor’s office would later acknowledge that Parker-son’s name was erroneously omitted from its tax records in 2001. In 2004, Janet Brown bought Parcel 4688 at a tax sale for $5000, plus $101.31 in unpaid taxes. Nothing in the record indicates that Parkerson was afforded notice of the tax delinquency or the tax sale. On May 8, 2007, Brown filed a petition to confirm title to the property in herself. Despite having a deed from the Land Commissioner that contained only a brief identification of the property, Brown’s petition set forth a complete metes-and-bounds description that matched the description of the tract at issue in the 1990 chancery case — the property over which Parkerson obtained an easement and the Choates obtained partial ownership (through their predecessors, the Fullertons). Brown named Harlan and Mary Hankins, who were listed in the tax records on Parcel 4688, as defendants, but she did not name Parkerson or the Choates. She did, however, publish notice of her petition in the newspaper once a week for four weeks as required by law.
The Hankinses did not respond to Brown’s petition, and the circuit court entered an order confirming title in Brown, using the metes-and-bounds description in Brown’s petition. Rather quickly, the Choates discovered Brown’s claim of ownership and moved to intervene. The circuit court allowed the intervention and set aside the title-confir mation order. On May 22, 2008, Brown and the Choates entered into a consent judgment that essentially vested the Choates with title to the land obtained by the Fullertons in the 1992 chancery order and vested Brown with title to the remainder of the tract. Parkerson learned of the situation two months later and moved to intervene, claiming an interest in the property by virtue of her easement and adverse possession both before and after the 1992 decree. Par-kerson asserted that the failure to notify her of the tax-delinquency and title-confirmation proceedings deprived her of due process; that Brown’s deed from the Land Commissioner lacked a valid description; and that Brown made misrepresentations to the court in order to obtain title to the parcel. She also submitted an affidavit stating that she was the only person who had used and maintained the subject property following the 1992 order and that she had contacted the assessor yearly since that time to ascertain her tax |4obligation and pay it in full. The circuit court denied Parker-son’s motion to intervene, and this appeal followed. ,
This court then held that appellant was entitled to intervene and remanded for trial.
After all of the circuit judges in that district recused, the Administrative Office of the Courts appointed Judge John Line-berger to try the case. After a trial on February 7-8, 2012, the circuit court issued an opinion on March 22, 2012, ruling that appellant had abandoned the easement awarded in the 1992 order; that she had failed to establish adverse possession; and that she had failed to establish a boundary by acquiescence. The court denied appellant’s petition to confirm title to the easement area; directed the county’s tax collector and assessor to recognize ap-pellees Thomas and Blanche Choate as the owners of the property described in the December 18, 1997 exchange warranty deed and the May 22, 2008 consent judgment, and to recognize Ron Lewsader Construction, LLC, (which had also asserted an interest) as the sole owner of the property described in a deed dated June 13, 2008.
Appellant filed an objection and motion to amend on March 30, 2012. The court entered an order on April 11, 2012, amending the decree and dismissing Lewsader’s claim against appellant for damages and denying appellant’s motion in all other respects. Appellant filed a notice of appeal on May 10, 2012, from the March 22 and April 11, 2012 orders, “as well as all of this Court’s Orders and rulings in this entire case ... including ... her Motions for Summary Judgment.” On july 26, 2012, appellant filed a motion for reconsideration under |fiArkansas Rule of Civil Procedure 60 and requested a certification under Arkansas Rule of Civil Procedure 54(b). On August 1, 2012, the circuit court entered on order dismissing any outstanding claims with prejudice. Appellant filed an amended notice of appeal on August 3, 2012, including the August 1, 2012 order.
I. Discovery
In her first argument on appeal, appellant contends that the trial court erred in denying her discovery requests and refusing to grant a continuance until that discovery was provided. She argues that the trial court should have granted her request for discovery concerning the Choates’ relocated boathouse; the man that Lewsader hired to cut down some trees; and “Brown’s past similar problem of fraud, and other facts Parkerson has yet to be able to make anything of, even were, in discovery.”
The Choates respond that none of appellant’s motions to compel before trial concerned their responses to discovery. This is true. The Commissioner of State Lands also responds that appellant did not argue below or on appeal that his discovery responses were deficient. We agree. Our appellate courts will not consider arguments raised for the first time on appeal.
In any event, appellant was permitted to question Mr. Choate at trial about the location of his boathouse and did not raise the issue of discovery about it until after trial. Similarly, appellant testified about and questioned Lewsader about the person he had hired to cut down trees. The trial court has wide discretion in matters pertaining to discovery and | r,court will not reverse its decision in such matters absent an abuse of discretion. Appellant has failed to demonstrate how any information about the boathouse, or any other additional information, would have supported her claims and changed the outcome of the case. We find that the circuit court did not abuse its discretion; we affirm on this point.
II. Summary Judgment
In her second point, appellant argues that the trial court erred in denying her motion for summary judgment against the Arkansas Commissioner of State Lands, the Garland County tax collector and assessor, Brown, and Lewsader. A denial of a motion for summary judgment is not subject to review on appeal, even after a trial on the merits. The rationale for this rule is that a final judgment should be tested upon the record as it exists at the time it is rendered, rather than at the time the motion for summary judgment is denied, because further evidence may be supplied at trial.
III. Evidentiary Rulings and Recusal
In her third point, appellant argues that the trial court abused its discretion in refusing to admit evidence about the 1990 quiet-title action (such as the property description and the counterclaim filed by the Fullertons, to impeach Mr. Choate); Bur-gie Sutton’s deed (regarding notice of the tax sale); testimony from Mr. Choate about grounds for the default 17judgment, the limited warranty deed to Brown, the Choates’ lake frontage, and the 2006 property-assessment cards; and a larger survey map.
On appeal, this court will not reverse a circuit court’s ruling on the admission of evidence absent an abuse of discretion nor will it reverse absent a showing of prejudice. Both the Choates and the Commissioner point out that appellant did not proffer pleadings from the 1990 law suit, or any other exhibits, as required by Arkansas Rule of Evidence 108(a)(2). The failure to proffer evidence so that the appellate court can see if prejudice resulted from its exclusion precludes review of the evidence on appeal. In any event, as they point out, the Choates did not purchase the property until 1997; Mr. Fullerton did not attempt to alter or change the conclusion reached in the 1992 order; and Mr. Fullerton testified that he had always maintained his property to the boundary line determined by that order. Therefore, there was no violation of the 1992 order.
We agree with the Commissioner’s argument that the document appellant argues should have been admitted for impeachment purposes — the counterclaim filed by the Fullertons — did not constitute a statement by Mr. Choate, and therefore, could not be used to impeach his testimony. Appellant goes on to argue that the circuit court erred in refusing to permit her to question Mr. Choate about the limited warranty deed issued to Ms. Brown |sby the Commissioner. The Choates respond stating, correctly, that validity of the limited warranty deed issued to Janet Brown was not relevant to appellant’s adverse-possession claim as their title is based upon the 1992 order and the exchange warranty deed that they received from the Fullertons. Where the trial court admitted Spurlin’s and Spainhour’s surveys into evidence, appellant argues that the circuit court erred in excluding an alternate version of the survey with different notes; however, appellant made no showing of how the larger map would have added to her case. We cannot find that the circuit court abused its discretion in any of the above evidentiary rulings.
Finally, with no examples other than the trial court’s rulings against her, appellant also argues that the court was biased against her and should have re-cused. There is a presumption of impartiality with respect to judges. The party seeking recusal must demonstrate bias. Unless there is an objective showing of bias, there must be a communication of bias in order to require recusal for implied bias, and the mere fact that a judge has ruled against a party is not sufficient to demonstrate bias. A judge’s decision not to recuse will not be reversed in the absence of an abuse of discretion. Because appellant cites no evidence even tending to show an impartiality on the court’s part, we hold that the judge’s decision not to recuse was not an abuse of discretion.
|9IV. Adverse Possession, Abandonment of the Easement, and Boundary by Acquiescence
In her fourth point on appeal, which is extremely difficult to follow, appellant challenges all of the trial court’s findings of fact and conclusions of law in the March 22, 2012 order. Although she specifically disputes the court’s findings in paragraph 3 and 4 of the March 22, 2012 order, which concerned the Choates’s and Lewsader’s titles, they are not relevant to the issues on appeal. Appellant’s arguments primarily concern paragraphs 9-20. She chal lenges the court’s ruling that she failed to establish adverse possession of any portion of the Choates’ property; that she abandoned her easement; that she was not entitled to notice of the tax sale; that, because a portion of the property had been vested in the State, no adverse possession could occur during the time that the State held the title; and that she failed to establish a boundary line by acquiescence.
A. Adverse Possession
This court reviews adverse possession and quiet title actions de novo on the record, and will not reverse a finding of fact by the trial court unless it is clearly erroneous. In reviewing a trial court’s findings of fact, this court gives due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded their testimony.
The circuit court made the following findings about adverse possession and abandonment of the easement:
| mil. The Fullertons’ [sic] are the predecessors in interest to the Choates. After none of the parties hired Steve Hankins to survey the described lands, the Choates engaged Wade Spainhour to perform a survey pursuant to the August 19, 1992 Court Order. In his survey, Spainhour established the East Line for the (then) Fullerton property as extending from a “Found 3/4” Rod on the North right-of-way of Bayshore Drive to a “Found^” Re-bar at End of Rock Wall”. The Rock sea wall reference by Spainhour was the same rock seawall that had been in place at the same location in 1990-1992.
12.The east boundary line for the Fullerton property established by Spainhour matched the established yard line that had been maintained by the Fullertons. In 1997, the adjacent property (remaining “easement area”) was described by Spainhour and Baker Fullerton as being unkept and overgrown.
13. Parkerson testified that she never used the prescriptive easement described in the 1992 Order for ingress or egress to Lake Hamilton. Her deeded property has substantial lake frontage thus she had no need for such an easement. She also denounced the 1992 Order as being wrong in substance although at one point she said it was a valid Order. She testified that she paid all the ad valorem taxes due; however, she offered no tax receipts or other creditable evidence reflecting that she paid any ad valorem taxes on the “easement area”. And, as will be discussed later, the “easement area” was forfeited to the State of Arkansas during the relevant time period for the non-payment of such taxes.
14. A prescriptive easement is considered abandoned after seven (7) years of non-use. Owners Ass’n of Foxcroft Woods, Inc. v. Foxglen Assocs., 346 Ark. 354, 57 S.W.3d 187 (2001). The evidence reflects, and the Court finds that Par-kerson abandoned the easement granted in the 1992 Order. It is also noteworthy that the lands over which Parkerson was granted an easement does not have lake frontage.
15. Parkerson claims to have gained ownership of the “easement area” under the laws of adverse possession by mowing the land on occasions. Her close friend, Morris Cash testified that he was aware of her mowing the land and that he had arranged for others to mow the area. Under cross examination he acknowledged, however that the “easement area” was not conducive to a lawn mower. And, other than Cash, not one single person from the neighborhood or surrounding area was called as a witness to support Parkerson’s claim of ownership.
16. The court finds that Parkerson’s mowing was sporadic and was not sufficient to reflect possession by her that was “actual, open, notorious, continuous, hostile, exclusive and accompanied by intent to hold against the true owner”.
Inl7. Parkerson’s claim to have been paying ad valorem taxes on the “easement area” is not supported by the evidence. She offered no paid tax receipts, cancelled checks, or any other proof of tax payments other than those due on the lands to which she holds record title.
18. The evidence reflects that no one paid the ad valorem taxes due on the “easement area” for a period of time. In 2008, the Garland County Tax Collector certified the parcel as No. 04688 to the Arkansas State Land Commissioner due to the non-payment of taxes. On May 12, 2004, the Arkansas State Land Commissioner conveyed the parcel by Limited Warranty Deed to Janet Brown, Lewsader’s predecessor in interest. Parkerson alleges that she should have received notice of the tax sale from the Arkansas State Land Commissioner but since she held no recordable interest in the land, notice to her was not necessary. Ark.Code Ann. Sec. 26-37-302(c). See also, [Mullane v.] Hanover Bank & Trust Co., 339 U.S. 306, 313 [70 S.Ct. 652, 94 L.Ed. 865] (1950).
19. Parkerson’ [sic] claim of adverse possession fails for another reason. Following certification by the Garland County Tax Collector in 2003, title to the lands vested in the State of Arkansas. Ark.Code Ann., Sec. 26-37-101(c). No one can legally claim property adversely to the interest of the State of Arkansas. Nichols v. Council, 51 Ark. 26, 9 S.W. 305 (1888). The State did not convey its interest in the land until May 12, 2004. Parkerson pursued the instant claim in June, 2008, which means she could not have held the property adversely for seven years.
Adverse possession is governed by both common and statutory law. To prove the common-law elements of adverse possession, a claimant must show that he has been in possession of the property continuously for more than seven years and that his possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. It is ordinarily sufficient proof of adverse possession that the claimant’s acts of ownership are of such a nature as one would exercise over his own property and would not exercise over the land of another. Whether possession is adverse to the true owner is a |12question of fact. In 1995, the General Assembly added, as a requirement for proof of adverse possession, that the claimant prove color of title and payment of taxes on the subject property or contiguous property for seven years. However, if the claimant’s rights to the disputed property vested before 1995, he need not comply with the 1995 statutory change.
The 1992 order quieted title to the Full-ertons in property “evidenced by a line in a southwesterly direction from the metal pin on the road to the end of the rock sea wall.” Spainhour initially placed this pin (a 3/4 steel rod) as part of a 1981 survey. The Fullertons maintained the yard, which extended to the straight line from the metal rod to the end of the rock sea wall, before and after the 1992 order. Appellant and her witness admitted that the property she claimed to the east of the Fullertons’s yard and the Fullertons’s yard were separated by a clear line of demarcation. Appellant never maintained any part of the property west of the line from the metal pin to the rock sea wall when it was owned by the Fullertons. The Fullertons sold their property to the Choates in 1997, and Spainhour surveyed it; he described the property as it had been generally identified in the 1992 order. This description matched the yard maintained by the Full-ertons. The Choates continued to maintain the yard in the same location. Samuel Fullerton’s and Mr. Choate’s testimony supported the trial court’s finding that appellant’s mowing of the unmaintained, “grown up, unkept” area was sporadic (at most, twice a year with a bush hog) and not sufficient to support possession. 113AppelIant admitted that the property outside the Choates’ yard had been allowed to remain “like woods.” We affirm the trial court’s finding as to adverse possession.
We do not base our decision on appellant’s lack of payment of taxes. Although appellant did not proffer any documentary evidence that she had paid taxes on the easement area, the parties stipulated that appellant had paid taxes on the property to which she had record title. This stipulation satisfies the statute’s requirement of paying taxes on contiguous property for seven years.
Furthermore, whether appellant was entitled to notice of the tax sale makes no difference in our decision. In our previous decision, this court held that the assessor’s office had erroneously deleted appellant from its tax rolls in 2001; that she should have been notified of the 2004 tax sale and 2007 title-confirmation action; and that she should have been allowed to intervene in the title-confirmation action. Nevertheless, she has since been given the opportunity to present her case and has failed to establish the common-law elements of adverse possession.
B. Abandonment
Once gained, a prescriptive easement may be abandoned by more than seven years of nonuse. Appellant testified that she had never needed the 1992 prescriptive easement |14(which had been primarily for access to the lake) because her property has lake frontage. The court’s finding that appellant had abandoned the easement is not clearly erroneous.
C. Acquiescence
The circuit court made the following findings about appellant’s claim of acquiescence:
In the case at bar, Parkerson says that her adjoining neighbors acquiesced in her belief that the southwestern boundary of the “easement property” was the true boundary line between their respective properties. She offered no evidence by any of the present owners of the adjoining property or any of their predecessors to support such an allegation. In fact, the present owners and one predecessor vigorously denied any sort of acquiescence. In addition, the only substantial evidence of a visible dividing line between the Parkerson and Choates’ properties was an area of un-kept and overgrown foliage. Her argument fails.
Whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and apparently consent to that line, it becomes a boundary by acquiescence. A boundary line by acquiescence may be inferred from the landowners’ conduct over many years so as to imply the existence of an agreement about the location of the boundary line. This is a question of fact, which this court will not reverse unless it is clearly erroneous. Samuel Fullerton testified that he had never agreed to share any property with appellant and that he had always maintained his yard to the line formed by the metal pin and rock sea wall. Mr. Choate testified that he had always maintained to the same line. The trial court’s finding on this issue was not clearly erroneous.
11SV. Quiet title
In her fifth point, appellant argues that the trial court erred in refusing to grant her petition for quiet title. This point is necessarily affirmed by disposition of the first four points.
Affirmed.
WHITEAKER and VAUGHT, JJ., agree.
. Parkerson v. Brown, 2013 Ark. App. 297, 2013 WL 1838089.
. Parkerson v. Brown, 2010 Ark. App. 505, 379 S.W.3d 485.
. Parkerson v. Brown, 2010 Ark. App. 505, at 2, 379 S.W.3d 485, 487 (citing Ark.Code Ann. § 18-60-603(a)(2) (Supp.2009)).
. The denial of a motion to intervene is an appealable order. Parkerson, 2010 Ark. App. 505, at 2, 379 S.W.3d 485, 487 (citing Nw. Ark. Area Agency on Aging v. Golmon, 70 Ark.App. 136, 15 S.W.3d 363 (2000)).
. Parkerson, 2010 Ark. App. 505, at 1-4, 379 S.W.3d 485-87.
. Bums v. Ark. Dep't of Human Servs., 2013 Ark. App. 521, 429 S.W.3d 366.
. Carnell v. Ark. Elder Outreach of Little Rock, Inc., 2012 Ark. App. 698, 425 S.W.3d 787.
. Rick’s Pro Dive ’N Ski Shop, Inc. v. Jennings-Lemon, 304 Ark. 671, 803 S.W.2d 934 (1991).
. Id.
. Tadlock v. Moncus, 2013 Ark. App. 363, 428 S.W.3d 526.
. (2013).
. Can v. Gen. Motors Corp., 322 Ark. 664, 911 S.W.2d 575 (1995).
. See Ark. R. Evid. 613(b) (2013).
. City of Rockport v. City of Malvern, 2010 Ark. 449, 374 S.W.3d 660.
. Id.
. Id.
. Id.
. Strother v. Mitchell, 2011 Ark. App. 224, 382 S.W.3d 741.
. Id.
. Horton v. Taylor, 2012 Ark. App. 469, 422 S.W.3d 202.
. Id.
. Id.
. See Ark.Code Ann. § 18-11-106 (Supp. 2011).
. Horton, supra.
. See Ark.Code Ann. § 26-37-301 (Repl. 2012).
. Owners Ass’n of Foxcroft Woods, Inc. v. Foxglen Assocs., 346 Ark. 354, 57 S.W.3d 187 (2001).
. Reynolds v. GFM, LLC, 2013 Ark. App. 484, 429 S.W.3d 336.
. Id.
. Strother, supra. | [
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ROBERT J. GLADWIN, Judge.
h The Pulaski County Circuit Court dismissed the medical-malpractice case filed by appellants, Kenneth Smith, Jr., and Geraldean Smith, as co-special administrators of the estate of Mark Anthony Smith, by granting summary judgment on November 10, 2010, to appellees Rebsamen Medical Center and the other medical providers included as defendants in the lawsuit. Appellants argue on appeal that the circuit court erred by disregarding the nunc pro |2tunc order filed in a separate probate action. We agree and reverse the circuit court’s summary-judgment order.
Appellants moved in probate court to be appointed co-special administrators of the estate of Mark Anthony Smith, and the order appointing them was signed on May 26, 2010. However, the order was not file-marked in the clerk’s office until May 28, 2010. In the meantime, appellants filed their medical-malpractice case against ap-pellees in circuit court on May 26, 2010, with the mistaken information that the order appointing them co-special administrators had previously been filed in the probate case.
When appellees moved for summary judgment on August 9, 2010, they argued that appellants lacked standing to have filed the lawsuit against them because the order appointing appellants as co-administrators of the decedent’s estate in the probate matter was filed two days after the malpractice suit was filed. Further, they argued that appellants were forever barred from bringing suit against them because the applicable two-year statute of limitations had run. On August 12, 2010, appellees filed a motion for order nunc pro tunc in the probate case. The probate court granted the order, deeming that the order appointing co-special administrators was filed as of 9:00 a.m., May 26, 2010, which precedes the filing of the malpractice complaint.
Appellants responded to appellees’ motion for summary judgment in the malpractice case, arguing that the nunc pro tunc order removed the basis for appellees’ summary-judgment motion. Appellees refuted appellants’ arguments, mainly claiming that the nunc pro |atunc order prejudiced their rights as innocent third parties. The circuit court agreed with appellees and granted summary judgment, dismissing the cause of action for medical negligence against all of the defendants with prejudice. After an order was entered on December 6, 2010, dismissing any claims left open after the summary-judgment order was filed, a timely notice of appeal was filed, and this appeal followed.
Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Bridges v. Shields, 2011 Ark. 450, 385 S.W.3d 176. The question for this court to decide is whether the circuit court ruled correctly on the question of law presented.
In paragraph 6 of its summary-judgment order, the circuit court ruled:
On the date the Complaint was filed in this matter the plaintiffs had no legal standing to bring this action. The Com plaint was a nullity. See, Hackleton [Hackelton ] v. Malloy, 364 Ark. 469[, 221 S.W.3d 353] (2006). Lack of standing cannot be cured utilizing any “relation back” provisions of the Arkansas Rules of Civil Procedure for any cause of action for which the limitations period had expired at the time of entry of the August 12, 2010 nunc pro tunc Order.
The law referring to “relation back” is contained in Rule 15(c)(1)-(2) of the Arkansas Rules of Civil Procedure (2011), and states as follows:
An amendment of a pleading relates back to the date of the original pleading when:
(1) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(2) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (1) is satisfied and, within the period provided by Rule 4(i) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
The Arkansas Supreme Court stated in Francis v. Protective Life Ins. Co., 371 Ark. 285, 265 S.W.3d 117 (2007), that
Arkansas Rule of Civil Procedure 60 and case law extending back over 150 years give circuit courts the authority to correct a clerical mistake in an order at any time with a nunc pro tunc order, used to “make the record speak now what was actually done then.” See Ark. R. Civ. P. 60 (2007); Lord v. Mazzanti, 339 Ark. 25, 2 S.W.3d 76 (1999); Bridwell v. Davis, 206 Ark. 445, 447, 175 S.W.2d 992, 994 (1943). A circuit court is permitted to enter a nunc pro tunc order when the record is being made to reflect that which occurred but was not recorded due to a misprision of the clerk. Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995). This court has defined a true clerical error, one that may be corrected by nunc pro tunc order, as “essentially one that arises not from an exercise of the court’s judicial discretion but from a mistake on the part of its officers (or perhaps someone else).” Luckes v. Luckes, 262 Ark. 770, 772, 561 S.W.2d 300, 302 (1978).
Id. at 293, 265 S.W.3d at 123.
Appellants argue that, even had the nunc pro tunc order been improper under Rule 60, appellees herein had no authority to challenge that order in the malpractice case. Appellants claim that the nunc pro tunc order was inappropriately disregarded when the malpractice case was dismissed. They cite Edwards v. Nelson, 372 Ark. 300, 275 S.W.3d 158 (2008), as disposi-tive of the issue.
In Edwards, the Arkansas Supreme Court held that the trial court, in a wrongful-death action brought on behalf of a patient’s estate, lacked jurisdiction to decide the validity of a probate order appointing the patient’s son as administrator of the estate. Id. at 304, 275 S.W.3d at 162. Further, the trial court could not dismiss the wrongful-death action on the ground that the son was ineligible to serve as administrator and lacked the authority to file the | wrongful-death action. Id. Appellants contend that appellees herein engaged in the same impermissible collateral attack on the probate order. We agree. When the trial court entertained the collat eral attack in the malpractice case, the authority of the probate order was usurped. In other words, by finding that appellants did not have the authority to act on May 26, 2010, the trial court in the malpractice case refused to acknowledge the authority of the probate court’s nunc pro tunc order.
Appellees claim that the trial court properly granted summary judgment because the wrongful-death complaint was a nullity on the date it was filed. Arkansas law is clear that a wrongful-death action shall be brought by and in the name of the personal representative of the deceased person. Ark.Code Ann. § 16-62-102(b) (Repl.2005). Additionally, “[i]f there is no personal representative, then the action shall be brought by the heirs at law of the deceased person.” Id. The law is also clear that the personal representative has the right to bring the action at the time the order appointing the personal representative is entered. Hubbard v. National Healthcare of Pocahontas, Inc., 371 Ark. 444, 267 S.W.3d 573 (2007). Finally, an order is entered when so stamped or marked by the clerk, irrespective of when it is recorded in the judgment record book. Hubbard, 371 Ark. at 449, 267 S.W.3d at 576.
Appellees contend that, at the time appellants filed the malpractice complaint, they did not have standing to pursue the claim, making the malpractice complaint a nullity, citing Hubbard, supra. Further, appellees argue that the statute of limitations had run on June 16, 2010, which is before the nunc pro tunc order was filed on August 12, 2010. See Ark.Code Ann. § 16-114-203(a) (Repl.2006) (where all actions for medical injury shall be com-mencedjj-within two years after the cause of action accrues). Thus, appellees contend that the trial court properly dismissed the complaint.
We disagree. In Hubbard, our supreme court did not consider the effect that a nunc pro tunc order in the related probate matter would have had on the issue of standing to file the malpractice complaint. The Hubbard court stated:
In the present case, Appellant filed her complaint on April 9, 2003. Attached to this complaint, as an exhibit, was a copy of an order of appointment, purportedly signed by the circuit judge on March 25, 2003. The order was not stamped or marked as filed in any way. On April 25, 2003, both Appellant’s petition for appointment of special administratrix and the order of appointment were filed. It is undisputed that the order was not entered until after Appellant filed her complaint. Rather, Appellant argues that (1) the order was filed as an exhibit to the complaint; (2) the order, upon filing, granted her the authority as of the date of execution by the court; and (3) an order of special administratrix is not an appealable order and therefore not subject to Administrative Order No. 2 and Rule 58. Appellant’s arguments are without merit.... The order appointing Appellant was not effective until it was filed on April 23, almost two weeks after the complaint was filed. Therefore, at the time Appellant filed this cause of action against Appellee, she was not the administrator of the estate and did not have standing to pursue the claim against Appellee. The complaint filed on April 9 was, thus, a nullity.
Hubbard, 371 Ark. at 449-51, 267 S.W.3d at 576-77.
Appellees next claim that the trial court properly disregarded the nunc pro tunc order. They claim that, while the nunc pro tunc order retroactively changed the date when appellants became co-special administrators, the order cannot be used to avoid summary judgment in this case for multiple reasons. First, appellees claim that the nunc pro tunc order is not enforceable in this case because it would affect the rights of innocent third parties. Appellees contend that, contrary to appellants’ claim on appeal, an order nunc pro tunc does not apply universally, and it cannot be enforced against innocent third parties like the appellees in this case, citing Ozment v. Mann, 235 Ark. 901, 363 S.W.2d 129 (1962), and Melton v. St. Louis, I. M. & S. Ry. Co., 99 Ark. 433, 139 S.W. 289 (1911). Both of these cases cite the rule that nunc pro tunc orders are not to prejudice innocent third parties.
Appellees argue that, as innocent third parties, their rights in the instant case have been prejudiced by the nunc pro tunc order entered in the probate case. However, neither Melton nor Ozment define “innocent third parties,” and we do not believe that appellees can be described as such. The appellees were not parties to the probate case and have no legally recognizable interest in how the probate action is managed. Appellees are not prejudiced by the nunc pro tunc order because their rights have not been violated by it. Appellees do not have a right to exploit a technical deficiency that has been cured by an applicable court order.
Second, appellees claim that Edwards, supra, does not support appellants’ argument. Appellees contend that Edwards stands for the rule that when a court of competent jurisdiction acquires jurisdiction of the subject matter of a case, its authority continues, subject only to the appellate authority, until the matter is finally and completely disposed of, and that no court of coordinate authority is at liberty to interfere with its action. Edwards, 372 Ark. at 303, 275 S.W.3d at 161. Appellees argue that Edwards is distinct from this case because the trial court here did not void or invalidate any order of the probate court. Rather, appellees contend that the trial court herein simply refused to allow the order of the probate court to “usurp the authority” of the trial court and affect the rights of an innocent third party. We fail to see the distinction. By choosing to ignore the nunc pro tunc order, the circuit court effectively invalidated the order, which was beyond its jurisdiction to do.
Third, appellees contend that the questionable basis for the nunc pro tunc order further illustrates why the trial court’s ruling must be affirmed. However, after much argument, they acknowledge that they are not permitted to attack the validity of the probate court’s order.
Fourth, appellees contend that, even if the nunc pro tunc order were enforceable in this matter, it would not correct appellants’ jurisdictional shortfall. They argue that the relation-back provision of Rule 15 does not apply to cure standing defects. They state that, while Arkansas appellate courts have not addressed the specific issue of whether a nunc pro tunc order can do what relation back cannot do — cure a lack of standing at the time the complaint was filed — courts in other jurisdictions have rejected the notion, citing an Alabama case.
However, this case does not involve relation back under Rule 15. It involves the question of when the administrators’ power became effective. The probate court’s order nunc pro tunc grants authority to the administrators as of May 26, 2010, at 9:00 a.m. Therefore, any action performed after that time was effective. By determining that the filing of the malpractice complaint was ineffective, the circuit court in this action disregarded the probate court’s order, adjudicating a challenge of the administrators’ appointment in the probate action. Edwards, supra, makes clear that the circuit court in this case was without jurisdiction to determine the validity of the probate order.
Reversed and remanded.
ROBBINS and HOOFMAN, JJ., agree.
. The style of Pulaski County Circuit Court case no. CV 2010-2908 is as follows:
Kenneth Smith, Jr., and Geraldean Smith, as Co-Special Administrators of the Estate of Mark Anthony Smith, Deceased and on behalf of the Wrongful Death Beneficiaries of Mark Anthony Smith v. Rebsamen Medical Center, Inc., d/b/a North Metro Medical Center; Proassurance Indemnity Company, Inc., a/k/a Proassurance Corporation and f/k/a The Medical Assurance Company, Inc.; Richard Young, M.D.; James Landry, M.D.; Patricia Cameron, RN; Quorum Health Resources, LLC, f/k/a Quorum Health Resources, Inc. and Allegiance Health Management, Inc., Pulaski Emergency Group, LLC, and John and Jane Does A through Z. | [
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CLIFF HOOFMAN, Judge.
Appellant Stephanie Reichard appeals from the trial court’s decision to terminate her parental rights to her five children, A.R., N.R., S.R., M.R., and B.R. On appeal, Reichard argues that there was insufficient evidence that termination was in the children’s best interests and insufficient evidence of the statutory grounds for termination. We disagree and affirm.
After B.R. was born on April 20, 2010, Reichard and B.R. both tested positive for amphetamines at the hospital. DHS was notified. Reichard told DHS that she had nothing to do with the baby’s father and did not know where he was; however, upon contacting Juan Rosalez, the putative father of all five children, at Reichard’s home, Rosalez told the family-service worker that he lived with Reichard and the children. The family-service worker’s investigation revealed that Reichard had a criminal background with numerous ar rests for drug offenses. She was on probation, had absconded from drug court, and had warrants out for her arrest. Reichard was arrested by her probation officer on April 22, 2010. Due to B.R.’s positive drug test, Reichard’s arrest leaving the children without a legal caretaker, and the unsanitary conditions of the family’s home, the children were taken into custody. The family-service worker’s investigation also revealed that there had been two prior reports on the family that were inactive due to an inability to locate the family, and that in 2009, Reichard was a victim of domestic battery by Juan Rosa-lez.
The trial court entered an order for emergency custody on April 26, 2010, and subsequently found probable cause that the emergency conditions continued. After a hearing on June 22, 2010, the court adjudicated the children dependent-neglected and also found that the children were subjected to aggravated circumstances due to the positive results on their drug screens. Due to their young ages, the court found that the children were exposed to drugs while in Reichard’s home and that Reichard was not a fit and appropriate caretaker because of her own drug use and exposure of drugs to the children. The court noted that Reichard had been incarcerated from approximately April 23 to May 27, 2010, and later for two days in June. The court ordered Reichard to have supervised visitation, to submit to a psychological evaluation and follow any recommendations, to submit to a drug-and-alcohol assessment and follow any recommendations, to submit to random drug screens, to obtain and maintain stable housing and income, and to complete inpatient drug treatment.
A review hearing was held on September 28, 2010, where the court found that reunification should remain the goal but that there had not been much progress since the last hearing. The court noted that Reichard had been incarcerated for reasons stemming from drug court from July 22 to September 9, 2010, when she was released to attend drug rehabilitation. The court noted that Reichard had credibility issues and found it hard to believe what she said. The court believed that her decision to enter drug rehabilitation was motivated more by her desire to stay out of jail than to get her children back. At the time of the hearing, Reichard had two outstanding warrants. The court found that DHS had made reasonable efforts toward reunification.
At the permanency-planning hearing held on February 8, 2011, the court found that there were no compelling reasons to continue the goal of reunification and changed the goal to termination of parental rights. The court noted that Reichard had completed drug rehabilitation, but other than that, the court could not identify other services she had participated in despite the offer of services. The court stated that Reichard seemed more unstable at this hearing than at any point in the case and that she was far from making progress toward reunification. The court continued to find that Reichard lacked credibility and found her evasive in her testimony. In addition, she was facing probation revocation. Reichard appeared at the hearing with a black eye and reported that Rosalez had beat her and left her unconscious in the street. Rosalez had previously come to a staffing with Reichard, but she claimed that she was no longer with him. The court again found that reasonable efforts had been made by DHS.
On March 7, 2011, DHS filed a petition for termination of parental rights asserting two grounds for termination: (1) that the juveniles had been adjudicated by the court to be dependent-neglected and had continued to be out of the custody of the parent for twelve months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions had not been remedied by the parent, Ark.Code Ann. § 9 — 27—341(b)(3)(B)(i), and (2) the parent was found by a court of competent jurisdiction, including the juvenile division of circuit court, to have subjected any juvenile to aggravated circumstances, Ark.Code Ann. § 9-27-341(b)(3)(B)(ix) (a)(3).
The termination hearing was held on May 3, 2011. Comerá Farmer, the case worker, testified regarding the services offered and Reichard’s progress. At the time of the hearing, Reichard did not have a home or a job. She had been sleeping at a friend’s house and had previously lived with her aunt and sister. She testified that her criminal background made finding a job difficult. Since the case began, she had worked at two jobs for a total of four months and was last employed in December 2010. Reichard testified that she had been going to Workforce Services at Goodwill every day for the two weeks prior to the hearing looking for a job. She testified that she had been close to getting a job with Wal-Mart but was ultimately not hired because of her criminal background.
Reichard submitted to the court-ordered psychological evaluation in the summer of 2010. Dr. Paul Deyoub’s report concluded that Reichard had an antisocial personality disorder and was also “manipulative, deceitful, a drug addict, an alcoholic, and an utterly unfit parent.” She told Dr. Deyoub that her drug use improved her abilities as a mother. His recommendations were for Reichard to complete residential drug treatment, parenting classes, and counseling, and to maintain a job and a home without cohabitation.
Farmer testified that DHS had made a counseling referral for Reichard and notified her about an appointment, but Reich-ard had not gone. Reichard, however, testified that she had gone to two counseling sessions after talking about it with DHS in February. Reichard successfully completed inpatient drug treatment. Her outpatient recommendations included going to a certain number of NA meetings per week, but Farmer testified that she never provided proof of her attendance at these meetings. Reichard testified that she had proof of her attendance since the last court hearing, and an exhibit was introduced showing Reichard’s attendance at 18 AA/NA meetings from March 30 to May 1, 2011. Reichard was drug tested randomly throughout the case, and all of the tests were negative except for one positive test for opiates on October 25, 2010, for which Reichard had a doctor’s statement showing the prescription medication she was taking.
Reichard completed parenting classes on March 25, 2011. She attended supervised visitation with the children weekly for the majority of the case, and there were no major behavior problems in the visits. Reichard had become upset diming one visit, however, when S.R. called her foster mother “mommy.” This led to Reichard asking S.R. which mommy she liked best. Reichard testified that she was upset but that she did not get mad at S.R. or scold her.
Farmer recalled that Reichard testified at the last hearing that she and Rosalez had been in a physical altercation where he hit her and she went to the emergency room suffering from a black eye and a fractured arm. Farmer testified that throughout the case Reichard had denied that she was with Rosalez, but she had been seen with him at the DHS office at various times. Upon being told that some one saw her with Rosalez downtown, Reichard stated that she had met with him a couple of weeks prior to the hearing to discuss the case.
Reichard had refused to sign a release that would allow Farmer to access her probation records, and Farmer testified that DHS did not really know the outcome of her criminal charges. Reichard testified that the warrant that was out on her had been dropped and that she had three years left on her probation. She admitted that she had previously had some problems completing certain requirements for drug court, but she claimed that she had not been threatened with being dismissed from drug court.
Reichard testified that her probation officer had assisted her in receiving a grant through Arkansas Access to Recovery to help her transition to chem-free living. She testified that the only thing preventing her from currently being in that program was the requirement that she pay a $350 entrance fee. She stated that she did not have the money and asked DHS to provide cash assistance. A printout from a website about the program was admitted into evidence, which stated that it was a “grant-funded initiative which provides vouchers to clients for purchase of substance use disorder clinical treatment and recovery support services.” Reichard did not have any documentation that she had been accepted. The trial judge admitted the exhibit but noted that it did not establish that Reichard had been accepted or qualified.
Reichard admitted that she was not in a position the day of the hearing to have the children come live with her, but she asked for more time so that she could become stable. She acknowledged that she needed stable housing, employment, and to continue counseling. She stated that there was reason to believe that she would have stable housing in the near future because she had left the environment of drugs. She stated that she was homeless because she did not want to live with the people she knew who were using drugs.
Farmer recommended termination based on the fact that Reichard did not have a place for her children to live, had no source of employment, had not gone to counseling, and may have still been with the man who had beaten her up in the past. Kasheena Walls, an adoption specialist, testified that the children were adoptable because families were available that would adopt the children based on their ages and race. The court-appointed special advocate on the case also felt that all of the children were adoptable.
The trial court found that both grounds for termination had been met and that it was in the children’s best interests to terminate Reichard’s parental rights. The court was concerned that Reichard was still involved with drug court and believed that drug court may have been the source of her motivation for having clean drug screens. The court was also concerned that Reichard may still have had a relationship with Rosalez and found that he posed a risk of physical and emotional harm to the children if he were permitted to be around them. Furthermore, the court found that she had not remedied the housing issue. The court concluded that there were no compelling reasons to give Reichard more time because she had not made significant, measurable progress toward reunification. The court entered its order terminating Reichard’s parental rights on May 19, 2011, and Reichard filed a timely notice of appeal.
Termination-of-parental-rights cases are reviewed de novo. Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, 379 S.W.3d 703 Grounds for termination of parental rights must be proven by clear and convincing evidence, which is that degree of proof that will produce in the fact-finder a firm conviction of the allegation sought to be established. Id. The appellate inquiry is whether the trial court’s finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In resolving the clearly erroneous question, we give due regard to the opportunity of the trial court to judge the credibility of witnesses. Id. Termination of parental rights is an extreme remedy and in derogation of a parent’s natural rights; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id.
In order to terminate parental rights, a trial court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration the (1) likelihood that the juvenile will be adopted if the termination petition is granted and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark.Code Ann. § 9-27-341(b)(3)(A)(i) & (ii) (Repl.2009). The trial court must also find by clear and convincing evidence that one or more statutory grounds for termination exists. Ark.Code Ann. § 9 — 27—341(b)(3)(B).
Reichard argues that she had made significant and measurable progress to prevent termination and warrant at least an additional three months to work toward rehabilitation. She contends that she successfully completed inpatient drug treatment and parenting classes, introduced proof of NA/AA attendance, separated from Juan Rosalez, started counseling, participated in drug court, and tested negative on all of her drug screens. Reichard argues that her homelessness was due to her attempts to remedy two of the issues that caused removal by separating from her abusive boyfriend and leaving the lifestyle of drugs. She claims that DHS did not fulfill its duty to offer appropriate family services because there was no evidence that DHS made a housing referral, DHS did not refer her to the Access to Recovery program, and DHS did not offer her cash assistance to enter the program. She claims that through the program she could have accessed services that would have remedied every issue DHS cited as reasons to terminate. Reichard argues that three months is not a long time in the scheme of this case, which had only been open barely a year.
In making the best-interest determination, a trial court is only required to consider potential harm to a child’s health and safety that might come from continued contact with the parents; there is no requirement to find that actual harm would result or identify the potential harm. Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, 379 S.W.3d 703. The potential-harm analysis is to be conducted in broad terms. Id. Despite the apparent success Reichard was having in remedying her drug addiction, other issues remained that created a risk of potential harm. First, the trial court, which had the superior position in judging the credibility of witnesses, did not believe that Reichard was separated from Rosalez, who had a history of physically abusing her. It would pose a risk of potential harm if the children were allowed to be around Rosalez, who refused to take a paternity test and participate in the case. Second, Reichard had no home and no job. When the children were first taken into custody, the family of seven was living in a trailer with two bedrooms. The trailer was filled with dirty clothes, dirty dishes, spilled food, and trash. Seven-year-old A.R. told the family-service worker that his home was always dirty and that they moved a lot. When asked if he knew what drugs were, A.R. stated that drugs were pills and that he had seen them before. Five-year-old N.R. stated that the home was always dirty and that they did not have much food. Despite being out of inpatient treatment and supposedly off drugs for seven months prior to the termination hearing, Reichard had not shown that she could maintain a home or a job and adequately provide for the children. Considering the risk of potential harm and the trial court’s undisputed finding that the children were adoptable, the conclusion that termination was in the children’s best interests is not clearly erroneous.
The trial court found that two statutory grounds for termination were proved: (1) that the juveniles had been adjudicated by the court to be dependent-neglected and had continued to be out of the custody of the parent for twelve months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions had not been remedied by the parent, Ark.Code Ann. § 9-27-341(b)(3)(B)(i), and (2) the parent was found by a court of competent jurisdiction, including the juvenile division of circuit court, to have subjected any juvenile to aggravated circumstances, Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a )(3). Aggravated circumstances means a juvenile has been abandoned, chronically abused, subjected to extreme or repeated cruelty, sexually abused, or a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i).
As DHS and the attorney ad litem contend, Reichard has not challenged the aggravated-circumstances ground for termination. The trial court stated in the adjudication order that “[d]ue to the children testing positive on their drug screens, the court finds that they have been subjected to aggravated circumstances as defined in the Juvenile Code.” Reichard does not challenge this finding. Based on the statutory requirements and because proof of only one statutory ground is sufficient, Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, 379 S.W.3d 703, the trial court’s finding of aggravated circumstances is sufficient to affirm the termination.
Even if we consider Reichard’s meaningful-services argument, her claim fails. This statutory ground is proven when, despite a meaningful effort by DHS to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent. Ark.Code Ann. § 9-27-341(b) (3)(B) (i). The conditions that caused removal were B.R.’s positive drug test, Reichard’s arrest that resulted in the children being without a legal caretaker, and unsanitary living conditions. Although Reichard had partially complied with the case plan, she was unable to provide a clean, safe, and stable home for her children. Furthermore, much of her progress seemed to come at the end of the ease when termination was near. The only proof of attendance at NA/AA meetings was for meetings from March 31 to May 1, 2011. Although counseling was ordered following her psychological evaluation, she only went after a staffing in February and she only went to two sessions in all. Improvement and compliance toward the end of a ease plan will not necessarily bar termination of parental rights. Meriweather v. Ark. Dep’t of Human Servs., 98 Ark.App. 328, 255 S.W.3d 505 (2007).
In Pine v. Arkansas Department of Human Services, we held that the appellants’ argument for more time did not provide a basis for reversal because the intent of the termination statute was to provide a child permanency when a return to the family home could not be accomplished in a reasonable period of time as viewed from the juvenile’s perspective. 2010 Ark. App. 781, 379 S.W.3d 703 Here, B.R., who was one year old at the time of the termination hearing, had been out of Reichard’s custody for all but two days of her life. Reich-ard was not able to take custody at the time of the termination hearing, and from the children’s perspective, more time was not warranted. The trial court’s decision is not clearly erroneous.
Affirmed.
GLADWIN and ROBBINS, JJ., agree.
. The parental rights of Juan Rosalez, the putative father, were also terminated; however, he is not a part of this appeal. | [
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DONALD L. CORBIN, Justice.
Appellant Landmark Novelties, Inc., appeals from an order of the Pulaski County Circuit Court affirming a decision of Appellee Arkansas State Board of Pharmacy to suspend Landmark’s license to sell List 1 chemicals for a period of three years and to impose a $175,000 civil penalty. These penalties were a consequence of the board’s findings that Landmark had violated Ark.Code Ann. § 5-64-1006 (Repl. 2005) and the board’s regulation 08-02 by failing to report suspicious transactions involving List 1 chemicals and by storing List 1 chemicals in an unlicensed and inappropriately equipped facility. For reversal, Landmark contends that it was denied due process because section 5-64-1006 and its supporting regulations are impermissi-bly vague as applied and that the board’s decision was arbitrary, capricious, and not supported by substantial evidence. This appeal requires interpretation of the Arkansas Constitution; therefore, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(a)(1) and (b) (2009). We find that neither argument for reversal has merit and affirm the circuit court’s order.
I. Regulatory Framework
Landmark describes itself as a foreign corporation with its principal place of business in Quincy, Illinois, engaged in the business of merchandising specialty items such as greeting cards, work gloves, driving maps, cigarette lighters, energy pills, and over-the-counter medications to convenience stores and other retail outlets in thirteen states. Landmark is licensed by the board as a wholesale distributor of List 1 chemicals and is consequently required by statute to report suspicious orders of certain List 1 chemicals to the board. Ark.Code Ann. § 5-64-1006(a).
Pseudo ephedrine, in addition to having a legitimate use as an active ingredient in over-the-counter allergy and cold medications, is also a List 1 chemical that the board found to be in great demand as an ingredient used in the illicit manufacture of methamphetamine, a controlled substance. In an attempt to protect the citizens of Arkansas from the harmful effects of methamphetamine abuse and from exposure to illicit laboratories used for the manufacture of methamphetamine, the General Assembly enacted legislation requiring the sale of pseudoephedrine, ephedrine, and other List 1 chemicals in a suspicious transaction to be reported in writing to the board. Ark.Code Ann. § 5-64-1006. Section 5-64-1006(c)(l) defines a reportable “suspicious transaction” as one whose circumstances would lead a reasonable person to believe that the substance is likely to be used for the purpose of unlawfully manufacturing a controlled substance based on four factors: the amount involved, the method of payment, the method of delivery, and past dealings with the person acquiring the substance. Ark. Code Ann. § 5-64-1006(c)(l)(A)-(D). In addition, section 5-64-1006(c)(2) establishes a clear rule that cash or money order transactions of more than $200 are “suspicious transactions.”
In addition to setting out a statutory definition of “suspicious transaction,” section 5-64-1006(d)(l) directs the board to adopt criteria for determining whether a transaction is suspicious. In response, the board promulgated regulation 08-02-0008. 070-00-008 Ark.Code R. 08-02-0008 (Weil 2009). Thus, in addition to the four statutory factors enumerated in section 5-64-1006(c)(1), regulation 08-02-0008 sets forth twenty-five additional factors for its licensees to consider in determining whether, in “their best judgment,” a transaction is suspicious. Among others, those twenty-five factors include such things as customers who do not seem to know industry practice or who fail to provide reasons for an order at variance with accepted legitimate industry practice; a new customer who does not seem to know federal or state government regulations; customers who want predominantly or only regulated chemicals; customers who want multiple regulated or surveillance list products, particularly if in contrast to customary use and practice; a customer who is vague or resists providing information about the firm’s address, telephone number, and reason for seeking that chemical; an established customer who deviates from pi-evious orders or ordering methods; and a customer who requests unusual methods of delivery or routes of shipment or who provides unusual shipping, labeling, or packaging instructions.
Finally, with respect to the regulatory framework that Landmark challenges on this appeal, we note that the failure to comply with the reporting requirements of section 5-64-1006 is a Class A misdemean- or, and that the board is authorized to impose a civil penalty not to exceed $10,000 per violation. Ark.Code Ann. § 5-64 — 1006(b), (d)(2).
II. Procedural History
The board’s action in this case began with an investigation into whether Landmark was properly reporting suspicious orders of pseudoephedrine pursuant to section 5-64-1006 and regulation 08-02-0008. The board issued a written order with findings of fact and conclusions of law on September 10, 2004.
In its written order, the board found that specifically, single-ingredient 60 mg pseudoephedrine is highly desired in the illicit manufacturing of methamphetamine and that Landmark sold primarily Max Brand 60 mg single-ingredient pseu-doephedrine to its customers, which included primarily convenience stores and some truck stops, but also other types of “non-traditional” outlets that do not generally sell over-the-counter pharmaceutical products. The board found that Landmark failed to report any of its sales of pseudoephedrine to the board as a suspicious order. The board further found that for over two years during 2001 through 2003, Landmark maintained a storage facility for List 1 chemicals without a license and without the proper alarm system and temperature and humidity controls.
Based on these findings of fact, the board concluded Landmark had violated section 5-64-1006, regulation 08-02-0002(a), regulation 08-02-0006(b), regulation 08-02-0006(c), and regulation 08-02-0008(a)(8), by failing to report suspicious orders of pseudoephedrine and by maintaining an unlicensed and improperly maintained storage facility for List 1 chemicals. As previously stated, the board suspended Landmark’s license for a three-year period, and ordered a civil penalty of $175,000 to be paid at the conclusion of the suspension.
Landmark, pursuant to the Arkansas Administrative Procedure Act (AAPA), specifically Ark.Code Ann. § 25-15-212 (Repl.2002), filed a petition for review in circuit court, arguing (1) that the board’s application of the statute and regulation violated its rights of due process under article 2, section 8 of the Arkansas Constitution, and (2) that the board’s decision was arbitrary, capricious, and not supported by substantial evidence. After a hearing on the petition, the circuit court affirmed the board, holding that its decision was supported by substantial evidence and was not arbitrary or capricious. Furthermore, the circuit court concluded that the board’s enforcement of the statute and regulation satisfied due process under article 2, section 8. This appeal followed.
III. Due Process — Vagueness as Applied
Landmark’s first point on appeal is that section 5-64-1006 and the board’s regulation 08-02-0008 are impermissibly vague as applied to Landmark and therefore unenforceable under the Arkansas constitutional guarantee of due process of law.
A. Standard of Review
In an appeal of a decision of an administrative agency under the AAPA, specifically section 25-15-212, this court reviews the decision of the agency rather than the decision of the circuit court. H. T. Hackney, Co. v. Davis, 353 Ark. 797, 120 S.W.3d 79 (2003). However, as evidenced by this court’s decision in Arkansas Tobacco Control Bd. v. Sitton, 357 Ark. 357, 166 S.W.3d 550 (2004), when presented with an allegation that a statute or regulation is unconstitutional, this court must review the decision of the circuit court because an administrative agency lacks the authority to rule on a constitutional argument. Id.; see also AT & T Commc’ns of the Sw. v. Ark. Pub. Serv. Comm’n, 344 Ark. 188, 40 S.W.3d 273 (2001). Therefore, in an appeal originating from an agency decision yet involving a constitutional challenge, the constitutional challenge must be raised before the agency in order to preserve it for the circuit court’s consideration. Sitton, 357 Ark. 357, 166 S.W.3d 550.
Here, Landmark raised its due-process challenge at the hearing before the board and again at the circuit court’s hearing. Therefore, the issue was preserved for consideration by the circuit court, and the issue now presented for our review on appeal is whether the circuit court erred in ruling that section 5-64-1006 and its supporting regulations as applied by the board to Landmark satisfied the requirements of due process under article 2, section 8 of the Arkansas Constitution. See Sitton, 357 Ark. 357, 166 S.W.3d 550.
B. Vagueness Standard
It is well settled that a law is unconstitutionally vague under due-process standards if it does not give a person of ordinary intelligence fair notice of what is prohibited, and it is so vague and stan- dardless that it allows for arbitrary and discriminatory enforcement. Craft v. City of Fort Smith, 335 Ark. 417, 984 S.W.2d 22 (1998). In contrast, a statute is constitutional if its language conveys sufficient warning when measured by common understanding and practice. Sitton, 357 Ark. 357, 166 S.W.3d 550. The subject matter of the challenged law determines how stringently the vagueness test will be applied. Craft, 335 Ark. 417, 984 S.W.2d 22. For instance, if the challenged law infringes upon a fundamental right, such as liberty or free speech, a more stringent vagueness test is applied. Id. In contrast, if the law merely regulates business activity, a less stringent analysis is applied and more flexibility is allowed. Id.
In this case, Landmark brings a challenge that section 5-64-1006 and supporting regulation 08-02-0008 are void for vagueness as applied to Landmark. The board contends that the challenged statute regulates a business activity and therefore a less stringent analysis should be applied allowing for more flexibility. Landmark replies that because section 5-64~| 1006s requires licensees “to identify other persons for a government list of the suspicious,” the statute has more to do with criminal law enforcement than with regulating business activity, and therefore due process of law requires that stringent scrutiny be applied. Landmark also points out that when a civil statute imposes sanctions that are “penal in nature,” the statute is subject to a stricter vagueness review. See Advance Pharm., Inc. v. United States, 391 F.3d 377 (2d Cir.2004).
Section 5-64-1006 is codified in the criminal code and, although not imposed in this case, violations can be prosecuted as a Class A misdemeanor. The statute also authorizes civil penalties of up to $10,000 per violation. We need not here decide whether section 5-64-1006 is subject to the stricter vagueness review, because even assuming arguendo we made such a decision, Landmark’s vagueness challenge would fail.
C. Due Process — Vagueness Analysis
With this vagueness standard in mind, and assuming without deciding that a more stringent review is warranted, we now turn to the statute and supporting regulations at issue and decide the issue of whether “suspicious transaction” is unconstitutionally vague as applied by the board to Landmark. The statute at issue, specifically section 5-64-1006(c)(l), clearly defines a reportable “suspicious transaction” in terms of four factors to be considered in the context of a reasonable person’s beliefs. In addition, section 5-64-1006(e)(2) establishes a clear rule that cash or money order transactions of more than $200 are “suspicious transactions.” Furthermore, regulation 08-02-0008 sets forth twenty-five additional factors for its licensees to consider in determining whether, in “their best judgment,” a transaction is suspicious.
Landmark contends that the board’s finding that Landmark failed to report suspicious transactions was “based on shifting, uncertain, and undefined standards.” In support of this contention, Landmark argues that the application of these vague standards resulted in a fíne against Landmark despite the statute having been applied in a manner that failed to “give a person of ordinary intelligence fair notice of what is prohibited,” as required by Sitton, 357 Ark. 357, 362, 166 S.W.3d 550, 553.
In support of its argument that these criteria are vague, Landmark relies heavily on Sitton, a case in which this court held that a provision of the Unfair Cigarette Sales Act was unconstitutionally vague because it allowed trade discounts but prohibited rebates, where the term “trade discount” was not defined and was therefore capable of subjective interpretation by the agency there at issue, the Tobacco Control Board. In contrast to Sitton, the statute at issue in the present case defines the term “suspicious transaction.” In addition, the supporting regulation enumerates some twenty-five additional criteria to be used in determining whether the conduct at issue meets the statutory definition. The present case, with its defined terms and lists of criteria for consideration, is therefore in marked contrast to Sitton where the prohibited conduct was wholly undefined. Sitton in no way supports Landmark’s claim that the term “suspicious transaction” is void for vagueness as applied.
In addition to the Sitton case, Landmark raises several other arguments in support of its vagueness claim. First, Landmark argues that the board’s ability to base its findings on only one factor or on multiple factors renders the statute and regulation vague. Landmark makes much of the testimony of Rusty McSpadden, the board’s investigator, that he interpreted the regulation to mean that only one factor could trigger the requirement to report a suspicious transaction. Landmark then also argues that because the regulation does not state a specific number of factors that must exist before a transaction amounts to a “suspicious transaction,” the regulation is vague. Finally, Landmark argues that the board’s reliance on the predominancy factor stated in regulation 08-02-0008(8) is inconsistent with the four factors enumerated in section 5-64-1006.
We have considered each of these arguments carefully, and conclude that they are without merit. First, we note that the board stated in its order that the circumstances of the targeted transactions would lead a reasonable person to believe that the substance was likely used for an unlawful purpose based upon the four factors set forth in the statute and other circumstances of past dealings with customers that Landmark’s agents knew or should have known. In addition, the board’s order stated that the transactions involved customers who bought predominantly or only listed chemicals. Thus, it is clear that, regardless of McSpadden’s testimony, the board did not base its decision on the existence of only one factor. Second, we are persuaded by the following reasoning of the Second Circuit Court of Appeal in its conclusion that the federal scheme similar to the one at issue here was not vague:
|n Similarly unconvincing is defendants’ vagueness challenge to [21 U.S.C.] § 830(b)(l)(A)’s reporting requirement with respect to “any other circumstance that the regulated person believes may indicate that the listed chemical will be used in violation of [the Controlled Substances Act].” While this language is certainly broad, its application is limited to what “the regulated person believes.” Such a scienter requirement generally saves a statute from unconstitutional vagueness. See United States v. Curdo, 712 F.2d 1532, 1543 (2d Cir. 1983) (Friendly, J.); cf. Colautti v. Franklin, 439 U.S. 379, 395, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) (and cases cited therein) (recognizing that “the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea”).
Advance Pharm., Inc., 391 F.3d at 397-98 (emphasis added).
Even when applying the more stringent scrutiny to the vagueness standard, we conclude that the challenged statute and supporting regulation are specific and sufficient to have put Landmark on notice that it should have reported suspicious transactions with its customers to the board. Section 5-64-1006 sets forth a specific and detailed definition of the terra “suspicious transaction.” In addition, the supporting regulation provides over twenty-five additional, specific criteria for the licensees to use in determining in their “best judgment” what may or may not meet the definition of a suspicious transaction. We simply cannot say that this statute and its supporting regulation, when directing Landmark to exercise its best judgment, are vague or standardless or that a person of ordinary intelligence would not have had fair notice of what constituted a suspicious transaction. Although perhaps broad in scope, the statute and regulation are clear and specific enough to provide a person of ordinary intelligence fair notice that he or she was required to report to the Board when his or her customers were likely to be using List 1 chemicals to illegally manufacture a controlled substance. This is especially true in this case where Landmark, as a DEA licensee, was also subject to the similar federal reporting requirements. Landmark therefore had sufficient warning on how to determine a suspicious transaction based on common understanding and practice.
All statutes are presumed constitutional and this court resolves all doubts in favor of constitutionality. Sitton, 357 Ark. 357, 166 S.W.3d 550. The party challenging a statute’s constitutionality has the burden of proving that the act is unconstitutional. Id. When considering the validity of a rule or regulation, this court gives the same presumption of validity it would give to a statute. Id. Landmark has failed to cany its burden of proving the challenged statute and regulation unconstitutional. The circuit court’s ruling that Landmark’s due-process rights were not violated is therefore affirmed.
IV. Substantial Evidence to Support Board’s Decision
For its second point for reversal, Landmark contends that the board’s decision was not supported by substantial evidence and was therefore arbitrary and capricious. Landmark contends that the board based its decision “exclusively on the percentage of Landmark’s sales to a random selection of retailers.” Landmark argues further that the board’s selection of seventy percent of sales as the threshold amount triggering mandatory reporting was arbitrary and capricious. The board responds that its decision was supported by substantial evidence, relying on, among other things, the evidence of Landmark’s sales records showing that specified customers purchased predominantly or only listed chemicals.
A. Standard of Review
This court has often repeated its standard of review for administrative decisions:
Administrative decisions should be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. To set an agency decision aside as arbitrary and capricious, an appellant must demonstrate that the decision was made without consideration and with a disregard of the facts. We review the entire record to establish whether the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. An administrative agency, like a jury, is free to believe or disbelieve any witness and, on review, the evidence is given its strongest probative force to support the administrative ruling. A court may not reverse a decision of an agency if there is substantial evidence to support that decision. The appellant has the burden of proving an absence of substantial evidence....
... We have further held that to establish a lack of substantial evidence, an appellant must demonstrate that the proof before the administrative board was so nearly undisputed that fair-minded persons could not reach its conclusions. The question on review is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made.
H. T. Hackney, 353 Ark. at 807-08, 120 S.W.3d at 86-87 (citations omitted) (quoting Mid-South Road Builders, Inc. v. Ark. Contractors Licensing Bd., 328 Ark. 630, 633, 946 S.W.2d 649, 651 (1997)).
B. Analysis
Landmark mischaracterizes the board’s decision. The board’s order did not conclude that the transactions meeting the seventy percent threshold were per se suspicious, and did not use seventy percent as the single factor for its decision. The board’s order stated that in the transactions listed in Attachment A to its order, the customer bought predominantly or only listed chemicals. Our review of these transactions, made possible only because the board included them in its supplemental addendum, reveals that these transactions were only one basis for the board’s decision. The order further stated that Landmark made sales to two “non-traditional outlets.” Finally, the order stated that, for a period of well over two years, Landmark maintained a storage facility for List 1 chemicals without a license and without a proper alarm system or temperature and humidity controls. Thus, despite the testimony at the hearing, the board’s order clearly did not rely solely on the seventy percent threshold.
Our review of the record reveals that in addition to the nearly 300 transactions with some twenty customers that the board identified as involving predominantly listed chemicals, the following substantial evidence was presented at the hearing to support the board’s order. George Gadd, DEA senior investigator, testified that he visited one of Landmark’s customers, The Back Aley, and saw no over-the-counter products on public display. Gadd stated that when he inquired as to where the pseudoephedrine was located, the owner responded that he kept them in his office and that he was well aware that his customers all used methamphetamine. Steve Leslie Barber, owner of The Back Aley, testified that he purchased many items from Landmark, but the predominant thing he purchased was pseudoephed-rine. He stated that he kept one box of Max Brand Pseudo 60 mg in the front case of his store, while he stored the remainder of the boxes in his office. Don Price testified that he worked at Ladies World and ordered merchandise from Landmark. He stated that Landmark’s representative routinely sold him more than his two-package allotment of pseudoephedrine by forging invoices. Rusty McSpadden testified that he visited Landmark’s unlicensed storage facility and spoke with Landmark’s representative, as well as the storage facility’s representative. Both persons told McSpadden that there were no alarms, climate controls, or pest controls in place.
We conclude that the foregoing evidence constitutes substantial evidence to support the board’s order and that the order was therefore not arbitrary and capricious. Both of Landmark’s arguments for reversal are without merit. We affirm the order of the circuit court in all respects.
. Landmark first filed an appeal with the Arkansas Court of Appeals, reiterating the arguments it advanced in its petition for review. The court of appeals ordered correction of the record and rebriefing by Landmark because the record was out of sequence, and Appellant failed to abstract the constitutional objections it raised at the administrative hearing. Landmark Novelties, Inc. v. Ark. State Bd. of Pharmacy, 2009 Ark. App. 165, 2009 WL 624758 (unpublished).
This court subsequently assumed jurisdiction of the appeal but was unable to address the merits because Landmark excepted from the contents of the record on appeal "the transcript of the motion argument herein,” which referred to the hearing held before the circuit court in which the constitutional objections were raised. Landmark Novelties, Inc. v. Ark. State Bd. of Pharmacy, 2009 Ark. 417, 2009 WL 2971692 (per curiam). Consequently, this court ordered a supplemental record and substituted brief. Id. Landmark has now presented us with a transcript and abstract of the circuit court’s hearing, matters that are essential to our understanding of the questions presented on appeal, see Ark. Sup. Ct. R. 4-2(a)(5) (2009); and we proceed with the merits of Landmark's appeal. | [
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JIM HANNAH, Chief Justice.
11 La’Ronda Slaughter, individually and as the executor of the estate of Jerry Slaughter (La’Ronda), appeals an order of the Circuit Court of Calhoun County denying a motion for new trial. La’Ronda brought a personal injury and wrongful death ease against appellees Capital Supply Co., Inc., Sherwood Valve Company, and Brenntag Mid-South, Inc., alleging that Jerry Slaughter suffered injury and death due to exposure to compressed chlorine gas that leaked from a cracked valve. Sherwood manufactured the valve. Brenntag installed the valve in a gas cylinder and filled it with gas, and Capitol distributed the filled cylinder to Jerry’s employer, the City of Hampton. The jury reached a verdict in favor of the appellees, and the circuit court denied La’Ronda’s motion for new trial. We affirm the decision of the circuit court. Our jurisdiction is pursuant to Arkansas Supreme Court Rulej2l-2(b)(4), (5).
On November 17, 2004, Jerry Slaughter, together with fellow City of Hampton employees Carol “Buddy” Hennington and Monroe Slaughter, replaced an empty compressed chlorine cylinder with a full cylinder at a city well. The structure in which the chlorine cylinder was being replaced was small and lacked working ventilation. The new cylinder was connected to the well chlorination system, and Jerry opened the valve. Unknown to Jerry, Buddy, and Monroe, the valve was cracked, and upon opening, compressed chlorine was released. According to Jerry, the compressed gas hit him directly in the face and mouth. Jerry, Buddy, and Monroe immediately left the building. According to Buddy and Monroe, Jerry immediately began coughing and struggling to breathe. La’Ronda testified that when Jerry arrived home that night, he told her that he had almost been killed that day. Monroe testified that Jerry returned to work the next day but was still coughing and gagging. He also testified that Jerry was always a hard worker, but after the exposure he held back and ceased work entirely shortly thereafter.
On December 9, 2004, Jerry saw his family physician, Dr. Robert Watson, who began treating Jerry for respiratory problems. According to Dr. Watson’s records, Jerry did not mention the chlorine inhalation on this first visit. According to La’Ronda, Jerry did tell Dr. Watson about the exposure. The treatment did not help. Jerry was hospitalized and died of respiratory failure on January 15, 2005. Three causes of death were listed in sequential Lorder on the death certificate as pneumonia bacterial, pneumonia fungal, and chemical inhalation.
La’Ronda presented evidence at trial to show that the chlorine exposure triggered Jerry’s HIV virus, causing AIDS and pneumocystis carinii pneumonia (PCP) culminating in his death. Appellees presented evidence to show that there was no injury from chlorine exposure, that Jerry’s illness and death were caused by AIDS and PCP, and that his injuries and death were unrelated to the chlorine exposure.
The jury concluded that the chlorine exposure was not the proximate cause of Jerry’s illness, death, and damages. La’Ronda filed a motion for new trial, which was denied. She appeals from the denial of that motion.
Substantial Evidence
La’Ronda argues that “the jury verdict of no defect is not supported by substantial evidence.” The jury did not find that there was no defect. The jury found that the appellees had not supplied “a product in a defective condition which was a proximate cause of plaintiffs claimed damages.” Counsel for Sherwood in opening state ment set out the defense’s case and stated that the issue was not whether there was a crack in the valve but 14rather was whether the injuries alleged were caused by chlorine exposure:
[Tjhere was a crack in that valve. It was not in the valve when it left our company ... we’re not going to make you make a decision about that .... But what you’re going to hear is that actually this case is not about that crack. What you’re going to hear is this case is about what caused Slaughter’s death.
The jury concluded that Jerry’s death was not proximately caused by exposure to chlorine gas.
Extensive evidence was presented by both sides with regard to causation of the respiratory disease process that took Jerry’s life. La’Ronda offered evidence to show that Jerry was in good health prior to the exposure, that his injuries from the exposure were immediate, that he suffered increasingly severe complications from the exposure from November 17, 2004, until the day of his death, and that the exposure to chlorine gas was the event that precipitated his illness and demise.
Appellees put on evidence to show that the onset of Jerry’s illness predated the chlorine exposure, that as early as October before the exposure in November, he had been losing weight. Dr. Henry F. Simmons testified that by the time of his hospitalization, Jerry had already lost the ability to make proteins required by his body. He testified further that Jerry’s concentration of AD4 lymphocyte had dropped to a low level of 60. According to Dr. Henry F. Simmons, Jr., these were all signs of advanced HIV. Dr. James Wal-dron testified that the biopsied tissue showed that Jerry “had an entirely typical case of PCP.” He further testified that a review of the tissue slides showed that chlorine had not entered his | Blungs sufficiently to cause injury from the exposure. Specifically, Dr. Waldron noted that there was neither the destruction of living tissue or the scaring that injury from chlorine exposure produces. Appellees’ position was that Jerry suffered from AIDS, and that he simply died from complications due to that disease.
Substantial evidence is “valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion, and force the mind to pass beyond conjecture.” Ark. Dep’t of Human Servs. v. A.B., 374 Ark. 193, 199, 286 S.W.3d 712, 717 (2008). Both sides presented substantial evidence of the cause of Jerry’s death, and the jury decided in the defense’s favor. “Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder.” DaimlerChrysler Corp. v. Smelser, 375 Ark. 216, 219, 289 S.W.3d 466, 470 (2008). La’Ronda asserts that the evidence only pointed to liability. Even if this assertion were correct and the testimony she offered was uncontradicted and unimpeached, the jury is still free to believe or disbelieve the testimony of any witness. See Farm Bureau Mut. Ins. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000). We hold that substantial evidence supports the jury verdict.
Collateral Estoppel
La’Ronda argues that a judgment finding that Jerry’s illness and death were proximately caused by the chlorine exposure has already been entered. She directs this court to Estate of Slaughter v. Hampton, 98 Ark.App. 409, 255 S.W.3d 872 (2007), where Rshe appealed the decision of the Arkansas Workers’ Compensation Commission that inhalation of chlorine gas was not the major precipitating event that led to Jerry’s respiratory failure. The court of appeals held that this was not a decision that “fair-minded persons with the same facts before them” could have reached. Hampton, 98 Ark.App. at 417, 255 S.W.3d at 878. The case was remanded to the Commission “for proceedings consistent with this opinion.” What was ultimately decided by the Commission is not before this court. Thus, La’Ronda has not presented, and this court has not considered, the question of whether a court of competent jurisdiction has entered a judgment to which collateral estoppel may apply. See Beebe v. Fountain Lake Sch. Dist., 365 Ark. 536, 231 S.W.3d 628 (2006) (stating that collateral estoppel applies to an issue that has been finally and definitely settled and determined on its merits by a court of competent jurisdiction). Further, La’Ronda did not present the question, and this court does not consider, whether a decision by the Commission that an injury is work related for purposes of an award of compensation benefits constitutes a final judgment by a court of competent jurisdiction that Jerry’s injuries and death at issue in the circuit court action were caused by the chlorine exposure. Further, even if collateral estoppel did apply, the elements cannot be met. “The party against whom collateral estoppel is asserted must have been a party to the earlier action.” Powell v. Lane, 375 Ark. 178, 185, 289 S.W.3d 440, 444 (2008). Ap-pellees were not parties to the workers’ compensation action at issue before the court of appeals.
JjAMI 106A
La’Ronda alleges that the failure of Brenntag to put its vice-president of production, and Sherwood’s failure to put its in-house engineer on the stand at trial give rise to an inference that their testimony would have been unfavorable. Based on this alleged inference, La’Ronda asserts the circuit court erred in refusing to instruct the jury with AMI 106A on adverse inference. Instruction 106A provides as follows:
Where relevant evidence is within the control of the party in whose interest it would naturally be to produce it, and that party fails to do so without satisfactory explanation, you may draw the inference that such evidence would not have been favorable to that party.
We are cited to Saliba v. Saliba, 178 Ark. 250, 255-56, 11 S.W.2d 774, 776 (1928), where this court stated that an instruction similar to AMI 106A was proper where the defendant in a personal injury case arising from an automobile accident, who was driving the car, and who knew whether the injury was caused as alleged by putting the car in reverse, was present in court at the trial but did not testify. This court concluded in Saliba that the defendant’s testimony would not have been trivial or cumulative because the question was whether defendant’s car was put in reverse, and the defendant was the driver. Id. In Saliba, the plaintiff showed that the defendant had knowledge relevant to the cause and chose not to testify. La’Ronda conversely alleges that because Brenntag and Sherwood’s witnesses held positions of significant authority, they must have had significant knowledge. We note that Brenntag’s witness, its vice-president of production, and Sherwood’s witness, an in-house |sengineer, were deposed, and their depositions were introduced into evidence and read at trial. La’Ronda fails to show that the witnesses had knowledge beyond that revealed in their depositions. We also note that while La’Ronda argues that the “failure of a party present to testify at trial supports such an instruction,” neither witness she complains of was present at trial.
Instruction 106A provides that where relevant evidence is in the control of a party in whose natural interest it would be to produce it, and the party does not pro duce it, an inference may be found that the evidence was unfavorable. La’Ronda identifies no relevant evidence that was in the possession of the witnesses that they would have naturally been expected to produce that was not disclosed in their depositions. Rather, she asserts that the witnesses were beyond the subpoena power of the circuit court, and that, because the two witnesses were deposed before trial and did not appear at trial, an inference must arise that their cross-examination would have been unfavorable to appellees. No such inference arises under the common law set out in Saliba, supra, or under AMI 106A. What gives rise to the inference is identified relevant evidence in the possession of a party in whose interest it is to produce it and who fails to do so without satisfactory explanation. Volunteer Transp., Inc. v. House, 357 Ark. 95, 101, 162 S.W.3d 456, 459 (2004); Cox v. Farrell, 292 Ark. 177, 182, 728 S.W.2d 954, 956 (1987). The circuit court did not abuse its discretion in refusing to instruct the jury on AMI 106A. See Williams v. First Unum Life Ins. Co., 358 Ark. 224, 188 S.W.3d 908 (2004).
Refusal to Admit Documents Revealing Knowledge of Leaks
La’Ronda alleges that the circuit court en~ed in refusing to admit the following documents:
1. An undated Sherwood Chlorine Valve Assembly product bulletin referencing Jerry’s November 17, 2004 exposure warning of possible cracks in the valve body (proffered exhibit 2g);
2. An undated Safety Alert from The Chlorine Institute, Inc. referencing cracks in the valves and noting two recent incidents where the leak occurred at the customer site (proffered exhibit 2h);
3. An April 19, 2005 Inspection Procedures from The Chlorine Institute, Inc. regarding inspection of valves for cracks. Two incidents were noted where the leak occurred upon opening the valve (proffered exhibit 2i);
4. A September 15, 2005 Sherwood Chlorine Safety Notice regarding cracks in valves and recommending against the use of ammonia to test for leaks (proffered exhibit 2j);
5. A February 16, 2005 letter from The Chlorine Institute to Sherwood regarding cracked valves manufactured by Sherwood and whether installation of valves using fifty pounds of torque was too great and a cause of cracks. Appended is an undated Sherwood Chlorine Valve Assembly Product Bulletin noting a November 17, 2004 Chlorine Institute bulletin regarding valves, their care and proper torque (proffered exhibit 2k);
6. A February 8, 2005 Central Testing Laboratories report to Sherwood regarding valve failures and stress corrosion cracking failures. Ammonia as a corrosive agent is noted (proffered exhibit 2x).
The documents were excluded as evidence of remedial repair under Arkansas Rule of Evidence 407. La’Ronda alleges this was error. However, La’Ronda’s failure expert, |inmechanical engineer Mark Tanner, testified that he had reviewed the above noted proffered exhibits, and that he had based his opinion in part on those documents. He testified directly from the proffered exhibits, noting what each contributed to his opinions, and discussed the defects in the valves and possible causes of the cracks, such as application of ammonia and using too much torque. Where excluded documents are sufficiently summa rized in testimony, it is not an abuse of discretion to exclude them even though they may be relevant. See, e.g., J.E. Merit Constr. Inc. v. Cooper, 345 Ark. 136, 44 S.W.3d 336 (2001). The evidence La’Ronda complains was wrongfully excluded was admitted by sufficient summary by Tanner making this issue moot. We do not address moot issues. See Ryan & Co. AR, Inc. v. Weiss, 371 Ark. 43, 263 S.W.3d 489 (2007).
Personal Beliefs of Counsel Stated in Argument
La’Ronda argues that the case should be reversed because defense counsel impermissibly bolstered a witness’s qualifications in argument and stated beliefs about the cause of action. No objection was made at the time of the alleged improper argument. The issue is first raised in the motion for new trial. This court has repeatedly held that an objection first máde in a motion for new trial is not timely. Jones v. Double “D” Props., Inc., 352 Ark. 39, 48, 98 S.W.3d 405, 410 (2003).
Whether the Circuit Court Erred in Permitting Video Testimony of Expert Dr. White that Jerry’s Chlorine Exposure Was Not Significant
La’Ronda asserts that the circuit court erred in overruling an objection to admission [nof defendant’s medical expert Dr. Peter White’s video testimony where she argued that there was no foundation for his conclusion that Jerry’s exposure was not significant. She alleges that Dr. White’s testimony on this issue was a comment on the evidence rather than a medical opinion. La’Ronda argued to the circuit court that there was no basis for this conclusion by Dr. White, that “his bare assertion that every single human being who experiences a chlorine exposure would behave in a certain way, without more, is not an opinion based on valid scientific criteria.” She further asserts that his opinion with regard to chlorine exposure was “essentially a lay opinion as to the amount of chlorine exposure.”
Dr. White’s opinion was that Jerry suffered from end-stage AIDS and PCP and that the mortality rate in a person in his condition is in excess of eighty-five percent. As to exposure, Dr. White testified that “Mr. Slaughter’s clinical course is not consistent with any of the described syndromes that you would develop after an intense chlorine exposure,” and that under the allegations in this case, Jerry would have shown the abrupt onset of pulmonary edema or reactive airways dysfunction syndrome. He testified that in either case, “these patients are very ill and have severe refractory bronchospasms or wheezing, and they are short of breath, air-hungry, and they invariably present for medical evaluation within 24 hours of the acute exposure.” Dr. White stated he did not believe that a person who suffers acute chlorine exposure can just choose “to tough it out.”
|12We are cited to Maxwell v. State, 279 Ark. 423, 426, 652 S.W.2d 31, 33 (1983), for the proposition that there must be evidence to support an expert’s opinion. At issue in Maxwell was a simple inference given greater emphasis by being offered as expert opinion. Such is not the case in Dr. White’s testimony. Dr. White testified that based on his experience as a pulmo-nologist, if Jerry had suffered' chlorine exposure as alleged, he would have sought and required significant medical care within a day of exposure. He also expressed the opinion that the clinical course of treatment provided to Jerry indicated end-stage AIDS and PCP, as opposed to chlorine exposure. The reasoning or methodology underlying expert testimony is valid and was properly applied to the facts in the case. See Coca-Cola Bottling Co. v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003). There was no abuse of discretion in allowing Dr. White to testify as to chlorine exposure based on Jerry’s medical care.
Error in Failing to Order Production of the Privilege Log
La’Ronda alleges that the circuit court erred when it refused to require appellees to produce an alleged log setting out documents appellees believed were privileged. La’Ronda makes a bare assertion with no reference to any authority whatever. We do not consider arguments without convincing argument or citation to authority in support unless it is apparent that the arguments are welltaken. Hart v. McChristian, 344 Ark. 656, 668, 42 S.W.3d 552, 560 (2001). We will not develop an issue for a party. Alexander v. McEwen, 367 Ark. 241, 248, 239 S.W.3d 519, 524 (2006).
Production of the Joint Defense Agreement
La’Ronda asserts that the defendants entered into a joint defense agreement that was against public policy. We are cited to Firestone Tire & Rubber Co. v. Little, 276 Ark. 511, 639 S.W.2d 726 (1982), and La’Ronda argues that the defense agreement is similar to a “Mary Carter” agreement. “A Mary Carter agreement is one in which a plaintiff secretly agrees with a defendant that if the plaintiff recovers from another defendant, the agreeing defendant’s liability will be reduced.” Firestone, 276 Ark. at 513-14, 639 S.W.2d at 728. Secret agreements between plaintiffs and one or more of several multiple defendants may mislead judges and juries, and they border on collusion. Id., 639 S.W.2d at 728. Such an agreement subverts the adversarial process by collusion between the very parties who are thought by the jury to be. pitted against each other. Id. In this case, the defense agreement resolves how the appellees would collectively address defense issues that were common to each appellee. There is no reference to an agreement with the plaintiff as in Firestone. La’Ronda offers no evidence or convincing authority for the proposition that the defense agreement would subvert the adversarial process. Further, La’Ronda provides no convincing authority or argument as to why the principles of a “Mary Carter” agreement should be applied to an agreement between defendants regarding how they will handle defense issues common to all defendants. There is no merit to this issue.
114Affirmed.
. We note that La'Ronda provides significant argument on how exposure of valves to ammonia in testing for leaks causes cracks in the valves. No ammonia was applied to the valve when the cylinder was installed. The installation process had not reached the point where the test for leaks is performed at the time the valve leaked. To the extent La'Ronda is arguing that prior applications of ammonia in prior installations of the subject cylinder may have caused the defect in the valve, there was no proof of prior application of ammonia at the time of installation, and no one argued that the valve was not defective. Appellees argued about when the defect appeared and that Jerry was not injured by the chlorine exposure. | [
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PER CURIAM.
| attorney Bruce Jamison Bennett represents Appellant Cristobal Mancia who was convicted of rape and sentenced to life imprisonment. A notice of appeal was filed on Mr. Mancia’s behalf, and the appellate record was subsequently filed in this court. Thereafter, on August 11 and October 18, 2008, Mr. Bennett received extension of the deadline for filing Mr. Mancia’s brief. The final deadline to file Mr. Mancia’s brief was November 24, 2008. The deadline was not met; instead, on November 24, 2008, Mr. Bennett filed a third motion for an extension of time in which to file Mr. Mancia’s brief. That motion was summarily denied on November 25, 2008.
On March 4, 2009, the State filed a motion to dismiss Mr. Mancia’s appeal on grounds that no brief had been filed by Mr. Mancia, nor has Mr. Mancia filed a motion for permission to file his belated brief. Mr. Bennett has not responded to the State’s motion.
12Because Mr. Bennett has not been relieved as counsel, he remains attorney-of-record and responsible for the appeal. Ark. R.App. P.-Crim. 16. He is directed to file within seven days of the date of this opinion a motion to file belated brief. Mr. Bennett is further directed to appear before this court on May 7, 2009, at 9:00 a.m. and show cause why he should not be held in contempt for failing to file his client’s brief on or before November 24, 2008, as previously ordered. | [
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DAVID M. GLOVER, Judge.
|! Gary and Crystal Overstreet married in 1996 and divorced in 2012. One child, Amelia, was born of this marriage (D.O.B.2/28/2004). It was not an amicable divorce, with several motions filed during its pendency, including some for contempt and for change of temporary custody (which had been granted to Crystal). The divorce hearing was first held on January 18, 2012, and at the close of that hearing, the record was left open for certain designated matters to be resolved. On October 3, 2012, another hearing was held, which focused on custody and contempt issues. The divorce decree was entered on December 28, 2012. It granted custody of Amelia to Crystal, with standard visitation for Gary; set child support at $287 every two weeks; awarded Crystal $1,722 for child-support arrearages; gave possession of the marital home to Crystal, until the later of Amelia turning 18 or graduating |2from high school; ordered Crystal and Gary to share equally the mortgage payment on the marital home; apportioned some of the personal property and marital debt; and provided loosely for an award of attorney’s fees to Crystal.
Gary Overstreet raises five points of appeal: 1) it was error to award custody of the minor child to Crystal; 2) the amount of child support awarded should be reduced; 3) the circuit court’s award of possession of the marital home to Crystal and requiring Gary to bear the burden of half the mortgage payment until the child reaches the age of majority was error; 4) the circuit court clearly erred, as a matter of law, when it determined that a third party, not involved in this action, was the owner of an item of marital property; 5) the circuit court’s allocation of the parties’ debt was grossly inequitable. We affirm the award of Amelia’s custody to Crystal; we affirm the award of child support, but with instructions to modify the amount to accurately reflect the amount set by the child-support chart; we reverse and remand for the trial court to reconsider the allocation of debt to take into account debt that was omitted from the original decree, and in so doing to feel free to reconsider the overall allocation of debt that might thereby be affected, including the mortgage on the marital home; and we reverse and remand the findings regarding ownership of the boat and trailer.
Discussion
For his first point of appeal, Gary contends that the trial court erred in awarding custody of Amelia to Crystal. We disagree. Child-custody cases are reviewed de novo, but we will not reverse a trial court’s | ^findings of fact unless they are clearly erroneous. Brice v. Brice, 2013 Ark. App. 620, 2013 WL 5872290. A finding of fact is clearly erroneous if, after reviewing all of the evidence, the appellate court is left with a definite and firm conviction that a mistake has been made. Id. The question of whether a trial court’s findings are clearly erroneous turns largely on the credibility of the witnesses, and therefore, we give special deference to the trial court’s superior position to evaluate the witnesses, their testimony, and the child’s best interest. Id. There are no cases in which the trial court’s superior position, ability, and opportunity to observe the parties carry as great a weight as those involving minor children. Id.
The trial court’s award of custody is contained in paragraph two of the decree and provides:
2. Custody: These parties had one minor child born of their marriage, Amelia Overstreet, date of birth February 28, 2004. The temporary order entered May 19, 2011, placed custody with Crystal. Both parties have demonstrated that they are capable of caring for the child and both have a support structure of family and friends to assist them. Crystal has been the primary caregiver during the course of the marriage and has managed the custody properly under the temporary order. Although both parties have had personal challenges during the marriage, both have overcome those challenges in a manner that does not adversely affect custody or visitation. Accordingly, it is in the best interests of the child that custody is awarded to Crystal Overstreet.
(Emphasis added.)
The gist of Gary’s argument concerning the award of custody to Crystal is that the trial court “singled out one factor without giving appropriate attention to the overall best interests of the child.” That factor was that Crystal had been Amelia’s primary caretaker. Gary argues that he deserved a more detailed analysis of the best interests of his daughter “and had such analysis been conducted it would have clearly demonstrated the child would be better off in 14his custody, not Mrs. Over-street’s.” He then lists several factors that can be considered by a trial court, but that he contends were not specifically considered by the trial court in this case. He also contends that he has had a more stable employment history; that Crystal has not fostered communication and visitation; that Crystal has a history of using prescription and non-prescription drugs; that she had extramarital affairs; that she sprayed Amelia’s eyes with perfume as punishment; that she did not regularly take the child to the doctor or dentist; that she had refused to work to help with family expenses and had wiped out the family’s savings; that he had family who could help get Amelia to and from school, while Crystal was taking her to work at 6 a.m.; that Crystal had engaged in extramarital cohabitation; and that Gary was better prepared financially to care for Amelia. He concludes that our court should be left with a definite and firm belief that the trial court was mistaken in awarding custody to Crystal.
We have reviewed all of the evidence in this case, and we are not left with a definite and firm conviction that the trial court made a mistake in awarding custody to Crystal. Gary’s contentions about facts that should have been considered by the trial court and that, he says, weigh in his favor have been highlighted above. However, Crystal testified that Gary had a history of anger issues; that he had a history of gambling-debt problems; that he had made exchanges difficult by involving the El Dorado Police Department; that Amelia was doing very well; that Amelia made straight A’s in school; that Gary is a truck driver and she did not know how he would handle custody being on the road so much; that she did not like for Amelia to ride with him in the 18-wheeler and had therefore refused to sign any hold-harmless agreements that would have allowed Amelia to do so; that both she and Gary had Rused illegal drugs in the past; that in 1999, Gary had tried to commit suicide; and that she does not think Amelia bathes when she is visiting with her father. Perhaps most importantly, Gary’s stepmother, Judy Fussell, testified at the October 2012 hearing that she was not on anyone’s “side” but Amelia’s; that Gary had very serious anger issues, for example, threats of physical harm to Crystal, including threats to use a gun to kill her; that she hoped the threats were not real; and that she believed he would never hurt Amelia.
Giving special deference to the trial court’s superior position to evaluate witnesses, testimony, and the child’s best interests, Brice, supra, we find no clear error in the trial court’s decision. We, therefore, affirm the award of Amelia’s custody to Crystal.
Gary next contends that the trial court erred in setting the amounts of child support and arrearage. We affirm the award of child support and arrearage, but with instructions to modify the child-support amount as discussed infra.
We review child-support cases de novo on the record, but we will not reverse the trial court’s findings of fact unless they are clearly erroneous. Bass v. Bass, 2011 Ark. App. 753, 387 S.W.3d 218. Administrative Order Number 10 includes a family support chart that indicates the amount of support due, depending upon the payor’s income. Id. A trial court’s order awarding child support must recite the amount of support required by the chart and recite whether the court deviated from that amount. Id. It is a rebuttable presumption that the amount of child support calculated pursuant to the chart is the appropriate amount. Id. If the court deviates from the chart amount, it must include specific written findings stating why, after consideration of all relevant factors including the best interest of the child, the chart | fiamount is unjust or inappropriate. Id.
Paragraph four of the divorce decree sets out the child-support award, providing:
4. Child Support: Gary Overstreet shall pay child support in the sum of $287 every two weeks pursuant to the chart based on an income of $1,750 every two weeks. Payment shall be made through the circuit clerk’s office or other third party system to insure accurate payment records. Crystal Overstreet is awarded judgment against Gary Over-street for the sum of $1,722 for arrear-age to the hearing date of January 18, 2012. Any arrearage issue arising since that date is reserved for further proceedings.
Gary contends that “there are several errors in the Circuit Court’s calculation of child support and its award of a judgment for an arrearage.” He summarizes those errors as: 1) the trial court miscalculated his bi-weekly take-home income, 2) it failed to take into consideration a decrease in his income in recent months because of economic factors beyond his control, and 3) the arrearage amount should have been no more than $861, not the $1722 awarded. In addition, he argues that the amount of child support awarded by the trial court imposes an impossible financial burden on him in light of his other debts.
After reviewing the evidence, we are not left with a definite and firm conviction that a mistake was made regarding any of the items argued by Gary. For example, in his affidavit of financial means, Gary represented his range of bi-weekly net income as between $1500 to $2000. During cross-examination, he acknowledged that taking the two years for which income tax returns were available, 2008 and 2009, (he claimed he did not file for 2010 and 2011 because Crystal had the necessary receipts), he averaged about $59,000; that dividing $59,025 by 52 weeks amounted to $1,135.10; and that amounted to $2,270.19 when multiplied by 2. He also acknowledged that the only proof he brought was a “short paycheck,” and that it was therefore necessary to rely on his 2008 and 2009 tax returns |7because he did not bring a full paycheck or other proof of his current income. Moreover, in making his argument to our court that he should have been awarded custody, Gary’s brief explains, “Mr. Overstreet earns somewhere between $1100 every two weeks to $1750 every two weeks.” $1750 is the figure the trial court relied on in referring to the child-support chart. Our review of the evidence presented does not convince us that the trial court clearly erred in determining Gary’s income or in its rejection of Gary’s position that his income had significantly decreased. Similarly, with respect to the award of arrearage and the rejection of Gary’s argument that an impossible financial burden had been placed upon him, we also find no clear error.
We do, however, find a mistake in the actual chart amount awarded. Based on the trial court’s finding that Gary’s income was $1750 every two weeks, and about which we have found no clear error, the child-support chart shows the appropriate amount as $277 every two weeks, not the $287 every two weeks that was set forth in the decree. Therefore, we affirm the award of child support based on an income level of $1750 every two weeks, with instructions to correct the amount of child support to $277 every two weeks, in accordance with the child-support chart.
We next address Gary’s third and fifth points of appeal together because they both deal with the division of marital debt. Specifically, as his third point of appeal, Gary contends that the circuit court erred in awarding possession of the marital home to Crystal and requiring him to bear the burden of half the mortgage payment during Amelia’s minority; and for his fifth point of appeal, he contends that the trial court’s allocation of the parties’ debt was ^grossly inequitable and that several items of debt were not addressed nor allocated by the trial court in the decree. We reverse and remand for the trial court to address the allocation of debt that was omitted from the decree, and which might thereby necessitate a reconsideration of the overall allocation of debt, including payment of the home mortgage.
The division of marital debt is not addressed in Arkansas Code Annotated section 9-12-315 (Repl.2009) (division of properly). However, the trial court has the authority to consider the allocation of debt in a divorce case. Baker v. Baker, 2013 Ark. App. 543, 429 S.W.3d 389. The allocation of debt is an essential item to be resolved in a divorce dispute. Id. A trial court’s decision to allocate debt to a particular party or in a particular manner is a question of fact and will not be reversed on appeal unless clearly erroneous. Id. Allocation of marital debt must be considered in the context of the distribution of all the parties’ property. Bellamy v. Bellamy, 2011 Ark. App. 433, 2011 WL 2395205. There is no presumption that an equal division of debts must occur. Spears v. Spears, 2013 Ark. App. 535, 2013 WL 5424819. Therefore, it is not error to determine that debts should be allocated to the parties based on their relative abilities to pay. Id. The key is that the division of debt must be equitable. Id.
Here, Gary lists several debts that were presented to the trial court in the affidavits of financial means but omitted by the trial court in the decree. The divorce decree provides:
9. Debt: The parties shall share equally the debt to the Internal Revenue Service and the Ford Motor Credit Company. Gary Overstreet shall be responsible for the debts to Capital One, Credit One, the embryo storage company and Dish.
Additionally, in paragraph six of the decree, the trial court gave Gary possession and title to the 2009 truck and the 18-wheeler, providing that Gary was to be solely responsible for the |adebt on said vehicles. Under paragraph five of the decree, the trial court divided equally between Gary and Crystal responsibility for payment of the mortgage on the marital home, i.e., one-half each, with possession of the house going to Crystal during the period of Amelia’s minority.
Gary acknowledges that he and Crystal have no real assets; that the court was dealing primarily with debts. He contends, however, that the trial court’s division of debt was not equitable, and that the trial court omitted entirely the allocation of the following debts: tax attorney ($325), John Deere ($5,863.55), hospital ($27,000), doctors ($180), Hughes Net ($483.11), and Iberia Bank ($17,882.52), totaling approximately $50,000.
Our review of the record reveals that the $17,882.52 debt to Iberia Bank was in fact addressed and allocated by the trial court in the decree because it is the debt associated with Gary’s 2009 truck; however, we agree that the trial court did not address the debts to “tax attorney,” John Deere, hospital, doctors, and Hughes Net, totaling over $34,000. Because we regard this as a significant amount of unallocated debt, we remand to the trial court for it to address these unallocated debts, to do so in the context of the overall division of debt, and to reconsider any prior division of debt if necessary in order for the overall division of debt to be equitable.
Finally, we address Gary’s remaining point of appeal in which he contends that the trial court “clearly erred, as a matter of law, when [it] determined that a third party, not involved in this action, was the owner of an item of marital property.” We agree.
The item of property involved in this point of appeal is a boat and trailer. The divorce 11f,decree provides:
8. The boat: The John boat was informally mortgaged to James Manning [Crystal’s father] for debt and forfeited for nonpayment. The boat and its trailer shall therefore belong to James Manning.
Gary argues that the trial court exceeded its authority in awarding the boat/trailer to James Manning because Manning was not a party to this action. Crystal made no claim to the boat and trailer. Under the circumstances of this case, if the trial court had limited its ruling to a mere determination that the boat and trailer were not marital property, and therefore not subject to division between Crystal and Gary, we would not have found clear error. However, the trial court went beyond that finding and determined that ownership of the boat lay with James Manning, who was not a party to this action. See Grace v. Grace, 326 Ark. 312, 930 S.W.2d 362 (1996). We, therefore, reverse and remand this ownership issue, leaving it to Gary and James Manning to pursue any action between themselves to determine ownership of the boat and trailer.
Affirmed in part; affirmed in part, with instructions; reversed and remanded in part.
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WAYMOND M. BROWN, Judge.
| A Pulaski County jury found appellant Derek Lee Jackson guilty of the second-degree murder of Anthony Fogle. He was sentenced to thirty years’ imprisonment with an additional fifteen-year enhancement for using a firearm in the commission of the murder. Jackson contends that the trial court erred by denying his motion to suppress when (1) his statement was the product of coercion and (2) the police violated his rights by improperly re-initiating contact with him after he had invoked his rights. He also argues that the trial court erred by denying his motion to dismiss on due-process grounds due to the city’s failure to preserve evidence. We affirm.
On March 4, 2009, Jackson was charged by felony information with the first-degree murder of Anthony Fogle. Jackson filed a motion to suppress his custodial statement and to dismiss the charge against him on September 16, 2009. A brief in support of Jackson’s motion was also filed at that time. A hearing on Jackson’s motion took place on October 22, 2009.
Detective Tommy Hudson of the Little Rock Police Department testified that he investigated the December 13, 2008 death of Fogle. According to Det. Hudson, Fo-gle died as the result of a single gunshot wound to his chest. Detective Hudson stated that Jackson was developed as the suspect in Fogle’s death. He said that he went to Jackson’s address in January 2009 because there was an active warrant for Jackson’s arrest in an unrelated case. Jackson was taken into custody at 3:40 p.m., and Det. Hudson met with him at 4:35 p.m. Detective Hudson testified that he read Jackson his Miranda rights twice on January 12, 2009. Detective Hudson stated that Det. Greg Siegler was present during Jackson’s first interview, and that Det. J.C. White was present during the second interview. He stated that after he informed Jackson that he was being charged with Fogle’s murder, Jackson was placed in an interview room at the end of the hall. Jackson’s second interview took place at 6:35 p.m. Detective Hudson said that he made contact with Jackson after the first interview in order to obtain Jackson’s personal information to fill out the arrest report. At that time, Jackson asked Det. Hudson if he was really being charged. When Det. Hudson answered in the affirmative, Jackson stated that he needed to tell Det. Hudson what happened. After Jackson was read his 13rights the second time, he confessed to shooting Fogle. Detective Hudson contended that he did not initiate the conversation that led to Jackson’s confession. He also stated that he did not threaten Jackson and that he did not promise Jackson- anything in exchange for the statement.
Detective Hudson also testified that the investigation into Fogle’s murder was covered by the television show Crime 360. He stated that the production team for the show followed him, as well as other detectives, as suspects were developed in the Fogle case. He said that the show installed cameras in the conference room and provided DVD burners for the department. Detective Hudson testified that he did not direct the cameraman “as to whom to video.” He stated that the camera crew “pretty much had free reign to film whatever they wanted.” According to Det. Hudson, he saw the show when it aired and it “throughly covered all parts of [his] investigation.”
On cross-examination, Det. Hudson stated that the camera crew recorded him talking to witnesses, other detectives working on the Fogle case, and the crime scene. According to Det. Hudson, tips were received indicating “Little YG” and Gerald as possible suspects in Fogle’s death. He stated that he was able to discount both of those persons as suspects. Detective Hudson testified that the interview room Jackson was placed in after the first interview had cameras in it. However, he stated that they were for administrative purposes, and that detectives could not get a copy of that video. He also said that even if a recording had been taken, it was unlikely that it would still exist due to the passage of time. Detective Hudson denied telling Jackson that DHS would take his stepson. He also denied hearing any other officer tell Jackson that DHS would get involved. Detective Hudson acknowledged that he told Jackson that he was going to pick up Jackson’s wife, Tamara, after Jackson’s first interview. According to Det. Hudson, Tamara was going to get picked up “to see if what she said would match up with what he was saying.” Detective Hudson also said that the reason he did not stop questioning Jackson after Jackson stated that he was “through talking” was because he was trying to “clarify that [Jackson] was through talking with [him].”
Detective Hudson further testified that he did not receive “tapes of all of the stuff the production crew filmed because the agreement with the city was that we couldn’t see it until it aired.” He conceded that the material could have been helpful in their investigation of Fogle’s murder. Detective Hudson stated that Tamara made a statement that Jackson confessed his involvement in Fogle’s murder to her. According to Det. Hudson, Tamara’s statement did not make him go back and talk to Jackson. He denied telling Jackson that his wife could be charged, and he denied mentioning DHS and Jackson’s child while in the interview room.
Detective J.C. White testified that he interviewed Tamara on January 12, 2009. He stated that he informed Det. Hudson that Tamara told him about Jackson’s involvement in the crime. According to Det. White, Det. Hudson “went back and came down a short time |filater and told me that Mr. Jackson wanted to talk some more about what happened.” Detective White said that he was present during Jackson’s second interview.
On cross-examination, Det. White stated that he did not recall mentioning DHS and the child to Jackson, but that if it was discussed, “it would have been to tell him that we needed to find someone to take care of the child who was with Jackson when he was arrested and not as a threat.” He contended that they “would not threaten a person by telling them their children will be taken away from them by DHS.”
Detective Siegler testified that he was present during Det. Hudson’s first interview with Jackson. According to Det. Sie-gler, there were no threats made to Jackson. On cross-examination, Det. Siegler stated that there was a discussion between them and Jackson before the audio recorder was turned on. He said that Det. Hudson “got ... Jackson’s story then turned on the tape recorder.”
Jackson testified that he was married to Tamara at the time of his arrest. He said that when he asked Det. White about his stepson following his arrest, Det. White told him that the child was going to DHS. He also stated that Det. Hudson told him that his wife could be charged with murder. Jackson said that he was invoking his rights when he told Det. Hudson that he was through but that Det. Hudson did not stop asking him questions. Jackson acknowledged that Det. Hudson came back to the room at some point to fill out paperwork. According to Jackson, he asked Det. Hudson what he was doing, and Det. Hudson replied that he was being charged with first-degree murder. Jackson stated that when he asked about his son, Det. Hudson said the child was going to DHS. He also said that Det. ^Hudson told him that his wife was being charged with murder. Jackson further testified, “I told Detective Hudson I would tell him whatever he wanted after [he] mentioned [my] son and wife so he would let them go. I wanted to protect them. During my second statement I stated that I hadn’t been threatened because I didn’t want to jeopardize my family.” According to Jackson, he gave the second statement implicating himself in the murder because he “wanted to protect [his] family.”
On cross-examination, Jackson stated that Det. White told him that his son would go to DHS and that his wife could be charged with murder as he was walking Jackson into the police station. Jackson said that he took it as a threat and was scared. Jackson testified that he understood his rights and decided to talk to the police. According to Jackson, Det. Hudson talked to him for about one minute after he invoked his rights during the first interview. Jackson stated that he felt the need to protect his family during the first interview and that is why he told the detectives that he did not have anything to do with Fogle’s murder. Jackson acknowledged that he told Det. Hudson that he had not been threatened.
At the conclusion of the hearing, Jackson’s counsel argued that Jackson’s statement should be suppressed because it was the product of coercion. Counsel also argued that Det. Hudson improperly re-initiated the interrogation after Jackson invoked his rights because Det. Hudson’s contact with Jackson for the purpose of filling out paperwork was pretextual. Finally, counsel argued that the charge against Jackson should be dismissed because “the police failed to preserve evidence, the tapes and raw footage shot by the production company.” [.¡According to counsel, the erased footage “would have been potentially useful” and it “could have potential impeachment material.”
The court denied Jackson’s motion to dismiss stating that it did not think that “you can hold the police responsible for tapes that these people have taken off to Hollywood.” The court denied Jackson’s motion to suppress on the ground of coercion, stating that there was nothing in Jackson’s “demeanor or anything on the tapes or the action of the police that show that there was coercion that broke [Jackson] down.” The court also found that there was no pretext in Det. Hudson making contact with Jackson to fill out the arrest report.
Jackson’s jury trial took place on September 13 and 14, 2010. Jackson’s counsel renewed the motions to suppress and to dismiss. The court denied the motions. Christina Hart testified that she was present at the Coastal station on December 13, 2008, when Fogle was shot. According to Hart, she was near the vacuum cleaners when she looked up and saw “a man with a pistol pointed at a[sic] another man and the man shot him.” She stated that the shooter drove off in a “tan, light yellow” Chevy Nova. Gerald Trice testified that he witnessed Jackson shoot Fogle on December 13, 2008. He also stated that the victim did not have a gun. According to Trice, Jackson was driving a “tan yellowish Nova.” Trice admitted that he initially told the police that he did not see anything because he feared for his life. According to Trice, Jackson told him not to say anything. Trice said that he decided to tell the truth after he saw pictures of Fogle lying on the ground.
Tamara testified that Jackson was at the Coastal station in his tan Chevy Nova on December 13, 2008. She stated that Jackson and the victim got into an argument; however, |sshe said that when the argument was over, she and Jackson got in their cars and left. Tamara said that she eventually went home and that Jackson arrived home five to eight minutes later. She acknowledged that she informed detectives that Jackson told her “he shot the man at the car wash.” However, on cross-examination, Tamara stated that she only implicated Jackson in the murder because the detectives threatened her with jail and told her that DHS could take her son.
Detective White testified that Tamara was not under arrest when she was interviewed on January 12, 2009, and was free to leave. On cross-examination, he stated that he did tell Tamara that she could be charged with lying to the police. He also acknowledged that he told Tamara that she was putting her children at risk. Detective Hudson testified that in the first interview, Jackson denied shooting Fogle. Detective Hudson said that Jackson told him that Jackson and Fogle got into an altercation, but that Jackson left after the altercation. Detective Hudson stated that when he went down to get Jackson’s current address, Jackson asked if he was really being charged with murder. After Det. Hudson told Jackson he was, Jackson stated that he wanted to tell Det. Hudson what happened. In the second interview, Jackson admitted that he shot Fogle; however, he claimed that Fogle also had a gun. On cross-examination, Det. Hudson acknowledged that Tamara was interviewed at the police station by Det. White. He also acknowledged that Trice and Travis Wesson were suspects in the Fogle murder.
19Jackson testified that he got into a verbal altercation with Fogle, and left after he and his wife finished cleaning their, cars. He stated that he confessed to shooting Fogle because the detectives threatened to take his kids and pick up his wife. According to Jackson, he was just trying to protect his wife and kids.
Jackson was found guilty of the second-degree murder of Fogle and sentenced to forty-five years’ imprisonment. The judgment and commitment order was entered on September 22, 2010. Jackson filed a timely notice of appeal on October 8, 2010.
Jackson makes two arguments with regard to the suppression of the statement he made during custodial interrogation. First, he argues that the court should have excluded his statement because it was the product of coercion. Second, Jackson argues that any statement he made after he invoked his right to remain silent should have been suppressed because the police violated his rights by improperly re-initiating contact with him.
A statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily. The appropriate standard of review for cases involving a trial court’s ruling on the voluntariness of a confession is that we make an independent determination based upon the totality of the circumstances. We review the trial court’s findings of fact for clear error, and the ultimate question of whether the confession was voluntary is subject to an | ^independent, or de novo, determination by this court. Issues regarding the credibility of witnesses testifying at a suppression hearing are within the province of the circuit court. Any conflicts in the testimony are for the circuit court to resolve, as it is in a superior position to determine the credibility of the witnesses. The circuit court is not required to believe the testimony of any witness, especially that of the accused, since he or she is the person most interested in the outcome of the proceedings.
In order to determine whether a waiver of Miranda rights is voluntary, knowing, and intelligent, this court looks to see if the statement was the product of free and deliberate choice rather than intimidation, coercion, or deception. To make this determination, we review the totality of the circumstances surrounding the waiver including the age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of the detention; the repeated and prolonged nature of the questioning; the use of mental or physical punishment; and statements made by the interrogating officers and the vulnerability of the defendant. The proper inquiry is whether appellant’s will was overborne or his capacity for self-determination critically impaired.
InHere, after listening to all the evidence, the court found that Jackson’s statement was not the product of coercion. The court was faced with conflicting testimony, and those conflicts were for the circuit court to resolve. There was no evidence to support Jackson’s allegation that the detectives made statements that overrode his will and coerced him into implicating himself in the murder of Fogle. In fact, Jackson stated on the recording that he had not been threatened. Additionally, Jackson stayed calm and collected throughout the interview. We cannot say that the circuit court clearly erred in refusing to suppress Jackson’s statement on this basis.
Jackson also argues that the court erred by denying his motion to suppress when the detectives re-initiated contact with him after he invoked his right to remain silent. A person subject to custodial interrogation must first be informed of his right to remain silent and right to counsel under Miranda v. Arizona. Statements improperly taken after the invocation of the right to remain silent or the right to counsel must be excluded from the State’s case in chief to ensure compliance with the dictates of Miranda, An indication that a defendant wishes to remain silent is an invocation of his Miranda rights. Once the right to remain silent is invoked, it must be scrupulously hono red. The meaning of “scrupulously honored” was discussed in James v. Arizona:
To ensure that officials scrupulously honor this right, we have established in Edwards v. Arizona, [451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)], and Oregon v. Bradshaw, [462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) ], the stringent rule that an accused who has invoked his Fifth Amendment right to assistance of counsel cannot be subject to official custodial interrogation unless and until the accused (1) “initiates” further discussions relating to the investigation, and (2) makes a knowing and intelligent waiver of the right to counsel under the [waiver] standard of Johnson v. Zerbst, 304 U.S. 458 [58 S.Ct. 1019, 82 L.Ed. 1461] (1938), and its progeny.
(Some citations omitted.) When invoking a Miranda right, the accused must be unambiguous and unequivocal. Our supreme court has extended the Davis holding by reviewing the question of specificity when invoking the right to silence.
Jackson argues that the circuit court should have suppressed his statement because, after he invoked his right to remain silent, Det. Hudson re-initiated contact with him. This argument is without merit. Detective Hudson stated that when he went to get some personal information from Jackson, Jackson inquired about the charge against him. According to Det. Hudson, once Jackson learned that he was really being charged with Fogle’s murder, he informed Det. Hudson that he wanted to tell what happened. At that point, Jackson was taken to the conference room and again read his Miranda rights. Upon waiving his rights, he acknowledged his involvement in the Fogle case. Jackson also testified that Det. Hudson 11scame to the room to fill out paperwork. The evidence shows that it was Jackson, not Det. Hudson, who initiated the conversation about Jackson’s charge. Since Jackson initiated the contact, Det. Hudson was not required to honor Jackson’s earlier decision to remain silent. However, Jackson was again read his rights, which he waived. Accordingly, the circuit court correctly denied Jackson’s motion to suppress his statement on this ground.
Finally, Jackson argues that his due-process rights were violated by the city’s failure to preserve evidence. Jackson contends that City Attorney Tom Carpenter’s email supports his position that the City of Little Rock took no action in preserving the raw footage of Base Productions, Inc. According to Jackson, the city took “affirmative measures to ensure that [potentially useful materials would not get in the hands of defendants].” The State is only required to preserve evidence that is expected to play a significant role in appellant’s defense, and then only if the evidence possesses both an exculpatory value that was apparent before it was destroyed and a nature such that the defendant would be unable to obtain comparable evidence by other reasonably available means. In order to show that the failure to preserve evidence constitutes a due-process violation, the defendant must show bad faith on the part of the State.
Here, Jackson has failed to show any exculpatory value that was appai-ent in the raw footage before it was destroyed by Base Productions. He has failed to show how the city | Mattorney’s refusal to classify all active crimes and homicide scenes as belonging to the city such that the production company did not need separate permission to enter the property resulted in the deletion of raw footage. Jackson is also unable to show bad faith on the part of the State. Therefore, there was no due-process violation, and the court properly denied his motion to dismiss.
Affirmed.
WYNNE and ABRAMSON, JJ„ agree.
. This is die second time this case is before us. We originally remanded the case for supplementation of the addendum. See Jackson v. State, 2011 Ark. App. 620, 2011 WL 4824316.
. Jackson was eventually convicted of second-degree murder.
. This was necessary because Jackson was interviewed on two separate occasions on January 12, 2009.
. Both of Jackson’s interviews were recorded. However, there was no recording of Det. Hudson obtaining Jackson’s personal information.
. Crime 360 is a television show produced by Base Productions, Inc.
. The show’s cameraman rode along with homicide detectives whenever they investigated a murder between late 2008 and part of 2009.
. Tamara and Jackson were in separate cars at the Coastal station.
. Bryant v. State, 2010 Ark. 7, 377 S.W.3d 152.
.Id.
. Id.
. Porter v. State, 2010 Ark. App. 657, 379 S.W.3d 528.
. Id.
. Vance v. State, 2011 Ark. 243, 383 S.W.3d 325.
. Bryant, supra.
. Id.
. Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004).
. 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. See Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990).
. Robinson v. State, 373 Ark. 305, 283 S.W.3d 558 (2008).
. Id.
. 469 U.S. 990, 992-93, 105 S.Ct. 398, 83 L.Ed.2d 332 (1984).
. Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994).
. See Standridge, supra.
. California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); Wenzel v. State, 306 Ark. 527, 815 S.W.2d 938 (1991).
. Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); Autrey v. State, 90 Ark.App. 131, 204 S.W.3d 84 (2005). | [
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RITA W. GRUBER, Judge.
This case arises from two orders of the Hot Spring County Circuit Court: a divorce decree and an order finding appellant Betty Bass in contempt for willfully withholding visitation from appellee Keith Bass. Appellant’s first point on appeal is that the trial court clearly erred in the amount of child support awarded because the court did not comply with the dictates of Administrative Order Number 10— Child Support Guidelines, improperly reduced appellee’s obligation for child support due to the special-needs adoption subsidy the children receive, and improperly reduced appellee’s obligation for child support due to Social Security survivor benefits received by one of the children. In her second point on appeal, appellant contends that the court erred by finding her in contempt. We affirm the court’s order finding appellant in contempt, as modified herein, but, because the trial court failed to follow the procedures set forth in Administrative Order Number 10, we reverse and remand its order awarding child support for the court to make additional findings consistent with our opinion.
The parties were divorced by decree entered on October 6, 2010. During their marriage, the parties adopted two special-needs boys, A.B. and C.B., out of foster care. At the time of the divorce hearing, A.B. was eleven years old, but he functioned at the level of a seven year old. C.B. was chronologically ten years old, but developmentally about five years old. Both boys had been physically or sexually abused before being placed in foster care, and both require significant assistance in their academic and home environments. C.B. requires a one-on-one aide to attend school, which he does for parts of some days. Testimony from appellant, the boys’ counselor, and C.B.’s one-on-one aide indicated that appellant is required to come to school several times each week for several hours to calm C.B. when he has outbursts or to take him or A.B. home if they are unable, because of their deficiencies, to participate in school. Because of the constant care the boys require, appellant testified that she is unable to maintain employment.
The court awarded custody to appellant with reasonable visitation to appellee, which included alternate weekends, alternate holidays, and two weeks during each month of summer. The court found that appellee’s net income was $2758 per month from his employment and that appellant’s net income was $1743, which included a social security check for A.B. that was a death benefit from A.B.’s biological father in the amount of $428 and an adoption subsidy paid by the state in the amount of $1315 for both children. Without setting forth the amount of child support required by the Family Support Chart, the court then listed the relevant factors set forth in Section (V) of Administrative Order No. 10 and found that appellant would require an additional $300 per month income to meet the children’s needs. The court determined that “the best way to accomplish this is to grant $150.00 per month in child support to [appellant] and $150.00 per month in alimony to [her].”
I. Child Support
For her first point on appeal, appellant contends that the trial court clearly erred in its award of child support. Specifically, appellant contends that the court failed to state the amount of child support required by the chart, failed to explain why the chart amount was unjust or inappropriate, and improperly reduced appel-lee’s support obligation because of the adoption subsidy and survivor benefits received by the children. We review child-support cases de novo on the record, but we will not reverse the trial court’s findings of fact unless they are clearly erroneous. Stevenson v. Stevenson, 2011 Ark.App. 552, at 3, 2011 WL 4388282. As a rule, when the amount of child support is at issue, we will not reverse the circuit court absent an abuse of discretion. Id. However, we give a trial court’s conclusions of law no deference on appeal. Id.
Administrative Order Number 10 includes a family support chart indicating the amount of support due depending upon the payor’s income. A trial court’s order awarding child support must recite the amount of support required by the chart and recite whether the court deviated from that amount. Ark. Sup.Ct. Admin. Order No. 10(1) (2011). It is a rebuttable presumption that the amount of child support calculated pursuant to the chart is the appropriate amount. Id.; Black v. Black, 306 Ark. 209, 214, 812 S.W.2d 480, 482 (1991). If the court deviates from the chart amount, it must include specific written findings stating why, after consideration of all relevant factors including the best interests of the child, the chart amount is unjust or inappropriate. Ark. Sup.Ct. Admin. Order No. 10(1).
In this case, the court’s order does not state the amount of support required by the chart, nor does the order include specific written findings explaining why that amount is unjust or inappropriate after considering all of the relevant factors, including the best interests of A.B. and C.B. While the court does list all of the factors set forth in Section (V) of Administrative Order Number 10 that may be considered by the court in determining the appropriate amount of child support, the court does not explain how any of these factors apply in this case to justify deviating from the chart amount, which is presumed to be appropriate. The parties agree that the chart amount for appellee’s income is $695 per month (or $319 every two weeks). Without mentioning this amount or making any specific findings to explain its deviation, the court awarded $150 per month, almost 80% less than the chart amount, to A.B. and C.B., both indisputably special-needs children.
Although the court found that appellant’s net income was $1743 per month, testimony at trial showed that appellant was unemployed. The evidence established that she received monthly checks of $1315 from the state as an adoption subsidy for the children and $428 to A.B. for survivor benefits. While the court did not make specific written findings explaining its decision, it appears that the court offset appellee’s obligation to pay child support because of these amounts. On remand, the court may consider the adoption subsidy but should be mindful that these are benefits provided by the state because these are special-needs children. Testimony established that both children were extremely developmentally and functionally challenged and in need of significant special attention, both at home and at school. Further, we note that a parent has a legal and moral duty to support and educate his child and to provide the necessities of life even though the child has sufficient property to do so. Lee v. Lee, 95 Ark.App. 69, 75, 233 S.W.3d 698, 702 (2006) (citing Alcorn v. Alcorn, 183 Ark. 342, 35 S.W.2d 1027 (1931)). Neither the adoption subsidy nor the survivor benefit was earned by appellee and neither may be considered a substitute for his obligation to support his children. While the court may consider these amounts under the provision regarding other “income or assets available to support the child,” Ark. Sup.Ct. Admin. Order No. 10(V)(a)(12), it should recognize in doing so that this income was provided by the government on behalf of these special-needs children, whose needs are greater than those in an ordinary child-support case. Finally, and of utmost importance in this case, in considering deviation from the chart amount, the court must consider the best interests of these children.
| (¡For the foregoing reasons, we reverse and remand to the trial court for a determination of child support in accordance with Administrative Order Number 10.
II. Contempt
For her second point on appeal, appellant contends that the trial court erred in finding her in contempt of its April 14, 2010, order for willfully withholding visitation from appellee. Specifically, she argues that the court violated her right to due process because it failed to notify her that it was considering criminal contempt; that the order she was found to have violated was not definite in its terms and clear as to the duties it imposed; that the evidence did not support the court’s contempt order; and that the court improperly imposed an indefinite suspended sentence.
Contempt may be established when the offending party willfully disobeyed a valid order of a court. Kilman v. Kennard, 2011 Ark. App. 454, at 7, 384 S.W.3d 647, 651-52. Before one can be held in contempt for violating the court’s order, the order must be definite in its terms, clear as to what duties it imposes, and express in its commands. Id. In this case, the court did not state whether it found appellant in criminal or civil contempt. Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. Id. Civil contempt protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. Id. Criminal contempt punishes while civil contempt coerces. Baggett v. State, 15 Ark.App. 113, 116, 690 S.W.2d 362, 364 (1985). Therefore, the focus is on the character of relief rather than the nature of the proceeding. Fitzhugh v. State, 296 Ark. 137, 139, 752 S.W.2d 275, 276 (1988).
[yin this case, the motion for contempt asked the court to punish appellant for her willful failure to abide by the court’s visitation schedule. In its order finding appellant in contempt, the court sentenced appellant to twenty days in jail. The court then required appellant to serve only two days of that sentence and suspended the remaining eighteen days on the condition that she violate no orders of the court. The court punished appellant, offering her no opportunity to purge the contempt. See generally Applegate v. Applegate, 101 Ark.App. 289, 275 S.W.3d 682 (2008). Therefore, we conclude that the court found her in criminal contempt. Our standard of review for criminal contempt is whether the decision is supported by substantial evidence, viewing the record in the light most favorable to the trial court’s decision. Kilman, 2011 Ark. App. 454, at 8, 384 S.W.3d at 652.
Appellant first argues that the court denied her due process because it failed to notify her that it was considering holding her in criminal contempt. Appellant failed to make this argument in the trial court. Thus, it is not preserved for our review on appeal. Rhodes v. State, 2011 Ark. 146, 2011 WL 1320182. In any case, the body of appellee’s motion for contempt specifically requested that the court punish appellant for her willful violation of the court’s order and, in his prayer for relief, he asked that appellant be “punished accordingly including jail time” if the court found it to be appropriate.
Appellant also claims that the order she was found to have violated was not definite in its terms and clear as to the duties it imposed. We disagree. The order specifically stated that appellee was entitled to visitation and set forth precise visitation days and times: every other weekend; holidays on either the even or odd year, depending upon the specific holiday; and specifically designated weeks in June, July, and August. The order also specifically set forth that the exchanges were to occur at the Sheriffs Department Annex on Highland Street, Malvern, Arkansas.
Appellant’s next argument is that the evidence did not support the court’s contempt order. Appellant attempts to explain why she "withheld visitation from appellee, but she does not deny that she in fact did intentionally withhold visitation from appellee. She alleged in the trial court and she argues here that she withheld visitation because appellee abused the children. She contends that the evidence supported her allegations of abuse against appellee in spite of all of these numerous allegations (over twenty) having been un substantiated. The court did not believe her, and matters of credibility are for the fact-finder. Arendall v. State, 2010 Ark. App. 358, 377 S.W.3d 404. Viewing the record in the light most favorable to the trial court’s decision, we hold that substantial evidence supports the court’s determination that appellant willfully violated the court’s visitation order.
Finally, appellant argues that the court improperly imposed an indefinite suspended sentence. We agree. A trial court cannot indefinitely suspend a contempt sentence. Henry v. Eberhard, 309 Ark. 336, 341-42, 832 S.W.2d 467, 470 (1992). This improper sentence does not, however, abrogate the finding of contempt or the part of the sentence that was properly imposed. Id. at 342, 832 S.W.2d at 470. Therefore, we modify the court’s sentence to the time already served.
Accordingly, we affirm the court’s order of contempt as modified to limit the sentence. to the time already served, and we reverse and remand the court’s order setting child support |9for the trial court to make a determination in accordance with Administrative Order Number 10 and consistent with this decision.
Affirmed as modified in part; reversed and remanded in part.
VAUGHT, C.J., and PITTMAN, J., agree.
. While the parties refer to this as an SSI death benefit, we assume the benefit is a survivor benefit from social security rather than a benefit for supplemental security income.
. An adoption subsidy is provided to children with special needs who are adopted from the Arkansas Department of Human Services. See Ark. Code Ann. §§ 9-9-401 to -412 (Repl. 2009 & Supp.2011) (Arkansas Subsidized Adoption Act). | [
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CLIFF HOOFMAN, Justice.
|,Appellant John Moix appeals from the circuit court’s visitation order, which contained a provision prohibiting his long-term, domestic partner from being present during any overnight visitation with appel lant’s minor child. On appeal, appellant argues that the circuit court’s order violated his state and federal constitutional rights to privacy and equal protection, and that the circuit court erred by finding that such a non-cohabitation restriction was required in the absence of any finding of harm to the child. Our jurisdiction is pursuant to Ark. R. Sup.Ct. l-2(a)(i) and (b)(3)-(5) (2013). We reverse and remand.
John and Libby Moix were divorced in 2004. The divorce decree incorporated the parties’ settlement agreement, which provided that the parties would share joint custody of their three sons, with appellee serving as the primary custodian and appellant receiving reasonable visitation. The settlement agreement also stated that neither party was to have ^overnight guests of the opposite sex.
In May 2005, appellee filed a petition to modify visitation, alleging that since the entry of the divorce decree, appellant had been having a romantic relationship with a live-in male companion and that the children had been exposed to that relationship on multiple occasions. Appellee asserted that appellant and his partner had recently separated after they were involved in a physical altercation in which appellant was seriously injured, although they had since resumed their relationship and were again residing together. Appellee requested that, due to this change in circumstances, the circuit court grant her sole custody of the children and limit appellant’s visitation in such a way as to limit the children’s exposure to the illicit relationship and to the danger caused by the volatility of his companion. Appellant agreed to the entry of an order of modification, filed on July 18, 2005, which provided that the existing custody arrangement would continue with the two older twin boys, but that appellee would receive full custody of R.M., who was five years old at the time. The order also restricted appellant to visitation with R.M. on every other weekend and every Wednesday, with no overnight visitation.
Despite the agreed order modifying visitation, it is undisputed by the parties that the order was not followed and that appellant had liberal overnight visitation with R.M. until late 2009 or early 2010, when he became addicted to prescription drugs and sought inpatient treatment after being involved in a hit-and-run accident. After he completed his treatment, appellant was limited to daytime visitation at the discretion of appellee. In May 2012, appellant filed a motion for modification of visitation and child support, in which he alleged |sthat appellee had remarried in 2010 and that she had informed him that R.M. had a new father and no longer needed him. Appellant asserted that the severe reduction in his visitation coincided with appel-lee’s remarriage and that his son had expressed the desire to spend more time with him. Because there had been a material change in circumstances based on ap-pellee’s remarriage, her new husband usurping his role as father of R.M., and the fact that R.M. was now twelve years old and wished to spend more time with his father, appellant requested that the circuit court modify visitation to allow overnight visits, as well as holiday and extended summer visitation.
In her response, appellee denied that there had been a material change in circumstances or that it was in R.M.’s best interest to have increased visitation. She asserted that any change in appellant’s circumstances had been detrimental, pointing to his arrest for driving while under the influence of prescription drugs and the fact that he had lost his pharmacist license. She further alleged that appellant’s relationship with his boyfriend had been volatile and that it was not in R.M.’s best interest to have overnight visitation in such an environment.
At the hearing held on October 9, 2012, appellant testified that he had been a pharmacist for twenty-three years and that he had had previous problems with a prescription-drug addiction in 1993, although he had completed treatment and remained sober until his recent relapse subsequent to his divorce. He testified that he gradually relapsed from 2004 until February 2010, when he was arrested for a DWI after being involved in a hit-and-run accident. Appellant completed several months of inpatient treatment and testified that he had completely abstained from alcohol and prescription drugs since February 2010. He further | ¿testified that he was now under a ten-year contract with the pharmacy board, pursuant to which he had been ■ able to regain his pharmacist license, and that he has to call every morning to see if he must undergo a drug screen. So far, appellant stated that he had undergone fifty-nine random drug screens, all of which had been negative. He testified that he has also been regularly attending AA and NA meetings as required under the contract.
With regard to his relationship with his partner, Chad Cornelius, appellant testified that they had been in a committed, monogamous relationship for at least seven years and that they had applied for a marriage license in Iowa. Appellant stated that he had enjoyed overnight visitation with R.M. for five years before appellee forbade it and that even though Chad had been present, R.M. had never been exposed to any type of romantic behavior between them. Appellant testified that he and Chad had never slept in the same bed during any of R.M.’s previous visits and that if overnight visitation were again allowed, he would continue to abstain from bed sharing or other romantic behavior in the presence of his son. Appellant stated that Chad has a son from his previous marriage who often stays overnight at their home and that R.M. and Chad’s son have a close relationship that would be greatly hindered if Chad were not allowed to be present during any overnight visits. According to appellant, he and Chad had not had any altercations since the one in 2005, which did not occur in the presence of R.M., and he stated that Chad is a positive role model for his son. Appellant also noted that his two older sons had lived with him during their senior year in high school, that they continued to spend weekends at his home during college, and that one of his sons is moving back home. He testified that all of his children are happy and emotionally, mentally, |fiand physically stable.
Chad also testified and stated that he was a registered nurse at a hospital focusing on children and adolescents with behavioral-health issues. Chad testified that he has had to pass multiple state and federal background checks as a condition of his employment. He agreed that he and appellant had been in a committed relationship since 2005 and that they would like to get married. Chad also confirmed that he always slept in another room when R.M. visited. He testified that his sixteen-year-old son has a great relationship with R.M. Chad confirmed that appellant had been completely abstinent from drugs and alcohol since February 2010, and Chad stated that he personally does not drink alcohol in their home.
Jamie Moberly, a friend of Chad’s and appellant’s, testified that she used to be employed as a child-protective-services investigator and family service worker with the Arkansas Department of Human Services and that she is a licensed clinical social worker, who currently does home studies in connection with private adop tions. Moberly stated that she first met Chad through work and then got to know him, as well as appellant, through a church group. She testified that she had been in their home numerous times over the last several years and had witnessed their interaction with their children. According to Moberly, appellant is very loving and positive with his children, as well as her own daughter, and she stated that she would vouch for his good character. She testified that she had personal knowledge that appellant had been sober since 2010, that she has seen a difference in him since undergoing treatment and therapy, and that she has absolutely no concerns about his addiction at the current time. Moberly further testified that Chad is a great guy and a great | (¡father, that he is very supportive of appellant and his children, and that she had never seen him be verbally or physically aggressive toward anyone. She stated that she was more familiar with appellant’s and Chad’s home than other homes where she has conducted home studies and indicated that there was absolutely nothing about their home that would cause her any concerns about placing a child there.
Reverend Betsy Snyder, a United Methodist pastor at the church where appellant and Chad attend, testified that she also knows them both well. She stated that Chad is a generous person with a high moral compass and that he is a very good father. She indicated that she had no concerns about her own children spending time with Chad and that she had not seen anything that would indicate a propensity toward verbal or physical abuse. Although Reverend Snyder testified that she did not know appellant quite as well as Chad, she stated that she had never seen anything to cause her concern with regard to his character or his morality.
Chad’s ex-wife, Robyn Cornelius, also testified on behalf of appellant and Chad. She stated that Chad is a loving and supportive father to their two children and that they share custody of their son, who is still a minor. Robyn testified that she had never witnessed Chad being verbally or physically abusive. She also stated that she has known appellant for ten years and that he is one of the kindest persons that she has ever known. She testified that her children have a lot of interaction with him and that he has been a very positive influence on them. She described appellant as being kind and considerate to his children and stated that the court should have no concerns about overnight visitation. According to Robyn, after |7having seen R.M. around appellant and Chad, she believed it was in R.M.’s best interest to have overnight visitation and that he would be negatively affected if he were not allowed to spend more time with his father.
The final witness to testify was appellee. She testified that she had obtained the 2005 modification order after she became concerned about appellant’s and Chad’s relationship and how it would affect R.M. She stated that appellant’s relationship was not the sole reason why she was contesting his attempt to increase visitation. According to appellee, appellant had complained to her about Chad acting in a threatening and controlling manner, and she indicated that their relationship was unstable and unhealthy. She also indicated that she had found needles and vials of steroids in a guest bedroom of appellant’s home while cleaning it in 2009 and that appellant had told her that Chad had a past history of steroid use. She testified that she would like to see appellant exhibit a longer period of being drug and alcohol free before allowing expanded visitation. Appellee further stated that appellant had shared information about the court proceedings with R.M., which she did not feel was appropriate. She admitted that R.M. had a loving relationship with his father and that it was important that they spend time together, but testified that it was not in R.M.’s best interest to have overnight or extended visitation at the present time due to his recent drug issues and his relationship with Chad.
In rebuttal testimony, appellant responded to appellee’s allegation about finding needles and steroids in his home. He testified that he was not aware of these items, that he had never used intravenous drugs at any point, and that he was not aware that Chad had ever used them.
|sThe circuit court entered an order on November 14, 2012, granting appellant’s motion for modification of visitation. The court found that there had been a material change in circumstances and that it was in R.M.’s best interest to have more time with his father. Appellant was awarded visitation on every other weekend, as well as one evening during the week, in addition to extended summer and holiday visitation. However, the court found that it was required by the public policy of this state to impose a non-cohabitation restriction preventing Chad from being present during any overnight visits. The court noted that appellant and Chad were in a long-term committed relationship, that they had resided together since at least 2007, and that Chad posed “no threat to the health, safety, or welfare” of R.M. Other than the prohibition on unmarried cohabitation with a romantic partner in the presence of a minor child, the circuit court found no other factors present to militate against overnight visitation in this case. The court further found that the non-cohabitation policy, and the mandatory application of that policy, survive both federal and state constitutional scrutiny. Appellant filed a timely notice of appeal from the circuit court’s order.
In domestic relations cases, we review the evidence de novo and will not reverse the circuit court’s findings unless they are clearly erroneous. Brown v. Brown, 2012 Ark. 89, 387 S.W.3d 159. We also give special deference to the circuit court’s superior position in evaluating the witnesses, their testimony, and the child’s best interest. Id. Because a circuit court maintains continuing jurisdiction over visitation, it may modify or vacate a prior visitation order when it becomes aware of a material change in circumstances since the previous order. Id. The party seeking modification has the burden of demonstrating such a |gmaterial change in circumstances. Id. With regard to visitation, the primary consideration is the best interest of the child. Id. Important factors for the court to consider in determining reasonable visitation are the wishes of the child, the capacity of the party desiring visitation to supervise and care for the child, problems of transportation and prior conduct in abusing visitation, the work schedule or stability of the parties, and relationship with siblings and other relatives. Id. We have held that fixing visitation rights is a matter that lies within the sound discretion of the circuit court. Id.
In his first two points on appeal, appellant argues that the non-cohabitation agreement imposed by the circuit court violates his federal and state constitutional rights to privacy and equal protection. However, because we find merit in appellant’s final argument, there is no need to address these constitutional arguments. We have repeatedly held that if a case can be resolved without reaching a constitutional argument, it is our duty to do so. Daniel v. Spivey, 2012 Ark. 39, 386 S.W.3d 424; Solis v. State, 371 Ark. 590, 269 S.W.3d 352 (2007); Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996).
In his third and final point on appeal, appellant argues that, contrary to the circuit court’s belief, our prior cases do not require the imposition of non-cohabitation provisions in the absence of any finding of evidence of harm to the minor child. Ap-pellee responds that this argument is not preserved for our review because it was not raised to the circuit court. We disagree. At the hearing, when appellant was discussing our decision in Arkansas Department of Human Services v. Cole, 2011 Ark. 145, 380 S.W.3d 429, he specifically argued that non-cohabitation provisions in custody cases are “not a blanket rule,” and that it is a |10“case by case determination, whether it’s a bad thing or a good thing in a particular case.” Thus, we find that this argument is properly preserved for our review.
As the circuit court in this case recognized, under the long-standing public policy of the courts in this state, a parent’s extramarital cohabitation with a romantic partner in the presence of children, or a parent’s promiscuous conduct or lifestyle, has never been condoned. See, e.g., Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005); Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (2003); Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999). In Campbell, supra, this court made it clear that the purpose of non-cohabitation provisions are to promote a stable environment for the children and not merely to monitor a parent’s sexual conduct.
We have also repeatedly held, however, that the primary consideration in domestic relations cases is the welfare and best interest of the children and that all other considerations are secondary. See, e.g., Alphin, supra; Taylor, supra; see also Ark.Code Ann. § 9-13-101 (Repl. 2009). Therefore, we have emphasized in more recent cases that the policy against romantic cohabitation in the presence of children must be considered under the circumstances of each particular case and in light of the best interest of the children. For example, in Taylor, supra, we reversed the trial court’s modification of custody where the finding of a material change in circumstances was based on the trial court’s concern about protecting the children from future harm based on public misperception. In that case, the evidence showed that the custodial parent resided with a lesbian woman and that the two sometimes shared a bed, although they denied a romantic or sexual relationship. Id. We cited cases from other states hfin support of the proposition that there must be concrete proof of likely harm to the children from the parent’s living arrangement before a change in custody can be made. Id. We held that “evidence-based factors must govern,” rather than stereotypical presumptions of future harm. Id. at 83, 110 S.W.3d at 739.
We further discussed the issue of non-cohabitation agreements in Arkansas Department of Human Services v. Cole, 2011 Ark. 145, 380 S.W.3d 429. In Cole, we held that the Arkansas Adoption and Foster Care Act of 2008 (Act 1), which prohibited an individual from adopting or serving as a foster parent if that individual was cohabiting with a sexual partner outside of marriage, was unconstitutional because it violated the fundamental right to privacy implicit in the Arkansas Constitution. In response to the appellants’ argument in that case that our holding would render non-cohabitation agreements in custody or dependency-neglect cases unenforceable, we stated the following:
We strongly disagree with the State and FCAC’s conclusion that if this court finds that the categorical ban on adoption and fostering for sexual cohabitors put in place by Act 1 violates an individual’s fundamental right to sexual privacy in one’s home, state courts and DHS will be prohibited henceforth from considering and enforcing non-cohabitation agreements and orders in deciding child-custody and visitation cases as well as dependency-neglect cases. That simply is not the case. The overriding concern in all of these situations is the best interest of the child. To arrive at what is in the child’s best interest, the circuit courts and state agencies look at all the factors, including a non-cohabitation order if one exists, and make the best-interest determination on a case-by-case basis. Act l’s blanket ban provides for no such individualized consideration or case-by-case analysis in adoption or foster-care cases and makes the bald assumption that in all cases where adoption or foster care is the issue it is always against the best interest of the child to be placed in a home where an individual is cohabiting with a sexual partner outside of marriage.
But in addition to case-by-case analysis, there is another difference between cohabitation in the child-custody or dependency-neglect context and cohabiting sexual ^partners who wish to adopt or become foster parents. Third-party strangers who cohabit with a divorced parent are unknown in many cases to the circuit court and have not undergone the rigorous screening associated with foster care or adoption. By everyone’s account, applicants for foster care must comply with a raft of DHS regulations that include criminal background checks, home studies, family histories, support systems, and the like. Adoption, under the auspices of the trial court, requires similar screening. Unsuitable and undesirable adoptive and foster parents are thereby weeded out in the screening process. The same does not pertain to a third-party stranger who cohabits with a divorced or single parent.
Id. at 16-17, 380 S.W.3d at 438 (emphasis added) (internal citations omitted). Thus, we agree with appellant that the public policy against romantic cohabitation is not a “blanket ban,” as it may not override the primary consideration for the circuit court in such cases, which is determining what is in the best interest of the children involved.
In the present case, the circuit court found from the evidence presented that appellant and his partner are in a long-term, committed romantic relationship and that- “Mr. Cornelius poses no threat to the health, safety, or welfare of the minor child.” The court further found that, “[o]ther than the prohibition of unmarried cohabitation with a romantic partner in the presence of the minor child, there are no other factors that would militate against overnight visitation.” However, because the circuit court also stated that the mandatory application of our public policy against unmarried cohabitation required it to include a non-cohabitation provision, it made no finding on whether such a provision was in the best interest of R.M. Therefore, we reverse and remand for the circuit court to make this determination.
We also note that appellee contends in her brief that this court can resolve the case on the basis that the circuit court erred in finding a material change in circumstances had occurred justifying modification of the previous visitation order. However, she did not file |13a notice of cross-appeal from the circuit court’s order, and thus, we lack jurisdiction to address this argument. A notice of cross-appeal is necessary when an appellee seeks something more than he or she received in the lower court. Boothe v. Boothe, 341 Ark. 381, 17 S.W.3d 464 (2000); Brown v. Minor, 305 Ark. 556, 810 S.W.2d 334 (1991).
Reversed and remanded.
BAKER, GOODSON, and HART, JJ., dissent. | [
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LARRY D. VAUGHT, Judge.
| Appellant Royce Ary appeals from the January 7, 2013 Supplemental Order to Decree of Divorce entered by the Saline County Circuit Court, ordering Royce to pay alimony to appellee Sonya Ary. Royce’s appeal challenges the trial court’s alimony award in a two-point attack. He argues that the trial court erred as a matter of law when it granted Sonya alimony after it entered the divorce decree. He also challenges the trial court’s award of alimony, including the amount awarded. We affirm.
Sonya and Royce were married in 1993. On April 2, 2012, Sonya filed a complaint for divorce, seeking custody of the parties’ two minor children, L.A.l (DOB 3-5-95) and L.A.2 (DOB 4-25-01), child support, a division of property, and alimony. A temporary hearing was held on May 8, 2012. At the hearing, the evidence revealed that Royce was a veteran with a seventy-five-percent disability rating, for which he received a monthly disability payment of |2$1512. Royce was also employed with the federal government with net monthly earnings of approximately $3200.
During the majority of their marriage, Sonya was a stay-at-home mom; however, more recently she began working as a receptionist earning approximately $2100 per month. She also served as an “on-call” bartender for the Peabody hotel. Testimony demonstrated that Sonya and the children were living in the marital home, that the monthly mortgage payment for the home was approximately $1200, and that Royce continued to make the mortgage payment after the parties separated. He also continued to make the monthly payment on L.A.l’s vehicle. Both parties testified about significant marital debt, which included the mortgage, three vehicles, a travel trailer, a personal loan, several credit-card balances, and a loan on a retirement account. At the conclusion of the temporary hearing, the trial court entered an order, dated May 22, 2012, that among other things, awarded Sonya primary physical custody of the children and Royce visitation; awarded Sonya child support in the amount of approximately $445 biweekly; ordered Royce to continue to make the mortgage payment and L.A.l’s car payment; and ordered Royce to pay for health insurance for the children.
The parties’ divorce hearing was held on August 7, 2012. At this hearing, there was testimony that Royce had approximately $40,000 in his retirement account, while Sonya had less than $80 in hers. There was evidence that the parties’ home appraised at $156,000, but the mortgage balance was almost $155,000. The evidence revealed that both parties were driving vehicles that had Iittle-to-no equity in them. And the parties reported that they were unable to agree on a property settlement.
IsAmong other issues, Sonya testified that she was in need of alimony because her monthly expenses exceeded her monthly income by over $1200. She stated that her prior work history included working at the mall, at her church, as a bartender, and as a receptionist. It was her opinion that Royce had a superior earning capacity because he had a military background and was a veteran, currently held a federal job, was more educated, and learned a trade. Royce testified that he could not afford to pay Sonya alimony. He said that since the temporary hearing, when he was ordered to pay child support, the mortgage, L.A.l’s car payment, health insurance for the children, his debts, and his living expense, he had amassed credit-card debt.
At the conclusion of the divorce hearing, the trial court granted Sonya a divorce, awarded Sonya custody of the children and child support, and awarded Royce visitation. The court told the parties they had thirty days to negotiate a property settlement, and if they failed, the court would order the sale of their property. The court then stated:
All issues with regard to alimony, attorney’s fees and disbursements [sic] of those debts will be made upon the sale or settlement. I’m holding those issues in abeyance.
The specific property and indebtedness with which the parties leave a marriage is a factor that a Court can utilize in determining alimony and attorney’s fees, and I will be using all of that information in making that ruling.
Several months later on November 14, 2012, the trial court entered the divorce decree that set forth the oral findings of the trial court and added the amount of monthly child support to be paid by Royce — approximately $1000. In the decree, the trial court also stated that the parties had executed a property settlement agreement (PSA) that provided for the disposition of the parties’ property, debts, insurance, and other matters. Relevant to this appeal, the parties’ PSA provided that Royce would receive the marital home and the debt associated with it; each Uparty would receive their own vehicle and the debt associated with it; Royce would receive L.A.l’s vehicle and the debt associated with it; and Sonya would receive Royce’s retirement account. The final paragraph of the PSA provided:
At the August 7, 2012 final divorce hearing the Court ruled that [Sonya’s] request for alimony and attorney’s fees would be held in abeyance, pending a settlement agreement or a commissioner’s sale if a settlement agreement were not reached. Because the parties are not able to agree as to alimony and attorney’s fees, the parties agree that the Court should make a finding as to a ruling on [Sonya’s] request for alimony and attorney’s fees.
A third hearing — limited to the issues of alimony and attorney’s fees — was held on December 12, 2012. There, Sonya testified that she received Royce’s retirement account as part of their PSA. In return, Royce received all of the parties’ marital property, excluding some household items. Sonya stated that she was receiving child support for the children, but that support for L.A.1 would terminate in five months. She said that her monthly income was now $2200 and that she had incurred over $9000 in attorney’s fees as a result of the divorce. She added that she had assumed responsibility for the children’s medical insurance. Royce testified once again that he did not have any disposable income to pay alimony to Sonya after paying his debts, expenses, and child support. Later that day*, the trial court issued a letter opinion:
After reviewing the evidence and all other matters in this case; and based upon the factors required to be considered under the laws of the State of Arkansas, the Court finds that [Royce] should be required to pay alimony to [Sonya] in the sum of $750.00 per month for five (5) years and at the conclusion of five years, reduced to $500.00 per month for a period of five (5) years. This alimony payment would be terminated upon death of [Royce] or re-marriage of [Sonya] or other change of circumstances allowed by law. I am denying [Sonya’s] request for attorney’s fees.
On January 13, 2013, the trial court entered a supplemental order to the decree of divorce restating the findings set forth in its letter opinion. It is from this order that Royce appeals.
|sOne of Royee’s points on appeal is that the trial court erred as a matter of law when it granted Sonya alimony after it entered the divorce decree. For support he cites Arkansas Code Annotated section 9 — 12—812(a)(1) (Repl.2009), which states: “[w]hen a decree is entered, the court shall make orders concerning the alimony of the wife ... and the care of the children, if there are any, as are reasonable from the circumstances of the parties and the nature of the case.” Royce also cites two cases—Grady v. Grady, 295 Ark. 94, 99, 747 S.W.2d 77, 80 (1988), and Ford v. Ford, 272 Ark. 506, 517, 616 S.W.2d 3, 9 (1981), which he argues stand for the propositions that section 9-12-312 mandates that alimony decisions be made when the divorce decree is entered and that a trial court does not have the power to retain jurisdiction or to treat alimony as a matter “reserved for further consideration.”
However, we cannot reach the merits of this argument because Royce did not raise it below. In Edwards v. Edwards, 2009 Ark. 580, at 7-8, 357 S.W.3d 445, 449-50, our supreme court held that the trial court’s authority to reserve jurisdiction and defer an alimony decision after a divorce decree has been entered, under section 9-12-312, is not an issue of subject-matter jurisdiction. Therefore, the issue must be raised to the trial court in order to preserve the argument for appeal. Edwards, 2009 Ark. 580, at 8, 357 S.W.3d at 450. This holding applies to the case at bar. Royce did not raise the issue of the trial court’s authority under section 9-12-312 to the trial court. Therefore, Royce failed to preserve the argument for appeal.
Royce also challenges the award of alimony, including the amount of the alimony awarded by the trial court. A trial court’s decision regarding alimony is a matter that lies within the court’s sound discretion and will not be reversed absent an abuse of that discretion. Spears v. Spears, 2013 Ark. App. 535, at 5, 2013 WL 5424819. An abuse of discretion means discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Elliott v. Elliott, 2012 Ark. App. 290, at 4, 423 S.W.3d 111, 114.
The purpose of alimony is to rectify the economic imbalance in the earning power and standard of living of the divorcing parties, in light of the particular facts of each case. Spears, 2013 Ark. App. 535, at 5-6, 2013 WL 5424819. The primary factors to consider are the financial need of one spouse and the other spouse’s ability to pay. Id. at 6, 2013 WL 5424819. Other factors include the financial circumstances of both parties; the couple’s past standard of living; the value of jointly owned property; the amount and nature of the income, both current and anticipated, of both parties; the extent and nature of the resources and assets of each party; the amount of each party’s spendable income; the earning ability and capacity of both parties; the disposition of the homestead or jointly owned property; the condition of health and medical needs of the parties; and the duration of the marriage. Id. If alimony is awarded, it should be set in an amount that is reasonable under the circumstances. Id.
Royce argues on appeal that the trial court abused its discretion in granting Sonya alimony, claiming that the court failed to properly consider the primary and secondary factors for determining alimony. We disagree. As set forth above, the primary factors to be considered in awarding alimony are the needs of one party and the ability of the other party to pay. Spears, 2013 Ark. App. 535, at 6, 2013 WL 5424819. The evidence presented demonstrated that Sonya has a need for income. She was a housewife for the majority of the parties’ eighteen-year marriage. There is no evidence of Sonya’s education level, and she has had no voca tional training or career. Evidence 17showed that Sonya’s monthly expenses exceeded her monthly income. Therefore, she has the need for income. Additionally, the evidence demonstrated that Royce has the ability to pay. He has a military background, is a veteran, has more education than Sonya, and has learned a trade. He is seventy-five-percent disabled, which entitles him to monthly disability, and he is gainfully employed with the federal government.
Evidence of the secondary factors further supports the trial court’s alimony award. The parties were married for eighteen years, during which Royce provided primary financial support for the family. There was evidence that during their marriage the parties enjoyed a “comfortable” standard of living, but it was shown that significant debt was accumulated as a result. As part of the dissolution of the marriage, both parties assumed a portion of the marital debt. And while Royce assumed a larger portion of the marital debt, he also received all of the marital assets, which include the home, two vehicles (his and L.A.l’s), firearms, a travel trailer, and two ATVs. Despite Royce’s disability, he has a history of employment. Sonya’s relatively good health is support for the trial court’s limited period of alimony. For all of these reasons, we hold that the award of alimony and the amount of alimony awarded by the trial court was reasonable under the circumstances. Russell v. Russell, 2013 Ark. 372, at 9, 430 S.W.3d 15, 20-21, 2013 WL 5497709 (holding that it is not an abuse of discretion to make an award of alimony that is reasonable under the circumstances). Therefore, we hold that the trial court did not abuse its discretion in awarding alimony to Sonya.
Royce maintains that reversal is required because (1) the trial court abused its discretion in awarding alimony to Sonya because there was an unequal distribution of property (he assumed lathe marital debt and she received his $40,000 retirement account); (2) the court considered his fault in the divorce as part of the alimony decision; (3) after their separation Sonya’s expenses were not reasonable because she was living a lifestyle beyond her means; and (4) after their separation he had to use credit cards to pay child support, the mortgage on the house, and his monthly expenses.
However, the record reflects that the parties agreed to the distribution of the marital assets and debt. Further, nothing in the record indicates that the trial court considered Royce’s fault in awarding alimony. As for Royce’s remaining assertions, we note that the appropriateness of an alimony award is determined in light of the facts in each case, and the trial court is in the best position to view the needs of the parties in connection with an alimony award. Stuart v. Stuart, 2012 Ark. App. 458, at 9, 422 S.W.3d 147, 153. The trial court in this case found that Sonya was entitled to alimony. In our review, we hold that the trial court applied the correct legal standard, found facts that were supported by the evidence presented, and did not abuse its discretion in making the award. Accordingly, we affirm.
Affirmed.
WYNNE and GLOVER, JJ., agree.
. For support, Royce cites evidence that Sonya took two vacations and was spending $230 per month at the hair and nail salon. | [
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ROBERT J. GLADWIN, Chief Judge.
|! Appellant Michael Grant, administrator of the estate of Linda Williams, deceased, appeals the Union County Circuit Court’s order of November 15, 2012, vacating its order of December 15, 2009, which had granted a petition for approval to make final distribution and determine heirship. Appellant argues three reasons why the circuit court erred by setting aside its order: (1) the circuit court lost jurisdiction to vacate the order; (2) there was insufficient evidence to set aside the order; and (3) equitable estoppel prevents appellee Gates Williams from objecting to the order. We affirm.
I. Procedural and Factual History
On August 18, 2006, appellant was appointed administrator of the estate of Linda Williams, deceased. He named Susan Scritchfield, cousin, and one unknown cousin as heirs Land placed the value of the estate at $145,000, including both personal and real property. On June 18, 2008, an affidavit in support of heirship determination was filed on behalf of appel-lees James Edgar Jones, Jr., Norma Wright Holman, Kathrine Maile Pitts Brock, James Walter Pitts, and Samuel M. Batterson, each cousins to the decedent.
On November 12, 2009, appellant filed a “Petition for Approval to Make Final Distribution and Termination (sic) of Heir-ship,” alleging that the decedent had married Edward Brandhurst on August 24, 1968, and had never obtained a divorce. Further, the petition alleged that the decedent had no children, that she was an only child, and that her parents predeceased her, leaving her surviving husband, Edward Brandhurst, the sole heir.
Appellee Cathy F. Poole responded to the November 12, 2009 petition, alleging that she was the cousin of the decedent, that no accounting had been filed, and that the decedent’s marriage to Edward Bran-dhurst was not valid. She claimed that the heirs would be the decedent’s first cousins and their descendants, herself being one.
A hearing was set for December 15, 2009, and the interested parties met for a settlement conference that day. As a result, a settlement was presented to the circuit court judge, who signed an order finding that Edward Brandhurst and the decedent were married at the time of the decedent’s death and that Brandhurst was the sole heir of the decedent. The order also contained a provision that Brandhurst agreed to make a gift of the 2406 shares of Simmons First National Corporation stock to the descendants of Lloyd Williams, Ralph Williams, and Heard Williams, one third each per stirpes. However, this order was held and not filed by the attorney for the estate.
|3Appellee Gates Williams, first cousin to the decedent, filed a motion on March 27, 2012, alleging that he was not a party to the settlement and did not know that the circuit judge had signed an order on that day. He acknowledged that the order had not been filed and sought a hearing for the circuit court to determine that there had been no binding settlement. On April 4, 2012, the order signed on December 15, 2009, was filed at appellant’s direction in circuit court. On April 10, 2012, appellant responded to Williams’s motion, acknowledging that the order had been filed.
On September 13, 2012, a motion to vacate the order was filed by Williams, alleging that the order had been filed on April 4, 2012, but that his attorney had not received a copy or been notified, having first learned of the filing on September 7, 2012. Attached to the motion were the documents related to the decedent’s divorce from Brandhurst in New Mexico in 1969. Williams claimed that despite obtaining a divorce from the decedent, Bran-dhurst appeared in December 2009 and represented that he was the surviving spouse. He further claimed that, at the time the order was filed on April 4, 2012, reciting that Brandhurst was the surviving spouse, appellant and his attorney had actual knowledge of the 1969 divorce decree.
Williams testified that he had attended the hearing set for December 15, 2009. He explained that the group met in the circuit court’s library and discussed settlement. Williams testified that appellant had attended with his attorney, and that Cathy Poole, her boyfriend, and Edward Brandhurst, who represented himself to be the decedent’s husband, also attended. Williams explained that he went to the meeting on behalf of himself and the rest |4of the Williams family who were not represented by counsel. He claimed that the resulting agreement was based on fraud because Brandhurst was not the decedent’s husband. Williams said he remembers that shortly after the meeting, Bran-dhurst said that the deal was off. He also testified that he was not represented before the circuit court when the attorneys explained the settlement to the judge because he was not invited and does not know what was said. He said that the terms of the order reflect what had been discussed in their settlement meeting, except for the attorney’s fees, fees for W.L. Cook, who prepared the accounting, and those fees being paid from the Simmons, stock. Williams objected to dividend checks being cashed and commingled with the other cash assets. He remembered that he received an email from appellant, who explained that Brandhurst reneged on the deal. Williams also testified that he received an email from appellant explaining that appellant did not intend to have the order filed, even though it had been signed by the circuit judge.
Don Dodson, former attorney for appellant as estate administrator, testified pur suant to a subpoena that appellant told him after the settlement meeting that a problem had arisen about the dividend of stock that was to go to the Gates Williams family. He said it was a significant amount of money that
we did not realize existed one way or the other at the time of our discussions. And we realized that suddenly there was a pretty material amount of money and we were unclear, and Gates Williams took the position that that money should be a part of the stock and should be delivered to him as part of the settlement. I think [appellant] took the position that it was part of the general estate and should not be paid to the Williams family as a part of the settlement. And I was told to hold on and let’s see how we can get this sorted out because it was very hotly contested almost immediately once we realized that that amount of money did exist as the dividend.
li;On November 15, 2012, the circuit court set aside the April 4, 2012 order, finding that appellant, as administrator, was notified by letter from Williams that neither he nor the other intestate heirs were parties to the settlement and that there were issues related to the distribution of accrued dividends of the Simmons Bank stock that were not resolved. Further, the circuit court found that it was agreed that the signed order of December 15, 2009, would be held by Dodson and not filed. As of the filing of the March 27, 2012 motion, the order had not been filed. However, the order was filed on April 4, 2012, without notification to Williams, his counsel, or any other heirs at law. The circuit court found that, prior to filing the motion to vacate, Williams obtained a certified copy of a final divorce decree between Brandhurst and the decedent filed on February 28, 1969, in New Mexico. Despite this, Brandhurst represented on December 15, 2009, that he was the surviving spouse. The court found that Williams and other intestate heirs were’ not parties to the purported agreement and it was understood by appellant and his counsel that the order would not be filed pending a resolution of those issues. In a separate paragraph, the circuit court states that the administration of the estate had not yet terminated. Based on these findings, the circuit court granted the petition to vacate the order filed April 4, 2012.
Appellant filed a motion to reconsider on November 26, 2012, claiming that Arkansas Rule of Civil Procedure 60 (2012) prevented the circuit court from modifying or vacating its previous order more than ninety days after it had been filed. Further, appellant argued that the divorce decree, which was at the heart of the circuit court’s vacation order, had been a public record for more than forty years and no evidence was presented that explained why |fiit could not have been obtained at the December 15, 2009 hearing. After responses were filed, an order denying the motion to reconsider was filed on December 10, 2012. Appellant filed a notice of appeal on December 14, 2012, and this appeal timely followed.
II. Standard of Review
Probate orders, with two exceptions that do not apply here, are appeal-able before an estate has been closed. Ark.Code Ann. § 28-1-116 (Repl.2012); Hamm v. Hamm, 2013 Ark. App. 501, 429 S.W.3d 384. We review probate proceedings de novo on the record but will not reverse a circuit court’s factual determinations unless they are clearly erroneous. Hamm, supra. We do not, however, defer on pure issues of law. Id.
III. Circuit Court’s Jurisdiction
Appellant contends that the circuit court did not have the authority to set aside the order signed on December 15, 2009, and filed on April 4, 2012. He argues that Arkansas Code Annotated section 28-1-115 (Repl.2012) prevents the circuit court from vacating its order after thirty days from its filing. The statute provides in part that, at any time within the period allowed for appeal after the final termination of the administration of the estate of a decedent, the court may vacate an order. Ark.Code Ann. § 28 — 1— 115(a). Appellant argues that the circuit court lost jurisdiction to vacate the order on May 4, 2012, thirty days after the order was filed. See Ark. R.App. P.-Civ. 4 (2012).
Appellees assert that appellant’s argument ignores the clear language of the statute requiring that notice of appeal be filed within thirty days “after the final termination of the administration of the estate of a decedent.” Ark.Code Ann. § 28-l-115(a). We agree. The |7order signed December 15, 2009, and filed on April 4, 2012, did not signify the final termination of the administration of the estate. The order granting Williams’s petition to vacate specifically found that “[t]he administration of this estate has not yet terminated.” Appellees’ argument, that the vacated order dealt with the determination of the proper recipients of the net assets of the estate, is well taken. The vacated order did not terminate the estate, and thereby, did not fulfill the requirements of Arkansas Code Annotated section 28 — 1—115(a). See In re Estate of Stinnett, 2011 Ark. 278, 383 S.W.3d 357 (where Arkansas Supreme Court held that the order that authorized distribution of settlement proceeds did not constitute a final appeal-able order of distribution); Ark.Code Ann. § 28-53-104 (elements required in an order of final distribution); Ark.Code Ann. § 28-53-103 (applicable procedures for final distribution).
Second, appellant argues that Williams is not a party to the matter; thus, Arkansas Rule of Civil Procedure 59 (2012) prevents him from filing a motion for new trial because that Rule is limited to the parties. Third, appellant contends that Williams’s motion filed March 27, 2012, should be considered a Rule 59 motion and, as such, deemed filed on May 5, 2012, a day after the order filed on May 4, 2012. See Ark. R. Civ. P. 59(b). Because the motion was not ruled on by June 5, 2012, appellant argues that the motion is deemed denied and the circuit court lost jurisdiction to vacate the judgment.
Appellant notes that, in the motion filed on September 13, 2012, Williams claims that he had no knowledge of the entry of the order filed April 4, 2012. However, appellant’s response to Williams’s March 27, 2012 motion states that the order had been filed. Thus, |sappellant claims that Williams had no justification for the delayed filing of the motion to vacate. Ap-pellees contend that appellant’s arguments related to Rule 59 are anticipatory of an argument that they do not intend to make.
Appellant also maintains that Arkansas Rule of Civil Procedure 60 (2012) does not control. Rule 60 allows for relief from an order after ninety days in certain circumstances. Those circumstances include newly discovered evidence and misrepresentation or fraud. Ark. R. Civ. P. 60(c)(1) and (4). Appellant contends that the divorce decree was not newly discovered evidence because Williams mentions it in his motion filed prior to the April 4, 2012 order. Therefore, appellant claims that Rule 60(c)(1), which allows for a new trial after ninety days where the ground is newly discovered evidence that the moving party could not have discovered in time to file a motion under Rule 59(b), does not apply.
Further, appellant claims that Rule 60(c)(4) is inapplicable because the misrepresentation or fraud must be committed by an adverse party. Appellant contends that he is the only adverse party and that there is no evidence that he made any misrepresentation or fraud. He claims that the misrepresentation, if any, was committed by Brandhurst, who was not a party.
Appellees respond that Rule 60(c)(4) is applicable, empowering the circuit court to set aside the order after the expiration of ninety days for misrepresentation or fraud. We agree. Appellant is an adverse party and so admitted in his argument above. Appellant misrepresented the decedent’s marital status to the court and to the intestate heirs because he directed that the order, containing language that Bran-dhurst was the surviving spouse of 1¡¡decedent, be filed, rather than revealing that he had learned of the 1969 divorce decree. Accordingly, we hold that the circuit court had jurisdiction to vacate the order filed April 4, 2012.
IV. Sufficiency
Appellant’s argument that the evidence was insufficient to support the circuit court’s vacation of the order baldly states, without reference or citation to authority, that Williams’s absence from the courtroom when the settlement was delivered to the circuit judge does not invalidate the agreement. Appellant then claims that Williams had “every opportunity” to express his opinion, but chose not to appear. Appellant further asserts that Williams’s complaints about the order presented to the circuit judge were either standard fee awards or amounted to no change from the original settlement agreement.
We hold that the circuit court’s order was not clearly erroneous. Appellees note that appellant’s argument does not address that the agreement was based on fraud— Brandhurst’s representation that he was the surviving spouse of the decedent. Ap-pellees point to Williams’s testimony that Brandhurst indicated to him that the “deal was off.” Also, Dodson testified that the doubts about Brandhurst’s qualifications as a surviving spouse went “back to the beginning.” Therefore, there was sufficient evidence before the circuit court that a valid agreement had not been reached.
V. Equitable Estoppel
The essential elements of equitable estoppel are (1) the party to be estopped must know the facts; (2) the party must intend that his conduct shall be acted on or must so act |10that the party asserting estoppel has a right to believe the other party so intended; (3) the party asserting estoppel must be ignorant of the facts; and (4) the party asserting estoppel must rely on the other party’s conduct to his detriment. Wildlife Farms II, LLC v. Robinson, 2011 Ark. App. 140, at 10, 378 S.W.3d 824, 831.
Appellant argues that Williams sat on his rights and is, therefore, estopped from obtaining relief at this late date. Appellant contends that Williams caused everyone to believe an agreement had been reached when he did not appear and express objections before the circuit judge when the order was signed on December 15, 2009. Appellant claims that he was unaware that Williams objected to the settlement until after the order was signed. He claims that, at that point, his own opportunity to have a timely hearing on the matter had passed. He argues that if Williams had objected in a timely manner, the hearing could have been held that day and the circuit court could have resolved the issues.
Appellees maintain that the circuit court’s finding that the parties did not reach a settlement agreement at their meeting on December 15, 2009, negates appellant’s estoppel claim. Appellees contend that it cannot be argued that Williams’s conduct constituted a false assurance that he did not object to the purported agreement. As the circuit court concluded, there never was such an agreement.
Affirmed.
PITTMAN and WOOD, JJ., agree.
. The circuit court style in the instant case is In the Matter of the Estate of Linda 'Williams, deceased. | [
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DOUG MARTIN, Judge.
11 Appellant Mable Newsom appeals from the Pulaski County Circuit Court’s decision to extend her probationary period for an additional three years after she failed to pay restitution as ordered. Newsom argues that the trial court erred in not properly considering the factors under Arkansas Code Annotated section 5-4-205(f)(3) (Supp.2001) in determining whether she made a good-faith effort to comply with the conditions of her probation. Newsom also argues that the trial court erred in finding that the State proved her nonpayment of restitution was inexcusable. We affirm.
Newsom pleaded guilty to theft of property on December 12, 2005, and was sentenced to five years’ probation and ordered to pay restitution in the amount of $8,190 at the rate of $300 per month beginning January 6, 2006. Newsom was also ordered to pay fines and costs and complete 100 hours of community service within one year.
On February 7, 2008, an “Order of Conditions of Probation” was signed by Newsom, her defense counsel, her probation officer, and the judge and provided that Newsom’s probation was extended for a period of thirty-four months. Newsom was again ordered to pay restitution in the amount of $8,190 at the reduced rate of $241 per month. Newsom was also ordered to pay fines and costs and to complete twenty-eight hours of community service within one year.
The State filed a petition to revoke New-som’s probation on November 4, 2010, alleging that Newsom had violated the terms and conditions of her probation by failing to report to her probation officer, failing to pay restitution in the amount of $8,190, failing to pay $20 per month for supervision fees, and failing to pay $1,405 in fines and court costs.
A revocation hearing was held on February 24, 2011, at which Alice Abson, Newsom’s probation officer, testified that, although Newsom had “made some payments” toward restitution, Newsom still owed approximately $7,000. According to Abson, Newsom’s last restitution payment was made on May 25, 2010, in the amount of $50. Abson testified that Newsom told her she was unable to make payments because she could not find employment. Abson stated that, when Newsom was employed, she made payments toward restitution. According to Abson, in July 2009, the trial judge at that time ordered New-som’s payments reduced from $241 per month to $50 per month because of New-som’s inability to pay restitution. Abson testified that Newsom reported as required and was compliant with the other conditions of her probation.
Cherie Hughes, Newsom’s sister, testified that Newsom had been living with her, her husband, and her two children for more than two years. Hughes stated that Newsom lived with her because Newsom had nowhere else to live given Newsom’s unemployment. Hughes testified that Newsom suffered from lupus and diabetes. According to Hughes, Newsom’s past employment was “sporadic.” Although Hughes testified that Newsom did search for employment, Hughes was uncertain how often Newsom searched for employment because Hughes was at work during the day.
Newsom testified that she has been in the clerical profession for forty years. Newsom stated that her most recent employment was with AARP in December 2010 but that it was only a part-time, temporary job. Newsom stated that she intended to return to her job as a substitute teacher but that, when she applied for a full-time position at the school, Newsom was told she could not return because the school district discovered she had a felony conviction. Newsom testified that her W-2 form from the previous year reflected earnings of $8,100. According to Newsom, she suffered from lupus, diabetes, high blood pressure, cirrhosis, and bronchitis, for which she needed medication every month. Newsom testified that she had gone without medicine in order to pay toward the restitution she owed.
Newsom stated that she last sought work “a couple of weeks ago” and that she was offered a job at a business named Sykes. According to Newsom, she informed the prospective employer at Sykes that she had a felony conviction prior to receiving a job offer. Nevertheless, the offer was rescinded when Sykes ran a background check on Newsom. Newsom claimed that her felony record was the basis for rejection by prospective employers one hundred | ¿percent of the time. Newsom stated that she applied to be a waitress but that “they can pull it up and see if you have a felony.” Newsom testified that, when her restitution payments were reduced to $50 per month, the trial judge presiding at that time was satisfied that she was searching for work but was simply unable to pay.
On cross-examination, Newsom testified that she had internet access at her sister’s house but that there was no public transportation immediately available. Newsom admitted that, when her sister and brother-in-law could not drive her somewhere to utilize public transportation, she could have asked a neighbor for transportation. Newsom testified that she had begun taking classes at ITT to finish her paralegal studies and that the school was searching for a job for her. Newsom said that, when she completed her paralegal studies, she intended to go to law school, which she said would be paid for by the government. Newsom said that there were times when her health prevented her from “getting up every day” and that she was trying to obtain disability benefits. Newsom stated that she was previously denied disability benefits because she failed to attend all of her scheduled doctor’s appointments but that this was due to her lack of transportation. Newsom stated, “I’m trying to get on disability right now.” Newsom further stated that, in order to get disability benefits, she had “some loopholes that [she had] to go around to try to get on [her] disability” and that she had not yet been approved.
Upon further questioning by the trial judge, however, Newsom stated that she was denied disability benefits in 2008 because she lacked the appropriate paperwork and that she had not made any attempt to refile for such benefits since that time, thus admitting that she |fidid not have a pending claim for disability benefits. When the judge asked Newsom if she had applied as a waitress anywhere other than a Denny’s restaurant, Newsom eventually admitted that she had not applied for a position as a waitress at any other restaurant. Newsom conceded that she had not been actively searching for a job within the previous two weeks but again claimed that ITT was searching on her behalf. Newsom also claimed that she perused the Sunday newspaper every week and applied, typically online, for whatever positions were available. WTien pressed about what jobs she had applied for online in the previous two weeks, however, Newsom admitted she had applied for only one — a position with AT & T.
According to Newsom, she pleaded guilty to theft of property in 2005 only to avoid jail. She continued, “[T]hen I went to the federal courts, and which is where I’m still involved and trying to get this whole thing overturned.” Newsom further testified, “That’s why I continue to apply for customer service positions because I’m not considering myself a criminal.” The prosecutor then introduced into evidence an order showing that Newsom’s federal habeas corpus petition was denied in March 2008, effectively rebutting New-som’s claim that the matter was pending.
In its ruling from the bench, the trial court found Newsom was not a credible witness, noting her claim to have admitted on the job application at Sykes that she had a felony conviction and her claim that a federal habeas corpus petition was pending. The court also stated:
The bottom line is whether Ms. Newsom is willfully failing to pay restitution. She can’t have money to pay restitution if she isn’t trying to find a job. And while Ms. Newsom says she’s trying to find a job, $50.00 a month, while it is a serious amount of money, isn’t an amount of money that can’t be found by somebody who is trying |fito find a job -because there are people who will give you part-time work even if you have a criminal record.
The trial judge specifically stated that he was not convinced that Newsom was unable to find employment. At the conclusion of the hearing, the trial court chose to continue Newsom’s probation for three additional years and ordered her to pay restitution as previously ordered in the amount of $7,071.
We will uphold a trial court’s probation-revocation determination unless the decision is clearly against the preponderance of the evidence. Barringer v. State, 2010 Ark. App. 369, 2010 WL 1708145. Because the determination of a preponderance of the evidence turns on questions of credibility and weight to be given to the testimony, we defer to the trial judge’s superior position in credibility determinations. Id. The State need only prove that the appellant committed one violation of the terms and conditions of her probation in order to revoke probation. Rudd v. State, 76 Ark.App. 121, 61 S.W.3d 885 (2001).
This court explained in Hanna v. State, 2009 Ark.App. 809, 372 S.W.3d 375, that a probation violation arising from a failure to pay restitution invokes the application of two statutes, one general and one specific. The general statute applies when an individual is accused of violating any condition of probation. Id. Under this statute, probation may be revoked if a court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of her probation. Ark.Code Ann. § 5-4-309(d) (Supp.2005). The more specific statute applies when restitution is ordered as a condition of probation. See Ark.Code Ann. § 5 — 4—205(f)(2) (Supp. 2001). When restitution is a condition of probation, and the defendant fails to pay, a court may revoke if the defendant has not made a good-faith effort to comply with the order. Id.
Newsom acknowledges that the State introduced evidence that she did not pay restitution as ordered, given her probation officer’s testimony and her own testimony in which she admitted she did not pay restitution; however, Newsom contends that the State did not prove that her failure to pay restitution was willful. Once the State has introduced evidence of nonpayment of restitution, the burden shifts to appellant to offer some reasonable excuse for her failure to pay. Hanna, supra. It is the probationer’s obligation to justify her failure to pay, and this shifting burden of production draws out the probationer’s reason for nonpayment. Id. If she asserts an inability to pay and provides evidence demonstrating that inability, then the State must carry its ultimate burden of demonstrating no good-faith effort by a preponderance of the evidence. Id. Once the assertion of inability to pay is made, the State can then carry its burden in various ways. Id. It can undermine the probationer’s credibility, or it can show a lack of effort, such as a failure to make bona fide efforts to seek employment or to borrow money to pay restitution. Id. Newsom asserted her inability to pay restitution, but it is clear that the trial court found that the State ultimately carried its burden of proof by undermining Newsom’s credibility and by showing that Newsom failed to make bona fide efforts to find employment. Nevertheless, Newsom contends that the trial court did not properly consider the factors enumerated at Arkansas Code Annotated section 5-4 — 205(f)(3). In determining whether to revoke probation, the court shall consider the following:
(A) The defendant’s employment status;
(B) The defendant’s earning ability;
(C) The defendant’s financial resources;
(D) The willfulness of the defendant’s failure to pay; and
(E) Any other special circumstances that may have a bearing on the defendant’s ability to pay.
Ark.Code Ann. § 5-4 — 205(f)(3).
There is no evidence that the trial court failed to consider the factors listed above. Newsom testified as to these factors on both direct and cross-examination and, further, answered the trial judge’s own questions pertaining to these factors. In any event, the trial court did not revoke Newsom’s probation but only extended it to permit Newsom additional time in which to pay the restitution she owes.
If the court places a defendant on probation conditioned upon her making restitution, and the defendant has not satisfactorily made all of her payments when the probationary period has ended, the court may continue to assert jurisdiction over the recalcitrant defendant and, either extend the probationary period as the court deems necessary or revoke the defendant’s suspended sentence. See Ark.Code Ann. § 5-4-303(h)(2) (Supp.2001). The trial court was entitled to extend Newsom’s probationary period until she pays restitution as ordered, and we therefore affirm on this point.
Next, Newsom argues that the State failed to prove by a preponderance of the evidence that she inexcusably failed to pay restitution in accordance with Arkansas Code Annotated section 54-309(d). In ruling from the bench, the trial court found that, had Newsom made a greater effort to find even part-time work, she could have paid $50 per month in compliance with her probation. Indeed, the trial court was lenient in substantially reducing the amount of Newsom’s restitution payments from the $300 per month that was initially ordered to only $50 per month. The trial court specifically did not believe Newsom’s assertion that she was actively searching for employment in order to pay the $50 per month. We defer to the trial judge on matters of credibility. Barringer, supra. We cannot say that the trial court’s decision to extend Newsom’s probationary period to permit her an additional three years within which to pay the restitution owed was clearly against a preponderance of the evidence. Accordingly, we affirm.
Affirmed.
HART and GLOVER, JJ., agree. | [
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CLIFF HOOFMAN, Judge.
Appellant Yolanda Anderson appeals from the order of the Pulaski County Circuit Court terminating her parental rights to her son, D.A. Appellant’s attorney has filed a no-merit brief and a motion to withdraw as counsel pursuant to Rule 6-9(i) of the Rules of the Arkansas Supreme Court and Court of Appeals and Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004). The clerk of this court mailed a certified copy of counsel’s motion and brief to Anderson, informing her of her right to file pro se points for reversal, which she has done. DHS and the attorney ad litem have declined to file briefs in response at this time. We grant counsel’s motion to withdraw and affirm the termination order.
Prior to the instigation of the DHS case involving Anderson’s son, D.A. (DOB 6/7/07), Anderson had her other four children removed from her custody in 2006 due to severe medical neglect of one of the children. She consented to a voluntary termination of her parental rights in June 2008. After his birth in 2007, D.A. was not removed from Anderson’s custody, and he was eventually dismissed from the style of that case and was not named in the 2008 termination order.
On September 9, 2009, D.A. was taken into DHS custody after his daycare reported that he had shown up with a black eye. Anderson gave inconsistent explanations as to the cause of the injury, initially stating that it was due to allergies, then later claiming that D.A. got up while she was still sleeping and must have injured himself while playing with his toys. Although Anderson indicated that D.A. had suffered the injury on September 5, 2009, she did not seek medical treatment until September 9, after the injury was reported to DHS. D.A. was adjudicated dependent-neglected in November 2009, due to abuse, because the injury had occurred while he was unsupervised and neglected by Anderson. The trial court further found that Anderson’s delay in seeking medical treatment for D.A. was neglect by itself and that her testimony regarding the injury was not credible. Anderson subsequently complied with the case plan, and custody of D.A. was returned to her in September 2010. The 2009 case on D.A. was closed on December 1, 2010, after the court found that reunification had occurred.
D.A. was again taken into custody by DHS on December 3, 2010, after his daycare reported on November 30 that he had come to school with bruises on both of his cheeks. The affidavit attached to the emergency petition stated that Anderson had explained to the school that the bruises were from her boyfriend, Marcus Monk, kissing on D.A.’s cheeks and that they would go away. The DHS child-abuse assessor stated in the affidavit that the bruises were still visible on December 3, even though Monk indicated that he had sucked on D.A.’s cheeks on November 29. Anderson and Monk stated that they kissed D.A. this way all the time and that the bruises were usually gone within twenty-four hours.
At the adjudication hearing on January 25, 2011, the trial court found that D.A. was at a substantial risk of serious harm due to physical abuse and parental unfitness based on the allegations in the petition and affidavit, which the court found to be true. The court also expressed its concern that this new allegation of abuse was reported to DHS on November 30, one day before the 2009 case was closed, yet the court was not informed of this new allegation at that time. The trial court stated that Anderson had been given more than one year to work toward reunification and that “the Court will continue the clock at this point.” The court stated that Anderson had initially indicated to DHS that Monk had caused the bruises by kissing on D.A., but she then testified at the hearing that she had caused the bruises by kissing him. The court found that Anderson’s and Monk’s explanations for the bruises on D.A. were not credible; however, even if their explanations were accurate, the court found that “putting hickies on both sides of the child’s face” is “physical abuse” and “very bizarre behavior.” The court further stated that it could not determine who perpetrated the abuse, Anderson or Monk, but that the bruises were intentionally caused and that Anderson had “severe credibility issues.”
The trial court found by clear and convincing evidence that D.A. had been subjected to aggravated circumstances because it was unlikely that continued services to the family would result in reunification. In making this finding, the court noted that Anderson had been offered services from December 2006 until June 2008 and from September 2009 until December 2010; that she continued to lack judgment, insight, and overall parental fitness; that she had a fundamental issue involving her thought process; that she had taken two psychological evaluations; and that there was no amount of additional services that would lead to reunification. A termination hearing was set for April 2011, although the trial court continued to order that services be provided to Anderson, including a third psychological evaluation.
At the termination hearing, Jessica Warren, who was the DHS family service worker assigned to both cases involving D.A., testified that Anderson was offered services in the 2009 case, including parenting classes, supervised visitation, a psychological evaluation, counseling, and drug screening, and that she was in compliance with the case plan. However, after D.A. was returned to Anderson’s custody, Warren stated that another case was opened when the child again suffered unexplained bruises to his face. According to Warren, she believed that potential harm could result to D.A. if he were returned to Anderson’s custody, and she indicated there were no additional services that could be provided to Anderson to make her a fit and appropriate parent.
Dr. Paul Deyoub, a forensic psychologist, testified that he had conducted three psychological evaluations on Anderson during the three different DHS cases. He indicated that in the 2007-08 case, Anderson’s four oldest children were removed due to severe medical neglect and inadequate care but that she did not take responsibility for those issues, instead claiming that she was following the doctor’s orders. Dr. Deyoub stated that Anderson’s evaluation at that time showed significantly elevated scores on the parenting scale and the child-abuse-potential scale. During the second case in 2009, he testified that D.A. was removed for an unexplained black eye and that Anderson’s explanation was inconsistent with the injury. According to Dr. Deyoub, her second psychological evaluation continued to show significantly elevated scores in the same areas, and he stated in his report that there was a high likelihood of aggressive behavior by Anderson because of the high levels of hostility shown on the tests. Dr. Deyoub testified that between Anderson and Monk, she was the more likely aggressor. He stated that Anderson seemed inexplicably frustrated with D.A. at the time of her second evaluation and that she seemed unable to handle even caring for one child.
In the current DHS case involving D.A., Dr. Deyoub testified that both Anderson and Monk had claimed that they were only kissing on D.A.’s cheeks; however, he stat ed that he did not find those explanations to be credible or consistent with the injury. Dr. Deyoub stated that Anderson’s third evaluation showed some improvement on several of the parenting scales but that the child-abuse-potential score was still high. He testified that he would have expected all of her elevated scores to subside after she had undergone weekly counseling sessions for one year. Further, Dr. Deyoub stated that the recent personality tests revealed that Anderson was being more defensive than during the past two tests. He testified that Anderson had not gained any insight or made any progress after receiving two years of services from DHS and that he did not recommend that D.A. be returned to her custody. According to Dr. Deyoub, he was worried that D.A. would be at risk of further harm in Anderson’s custody, and without any sort of admission of responsibility by Anderson concerning these injuries, there was no treatment or services that would be effective.
Janet Norris, a DHS supervisor, testified that she had been involved in all three cases involving Anderson. Norris stated that it was in D.A.’s best interest for Anderson’s parental rights to be terminated based on the history of the case and the fact that D.A. was in need of permanency. Norris further testified that Anderson’s compliance with the case plan and court orders was not enough to have custody of D.A. returned, because she believed that he could suffer additional injuries in her care.
A DHS adoption specialist, Monica Spencer, testified as to D.A.’s adoptability. Spencer stated that D.A. was adoptable despite his developmental delays and that several families had been identified as potential placements for him. Spencer also testified that D.A.’s young age was a positive factor in his adoptability.
Sylvia Jones, Anderson’s therapist, testified that she began seeing Anderson in 2006 and that she had made progress in her therapy during the time period of that case. Jones again began counseling Anderson in January 2011 and stated that they were working on anger and stress-management issues. According to Jones, she felt that Anderson was being honest in her explanation of D.A.’s bruises on his cheeks and that she did not realize her actions were harming her child. During their recent sessions, Jones testified that she had noticed improvement in Anderson’s stress level and that she would recommend giving her more time before terminating her parental rights. Jones stated that Anderson would probably need to be monitored for three to six additional months to ensure that she was a fit and appropriate parent.
Anderson also testified. She stated that her parental rights should not be terminated because she was in the process of undergoing a lie detector test to show that she did not physically abuse D.A. Anderson testified that she did not believe that “suckling on her son’s cheeks is physical abuse, especially when I’ve done it since he was born.” She stated that she knew that this caused bruises on her son but that they would dissipate within twenty-four hours and that he never complained that it hurt. The day that D.A. was removed from her custody again, Anderson testified that both she and Monk were “suckling” on his cheeks. Regarding D.A.’s black eye in 2009, Anderson denied that she had hit him but claimed that she first noticed it when she woke up and he was already up playing with his toys. Anderson testified that she and Monk took him to the emergency room and that the doctor told them it was a broken blood vessel. Anderson further stated that she had abided by all of the court orders since the case began and that she would do “whatever it takes” to reunify with D.A. She testified that she was ready to learn the differences between just playing with her child and physical abuse and that she would never suck on her son’s face again because she was now accepting that this was considered to be abusive.
At the hearing, the trial court stated that it was taking judicial notice of the prior DHS cases involving Anderson and that it considered the current case a continuation of the 2009 case since D.A.’s most recent injury actually occurred before the 2009 case was closed. After extensively reviewing the history of all three cases, the court found that Anderson had been offered numerous rehabilitative services by DHS in the past. Yet, the first case resulted in Anderson’s voluntary termination of her parental rights to her oldest four children. In the 2009 case, while Anderson did participate in the services offered and eventually had D.A. returned to her custody, he was again removed shortly afterward for additional allegations of physical abuse. The trial court stated that Anderson had “severe credibility issues” and that her' explanations for D.A.’s injuries were not satisfactory. The court found that Anderson clearly had a fair opportunity to regain custody of D.A., that there were no compelling reasons to give her additional time, that D.A. was in need of permanency, and that it would be a “travesty not to seek a permanent adoptive placement for him at the earliest possible date. The trial court further found that DHS had proved its case for termination on all alleged grounds by clear and convincing evidence. An order to this effect was entered on May 18, 2011, and Anderson filed a timely appeal from this order.
In counsel’s no-merit brief, she correctly notes that there were no adverse rulings at the termination hearing other than the termination order itself. Therefore, the only issue discussed by counsel is whether there is sufficient evidence to support the termination of Anderson’s parental rights.
The rights of natural parents are not to be passed over lightly; however, parental rights will not be enforced to the detriment or destruction of the health and well being of the child. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). A trial court’s |9order terminating parental rights must be based on findings proven by clear and convincing evidence. Ark.Code Ann. § 9-27—341(b)(3) (Supp.2011); Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and convincing evidence is defined as that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Dinkins, supra. On appeal, the appellate court will not reverse the trial court’s ruling unless its findings are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, an appellate court gives due deference to the opportunity of the trial court to judge the credibility of witnesses. Id.
Pursuant to Ark.Code Ann. § 9-27 — 341(b)(3), an order terminating parental rights shall be based on a finding by clear and convincing evidence that it is in the best interest of the juvenile, including consideration of the likelihood of adoption and the potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent. The order terminating parental rights also must be based on a showing of clear and convinc ing evidence as to one or more of the grounds for termination listed in section 9-27-341(b)(3)(B), and the grounds relied on by the trial court in this case were as follows:
(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent.
(vii) (a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent return of the juvenile to the custody of the parent. (bi)(a)(3)(A) Have subjected any juvenile to aggravated circumstances.
(B) “Aggravated circumstances” means:
(i) A juvenile has been abandoned, chronically abused, subjected to extreme or repeated cruelty, sexually abused, or a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification[.]
Only one ground must be proved to support termination. Lee v. Ark. Dep’t of Human Servs,, 102 Ark.App. 337, 285 S.W.3d 277 (2008). In this case, there was, at minimum, sufficient evidence to support the aggravated-circumstances ground for termination. The trial court found in its adjudication order that D.A. was subjected to aggravated circumstances due to its finding that there was little likelihood of successful reunification if additional services were offered to Anderson. Anderson did not appeal from the adjudication order, and she is now precluded from asserting error with respect to this aggravated-circumstances finding. Krass v. Ark. Dep’t of Human Servs., 2009 Ark.App. 245, 306 S.W.3d 14. In any event, there was clearly evidence to support this finding, as the DHS worker testified that there were no additional services that could be offered to make Anderson a fit and appropriate parent, and Dr. Deyoub testified that the services offered had failed to give Anderson any insight into proper parenting. Thus, there could be no meritorious argument related to the grounds for termination in this case.
The trial court’s finding that it was in D.A.’s best interest for termination to occur was also not clearly erroneous. The court found that D.A. was adoptable, especially given his young age, and the evidence presented at the hearing showed that he met the requirements of several potential families who wished to adopt, despite his developmental delays. The trial court also found that there would be potential harm in returning D.A. to Anderson, based on the two different occurrences of unexplained injuries to his face, and this finding is certainly supported by the evidence. The court found in the adjudication order that, even if Anderson’s explanation for the most recent injury was true, repeatedly sucking on a child’s face and causing bruises was, contrary to Anderson’s assertions, physical abuse. She did not appeal from this finding of abuse and cannot now challenge it on appeal. Krass, supra. The trial court’s decision to terminate Anderson’s parental rights was not clearly erroneous, and we agree with counsel that there would be no merit to an appeal on this basis.
Anderson raises several arguments in her pro se points for reversal, none of which have merit. She first contends that the trial court should not have relied on the prior DHS case, in which her parental rights to her other four children were voluntarily terminated. However, Anderson did not object to the trial court taking judicial notice of her previous DHS cases, and her argument is therefore not preserved for appeal. Maynard v. Ark. Dep’t of Human Servs., 2011 Ark. App. 82, 389 S.W.3d 627. Moreover, evidence that Anderson’s other children had previously been adjudicated dependent-neglected was appropriate for the trial court to consider in this case. See Ark.Code Ann. § 9-27-341(a)(3)(B)(vi) (a).
Anderson also argues that she has never harmed any of her children while playing with them and that it is not in her “heart” to punish them for any reason; that she has been the only one taking care of D.A. since his birth, without any help from his father; and that she was never taught in parenting classes that “suckling” on her child’s face was physical abuse. None of these arguments support reversal of the termination order in this case. The trial court specifically found that Anderson had “severe” credibility issues regarding her explanations for D.A.’s injuries, and this court defers to the trial court in such matters. Dinkins, supra. Furthermore, as mentioned previously, Anderson did not appeal from the trial court’s finding in the adjudication order that leaving bruises on her child’s face by repeatedly sucking on his cheeks was in fact physical abuse. Krass, supra. Therefore, we affirm the trial court’s order of termination and grant counsel’s motion to withdraw.
Affirmed; motion to withdraw granted.
GLADWIN and ROBBINS, JJ., agree.
. The parental rights of D.A.’s father, Darrain Anderson, Sr., were also terminated in the same proceeding; however, he is not involved in this appeal. | [
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LARRY D. VAUGHT, Judge.
|!Appellants Safeco Insurance Company of Illinois and its insured Barney Travis, as parent and natural guardian of Dylan Travis (collectively appellants), appeal the September 28, 2012 order entered by the Circuit Court of Craighead County, denying their motion for judgment notwithstanding the verdict or, in the alternative, motion for new trial. Appellants contend that the trial court erred as a matter of law in applying the intentional-acts exclusion found in an automobile insurance policy issued by appellee Southern Farm Bureau Casualty Insurance Company to its insured Virginia Hodges (Hodges). Appel lants also challenge the sufficiency of the evidence supporting the jury’s verdict on the issue of the intentional-acts exclusion. Finally, appellants contend the trial court abused its discretion in failing to order a new trial based on allegations of jury misconduct. We affirm.
Hodges, Dylan’s grandmother, was the owner of a 2002 Ford Explorer that was insured by Farm Bureau. On February 3, 2008, Dylan (then sixteen years old) went to Hodges’s house, |afound her asleep, and drove her vehicle to the movies to pick up five friends. After leaving the theater, Dylan was taking one of the passengers home when they were involved in a one-vehicle accident. Two of the five passengers alleged that they sustained injuries as a result of the accident and filed a complaint for damages against Barney, as parent and guardian of Dylan.
Safeco had issued a policy of automobile liability insurance to Dylan’s father, Barney, on which Dylan was listed as an additional insured. Safeco provided a defense to the Travises and made demand on Farm Bureau to assume coverage, arguing that Dylan had implied permission to drive Hodges’s vehicle. In response, Farm Bureau filed a complaint for declaratory judgment against appellants, and others, seeking a declaration that Dylan was not a “covered person” as defined by the Farm Bureau policy because he did not have implied permission to operate Hodges’s vehicle. Farm Bureau also argued that Dylan’s conduct was excluded from coverage based on the policy’s intentional-acts exclusion. After appellants filed an answer to the declaratory-judgment complaint, Farm Bureau moved for summary judgment. The trial court granted Farm Bureau’s summary-judgment motion, finding the facts undisputed that Dylan did not have implied permission from Hodges to use her vehicle. Accordingly, the trial court found that Farm Bureau owed no duty to defend or indemnify the Travises. Appellants timely appealed the order, and our court reversed and remanded in Travis v. Southern Farm Bureau Casualty Insurance Co., 2010 Ark. App. 848, at 9, 378 S.W.3d 786, 790, holding that the evidence raised questions of fact as to whether Dylan had implied permission to drive Hodges’s vehicle.
On remand, the case proceeded to a jury trial, where Hodges testified that she had been close to Dylan all of his life and that he visited her almost every day. She stated that Dylan knew |sthe combination to the garage door at her house, the security code for her house alarm, and the combination to enter her vehicle, and he knew that she kept the keys to her vehicle in the console. She stated that Dylan often drove her vehicle with her permission while she was in the vehicle. Sometimes, she said, he drove her vehicle with her permission when she was not in the vehicle. But she added that she always required him to seek permission first. On the night of the accident, Hodges said that around midnight her other grandchild woke her and reported that Dylan had taken her vehicle. She said that she did not talk to Dylan that night and did not give him permission — express or implied— to drive her vehicle.
Larry Speaks testified that just after midnight on February 3, 2008, he was outside smoking when he saw the headlights of a vehicle, traveling approximately forty-five to fifty-five miles per hour, reach the top of a hill, hit a bank to the left, and then tilt to the right. He said that he heard the brakes squealing and then a noise that “sounded like a stick of dynamite going off.” He called 911 to report an accident and then walked over to the vehicle, which he said struck two trees.
One of the passengers in the vehicle Dylan was driving was Josh Allen, who was fourteen years old at the time. Allen said that Dylan was driving too fast and that the two girls in the vehicle were screaming at him to slow down. Allen denied any talk in the vehicle of “hill-topping,” which was described at trial as approaching a hill at great speed in an effort to make one’s vehicle airborne. Another passenger, Taylor Edison, testified that she remembered | traveling up to 100 miles per hour and being scared. She testified that Dylan said that he had “jumped” the hill before. According to Edison, when Dylan’s vehicle “jumped” the hill, the tires of the vehicle left the ground, and her head hit the ceiling of the vehicle. When they hit the ground, she said all of the tires popped, and the vehicle crashed. Jonesboro Police Officer John Baker investigated the accident. He testified that extended skid marks were left at the scene of the accident and that the impact was significant. He also said that drugs and alcohol were not contributing factors.
At the conclusion of Farm Bureau’s case, appellants moved for a directed verdict. Relevant to this appeal, they argued:
On the intentional[-]act[s] exclusion, Your Honor, the case law in Arkansas is clear that speeding in and of itself is not enough to trigger an intentional[-]acts exclusion. Here there’s no evidence whatsoever that Dylan intentionally drove his car into those trees, or intentionally caused an accident.
In fact, the only testimony that’s been presented so far is that speed was involved and that a hill was involved and that loss of control of the vehicle occurred. That is the only evidence there is and, Your Honor — that’s—that’s evidence of an accident. That is not evidence of an intentional act. There’s been no evidence offered at all of an intentional act before the accident itself. ...
The trial court denied the motion.
Appellants presented the testimony of Dylan, who testified that he had a great relationship with his grandmother and saw her nearly every day. He said that Hodges never told him that he could not drive her vehicle without permission.
|fiOn the night of the accident, Dylan said that Hodges was asleep when he borrowed her vehicle to pick his friends up from a movie and drive them home. On the way, Dylan said there was a dip in the road that he called a “jump spot.” He said the passengers in the vehicle were telling him to drive faster as he approached the “jump spot,” and “not wanting to sound like a wimp,” he did. However, as he approached the dip, he “realized [he] was going way too fast and [he] knew [he] was about to lose control of the vehicle, so [he] slammed on the brakes.” He admitted that the speed limit was thirty-five miles per hour and that he was exceeding that limit; however, he denied traveling faster than sixty miles per hour. He also denied trying to make the vehicle airborne and telling his passengers that he was going to jump the hill. He added that he did not intend to hurt anyone and that the accident was a mistake.
At the conclusion of the evidence, appellants renewed their motion for directed verdict. Regarding the intentional-acts exclusion, they argued that there was no proof that Dylan intentionally caused the accident or intentionally did anything that resulted in the accident. They pointed to Dylan’s testimony that he did not intend to cause the injuries. They argued that any intentional act, such as speeding, was abandoned by him, and the accident resulted after attempting to regain control of the car after it hit the dip. The trial court denied the renewed motion, finding that there was sufficient evidence to present to the jury as to whether the conduct that caused the accident was intentional.
[(¡The case was submitted to the jury on two interrogatories. The first dealt with the implied-permission issue, to which the jury unanimously found that Dylan had implied permission from Hodges to operate her vehicle at the time of the accident. Interrogatory No. 2 addressed the intentional-acts exclusion and provided: “Do you find from a preponderance of the evidence that the alleged bodily injury or property damage was caused by intentional acts committed by Dylan Travis in the accident on February 3, 2008.” In a nine-to-three vote, the jury answered “yes.”
On August 21, 2012, the trial court entered a judgment in favor of Farm Bureau. The judgment cited the jury’s response to Interrogatory No. 2 and found that Farm Bureau owed no duty to defend or indemnify the Travises. Thereafter, appellants filed a motion for judgment notwithstanding the verdict or, in the alternative, motion for new trial. This motion challenged the application of the intentional-acts exclusion and the sufficiency of the evidence supporting the jury’s response to Interrogatory No. 2. This motion also raised the issue of jury misconduct. On September 28, 2012, the trial court entered an order denying the motion. Appellants timely appealed from this order.
Much of appellants’ argument on appeal involves the intentional-acts exclusion found in the Farm Bureau policy of insurance, which provides:
COVERAGE EXCLUSIONS
We will not pay for:
1. bodily injury or property damage caused by intentional acts committed by or carried out at the direction of you or any other covered person. The expected or unexpected results of these acts or directions are not covered....
|7The law regarding the construction of an insurance contract is well settled. Once it is determined that coverage exists, it then must be determined whether the exclusionary language within the policy eliminates the coverage. Hurst v. S. Farm Bureau Cas. Ins. Co., 2011 Ark. App. 657, at 2, 2011 WL 5258035. Exclusionary endorsements must adhere to the general requirement that the insurance terms be expressed in clear and unambiguous language. Id. If the language of the policy is unambiguous, we will give effect to the plain language of the policy without resorting to the rules of construction. Id. On the other hand, if the language is ambiguous, we will construe the policy liberally in favor of the insured and strictly against the insurer. Id. Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one reasonable interpretation. Id. at 2-3. Whether the language of the policy is ambiguous is a question of law to be resolved by the court. Id. at 3.
Appellants first argue that the trial court erred when it did not grant their directed-verdict motions because Arkansas law requires evidence of both intentional acts and intended harm to trigger the application of this intentional-acts exclusion. Appellants cite Norris v. State Farm Fire & Casualty Co., 341 Ark. 360, 16 S.W.3d 242 (2000), and Talley v. MFA Mutual Insurance Co., 273 Ark. 269, 620 S.W.2d 260 (1981), for support; however, these cases are not instructive because they do not involve the same policy exclusion at issue in the instant case.
IsThe exclusionary language found in the Farm Bureau policy herein is quite different as it expressly states that there is no coverage for bodily injury caused by intentional acts and that the expected or unexpected results of intentional acts are not covered. S. Farm Bureau Cas. Ins. Co. v. Easter, 345 Ark. 273, 45 S.W.3d 380 (2001), was the first Arkansas case that addressed this same exclusionary language. Appellants herein argue on appeal that “the [Easter ] Court made clear, the insured must not only intend the act, i.e., running the stop sign, but also intend to cause the collision. The ‘trigger’ of the exclusion [is] not any ‘intentional’ act, but rather, the intent to cause the collision.” We disagree. The Easter court did not hold that the intentional-acts exclusion required evidence that an insured intended the acts and the results of the acts. The holding in Easter merely pointed out that, in the context of this particular intentional-acts exclusion, whether the insured intentionally caused the collision is a question of fact. Significantly, our supreme court contemplated the application of this exclusionary language, stating that once it has been determined that the facts support the application of the exclusion, “the remaining issue is whether the public policy of the State invalidates that exclusion.” Id., 45 S.W.3d at 384.
In Hurst, 2011 Ark. App. 657, at 4-5, 2011 WL 5253035 our court held that this same exclusion did not violate public policy. More importantly, as it relates to the instant appeal, our court held that the plain language of the exclusion is directed solely at the intentional act and not the expected or unexpected harm that resulted. Hurst, 2011 Ark. App. 657, at 5, 2011 WL 5253035. Therefore, based on Hurst, we 19reject appellants’ argument that the trial court erred as a matter of law in refusing to grant their directed-verdict motions on the application of the intentional-acts exclusion.
Appellants also rely on Nationwide Assurance Co. v. Lobov, 2009 Ark. App. 385, 309 S.W.3d 227, contending that Farm Bureau’s interpretation of the exclusion is untenable because it applies to any intentional act that precipitates an injury, regardless of whether it caused the injury. Such an interpretation, claim appellants, effectively nullifies all motor-vehicle insurance. Our holding herein is not inconsistent with our holding in Lobov. We first point out that the exclusionary language in Lobov is different than the exclusionary language in instant case. We further note that the exclusion in Lobov was held to be ambiguous, while the Farm Bureau exclusion has been held to be unambiguous. Where there are disputed issues of fact, Lobov confirms that whether the exclusion applies is to be determined by the fact-finder. Therefore, we hold that the trial court did not err when it denied appellants’ motions for directed verdict and submitted the issue to the jury. Appellants next argue that substantial evidence does not support the jury’s finding that Dylan’s intentional acts caused the accident. Our standard of review for a denial of a directed-verdict motion is well settled:
[I]n reviewing the denial of a motion for [a directed verdict], we will reverse only if there is no substantial evidence to support the jury’s verdict, and the moving party is entitled to judgment as a matter of law. Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. It is not our place to try issues of fact; we simply review the record for substantial evidence to support the jury’s verdict. In determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. A motion for directed verdict should be denied when there is conflict in the evidence, or when the evidence is such that fair-minded people might reach different conclusions.
Mercy Health Sys. of Nw. Ark v. McGraw, 2013 Ark. App. 459, at 6, 429 S.W.3d 298, 802-03. The same standard holds true for a motion for judgment notwithstanding the verdict. Id. A trial court may enter a judgment notwithstanding the verdict only if there is no substantial evidence to support the verdict and the moving party is entitled to judgment as a matter of law. Id:, 429 S.W.3d at 303. We defer to the jury’s resolution of the issue unless we can say there is no reasonable probability to support the appellee’s version. Id., 429 S.W.3d at 303.
Appellants contend that the only evidence in the record supporting the jury verdict is that Dylan was speeding. And while speeding may be evidence of negligence, appellants contend it is not evidence of an intent to cause an accident. They also point out that no witness testified that Dylan intended to harm anyone or cause the accident.
In this case, the jury was not given an instruction by either party defining an intentional act. No such definition was requested or proffered. Furthermore, during deliberations, when the jury inquired about a definition of an intentional act and the trial court refused to give one, appellants did not object to the trial court’s declination, and they did not request that a definition be given to the jury at that time. The only instruction given to the jury on this issue was Interrogatory No. 2, which asked: “Do you find from a preponderance of the evidence that the alleged bodily injury or property damage was caused by intentional acts committed by Dylan Travis in the accident on February 3, 2008.” We hold that substantial evidence supports the jury’s affirmative response to Interrogatory No. 2.
The evidence, viewed in the light most favorable to Farm Bureau, demonstrated that Dylan’s intentional acts caused the accident. He was admittedly speeding on a road he described |nas “windy and cur vy.” One witness said he was traveling 100 miles per hour. There was other evidence that his passengers encouraged him to drive faster, and he did; his passengers insisted that he jump the hill; Dylan admitted driving fast on the road “trying to get some sensation”; Dylan knew what “hill-topping” was and had done it before; “hill-topping” was Dylan’s idea; some of his passengers screamed at him to slow down, and one of his passengers secured his seat belt as Dylan increased his speed and approached the dip/hill. This is substantial evidence on which a jury could find that Dylan’s intentional acts caused the accident.
Appellants’ final point on appeal is that the trial court abused its discretion when it failed to grant their motion for a new trial based on jury misconduct. Arkansas Rule of Civil Procedure 59(a)(2) provides that juror misconduct is a proper basis for granting a new trial. Blake v. Shellstrom, 2012 Ark. 428, at 6, 424 S.W.3d 830, 834. The decision whether to grant a new trial under Rule 59(a)(2) is discretionary with the trial judge, who will not be reversed absent an abuse of that discretion. Blake, 2012 Ark. 428, at 6, 424 S.W.3d at 834. The burden of proof in establishing jury misconduct is on the moving party who must demonstrate that a reasonable possibility of prejudice has resulted from the misconduct. Id., 424 S.W.3d at 834. Prejudice in such instances is not presumed. Id., 424 S.W.3d at 834.
Evidence of misconduct, sufficient to warrant a new trial, must be admissible under Arkansas Rule of Evidence 606(b), which is entitled “Inquiry Into Validity of Verdict or Indictment” and provides:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes 11gin connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.
Blake, 2012 Ark. 428, at 6-7, 424 S.W.3d at 835 (citing Ark. R. Evid. 606(b) (2012)) (emphasis added). The purpose of Rule 606(b) is to attempt to balance the freedom of the secrecy of jury deliberations with the ability to correct an irregularity in those decisions. Blake, 2012 Ark. 428, at 7, 424 S.W.3d at 835. The rule discourages harassment by losing parties attempting to set aside the verdict; encourages free and open discussion among jurors; reduces incentives for jury tampering; promotes verdict finality; and maintains the viability of the jury as a judicial decision-making body. Id., 424 S.W.3d at 835.
Appellants’ motion for new trial relied on the affidavit of juror Bridgette Davidson. Davidson stated that the jury was unsure how to define an intentional act. She said that the jury requested a definition of an intentional act from the trial judge but did not receive one. When the jurors returned to deliberations, one juror used her smart phone to conduct a “Google” internet search for the definition of an intentional act. Davidson stated that this juror told everyone in the room what she had learned, a vote was then taken, nine jurors “voted in favor of [Farm Bureau],” and those nine jurors relied on the inter net definition. The trial court, in denying the motion for new trial, found that appellants failed to prove prejudice, rendering the portions of the affidavit that discussed the extraneous information inadmissible under Rule 606(b).
11sAppelIants contend that the trial court abused its discretion in finding a lack of prejudice. They claim that the Google definition of an intentional act “irreparably tainted” the verdict and “unquestionably resulted in prejudice.” While the Google internet search of the term “intentional act” is extraneous information, see Watkins v. Taylor Seed Farms, Inc., 295 Ark. 291, 292-93, 748 S.W.2d 143, 144 (1988), we hold that the trial court did not abuse its discretion in finding that appellants failed to establish that the extraneous information was prejudicial as required by Rule 606(b). Notably, the definition of the term obtained from the internet and recited to the jury was not set forth in the affidavit. Thus, it is impossible to know how or if the definition could have prejudiced one party or the other. Moreover, the names of the jurors whose votes were allegedly altered upon learning of the internet definition of an intentional act are unknown. Therefore, it is sheer speculation on the part of Davidson to state that the jurors who “voted in favor of [Farm Bureau]” relied on the internet definition. Finally, Davidson, who also heard the internet definition, was not prejudiced by it because it did not influence her to vote with the other nine members of the jury.
Because appellants failed to demonstrate that the extraneous information was prejudicial, we hold that those portions of Davidson’s affidavit discussing the jury’s use of the information do not fall within the exception to Rule 606(b);' therefore, those portions of the affidavit are inadmissible. Without support for their motion for new trial based on jury misconduct, we hold that the trial court did not abuse its discretion in denying the motion and affirm.
Affirmed.
WHITEAKER and BROWN, JJ, agree.
. This grandchild was Hunter Key (Dylan's cousin), who was twelve years old at the time of the accident and lived with Hodges.
. Speaks testified that the speed limit was thirty-five miles per hour.
. Dylan's parents, Barney and LeAnn, both testified; however, their testimony focused primarily on the implied-permission issue, which is not at issue in this appeal.
. However, at trial Dylan admitted testifying in his deposition that there was discussion in the vehicle about jumping the hill and that at least one of his passengers insisted that he jump it. He added that Edison was adamant that she did not want to "hill hop.” Dylan conceded in his deposition that he had jumped a hill before.
. Coverage under Farm Bureau’s policy was found to exist based on the jury’s affirmative response to Interrogatory No. 1, which asked whether Dylan had implied permission from Hodges to operate her vehicle at the time of the accident. Farm Bureau does not challenge this finding.
. In Talley, the exclusionary language in question stated that the policy did not cover “bodily injury ... which is either expected or intended from the stand point of the insured." Talley, 273 Ark. at 271, 620 S.W.2d at 261. Likewise, in Norris, the exclusionary language at issue provided that there was no coverage for bodily injury “which is either expected or intended by an insured; or to any person or property which is the result of wilful and malicious acts of an insured.” Norris, 341 Ark. at 365, 16 S.W.3d at 245.
. Davidson did not sign Interrogatory No. 2. | [
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DAVID M. GLOVER, Judge.
This is an appeal from the grant of summary judgment. Appellant David Lewis sued Brandy Phillips, Cody Boyd, AT & T Mobility, LLC, and Metropolitan National Bank for Phillips’s use of Lewis’s VISA debit card. Specifically, Lewis alleged that AT & T allowed Phillips to use his debit card number on numerous occasions to purchase items or to pay her debts without presentation of the debit card, a PIN number, any identification, or his signature. Lewis asserted that this conduct was negligent on the part of AT & T and that AT & T was liable under the theories of negligence and unjust enrichment for the amount of $6486.69. AT & T filed a motion for summary judgment; Lewis filed a cross-motion against AT & T for summary judgment. The trial court granted AT & T’s motion for summary judgment. Lewis now appeals, arguing that the trial court erred in granting summary judgment to AT & T because “[a] retailer which charges a bank customer’s debit card when its online computer takes only the card owner’s name, address, date of expiration and three-digit security code off the back of the card by the retailer has no view of the identity thief, no signature, no view of the presenter’s driver’s license and no pin number should not be able to keep the money when sued by the bank customer for negligence and unjust enrichment when the charges are unauthorized by the card holder.” We affirm.
Our supreme court has set forth the following view, procedure, and disposition mechanism of motions for summary judgment by parties and courts:
Summary judgment is no longer viewed by this court as a drastic remedy; rather, it is viewed simply as one of the tools in a circuit court’s efficiency arsenal. It should be granted only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. All proof must be viewed in the light most favorable to the nonmoving party, and any doubts must be resolved against the moving party. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact.
Marlar v. Daniel, 368 Ark. 505, 507, 247 S.W.3d 473, 475 (2007) (citations omitted).
Prologue
This case was presented both to the trial court and on appeal on the common-law theories of negligence and unjust enrichment. There was no attempt to develop state or federal consumer-credit legislation usurping the marketplace, i.e., commerce, in the realm of electronic-fund transfers. As best we can determine, using the parlance of current federal consumer-credit-protection legislation, we have a cardholder (Lewis/Brandy Phillips with apparent authority), his card company (VISA) acting for the benefit of his bank, the card issuer (Metropolitan Bank), and the merchant (AT & T Mobility). From the record, it appears that both Lewis, the card holder, and AT & T, the merchant, had separate contracts with Metropolitan, the card issuer, since a debit card was used. In this alignment of parties, within the field of electronic-fund transfers, there is no direct accounting between AT & T and Lewis; that is, both are contractually bound to their transactions and deal through Metropolitan.
In any action which involves a consumer’s liability for an unauthorized electronic-fund transfer, the burden of proof is upon the financial institution:
In any action which involves a consumer’s liability for an unauthorized electronic fund transfer, the burden of proof is upon the financial institution to show that the electronic fund transfer was authorized or, if the electronic fund transfer was unauthorized, then the burden of proof is upon the financial institution to establish that the conditions of liability set forth in subsection (a) of this section have been met, and, if the transfer was initiated after the effective date of section 1693c of this title, that the disclosures required to be made to the consumer under section 1693c(a)(l) and (2) of this title were in fact made in accordance with such section.
15 U.S.C.A. § 1693g(b). This is for Lewis’s exclusive benefit as the consumer.
Here, Lewis’s claims against Metropolitan were dismissed with prejudice from this lawsuit. The record does not reflect the terms of dismissal. However, it is unnecessary for us to discuss the obligations between AT & T and Metropolitan, as Metropolitan is no longer a party to this case.
Negligence
The law of negligence requires as an essential element that the plaintiff show that a duty of care was owed. Young v. Gastro-Intestinal Center, 361 Ark. 209, 205 S.W.3d 741 (2005). Duty is a concept arising out of the recognition that “relations between individuals may impose upon one a legal obligation for the other.” Tackett v. Merchant’s Security Patrol, 73 Ark.App. 358, 362, 44 S.W.3d 349, 352 (2001). The issue of whether a duty exists is always a question of law, not to be decided by a trier of fact. Lacy v. Flake & Kelley, 366 Ark. 365, 235 S.W.3d 894 (2006). If no duty of care is owed, summary judgment is appropriate. Id.
AT & T attached as an exhibit to its motion for summary judgment copies of a booklet produced by Lewis’s card company entitled “Rules for Visa Merchants Card Acceptance and Chargeback Management Guidelines.” The guidelines define the business relationship between the card company and the merchant. On page forty of that booklet are the fraud-prevention guidelines for card-not-present transactions. The guidelines provide that authorization is required on all card-not-present transactions; that whenever possible, card-not-present merchants should ask customers for their card expiration, or “good thru,” date and include it in the authorization request; and that the Card Verification Value 2 (CVV2), the three-digit security number printed on the back of Visa cards to help validate that a customer is in possession of a legitimate card at the time of an order, should be requested from card-not-present customers. AT & T also attached the ^affidavit of Patti Hancock, the manager of AT & T’s payment-fraud department during the relevant times. Hancock stated that credit-card and debit-card companies establish the information required to process card-not-present transactions, which typically require the name of the cardholder, the cardholder’s billing address and zip code, the expiration date of the card, and the CW number, which is the three-digit security code on the back of a credit or debit card. Hancock stated that Brandy Phillips had an account with AT & T; that beginning in March 2007 and continuing through March 2008, Phillips paid her monthly mobile-phone bill with Lewis’s Visa card through the online account manager; and that AT & T accepted this payment because Phillips had all of the information necessary — Lewis’s name, billing address and zip code, the card’s expiration date, and the CW number — to process a card-not-present payment. She further stated that Lewis did not report Phillips’s unauthorized use until April 2008.
Lewis’s response to AT & T’s motion for summary judgment merely stated that AT & T took money out of his account without his signature or permission or without hearing a voice or seeing a face; that it was difficult to discover the transactions because he, too, had his own AT & T cellphone bill that was also paid monthly; and that identity theft was rampant and it was because companies such as AT & T did not take reasonable steps to ascertain whether the debit from the account was authorized by the owner of the account.
Lewis fails to establish that AT & T owed him a duty to obtain his permission or his signature to process a card-not-present transaction. Lewis does not contend that AT & T failed to obtain the information necessary to process a card-not-present transaction, and he concedes in his brief that a merchant need only obtain the information AT & T obtained to verify a card-not-present transaction. In fact, he admitted in his brief that he had used the card-not-present transaction option himself. Lewis cites to no authority that mandates a duty upon AT & T greater than what was required (and what was performed) when processing a card-not-present transaction. He has failed to meet proof with proof regarding the summary-judgment motion; without proof of a duty owed to Lewis by AT & T, a grant of summary judgment to AT & T was appropriate.
Furthermore, as AT & T points out, federal law protects consumers. A consumer shall be liable for any unauthorized electronic fund transfer involving his account only if the card was an accepted card and the issuer of such card has provided a means whereby the user of the card can be identified as the person authorized to use it, such as by signature, photograph, or fingerprint or by electronic or mechanical confirmation; however, in no event shall a consumer’s liability for an unauthorized transfer exceed the lesser of $50 or the amount of money or value of property or services obtained in such unauthorized electronic fund transfer prior to the time the financial institution is notified of, or otherwise becomes aware of, circumstances which lead to the reasonable belief that an unauthorized electronic fund transfer involving the consumer’s account has been or may be effected. 15 U.S.C.A. § 1693g(a). However, reimbursement need not be made to the consumer for losses the financial institution establishes would not have occurred but for the failure of the consumer to report within sixty days of transmittal of the statement any unauthorized electronic fund transfer or account error which appears on the periodic statement. Id. Here, Lewis failed to report the unauthorized charges until a year after they began occurring. Still yet, such reports would be made to the financial institution, not the individual merchant.
Unjust Enrichment
“To find unjust enrichment, a party must have received something of value, to which he was not entitled and which he must restore. There must also be some operative act, intent, or situation to make the enrichment unjust and com pensable. The basis for recovery under this theory is the benefit that the party has received and it is restitutionary in nature.” Dews v. Halliburton Indus., Inc., 288 Ark. 532, 536-37, 708 S.W.2d 67, 69 (1986) (citations omitted). In this case, AT & T did receive something of value—money for mobile-telephone services provided to Brandy Phillips. However, AT & T was entitled to be paid for those services it provided. In this case, AT & T was not the party unjustly enriched by Phillips’s use of Lewis’s Visa to pay her phone bill— Phillips was unjustly enriched.
Affirmed.
MARTIN, J., agrees.
HART, J., concurs.
. Lewis obtained a default judgment against Phillips in the amount of $20,000 in March 2009, and his claims against Metropolitan were dismissed with prejudice in an order filed January 24, 2011. In the order granting summary judgment to AT & T, which is the subject of this appeal, the trial court noted that Cody Boyd was not served within the required 120 days and therefore Lewis's complaint against Boyd was dismissed without prejudice. | [
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CLIFF HOOFMAN, Justice.
11Appellant M. Jay Carter appeals from an order of the Pulaski County Circuit Court awarding him $42,104.06 in attorney’s fees and costs against appellees, Ernie Cline and Karen Cline. We assumed jurisdiction of this appeal pursuant to Arkansas Supreme Court Rule 1 — 2(a)(7) as a second or subsequent appeal following an appeal that was decided by this court.
On appeal, Carter contends that (1) the circuit court erred in determining that this court’s decision in Carter v. Cline (Carter I), 2011 Ark. 474, 385 S.W.3d 745, precluded recovery of fees and costs pursuant to the real estate contract; (2) the circuit court erred in refusing to award him fees and costs related to his third-party claim and fees and costs incurred by attorney James H. Carter; and (3) the circuit court erred as a matter of law by reducing Carter’s award of fees and costs without explanation or calculation. We affirm on all points.
|2A complete recitation of the underlying facts of this case can be found in our earlier opinion. See Carter I, supra. To recap, the Clines filed suit against Carter for breach of a real estate contract after he was unable to acquire financing to purchase a home owned by the Clines. Carter filed a third-party complaint against his real estate agent, Casey Jones, and Jones’s employer, The Janet Jones Company, for negligence. The cases were consolidated and proceeded to trial in August 2009. The jury returned a verdict in the Clines’ favor on the breach-of-contract claim and in favor of Carter on the third-party negligence claim. The Jones defendants requested and were granted a new trial on the issue of damages, and Carter appealed the breach-of-contract judgment to this court. In reversing the award to the Clines, we held that because the real estate contract contained a condition prec edent — that Carter obtain financing — and because that condition was never met, there was no contract between the parties. See Carter I, supra.
On remand, the circuit court entered an order on March 16, 2012, dismissing with prejudice both the complaint filed by the Clines and the third-party complaint filed by Carter. On March 30, 2012, Carter filed a motion for attorney’s fees and costs, requesting a total of $219,576.68 against the Clines, which represented all the legal work done on Carter’s defense of the breach-of-contract suit, including the appeal, and in his pursuit of the third-party claim. In the motion, Carter asserted that he was entitled to fees and costs based on paragraph 29 of the real estate contract and Arkansas Code Annotated section 16-22-308 (Repl.1999). In | .^response, the Clines maintained that Carter was not entitled to fees and costs pursuant to the real estate contract or section 16-22-308 because there was no contract and that he was not entitled to fees and costs associated with his third-party complaint, his appeal, or James H. Carter’s work performed prior to being admitted pro hac vice in Arkansas. Moreover, the Clines argued that Carter’s request was unreasonable and that the court should exclude all of James H. Carter’s fees and further reduce the amount by a third. Carter filed a reply in which he asserted that he was entitled to his fees and costs under both the contract and the statute, and he contended that his fees and costs should not be reduced for any reason. The parties argued their respective positions at a hearing on June 14, 2012.
The trial court entered an order on July 3, 2012, awarding Carter $52,416.56 in fees and costs. Carter filed a timely notice of appeal from that order. Specifically, the circuit court found that Carter was not entitled to recover fees and costs pursuant to paragraph 29 of the real estate contract because this court held in Carter I that there was no contract; that Carter was entitled to recover fees and costs pursuant to section 16-22-308; that Carter had conceded at the hearing that section 16-22-308 does not allow recovery for fees and costs incurred on appeal; that because section 16-22-308 does not apply to tort actions, Carter was not entitled to fees and costs associated with the third-party claim for negligence; and that because |4James H. Carter’s work as co-counsel prior to the appeal of the case was duplicative and unnecessary, those fees and costs were denied as unreasonable.
On July 16, 2012, the Clines filed a motion to correct the July 3 order, arguing that the amount of James H. Carter’s fees to be excluded had been miscalculated and that there was overlap that needed to be accounted for between James H. Carter’s fees and what was attributable to the third-party complaint. The circuit court entered a revised order on August 13, 2012, reducing the amount of Carter’s fees and costs to $42,104.06. Other than the amount of fees and costs, the original order and the revised order were nearly identical. The court found that of the $219,576.68 that Carter sought in fees and costs, $59,901.25 was attributable to the third-party claim; $38,959.25 was for fees associated with James H. Carter’s representation; and $78,612.12 was for fees and costs on appeal. Carter filed a timely notice of appeal from the revised order.
This court follows the American rule, which requires every litigant to bear his or her attorney’s fees absent statutory authority or a contractual agreement between the parties. See Griffin v. First Nat’l Bank of Crossett, 318 Ark. 848, 888 S.W.2d 306 (1994); Damron v. Univ. Estates, Phase II, Inc., 295 Ark. 533, 750 S.W.2d 402 (1988). Because of the circuit judge’s intimate acquaintance with the trial proceedings and the quality of service rendered by the prevailing party’s counsel, we usually recognize the superior perspective of the circuit judge |5in determining whether to award attorney’s fees. Harrill & Sutter, PLLC v. Kosin, 2011 Ark. 51, 378 S.W.3d 135. The decision to award attorney’s fees and the amount to award are discretionary determinations that will be reversed only if the appellant can demonstrate that the trial court abused its discretion. Id. While the decision to award attorney’s fees and the amount awarded are reviewed under an abuse-of-discretion standard, we review factual findings by a circuit court under a clearly erroneous standard. Ellis v. Ark. State Highway Comm’n, 2010 Ark. 196, 363 S.W.3d 321.
I. Fees & Costs Pursuant to the Contract
For his first point on appeal, Carter argues that the circuit court erred in finding that this court’s holding in Carter I, supra, precluded Carter from recovering fees and costs pursuant to paragraph 29 of the real estate contract. In particular, Carter maintains that although there was no enforceable contract to purchase real estate based on this court’s prior holding, the other provisions of the contract should remain enforceable. Carter equates this case to a situation in which a contract is entered into but is subsequently rescinded or becomes unenforceable.
In Carter I, we held that the real estate contract at issue contained a condition precedent and that because that condition was not met, there was “no contract.” 2011 Ark. 474, at 14, 385 S.W.3d at 754. As there was no contract, there could be no breach of that contract. Consequently, we concluded that Carter was entitled to judgment as a matter of law on the breach-of-contract claim. Here, the circuit court found that Carter was not entitled to fees and costs under paragraph 29 of the real estate contract because, based on our decision |fiin Carter I, there was no contract between the parties. In essence, Carter could not recover fees and costs pursuant to a contractual provision to which neither party was bound.
The law-of-the-ease doctrine prohibits a court from reconsidering issues of law and fact that have already been decided on appeal. Cadillac Cowboy, Inc. v. Jackson, 347 Ark. 963, 69 S.W.3d 383 (2002). The doctrine provides that a decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review. Green v. George’s Farms, Inc., 2011 Ark. 70, 378 S.W.3d 715. The doctrine serves to effectuate efficiency and finality in the judicial process, and its purpose is to maintain consistency and avoid reconsideration of matters once de cided during the course of a single, continuing lawsuit. Id. The law-of-the-case doctrine requires us to adhere to our decision on the first appeal, whether it was right or wrong. See Potter v. Easley, 288 Ark. 138, 703 S.W.2d 442 (1986); see also Nat’l Surety Co. v. Long, 85 Ark. 158, 161, 107 S.W. 384, 385 (1908) (“[T]he former decision, be it right or -wrong, is the law of this case, and it is not now open for the court to change the law of the case, whatever might be its views hereafter should another case arise.”).
Despite Carter’s arguments to the contrary, we plainly stated in Carter I that the “condition [precedent] was not met, and because it was not, there was no contract” 2011 Ark. 474, at 12, 385 S.W.3d at 753 (emphasis added). The circuit court’s finding that Carter was not entitled to recover attorney’s fees and costs under the contract is wholly consistent with the clear holding in Carter I that there was no contract. Therefore, we hold that the circuit court did not err in finding that our previous holding in Carter I precluded recovery under the |7specific terms of the contract and affirm on this point.
II. Fees & Costs Pursuant to Arkansas Code Annotated Section 16-22-308
In his next point on appeal, Carter argues that the circuit court erred in finding that, under section 16-22-308, appellant was not entitled to recover fees and costs related to his third-party claim and those fees and costs associated with James H. Carter’s representation.
A. Third-Party Claim
First, Carter asserts that the court erred in declining to award him fees and costs associated with the filing of his third-party negligence claim against the Jones defendants. He maintains that he was forced to file the third-party claim in defense of the Clines’ breach-of-contract action, that the Clines agreed to consolidate the third-party action with the breach-of-contract action for purposes of trial, and that it would have been unreasonable for Carter to wait until the breach-of-contract action was fully litigated to bring his third-party action because his claim would lapse due to the statute of limitations. Carter cites Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986), and Garmon v. Mitchell, 53 Ark.App. 10, 918 S.W.2d 201(1996), as support for his proposition that an injured party who is compelled to bring or defend an action against a third party may recover fees proximately caused by having to pursue the third-party action.
Arkansas Code Annotated section 16-22-308 provides that “[i]n any civil action to recover [for] 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’s fee to be assessed by the court and collected as costs.” We have held that section 16-22-308 |sdoes not apply to tort actions. See Mercedes-Benz Credit Corp. v. Morgan, 312 Ark. 225, 850 S.W.2d 297 (1993); see also Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992). This court has consistently looked closely at the complaint, the evidence presented, and the jury’s basis of recovery to determine the nature of the legal action in determining if fees can be awarded under section 16-22-308. See Security Pac. Housing Services, Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993); Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993).
The circuit court found that because section 16-22-308 did not apply to tort actions, Carter was not entitled to fees and costs associated with his third-party action. The circuit court’s finding is consistent with our precedent, and we are con vinced that the circuit court did not err in denying Carter’s request for fees and costs associated with his third-party claim because that claim was based on the tort of negligence, not breach of contract.
To the extent Carter argues that he was entitled to recover his fees and costs for the third-party action from the Clines as an element of compensatory damages, see Liles, 289 Ark. at 177-78, 711 S.W.2d at 456-57, that argument was never presented to the circuit court below. A basic tenet of our appellate review is that our court will not consider arguments that were not preserved for appellate review. Sykes v. Williams, 373 Ark. 236, 283 S.W.3d 209 (2008). We will not do so because it is incumbent upon the parties to raise arguments initially to the circuit court and to give that court an opportunity to consider them. Id. Otherwise, we would be placed in the position of reversing a circuit court for reasons not addressed by that court. Id.
Here, after the circuit court dismissed the Clines’ breach-of-contract complaint with | prejudice, Carter filed a motion against the Clines maintaining that, as the prevailing party, he was entitled to attorney’s fees and costs under the contract and section 16-22-308. Carter’s requested amount of fees and costs included those associated with his third-party claim. After the Clines claimed that he was not entitled to fees and costs related to the third-party claim, Carter argued that he was forced to file the third-party complaint because of the Clines’ lawsuit. Although Carter consistently maintained that he was entitled to fees and costs on his third-party claim pursuant to the contractual and statutory provisions, at no time did he characterize his request as one for compensatory damages. Because Carter’s request for attorney’s fees and costs associated with his third-party claim as “compensatory damages” is made for the first time on appeal, we cannot consider it.
B. James H. Carter
Second, Carter contends that the court erred in declining to award him fees and costs for the work James H. Carter did on his case. Specifically, Carter claims that all of James H. Carter’s work on the case, both before he was admitted to practice pro hac vice in Arkansas and after, was reasonable and necessary.
This court has often observed that there is no fixed formula in determining the reasonableness of attorney’s fees. See Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). However, a court should be guided in that determination by the following long-recognized factors: (1) the experience and ability of the attorney; (2) the time and labor | inrequired to perform the service properly; (3) the amount in controversy and the result obtained in the case; (4) the novelty and difficulty of the issues involved; (5) the fee customarily charged for similar services in the local area; (6) whether the fee is fixed or contingent; (7) the time limitations imposed upon the client in the circumstances; and (8) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the attorney. Id. Due to the circuit judge’s intimate acquaintance with the record and the quality of service rendered, we recognize the superior perspective of the trial judge in assessing the applicable factors. Id. Accordingly, the amount of the award will be reversed only if the appellant can demonstrate that the trial court abused its discretion. Phi Kappa Tau Hous. Corp. v. Wengert, 350 Ark. 335, 86 S.W.3d 856 (2002).
Attached to Carter’s motion for fees and costs was an invoice of James H. Carter’s billing for legal work in this case, which began on September 9, 2006, just prior to the Clines’ filing their complaint, and continued up until September 6, 2010, just prior to the appeal in Carter I. In response, the Clines argued that James H. Carter should not be awarded any fees for work performed prior to July 29, 2009, when he was admitted pro hac vice in Arkansas; that much of the legal work James H. Carter performed was duplica-tive of Carter’s in-state counsel; and that James H. Carter often ignored direct orders of the court, thereby performing unnecessary legal work.
The circuit court found that James H. Carter’s representation as co-counsel for Carter was “duplicative, unnecessary, and did not contribute to Carter’s defense.” Thus, the court concluded that the $38,959.25 in fees associated with James H. Carter’s legal work was | ^unreasonable. Based on a review of the record before us, our deference to the circuit court on issues involving the award of fees and costs, and the heightened standard of review, the circuit court did not abuse its discretion on this point.
III. Reduction of Award
Finally, in his third assertion of error, Carter claims that the circuit court erred by reducing Carter’s award from $52,416.56 to $42,104.06 without explanation or calculation. Other than citing to the standard of review, Carter makes no argument or citation to authority as to why the court’s action was in error.
We have held that we will not consider an issue if the appellant has failed to cite to any convincing legal authority in support of his argument. Johnson v. Encompass Ins. Co., 355 Ark. 1, 130 S.W.3d 553 (2003). We have further held that the failure to develop a point legally or factually is reason enough to affirm the circuit court. Id. Accordingly, because Carter failed to present this court with convincing and developed arguments on this issue, we affirm the circuit court’s decision to reduce the amount of fees and costs.
Affirmed.
. James H. Carter, who is licensed to practice law in Georgia and Louisiana, is appellant's brother.
. Paragraph 29 states that “[s]hould Buyer or Seller initiate any type of ... litigation against the other ... it is agreed by Buyer and Seller ... that all prevailing parties shall be entitled to an award of their respective attorney's fees and costs incurred in defense of such initiated action against the non-prevailing party.”
. This reply was filed by Carter’s in-state counsel. A little over a month later, James H. Carter filed a surreply. The circuit court clarified at the June 14 hearing that it did not rely on the surreply in making its decision.
. Carter’s notice of appeal included an appeal from several adverse rulings related to the third-party claim against the Jones defendants. However, this court granted their motion to dismiss that appeal on March 28, 2013.
. In fact, as the defendant in the breach-of-contract action who had not filed a counterclaim, Carter was not entitled to compensatory damages. | [
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DONALD L. CORBIN, Justice.
11 Appellant State of Arkansas brings the instant appeal from an order of the Pulaski County Circuit Court granting Appellee Kendrick Robinson’s motion to suppress evidence. In its appeal, the State asserts that the circuit court erred in granting Appellee’s motion to suppress evidence seized in connection with the execution of a search warrant, served simultaneously with an arrest warrant for Appellee, by Sherwood police officers on a home located outside the city limits of Sherwood. We agree and, therefore, reverse and remand.
Appellant was a suspect in an armed robbery of a Phillips 66 gas station in Sherwood that occurred on July 4, 2011. Officers from the Sherwood Police Department executed a search-and-seizure warrant, as well as an arrest warrant, on July 6, 2011, at Appellee’s residence, located at 8405 Edmar Place, North Little Rock, Arkansas. Appellee was taken pinto custody and officers seized certain items, including a white baseball cap located on a table just inside the residence; a .30-30 rifle, with attached scope, located in the front room, near where Appellee was placed under arrest; an empty box of Remington .30-30 ammunition located near the couch in the front room; live ammunition and spent casings from the gun, located throughout the house; and two shirts discovered in a back bedroom.
Appellee was subsequently charged with one count each of aggravated robbery, theft of property, and possession of firearms by certain persons. Appellee filed a motion to suppress evidence, arguing that it was taken in violation of his constitutional rights under the Fourth Amendment to the United States Constitution and article 2, section 15 of the Arkansas Constitution. The State responded that suppression was not warranted because the evidence was obtained legally, as the Sherwood officers were authorized to execute the arrest warrant, as well as the search warrant, pursuant to the rules of criminal procedure.
The circuit court held a hearing on the suppression motion on February 23, 2012. At the hearing, Appellee stated that his suppression motion was based solely on his contention that the officers from the Sherwood Police Department were outside their territorial jurisdiction when they executed this search warrant and did so without any interagency agreement. Appellee relied on this court’s decision in State v. Fountain, 350 Ark. 437, 88 S.W.3d 411 (2002) to support his contention that, in the absence of any interagency agreement or cooperation between Sherwood police and other local law enforcement |sagencies, Sherwood police improperly executed the search warrant, which, in turn, required the court to suppress the evidence seized as a result thereof. The State countered that Fountain did not establish such a bright-line rule. The State further argued that the decision in Fountain supported a conclusion that the evidence was legally obtained because, in this ease, there was both a valid arrest warrant, and a valid search-and-seizure warrant.
Following a hearing on the motion, the circuit court granted the motion, thereby suppressing the evidence seized from Ap-pellee’s residence. The State timely appealed this order, but this court dismissed the appeal. The circuit court subsequently entered a written order on October 29, 2012, that reflected its prior oral ruling to grant the motion to suppress. The State now brings the instant interlocutory appeal.
For its first argument on appeal, the State asserts that the circuit court erred in ruling as a matter of law that the evidence seized as a result of an extraterritorial execution of a valid search warrant must be suppressed by concluding that the execution of the warrant was per se unreasonable because it was not executed in cooperation with local law enforcement. Appellee counters that the circuit court properly suppressed the evidence because it was the result of an invalid execution of the search warrant.
As a threshold matter, we must address whether this is a proper appeal by the State. Unlike the right of a criminal defendant to bring an appeal, the State’s right to appeal is limited to the provisions of Rule 3 of the Arkansas Rules of Appellate Procedure — Criminal (2013). State v. Colvin, 2013 Ark. 203, 427 S.W.3d 635. Under this rule, we accept appeals by the State when our holding would be important to the correct and uniform administration of Arkansas criminal law. State v. Hardiman, 353 Ark. 125, 114 S.W.3d 164 (2003). Where an appeal by the State fails to present an issue of interpretation of the criminal rales with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. State v. Williams, 348 Ark. 585, 75 S.W.3d 684 (2002). Where the resolution of the issue on appeal turns on the facts unique to the case or involves a mixed question of law and fact, the appeal is not one requiring interpretation of our criminal rules with widespread ramifications, and the matter is not appealable by the State. Id. Finally, where an appeal raises an issue of the application, and not interpretation, of a criminal rale or statutory provision, it does not involve the correct and uniform admin istration of the criminal law and is not appealable by the State under Rule 3. Id.
The issue presented in this case is whether the circuit court erred in finding that it was per se unreasonable for officers to execute an extraterritorial search warrant without the cooperation of local law enforcement. More specifically, the State asserts that the circuit court erred in its interpretation of the applicable criminal procedural rules and this court’s precedent in Fountain, 350 Ark. 437, 88 S.W.3d 411, as well as the two cases relied on by the court in Fountain: Colston v. State, 346 Ark. 503, 58 S.W.3d 375 (2001) and Logan v. State, 264 Ark. 920, 576 S.W.2d 203 (1979). The material facts surrounding the execution of the warrant are not in dispute; thus, the question presented is purely a legal one and presents a proper issue for an appeal by the State.
On review of a suppression challenge, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and | ^determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court. State v. Tyson, 2012 Ark. 107, 388 S.W.3d 1.
We turn now to the State’s argument that the circuit court erred in granting the suppression motion. In support of this argument, the State asserts that the circuit court erred in interpreting Fountain as establishing a bright-line rule, which requires officers to have interagency cooperation within the jurisdiction of execution of a search warrant. According to the State, it is notable that in Fountain the court considered a combination of statutes, rules of criminal procedure, case law, and facts in applying a totality-of-the-eircum-stances review to conclude that the search was reasonable. The State argues that the circuit court in this instance, while stating that it had considered the totality of the circumstances, actually based its decision on one factor, namely, the requirement of interagency cooperation and, thus, erred as a matter of law in granting the motion to suppress. Appellee counters that there is no Arkansas statute, court rule, or appellate court decision that specifically allows a police officer from a municipality to execute a search warrant outside his territorial jurisdiction, acting by himself.
| f,After Appellee filed his motion to suppress evidence, the circuit court held a hearing on the motion. At the conclusion of the hearing, the circuit court announced that it was granting Appellee’s motion, stating as follows:
Based upon the totality of the circumstances, the Court finds that the search in this instance does not comport with the requirements of an interagency agreement so as to respect the concept of territorial jurisdiction of peace officers and the Court finds that the conduct of the law enforcement agency, the Sherwood Police Department in this instance, is not consistent with the traditional notions of reasonableness which underlie the [Fjourth [Ajmendment.
In its written order, the circuit court ruled that in order for the Sherwood police officers to validly execute the search warrant it was necessary for them to either have an interagency agreement or officers from the other jurisdiction present at the time of the execution of the search warrant. We agree with the State that the circuit court improperly interpreted Fountain as requiring interagency cooperation.
The Fourth Amendment provides that
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.... The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government or those acting at their direction.
Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 613-14, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). However, only those searches and seizures that are deemed unreasonable are proscribed by the Fourth Amendment. Id. What is reasonable “depends on all of the circumstances surrounding the search or seizure and the nature of the search and seizure itself.” Id. at 619, 109 S.Ct. 1402 (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985)). “Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth |7Amendment interests against its promotion of legitimate governmental interests.” Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).
Clearly the touchstone principle in any Fourth Amendment analysis is reasonableness, and in making a reasonableness determination it is necessary for a court to consider the totality of the circumstances. See Benavidez v. State, 352 Ark. 374, 101 S.W.3d 242 (2003); see also Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (stating that reasonableness is measured in objective terms by examining the totality of the circumstances). No such analysis occurred in this case. The State is correct that although the circuit court mentions “totality of the circumstances,” its ultimate decision was based on the singular factor that there was no interagency cooperation or agreement in place. Contrary to the circuit court’s finding, there is no rule of criminal procedure, statute, or case law establishing a bright-line rule that in order for a police officer to execute a search warrant outside his jurisdiction there must be an inter-agency agreement or interagency cooperation to validate the search. This court’s opinion in Fountain, 350 Ark. 437, 88 S.W.3d 411, certainly does not stand for this proposition.
In that case, the appellant brought a cross-appeal, arguing that the circuit court erred in denying his motion to suppress evidence seized from his home in Little Rock by officers from the North Little Rock Police Department because the officers acted outside their jurisdiction. This court affirmed the circuit court’s denial of the motion to suppress and specifically rejected the appellant’s argument that, under Colston, 346 Ark. 503, 58 S.W.3d 375, the traditional concept of territorial jurisdiction for peace officers is that a local community is best served by the requirement that only local officers make arrests in the 18community. In so doing, this court concluded that the issue was best resolved by relying on other cases, applicable statutes, and rules of criminal procedure, and noted as follows:
In the present case, the officer had a search warrant. We note that an officer may make an arrest when the officer has a warrant for arrest, as provided by Ark.Code Ann. § 16-81-105 (1987). See also Ark. R.Crim. P. 4.2 (2002). Under Ark. R.Crim. P. 13.3(a), “a search warrant may be executed by any officer.” Id. We noted in Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993) that Ark.Code Ann. § 16-82-201 (1987), which gives any judicial officer in the state the authority to issue a search warrant, does not limit the jurisdiction of the judicial officer to issue search warrants in his or her county. Id.
Fountain, 350 Ark. at 443, 88 S.W.3d at 415. The State is correct that the court in Fountain considered several areas of the law in determining that the circuit court properly denied the motion to suppress. While it is true that there was evidence that an officer from the North Little Rock Police Department contacted the Little Rock Police Department prior to the execution of the warrant, the opinion is silent as to whether any Little Rock officers were actually present during the execution of the search warrant. More importantly, this court’s analysis of the underlying issue did not hinge on this singular factor; rather, the court in Fountain considered the totality of the circumstances to conclude that the execution of a search warrant by North Little Rock officers at a residence in Little Rock was permissible.
Looking at the totality of the circumstances in this case, we conclude that the circuit court erred in granting Appel-lee’s motion to suppress because it was not per se unreasonable for the Sherwood officers to execute this search warrant. Pursuant to Arkansas Code Annotated § 16-82-201 (Repl.2005), any judicial officer has the authority to issue a search warrant directed to any person or place in Arkansas. Here, it is undisputed that the search 19warrant was properly issued by a judge in the Sherwood District Court of Pulaski County. Rule 13.3(a) of the Arkansas Rules of Criminal Procedure plainly states that a search warrant may be executed by any officer. The officers in this case were the ones investigating the robbery and were the ones who obtained the information used to secure both the search warrant and the arrest warrant. There was no dispute regarding the validity of either warrant, as the dispute related solely to the execution of the search warrant. There was nothing to indicate that the Sherwood police purposefully avoided notifying other law enforcement agencies. Accordingly, under the totality of the circumstances and in view of the applicable statutory authority, court rules, and our case law, we cannot say that the execution of the search warrant was per se unreasonable such that it warranted suppression of the evidence seized.
Because of our resolution of the State’s first argument, it is not necessary to address its alternative argument that this was a valid search incident to arrest.
Reversed and remanded.
BAKER and HART, JJ., dissent.
. Although Appellee stated that his residence was located in North Little Rock, it was revealed during a hearing on the motion to suppress that the residence is actually located within an unincorporated part of Pulaski County and therefore subject to the jurisdiction of the Pulaski County Sheriff’s Office.
. In his brief to this court, Appellee asserts that this court should affirm the order of suppression, as he is afforded greater protection under article 2, section 15. The State then focuses on this article 2, section 15 argument in its reply brief. We decline to address the specific argument that greater protection is afforded under the Arkansas Constitution because such an argument was not argued to, or ruled upon by, the circuit court. This court has repeatedly stated it will not address arguments, even constitutional arguments, raised for the first time on appeal. Dowty v. State, 363 Ark. 1, 210 S.W.3d 850 (2005). | [
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ROBERT J. GLADWIN, Chief Judge.
11 Steve Jeffrey Thrapp appeals the April 24, 2013 decision of the Arkansas Workers’ Compensation Commission (Commission), affirming and adopting the administrative law judge’s (ALJ) decision that he failed to prove by a preponderance of the evidence that he sustained compensable injuries. On appeal, he argues that the Commission erred in so doing. We affirm.
Appellant, age forty-four, testified that he began working for appellee Smith Blair, Inc., as a “grinder” from May 1999 until sometime in 2004 or 2005. His duties as a “grinder” involved working with grinding equipment, which created significant vibrations. The grinder is a hand-held piece of equipment that is hooked to an air hose. He held it with his right hand holding the trigger, and controlled it with both hands. He worked eight-hour shifts on the grinder, with a ten-minute break in the morning, a thirty-minute lunch, and |2another ten-minute break in the afternoon. Appellant described two types of grinders, one with more torque than the other.
Appellant testified that in November 2004, he continued to work for Smith Blair, but instead of being a “grinder” he began working in the “622 work cell area.” This work consisted of a rotation of duties. As part of the rotation, appellant was still required to do some grinding — approximately two hours a day, every other day.
Appellant testified that the grinding tool he was required to use in the “622 work cell area” was a smaller version than he had worked with from May 1999 through October 2004. The grinding he was required to do approximately two hours per day every other day in the “622 work cell area” required the use of only one hand instead of two hands. He testified that sometime around 2009, he began experiencing numbness in his fingers and then his forearms. He said his problems began in 2009 while performing the “622 work cell area” work, but he never reported the problems to a supervisor until January 2011.
Appellant testified that he first began receiving treatment for his bilateral-upper-extremity problems around November 2010, when he went to Dr. Douglas, who sent him to Dr. Nnizar Souayah for a nerve-conduction test. The nerve-conduction study showed the following impression:
There is neurophysiological evidence of bilateral and at least moderate median nerve dysfunction of the wrist consistent with the diagnosis of bilateral and at least moderate carpal tunnel syndrome. The reduction of the conduction velocity of the right sensory ulnar nerve may suggest right sensory ulnar neuropathy.
Appellant was then referred to Dr. Thomas Young, an orthopedic surgeon, who eventually performed sequential carpal-tunnel releases.
13Pr. Greg Smolarz, in his independent medical evaluation on March 24, 2011, found, “The nerve conduction studies indicate bilateral carpal tunnel syndrome and positive Tinel’s was found in both wrists.” Dr. Smolarz also opined as follows:
The patient is claiming that repetitive activities such as picking up metal on a continuous, frequent basis during the day is the cause of his carpal tunnel syndrome. In my opinion, that may very well be a small portion that contributes to the overall carpal tunnel syndrome, but also there’s other factors involved including the presence of obesity, presence of chronic stiffness in his forearms, his regular activities that he performs when he’s not at work.
In response to whether the treatment for appellant was related to the injury or accident, Dr. Smolarz stated as follows:
As indicated in question #6, I feel like his work contributes at least somewhat to the diagnosis, but this is a multi-factorial problem for which one has to take into account all activities that the patient performs as well as other findings such as obesity and chronic stiffness due to inactivity as well as activities. Therefore, the treatment potentially is related to the injury or accident.
Dr. Smolarz concluded his evaluation, adding, “The major cause for the claimant’s carpal tunnel syndrome is not more than fifty percent related to his work activities.”
Based on the objective findings of bilateral-carpal-tunnel syndrome, appellant underwent a right-carpal-tunnel release on June 2, 2011. Then, on July 7, 2011, appellant underwent a left-carpal-tunnel-release surgery.
Dr. Young, who performed the surgeries, opined as follows:
My understanding also is that Mr. Thrapp is trying to file this under Workman’s Compensation. Historically from an orthopedic standpoint, it has always been a tough call, as we frequently see people who are involved in rigorous repetitive work with carpal tunnel syndrome and yet on the other hand, you will see frequently folks with the same symptoms with a very different history, who have fairly sedentary jobs who can develop this as well. So it is difficult to come out with all certainty, and 1¿make the determination that this was work-related. I am happy to help Mr. Thrapp how I can in that regard, but again, it is a bit of a gray area.
When appellant’s workers’ compensation claim was denied, an impairment-rating examination was performed by Dr. Rodney Caldwell, who found a nine-percent impairment to appellant’s right wrist and a five-percent impairment to the left wrist. He further opined as follows:
Mr. Thrapp has worked for Smith Blair for 13 years as both a welder and a grinder. He indicates his job duties included grinding and other various jobs in the work cell. It is my opinion that his repetitive use of bilateral wrists for these jobs could certainly result in carpal tunnel syndromes to both wrist [sic]. According to the AMA Guides to the Evaluation of Disease and Injury Causation, Table 9-14 on page 173, a combination of force and repetition shows strong evidence in relation to CTS. Vibration, with use of the grinder, also shows some evidence of relativity to CTS. It is my opinion that Mr. Thrapp would certainly have to use both his hands and his wrist in repetitive movements throughout his jobs as welder and grinder. Therefore, I feel that the carpal tunnel syndromes are related to the work that he has performed with the company since May 1999.
At the hearing on appellant’s claim, Dr. Caldwell testified,
I cannot agree with Dr. Smolarz’s opinion where he said, “The major cause for the claimant’s carpal tunnel syndrome is not more than 50 percent related to his work activities,” because I have no idea how he came up with the number on that. I cannot put a number on that being the major cause for the carpal tunnel.
He later opined that appellant’s work was the major cause of his injury, stating, “What changed my opinion from the time you asked to the time Mr. Giles asked was that I had time to think about it. I said that it was greater than fifty percent. When you asked me the question, I could not give you a percentage at that time.”
Appellant testified that since his last surgery for left-carpal-tunnel release, he has returned to work in the same “622 work cell area.” He still has some symptoms in his hands |fiwhen dealing with vibration at work, but he is able to work in the “622 work cell area” just like everybody else and has no restrictions in his work duties.
Appellant claimed he sustained compen-sable bilateral-carpal-tunnel injuries to his upper extremities due to his rapid and repetitive work-related activities, which developed over time. He claimed that he should be awarded temporary total-disability benefits, permanent partial-disability benefits, all associated medical treatment, and attorney’s fees.
The ALJ found that appellant failed to prove by a preponderance of the evidence that he sustained compensable bilateral-carpal-tunnel injuries to either upper extremity while in appellee’s employ. The ALJ’s opinion reviews the three doctors’ opinions, noting that Dr. Caldwell would not allow that appellant’s work was the major cause of his injury, but later testified that, after having time to think about it, he believed that appellant’s work was more than fifty percent of the cause. The ALJ stated:
When looking at all the credible evidence now before the Commission, one cannot overlook the fact that the claimant was performing significant grinding vibratory work for five years with no symptoms and then significantly reduced such activities and still had no symptoms for an additional four to five years.
Appellant appealed the ALJ’s denial to the Commission, which affirmed and adopted the ALJ’s opinion. This appeal timely followed.
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 we affirm that decision if it is supported by substantial evidence. Kimble v. Labor Force, Inc., 2013 Ark.App. 601, 430 S.W.3d 156. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support |fia conclusion. Id. We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id. It is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Id.
A claimant seeking benefits for a gradual-onset injury must prove by a preponderance of the evidence that the injury (1) arose out of and in the course of his employment; (2) caused internal or external harm to the body that required medical services or resulted in disability or death; and (3) was the major cause of the disability or need for medical treatment. Kimble, supra; Ark.Code Ann. § 11-9-102(4)(A)(ii)(b) & (E)(ii) (Repl.2012). “Major cause” is defined as more than fifty percent of the cause. Ark.Code Ann. § 11 — 9—102(14) (A).
The sole issue before us is whether the Commission’s decision is supported by substantial evidence. Appellant contends that the evidence in the record points to only one logical conclusion, supported by the objective medical evidence — he suffered a gradual-onset injury, carpal-tunnel syndrome, as a result of the kinds of work he performed for Smith Blair over a period of twelve years. He points to the objective findings by Drs. Souayah and Smolarz, and that based on these, he underwent two carpal-tunnel-release surgeries. After those surgeries, appellant has been able to return to work with some symptoms but no restrictions in his work duties. He argues that Dr. Smolarz’s opinion that his obesity contributed to his carpal tunnel should not preclude a finding of compensa-bility because it is a preexisting condition, and employment circumstances which aggravate preexisting 17conditions are com-pensable. Heritage Baptist Temple v. Robison, 82 Ark.App. 460, 120 S.W.3d 150 (2003).
Smith Blair argues that substantial evidence exists to support the denial of appellant’s claim. It contends that each of the three physicians’ findings provides substantial evidence to support the Commission’s decision. Dr. Young stated that it was difficult to make the determination that appellant’s injury was work related. Dr. Smolarz opined that appellant’s work might have been a small portion that contributed to appellant’s carpal-tunnel syndrome, but noted other factors, including obesity, chronic stiffness in his forearms, and regular activities when not at work. He later added that the major cause of appellant’s carpal-tunnel syndrome is not more than fifty percent related to his work.
Finally, Dr. Caldwell opined that it was his opinion “that repetitive use of the bilateral wrists for these jobs [welder and grinder] could certainly result in carpal tunnel syndromes to both wrists.” In his deposition to inquire as to the basis of his opinion, Dr. Caldwell admitted that if appellant had not regularly used a grinder for two years before his symptoms he would want to know this. He did not recall getting any history like this from appellant. Dr. Caldwell conceded that he had not seen Dr. Smolarz’s report that states that appellant’s carpal-tunnel syndrome is not more than fifty percent relat ed to his work. He also admitted that he did not see the page in Dr. Young’s records where he said appellant’s condition was not work related. Dr. Caldwell could not put a number or percentage to the cause of appellant’s injury, but did so when he was examined by appellant’s attorney, stating that he thought more than fifty percent of the injury was attributable to appellant’s work. He based |sthis opinion on the Guides to the Evaluation of Disease and Injury Causation. The ALJ gave Dr. Caldwell’s opinion little weight based on his indecisiveness, making a credibility determination.
The Commission has the duty of weighing medical evidence, and the resolution of conflicting evidence is a question of fact for the Commission. See Se. Ark. Human Dev. Ctr. v. Courtney, 99 Ark.App. 87, 257 S.W.3d 554 (2007). It is well settled that the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Id. This is a classic dueling-doctors case in which this court is bound by the Commission’s findings. See Boykin v. Crockett Adjustment Ins., 2013 Ark. App. 157, 2013 WL 828582.
Affirmed.
WALMSLEY and GRUBER, JJ., agree. | [
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JOSEPHINE LINKER HART, Justice.
h Randy Russell appeals from a divorce decree and the denial of his motion for a new trial. On appeal he argues that (1) the divorce decree was unlawful because it ordered him to buy at their inferential value corporate shares from his ex-wife, appellee Andrea Russell, instead of simply distributing existing marital property and (2) Andrea offered no competent evidence to prove that the business, National Recovery Specialists, Inc. (NRS), had a fair-market value independent of the personal goodwill of Glynn Colquitt, Randy’s stepfather. We granted review after a unanimous court of appeals decision that affirmed this case as modified. Russell v. Russell, 2013 Ark.App. 151, 426 S.W.3d 527. When we grant a petition for review, we treat the appeal as if it had been originally filed in this court. Payne v. Ark. Dep’t of Human Servs., 2013 Ark. 284, 2013 WL 3322339.
Randy and Andrea were married in July 1996, and they separated in July 2006. No children were born of this union. Randy filed for divorce on August 29, 2006, alleging | ggeneral indignities. Andrea counterclaimed on October 23, 2006, alleging the same grounds.
In November 1996, Randy and his two step-brothers, Rod Colquitt and Ron Col-quitt, each bought 33% of the shares in American Lenders Services Company, Inc. (A.L.S.C.O.F.S.), from Randy’s stepfather, Glynn Colquitt. According to Randy, he used his stepfather’s money to purchase his shares for $80,000. Later, the company became National Recovery Specialists, Inc. (NRS). The parties stipulated that Randy owned a 99/300th interest in A.L.S.C.O.F.S., Inc., and NRS. They also entered into a property-division agreement regarding all property except Randy’s interest in NRS, which was decided by the circuit court.
NRS operates as a nationwide broker that engages independent contractors to repossess collateral. NRS has a single client, the Hong Kong Shanghai Banking Corporation (HSBC). Formerly, NRS had as its principal client Household Bank, which has since been acquired by HSBC. During the pendency of the parties’ divorce action, HSBC was in the process of being acquired by Capital One. Although Glenn Colquitt sold his shares in NRS to his sons, he remained the face of the business and continued to draw a salary.
It was not disputed that the owners of NRS, Randy and his two stepbrothers Col-quitt, freely took cash from the business over and above their salaries. These shareholders took over $2.9 million from the business over a three-year period from 2007 to 2009, to support their hobbies and other personal activities. Randy himself gave more [sthan $45,000 worth of gifts to his girlfriend.
Both parties hired experts to provide the circuit court with opinions about the value of Randy’s shares in NRS. Both experts agreed that the full value of NRS was $3,028 million. However, their opinions as to what Andrea could realize from a sale of NRS stock varied widely.
In a pretrial deposition, Andrea’s expert, Joe Webb, a certified public accountant, stated that he calculated NRS’s value as of December 31, 2010. Although he asserted that his efforts were not intended to be relied on by anyone other than his client and him, he noted that if he were to do a valuation of NRS, he would discuss general economic conditions, industry-specific risks as well as company-specific risks, a standard value for the shares, and goodwill. According to Webb, he had great difficulty securing records and other information from NRS. He noted that he had not done a valuation because he could not agree with Andrea on the values to be used. However, in his calculation, he dropped the Mergerstat average control premium of 29.6% to 10% because Randy appeared to have some control over cash flow. Webb, conceded, however, that a buyer of 16.67% of NRS’s shares would not expect that control of cash flow would follow their purchase, which could support a discount in the value of 50%. He applied a 5% marketability discount, but acknowledged that a buyer would likely look for a more substantial discount, between 30% and 40%. Webb admitted that the discounts he chose did not conform with industry standards.
At trial, Webb testified that he discounted the value of NRS by 10%. He eschewed |4the average Mergerstat value because evidence that all three of the shareholders had taken money out of the company indicated that they had “control.” Further, he did not apply a separate marketability discount, though he acknowledged that the average marketability discount would be 35%. According to Webb, marketability and lack of control are closely related concepts. He further discounted the value by 6%, which took into account the possible sale of HSBC to Capital One. Finally, he attributed no “personal goodwill” to the value of NRS because Glynn Colquitt was not the owner of the business.
Randy’s expert is Certified Public Accountant David Potts. Potts testified at trial that he prepared a fair-market valuation of 33% of NRS, which complied with all industry standards. Of the three possible “approaches” to valuation — income, asset, and market — Potts found the income approach to be the most valid. He rejected asset valuation because it worked best for companies that had ceased to operate and NRS was very much still in business. Likewise, he eschewed the market approach because it depended on comparable sales of companies, and he lacked sufficient data. Using the income approach, Potts valued NRS at $3,028,000, a figure that Webb endorsed. Accordingly, a 33% interest was worth $1,008,324. Potts then applied a 30% discount for lack of control and a 35% discount for lack of marketability, which reduced the value of Randy’s shares in NRS to $458,787. He then discounted the goodwill of the business, opining that half of the goodwill was enterprise goodwill and the other half was the personal goodwill of Glynn | BColquitt, although he acknowledged that the personal goodwill could be substantially higher. In calculating the importance of Glynn Colquitt’s personal goodwill, Potts spoke with James Priester of HSBC who assured him that HSBC would follow Glynn Colquitt if he were to open a competing business. Potts noted that there were no noncompete agreements in place. After the goodwill discount, Webb believed that half of Randy’s stock would be worth no more than $115,000. In making his valuation, Webb noted that he assumed Glynn Colquitt would stay with NRS.
Andrea, who had been employed at NRS, testified that the company’s continued viability was based not only on its personal relationships, but also on its ability to quickly comply with the changing requirements of HSBC. According to Andrea, compliance with HSBC requirements outweighed the personal relationships.
In its December 8, 2011 divorce decree, the circuit court found that Randy owned a 99/300th interest in NRS. It accepted the parties’ agreed-upon value of $3,028,000, and after considering all the testimony, which included considerable information about how to discount goodwill, placed a value of $272,875 on Andrea’s interest in the business. The circuit court then awarded that entire 33% interest in NRS to Randy and offset the “unequal division of property” by awarding alimony to Andrea in the amount of $11,370 per month for a period of twenty-four months, a sum that upon full payment was approximately equal to the value of Andrea’s interest in NRS that was set by the circuit court.
Randy filed a timely motion for new trial on December 22, 2011, asserting two | ^grounds. First, he argued that the decree was contrary to law because it obligated him to pay $272,880 “alimony in gross” for the “goodwill” value of property even though the “goodwill” belonged “neither to the marital business, nor to Randy Russell, but instead belonged to Glynn Colquitt.” Second, Randy claimed that the circuit court erred in awarding alimony where there was neither evidence of Andrea’s needs nor of his ability to pay. The motion was not acted on by the circuit court and was deemed denied on January 21, 2012. Randy filed a timely notice of appeal on February 1, 2012.
This court reviews equity eases de novo, but we will not reverse a finding of fact by the trial judge unless it is clearly erroneous. Sanford v. Sanford, 355 Ark. 274, 137 S.W.3d 391 (2003). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. We, however, give no deference to a trial court’s conclusion on a question of law.
On appeal, Randy first argues that the circuit court entered an “unlawful decree” because it ordered him to buy from Andrea corporate shares in NRS at their inferential value, instead of simply distributing existing marital property. Citing Arkansas Code Annotated section 9-12-315(a)(4) (Repl.2009), Randy asserts that the circuit court was limited to either dividing the shares of NRS “in kind” or awarding the shares to one party on the condition that the fair-market value of those shares be distributed to the other party out of “then existing” property from the marital estate. Without further citation of authority, Randy argues that the statute “does not empower a court to issue a money | judgment or otherwise create a new debt for one party to pay in the future, when he does not otherwise own property sufficient to meet the amount to be paid.” Randy also contends that the value that the circuit court assigned to the shares was improper because they were “non-marketable.” He asserts that the circuit court’s order compelling him to make a “forced buy” was even more improper than the “forced sale” that was proscribed by Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989).
We agree that the distribution of marital property is guided by section 9-12-315, and that subsection (a)(4) speaks directly to the distribution of stocks, bonds, and other securities:
When stocks, bonds, or other securities issued by a corporation, association, or government entity make up part of the marital property, the court shall designate in its final order or judgment the specific property in securities to which each party is entitled, or after determining the fair market value of the securities, may order and adjudge that the securities be distributed to one (1) party on condition that one-half (½) the fair market value of the securities in money or other property be set aside and distributed to the other party in lieu of division and distribution of the securities.
However, this statute does not bind the hands of a circuit judge when he is tasked with crafting an equitable division of marital assets. We have long recognized that circuit courts, in traditional equity cases, have broad powers to distribute the property in order to achieve an equitable division. Williford v. Williford, 280 Ark. 71, 655 S.W.2d 898 (1983). Toward that end, the circuit court may order credits and setoffs to achieve a just result. See Marshall v. Marshall, 285 Ark. 426, 688 S.W.2d 279 (1985). Additionally, we have held that the division of marital property and the award of alimony were complementary devices that a circuit judge may employ to make the dissolution of a marriage as equitable as possible. Harvey v. Harvey, 298 Ark. 308, 766 S.W.2d 935 (1989). See Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980); Ferguson v. Ferguson, 251 Ark. 585, 473 S.W.2d 869 (1971). An award of alimony lies within the discretion of the circuit judge sitting in a traditional equity case and will not be reversed absent an abuse of that discretion. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993).
We agree, that as a general proposition, the primary consideration in a decision to award alimony is the needs of the payee spouse and the payor spouse’s ability to pay. Mulling v. Mulling, 323 Ark. 88, 912 S.W.2d 934 (1996). However, it is not the only consideration, particularly when a circuit court awards temporary alimony. In the case before us, we are reviewing an award of temporary alimony. The this court noted in Webb v. Webb, 262 Ark. 461, 557 S.W.2d 878 (1977), and Beasley v. Beasley, 247 Ark. 338, 445 S.W.2d 500 (1969), we have long recognized that short-term award of alimony may be used as a method of allocating to one party an interest in the other party’s property to balance some inequity in the division of marital property. That is exactly the situation that we have before us.
Contrary to assertions by Randy in his argument on appeal, it was not disputed that NRS was a ready source of income for the three principal shareholders who were able to withdraw large sums of money from the company. Indeed, the circuit court made a specific finding in the decree that equitable owners of NRS “have consistently lived out of the business drawing large sums to fund their hobbies and love life.”
Under the unique facts of this case, we cannot say that the circuit court erred in ordering Randy to pay alimony as a complementary device to offset the unequal distribution 13of marital property. It is not an abuse of discretion to make an award of alimony that is reasonable under the circumstances. Mulling, supra (citing Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988)).
Further, we hold that the valuation of the NRS shares was not clearly contrary to the preponderance of the evidence. As noted previously, both sides presented expert testimony regarding the value of the business, and Andrea testified that NRS’s performance with regard to changing bank directives and policies was more important than Glynn Colquitt’s personal relationships. Randy himself acknowledges that the testimony of Andrea’s expert, Joe Webb, would have supported a much higher valuation of the NRS stock. In our review, we defer to the superior position of the circuit judge to determine the credibility of witnesses and the weight to be given their testimony. Roberts v. Yang, 2010 Ark. 55, 370 S.W.3d 170. Under our standard of review, we cannot say that the circuit court clearly erred in determining the value of the NRS stock. Finally, we do not subscribe to Randy’s contention that the award of alimony was in actuality a “forced buy” of stock. The award of alimony and the division of mari tal property, in whatever form the latter takes, be it an in-kind distribution or providing an equivalent to the property in cash, are not the same thing. Here, Randy received an interest in a business that was valued at approximately four times the amount that Andrea was entitled to as her share of this marital asset.
The balance of Randy’s argument concerns the personal goodwill of Glynn Col-quitt. Because his second point on appeal overlaps with the balance of his argument under his first point, for clarity, we consider it together. Randy first asserts that Glynn Colquitt’s personal | ingoodwill is not marital property and that “all the value of NRS lies in goodwill.” Citing Holaway v. Holaway, 70 Ark.App. 240, 16 S.W.3d 302 (2000) (citing Belanger v. Belanger, 276 Ark. 522, 637 S.W.2d 557 (1982)), he further argues that Arkansas appellate courts have twice held that it was improper to award alimony for the purpose of equalizing a division of marital property if the payor spouse does not at the time own the assets being distributed to him. Accordingly, the trial court erred because it awarded to Andrea the value of NRS when all the value was attributable to Glynn Colquitt’s personal goodwill. Randy further argues, calling it a separate point, that Andrea offered no competent evidence to prove that the business, NRS, had a fair-market value independent of the personal goodwill of Glynn Colquitt. We find these arguments unpersuasive.
The cases cited by Randy are distinguishable. Both Belanger and Holaway involve a trial court’s attempt to award an ex-spouse nonmarital property. We are mindful that, in the case before us, all the testimony concerning the value of NRS’s stock acknowledged that some of the $3.028 million valuation was attributable to Glynn Colquitt’s continued participation in the business. However, even Randy’s expert, David Potts, testified that Jim Pries-ter, the person at HSBC who decided whether NRS would get assignments, stated that if Glynn Colquitt opened a competing business across the street, he would “follow him,” did not opine that all the value of NRS was attributable to Glynn Colquitt’s personal goodwill. Potts provided an opinion of the fair-market value of the NRS stock that discounted the value of Glynn Colquitt’s personal goodwill. Likewise, Andrea’s expert, Joe Webb, provided an opinion of how to discount the value of Glynn Colquitt’s personal Ingoodwill. Andrea also provided an opinion concerning the importance of Glynn Colquitt’s continued participation in the business. Thus, the trial court was left with a substantial amount of evidence, albeit conflicting, by which it could determine how Glenn Col-quitt’s personal goodwill was to be valued. As we noted previously, we give due deference to the superior position of the circuit judge to assess the credibility of the witnesses and the weight to be afforded their testimony. Roberts v. Yang, supra.
Finally, Randy’s contention that Andrea presented “no competent evidence” that NRS had a fair-market value independent of Glynn Colquitt’s personal goodwill is simply not supported by the record. Andrea notes, and we agree, that her own testimony provided evidence of NRS value independent of Glynn Col-quitt’s personal goodwill. While she did acknowledge the value of Glynn Colquitt’s personal relationships, she stated, as a former employee, that NRS continued to succeed in its business because of its ability to quickly adapt to the changing requirements of its principal customer.
Affirmed; court of appeals opinion vacated.
DANIELSON, J., concurs.
. Mergerstat compiles data regarding publicly announced mergers, acquisitions and divestitures involving 10% or more of the equity interests in public companies. It is also the publisher of statistical discounts commonly used in business valuations. | [
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RITA W. GRUBER, Judge.
11 Joseph Woodmancy appeals the denial of his claim that an injury to his head, right shoulder, and upper arm, which he sustained in a fall from a ladder on June 29, 2009, was compensable for purposes of workers’ compensation. On the date of his claimed injury, Woodmancy was president of J & S Framing, Inc., and was hanging ceiling tiles in a Shelbyville, Tennessee Wal-Mart that was being remodeled.
An administrative law judge found that Woodmancy failed to prove by a preponderance of the evidence that his relationship with appellee, Framco, Inc., was that of employee-employer, finding instead that Woodmancy was an independent contractor. The Arkansas Workers’ Compensation Commission affirmed and adopted the law judge’s opinion. Woodmancy contends on appeal that substantial evidence does not support the Commission’s decision that he was an independent contractor rather than Framco’s employee. We disagree and affirm.
J & S, a company involved in the framing aspect of construction, had its own corporate bank accounts, a federal tax identification number, and a workers’ compensation policy, from which Woodmancy had excluded himself through a certificate of noncoverage in his position as sole proprietor. Framco, Inc., made payment to J & S, and Woodmancy received payment through J & S in the form of salary. On appeal, Woodmancy acknowledges his intent in the beginning of the work relationship with Framco was that no taxes would be withheld from his pay and that he would not be covered by workers’ compensation insurance.
Under Ark.Code Ann. § 11-9-402(c)(1)(A) (2011), “[w]hen a sole proprietorship or partnership fails to elect to cover the sole proprietor or partners under this chapter, the prime contractor is not liable under this chapter for injuries sustained by the sole proprietor or partners if the sole proprietor or partners are not employees of the prime contractor.” The language of the subsection, rather than providing that subcontractors who are sole proprietors or partners are automatically considered employees based upon their decision not to obtain coverage for themselves or obtain a certificate of noncoverage, requires a determination whether individuals claiming status as sole proprietors or partners are independent contractors or employees of the prime contractor. Aloha Pools & Spas, Inc. v. Employer’s Ins. of Wausau, 342 Ark. 398, 39 S.W.3d 440 (2000). This in turn requires an analysis of whether such an individual is a subcontractor, independent contractor, or, depending upon the right of control, an agent of the prime contractor who would be treated as an employee under our workers’ compensation statutes. Id.
Thefollowing factors are to be considered in determining whether one is an employee or independent contractor:
(1) the extent of control which, by the agreement, the master may exercise over the details of the work;
(2) whether or not the one employed is engaged in a distinct occupation or business;
(3) the kind of occupation, with reference to whether in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(4) the skill required in the particular occupation;
(5) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(6) the length of time for which the person is employed;
(7) the method of payment, whether by the time or by the job;
(8) whether or not the work is a part of the regular business of the employer;
(9) whether or not the parties believe they are creating the relation of master and servant; and
(10) whether the principal is or is not in business.
342 Ark. at 406, 39 S.W.3d at 445.
When deciding any issue, administrative law judges and the Commission shall determine, on the basis of the record as a whole, whether the party having the burden of proof on the issue has established it by a preponderance of evidence. Ark.Code Ann. § 11-9-705(a)(3) (Supp.2011). The Commission determines the weight to be given various factors in determining whether an injured person is an employee or an independent contractor for purposes of workers’ compensation coverage. Grady v. Estate of Smith, 2011 Ark. App. 568, 385 S.W.3d 854.
If control of the work is control not only of the result but also of the means and manner of the performance, the relationship of master and servant follows; if control of the means is lacking and the employer does not undertake to direct the manner in which the employee shall work in discharging his duties, the relation of independent contractor exists. Ark. Transit Homes, Inc. v. Aetna Life & Cas., 341 Ark. 317, 16 S.W.3d 545 (2000). The principal factor in determining whether the relationship is one of agency or independent contractor is the right of control. D.B. Griffin Warehouse, Inc. v. Sanders, 336 Ark. 456, 986 S.W.2d 836 (1999).
Woodmancy argues that the facts and circumstances of this case show that he was working as Framco’s employee when he was injured on the remodeling job. He asserts that he was ignorant of how to do the job, for which he was in training; he was paid a rate set by Framco, not one that he had bid; he used Framco’s equipment and tools; and he was no different from all other employees, whose taxes were being withheld and who were covered by workers’ compensation insurance carried by Framco. He concludes that he was under the control of Framco.
In reviewing decisions from the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Cedar Chem. Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008). When the Commission denies a claim because of the claimant’s failure to meet his burden of proof, the substantial-evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief. Robinson v. Family Dollar Stores, Inc., 2011 Ark. App. 172, 2011 WL 714920.
Woodmancy testified that for thirty-eight years, his normal business had been framing houses, but the work had slowed down considerably at the end of June 2009 and he had put his license in an inactive state. He explained that he had lined up most J & S jobs by giving builders written bids; that he provided tools and hired up to twelve people to do the work; and that the work was basically building a house, starting from the cement slab and putting it all together through the drying process — roof, doors, and windows. He described the Shelbyville work as “totally different” because it involved tearing out cabinets, bathrooms, and pharmacies; laminating walls and countertops; rebuilding pharmacies; and re-doing ceilings. He said that he had never done that kind of work, that he used none of his framing tools in Shelbyville except for a drill, and that he did not know if the tools he used belonged to Framco.
Woodmancy testified that his directions regarding what to do in Shelbyville always came from Framco’s president, David Reynolds, who never actually was there. Woodmancy said that he initially reported to Reynolds’s employee Eric; by the time of the accident, Eric and all other Framco employees had left; and Eric’s replacement was Rick, who had become the lead man on the job telling Woodmancy what to do. However, Woodmancy also testified that Rick was not a Framco employee and “possibly” could have been working for CalCon, the general contractor on the job.
Woodmancy testified that he initially chose to be paid by checks to J & S rather than himself because he was trying to hold onto his house and avoid paying taxes until the end of the year. He stated that he telephoned Reynolds the week before the accident to request that the checks be made to him and deductions be taken out, and that they orally agreed to make the change. He testified that through November 2009 he withdrew cash from J & S; that his 2009 tax return, reflecting the business activity “carpentry,” showed a corporate return for J & S with gross receipts of $30,245; and that his tax return reflected projects done by him through J & S. Tax documents and checks on the J & S account were introduced into evidence. On appeal, Woodmancy acknowledges that at the beginning of his work relationship with Framco, his intent had been that no taxes would be withheld from his pay and he would not be covered by workers’ compensation insurance.
David Reynolds testified that Woodmancy “specifically asked me to run him as an independent contractor under J & S. He was paid weekly $800. The checks were made to J & S.” Reynolds testified that he had no tools at the Shelbyville job site; that Woodmancy was the only one on the job there; and that if Woodmancy had turned the job down, Reynolds would have told CalCon he could not find anyone. Reynolds agreed that Woodmancy asked him in a telephone call to become an employee, to be covered by insurance, and to pay social security.
The Commission found that some factors pointed to Woodmancy’s being an employee and that some factors pointed to his being an independent contractor. The Commission made the following findings on specific factors regarding the work he performed at the Shelbyville job site. Any direction regarding what was to be done was given by CalCon, the general contractor, rather than Framco. Woodmancy was the only person there associated with Framco during the time period of his injury. The work Woodmancy was performing was construction work but somewhat different than the framing work of J & S, in that it was in the form of remodeling and the use of metal studs instead of wood. Given Woodmancy’s long history in the construction industry, he possessed the skills required — to use certain types of equipment and generally understand construction concepts. Woodmancy had basic tools on his tool belt with him and a drill he had purchased at Framco’s request, but Framco supplied no tools at the Shelbyville site and Reynolds credibly testified that CalCon provided all tools there. Framco made all payments to J & S. The type of work that Woodmancy was performing at the site was exactly the type of work that Framco was engaged in at other locations.
The factor found by the Commission to be most important was whether Framco and Woodmancy believed they were creating the relationship of master and servant. It found pertinent to this subject the phone conversation between Woodmancy and Reynolds shortly before the accident. The Commission found that Woodmancy understood he was not an employee of Framco at the time of the conversation, he knew that J & S had current workers’ compensation insurance, he had elected to not be covered, and he knew that the master-servant relationship did not exist between Framco and himself. In making these findings, the Commission noted the following testimony by Woodmancy:
I called Dave up on a Wednesday night and told Dave that I wanted to be — I wanted him to take all the deductions out of any check, that I had to be covered on these jobs for sure.... And he said that he had already written the checks. And so I said, okay, can we start Sunday night when we start the new work week. And he hesitated for a minute or so and said, okay, well, Sunday night. And then it was either Tuesday or Wednesday when I fell.
The Commission also noted that Reynolds testified about the involvement of J & S Framing. Reynolds said that he offered Woodmancy employment, but Woodmancy “didn’t want it.... He wanted it to be run through the company so that he didn’t have to pay any taxes.” Reynolds testified that Woodmancy “knew that he wouldn’t be covered under work comp” and that Woodmancy said he had “work comp and general liability. And he provided them for me.”
The decision of the Commission included the following analysis:
The scale was tipped to independent contractor because it is clear that is the relationship that both parties agreed to before the relationship began. This is not a case of a respondent taking advantage of an employee, the claimant in this matter is quite seasoned in the construction field and has owned construction companies. While the respondent does appear to have some of that same knowledge it seems to be as great as the claimants.
The Commission found that nothing had ever been done to change the relationship, independent contractor, the parties had agreed to enter into.
In order to reverse a decision of the Commission, we must be convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. Id. If reasonable minds could have reached the result shown by the Commission’s decision, we must affirm. Sys. Contracting Corp. v. Reeves, 85 Ark.App. 286, 151 S.W.3d 18 (2004). The appellate court defers to the Commission on issues involving the weight of the evidence and the credibility of the witnesses. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). We view the evidence in the light most favorable to the Commis sion’s decision and affirm if it is supported by substantial evidence. Silvicraft, Inc. v. Lambert, 10 Ark.App. 28, 661 S.W.2d 403 (1983).
The Commission examined the facts and circumstances of this case and concluded that the most important factor was the kind of relationship the parties believed they had created. It was within the Commission’s power to do so. We hold that the decision of the Commission, as summarized above, displays a substantial basis for the denial of this claim.
Affirmed.
VAUGHT, C.J., and PITTMAN, J., agree. | [
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JjMOTION FOR RULE ON CLERK
PER CURIAM.
Gordon Randall Gwathney, by and through his attorney Gerald A. Coleman, has filed a motion for rule on clerk. The clerk of this court refused to file the record in this case, concluding that the order extending the time within which to file the record failed to comply with Arkansas Rule of Appellate Procedure — Civil 5(b)(1)(A) and (D). However, Arkansas Rule of Appellate Procedure — Criminal 4 was amended and made effective October 1, 2008. See In re Rules of Supreme Court and Court of Appeals, Rule 4-3; Rules of Appellate Procedure—Criminal, Rule 4; and Rules of Criminal Procedure, Rule 21.3, 374 Ark. App’x-(Sept. 18, 2008). Arkansas Rule of Appellate Procedure — -Criminal 4, rather than Arkansas Rule of Appellate Procedure — Civil 5, now provides the procedure to be followed in a criminal case when an extension of time is sought within which to file the record.
The judgment and commitment order was filed on September 8, 2008. The notice of appeal was timely filed on September 12, 2008. The record had to be filed within ninety |2days of the date that the notice of appeal was filed, making the record due no later than December 11, 2008. See Ark. R.App. P.-Crim. 4(b). However, on November 11, 2008, the circuit court granted an oral motion for an extension of time under Rule 4 and entered an order extending the date for filing the record to March 11, 2009. The order indicates that the attorney for the State, as well as the defendant and his counsel, were present when the oral motion was heard and granted. An extension is permitted where the requirements of Rule 4 are met:
Rule 4(c)(1) provides in pertinent part as follows:
If any party has designated stenographi-cally reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (b) of this rule or by a prior extension order, may extend the time for filing the record. A motion by the defendant for an extension of time to file the record shall explain the reasons for the requested extension, and a copy of the motion shall be served on the prosecuting attorney. The circuit court may enter an order granting the extension if the circuit court finds that all parties consent to the extension and that an extension is necessary for the court reporter to include the stenographically reported material in the record on appeal. If the prosecuting attorney does not file a written objection to the extension within ten (10) days after being served a copy of the extension motion, the prosecuting attorney shall be deemed to have consented to the extension, and the circuit court may so find.
Rule 4(c)(1) provides that a copy of the motion shall be served on the prosecuting attorney. No motion was filed or served on the prosecuting attorney in this case. The circuit court’s November 11, 2008 or der granting the extension of time under Rule 4 stated it was granting an oral motion. We view this matter under Rule 4 as we do a violation of Arkansas Rule |3of Appellate Procedure — Civil 5. As fault is apparent, we grant the motion for rule on clerk. See McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). A copy of this opinion will be forwarded to the Arkansas Supreme Court Committee on Professional Conduct. | [
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PER CURIAM.
11 Stark Ligón, as Executive Director of the Arkansas Supreme Court Committee on Professional Conduct, petitions this court to impose the sanction of disbarment against attorney Horace Alvin Walker.
On April 14, 2008, pursuant to Arkansas Supreme Court Procedures Regulating Professional Conduct, section 13, we assigned Special Judge Jack Lessenberry to preside over disbarment proceedings involving Horace Alvin Walker. Upon finding Mr. Walker committed misconduct, Judge Lessenberry heard evidence relevant to an appropriate sanction to be imposed. Afterwards, Judge Lessenberry made findings of fact and conclusions of law, and his recommendation of a sanction, all of which he filed with the clerk of this court, along with a transcript and record of the proceedings. Upon the filing, |2the parties are required to file briefs as in other cases. Id. at § 13(D). Under section 13, the findings of fact of the special judge are accepted by this court unless clearly erroneous.
In this appeal, Mr. Walker failed to file his brief as provided in section 13(D). By failing to file an abstract and brief, the court’s review is limited to Judge Lessen-berry’s findings of fact. There being nothing before this court to show Judge Les-senberr/s findings of fact to be clearly erroneous, we grant petitioner’s request for a final order disbarring Mr. Walker. His name is ordered removed from the registry of attorneys licensed by the State of Arkansas. He is barred and enjoined from the practice of law in this state.
Order of disbarment issued. | [
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RITA W. GRUBER, Judge.
| [David Pyle appeals from the Arkansas Workers’ Compensation Commission’s denial of his claim for additional benefits. He argues that there is no substantial evidence to support the Commission’s decision. We find no error and affirm.
Appellant, a truck driver, sustained admittedly compensable knee and back injuries when he fell off a flatbed trailer while pulling a tarp over his load on May 4, 2005. He was provided workers’ compensation benefits, including temporary-total disability and medical treatment. His treating physician, Dr. Jay Lipke, took MRI images of appellant’s back and knee, and ordered that he stay off work while he was treated with medication, physical therapy, and epidural steroid injections. Appellant remained off work through December 6, 2005, when Dr. Lipke assigned him a five-percent anatomical impairment rating.
|2On August 8, 2006, appellant returned to Dr. Lipke with continued problems. The clinic note of that date includes Dr. Lipke’s impression of “work related back injury with persistent sciatica” and an order for “a myelogram with CT to follow to see if there is an operative problem that may relieve [appellant’s] persistent symptoms and allow him to return to gainful [employment].” In a work-status report, also dated August 8, 2006, Dr. Lipke did not take appellant off work. In a letter of January 10, 2007, however, appellant’s attorney requested Dr. Lipke’s signature to confirm that it was reasonable and necessary for appellant to remain off work pending his additional testing and treatment. Dr. Lipke signed the attorney’s letter on February 12, 2007. On January 26, 2007, Dr. Fred Murphy reported that he was providing care to appellant for multiple medical problems, one of which involved back and knee pain, and that appellant’s “present condition” precluded him from working.
Appellant never returned to any employment. On February 20, 2007, a hearing was conducted before the administrative law judge on appellant’s claim for additional medical treatment and for temporary-total disability benefits from August 8, 2006, to a date yet undetermined. The administrative law judge found that the additional testing Dr. Lipke had recommended was reasonably necessary and related to appellant’s compensable injuries, but appellant’s claim for additional temporary-total disability was rejected based on a finding | sthat he failed to prove a total incapacity to earn wages due to his com-pensable injury. The Commission affirmed and adopted the law judge’s opinion in a 2-1 decision.
Appellant contends on appeal that the Commission rejected unrebutted testimony from two physicians that he was unable to work. He argues that because additional testing has been found necessary, he has entered a second healing period that will not end until Dr. Lipke releases him from the second round of care.
When an injured employee is totally incapacitated from earning wages and remains in his healing period, he is entitled to temporary-total disability. K II Constr. Co. v. Crabtree, 78 Ark.App. 222, 79 S.W.3d 414 (2002). The healing period ends when the employee is as far restored as the permanent nature 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. Id. The question of when the healing period has ended is a factual determination for the Commission that will be affirmed if it is supported by substantial evidence. Id.
In determining the sufficiency of the evidence to support decisions of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence, i.e., evidence that a reasonable person might accept as adequate to support a conclusion. Singleton v. City of Pine Bluff, 97 Ark.App. 59, 244 S.W.3d 709 (2006). Although it is within the province of the Commission to weigh conflicting medical evidence, the Commission may not arbitrarily disregard medical evidence or the testimony of any witness. Roberts v. Whirlpool, 102 Ark.App. 284, 284 S.W.3d 100 (2008). Where, as here, the Commission has denied a claim because of the claimant’s failure to meet his burden of proof, the substantial-evidence standard of review requires that we affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Williams v. Arkansas Oak Flooring Co., 267 Ark. 810, 590 S.W.2d 328 (Ark.App.1979).
There was evidence before the Commission that appellant suffered from numerous, severe medical conditions unrelated to his work injury. Appellant was morbidly obese; was a recovering alcoholic and recovering user of intravenous heroin and other sorts of illegal drugs, including crack cocaine and methamphetamine; suffered from diabetes, cirrhosis, and hepatitis C and needed a liver transplant; and suffered from a seizure disorder, bipolar disorder, and chronic and severe depression with suicidal ideations. Dr. Lipke stated that appellant would reach maximum medical improvement as of January 1, 2006, and attributed appellant’s inability to work to a seizure condition rather than to his compensable work-related injuries. Dr. Lipke’s subsequent off-work recommendation was in response to a direct request by appellant’s attorney, who asked that appellant be assigned off-work status pending additional testing; Dr. Lipke simply signed the letter without expressing any reason for taking appellant off work.
| ¡Appellant’s arguments go to the weight and interpretation of the medical evidence, which were matters for the Commission. The Commission acknowledged the off-work slip Dr. Lipke signed at the request of appellant’s attorney on February 12, 2007, but noted that Dr. Lipke had not taken appellant off work on August 8, 2006. It was up to the Commission, as finder of fact, to consider these two somewhat inconsistent acts and to determine if appellant was unable to work because of his compensable injury. Likewise, the Commission was required to weigh its resolution of this issue against Dr. Murphy’s opinion that appellant’s “condition” precluded him from working. Viewing the evidence in the light most favorable to the Commission’s findings, as we must, we cannot say that the Commission’s explanation for its decision did not constitute a substantial basis for denial of relief. See Williams v. Arkansas Oak Flooring Co., supra.
Affirmed.
BAKER, J., agrees.
PITTMAN, J., concurs. | [
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M. MICHAEL KINARD, Judge.
| Jarrell Diggs appeals the decision of the Arkansas Workers’ Compensation Commission finding that he was not entitled to additional medical treatment or additional temporary total disability (TTD) benefits. By this two-to-one decision, the Commission reversed the opinion of the administrative law judge (ALJ), who had found that Diggs was entitled to back surgery and additional TTD compensation. Appellant contends that the Commission erred by arbitrarily disregarding the medical opinions of two doctors. We agree and reverse and remand for proceedings consistent with this opinion.
Appellant sustained an admittedly com-pensable injury to his back on January 20, 2005, while taking the front-end loader off of a tractor. Appellant first received |2treatment at the Mercy Medical Clinic in Glenwood, Arkansas, on January 21, 2005. Treatment notes on that date reflect that appellant was suffering from lower back pain radiating to his left hip and groin. An MRI of the lumbar spine taken February 16, 2005, showed “[mjoderate size broad-based central subligamentous herniation of L4-5 with small central subliga-mentous herniation of L5-S1 and some degenerative disk changes at both levels. Mild central bulging of T12-L1 is incidentally seen.” Based on these MRI results, appellant was referred to Dr. John Pace, a neurosurgeon.
Dr. Pace first saw appellant on March 8, 2005, and he took appellant off work. Appellant has not worked since that date. Dr. Pace diagnosed appellant with lumbar radiculopathy at L5 and a disc herniation. His examination of appellant revealed a positive straight leg test on the left, decreased sensations in his left leg as shown by soft touch and pin prick tests, and diminished left Achilles strength. While under Dr. Pace’s care, appellant was prescribed medication, underwent physical therapy, and had one epidural steroid injection. While the injection did not significantly relieve appellant’s pain, Dr. Pace wanted to do a second, but did not because it was not approved. Appellant testified that his pain continued and in fact became worse. A nerve conduction study performed by Dr. Darin Wilbourn on April 25, 2005, showed “[ejlectrodiagnostic evidence of left L5 radiculopathy.”
Dr. Scott Carle examined appellant on April 21, 2005. Dr. Carle found appellant’s neurological examination to be normal. After reviewing appellant’s medical ^records, he diagnosed appellant’s left leg pain as being from either a non-compressive radiculopathy or sacroiliac joint syndrome. Regarding appellant’s maximum medical improvement, Dr. Carle noted “his technical MMI date should be reached at a point in time, when reasonable medical care has been administered for the above diagnosis, not to exceed twelve weeks from the date of this report. If found to have electrodiagnostic evidence of radiculopa-thy, this period may warrant extension if surgical intervention takes place.” Overall, Dr. Carle found appellant’s prognosis to be “unknown” pending “further diagnostics.”
Dr. Carle referred appellant to Dr. William Ackerman, a pain management specialist. Dr. Ackerman first saw appellant on April 28, 2005, at which time he noted that appellant’s symptoms over the past seven to nine days had become progressively worse with respect to the radiation of pain to the bottom of his foot. Dr. Ackerman wrote, “He is suffering today.” Dr. Ackerman treated appellant with a lumbar epidural steroid injection on May 5, 2005, and noted that appellant was to have a follow-up visit in two weeks. The record reflects that appellant did not go to his appointments with Dr. Ackerman on June 9 or June 23, 2005, which caused Dr. Ackerman to note: “He has been noncom-pliant with respect to his treatment and is returned back to work with full duty. Today’s injection was to help ascertain an impairment rating. I do not feel that he qualifies for an impairment to the body as a whole.” Appellant testified that the injection Dr. Ackerman gave him burned for several days and did not relieve his pain. |4At Dr. Ackerman’s recommendation, appellant underwent a functional capacity evaluation, which produced unreliable results because appellant would not perform lifting or bending tasks due to his understanding from Dr. Pace that doing such tasks could cause further injury.
Dr. Steven Cathey, a neurologist, first examined appellant on May 12, 2005. He found no sign of lumbar radiculopathy. Dr. Cathey interpreted appellant’s MRI as showing “evidence of a broad-based, mid-line disc protrusion at L4-L5,” without “any resulting canal stenosis or nerve root impingement.” Dr. Cathey diagnosed appellant with a musculoskeletal injury superimposed on preexisting degenerative changes in his lower back. Dr. Cathey did not believe that appellant would benefit from neurosurgical intervention. Nonetheless, he referred appellant back to Dr. Pace, but appellees did not authorize further treatment. Appellant himself paid for an appointment with Dr. Pace on December 13, 2005. Dr. Pace testified in his deposition that on that date he noted decreased muscle mass and decreased sensation in appellant’s left lower extremity. He wanted to order a myelogram, a post-myelogram CT, and a diseogram, but appellant was unable to pay for those procedures.
The administrative law judge appointed Dr. Reza Shahim to perform an independent medical evaluation pursuant to Ark. Code Ann. § 11-9-511 (Repl.2002). Dr. Shahim ordered a repeat MRI, a myelo-gram, and a post-myelogram CT. Dr. Shahim recommended surgical decompression with diskectomies for treatment of his 15radiculopathy as the best initial option and noted that appellant might ultimately require a fusion.
Appellees paid temporary total disability compensation to appellant through June 29, 2005, and made three additional temporary total disability compensation payments in February and March 2007. When appellees terminated appellant’s temporary total disability payments in June 2005, a doctor assigned, and appel-lees paid out, a five-percent impairment rating. The issues before the ALJ were whether Diggs was entitled to additional medical treatment (including but not limited to decompression surgery proposed by Dr. Shahim); additional TTD benefits from June 29, 2005, to a date yet to be determined; and attorney’s fees. The ALJ awarded appellant both additional medical treatment and additional TTD, and the Commission reversed. This appeal followed.
In appeals involving claims for workers’ compensation, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s decision and affirms the decision if it is supported by substantial evidence. See Kimbell v. Ass’n of Rehab Indus. & Bus. Companion Prop. & Cas., 366 Ark. 297, 235 S.W.3d 499 (2006). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. This court will not reverse the Commission’s decision unless it is convinced that fair-minded persons with the same |(ifacts before them could not have reached the conclusions arrived at by the Commission. Dorris v. Townsends of Ark., Inc., 93 Ark.App. 208, 218 S.W.3d 351 (2005).
Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Patterson v. Ark. Dep’t of Health, 343 Ark. 255, 33 S.W.3d 151 (2000). The Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Poulan Weed Eater v. Marshall, 79 Ark.App. 129, 84 S.W.3d 878 (2002). However, our supreme court has stated that while the Commission may be insulated to a certain degree, it is not so insulated to render appellate review meaningless. Kimbell, supra. Furthermore, it is well settled that the Commission may not arbitrarily disregard evidence submitted in support of a claim. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001).
Here, the Commission found that the opinions of Dr. Ackerman, Dr. Cathey, and Dr. Carle were entitled to more weight than the opinions of Dr. Pace and Dr. Shahim. In doing so, the Commission impermissibly ignored relevant evidence in support of appellant’s claim. The Commission wrote: “It is clear that Dr. Pace’s recommendation of surgery, and Dr. Shah-im’s agreement, is based upon Dr. Pace’s inaccurate assumption that the claimant’s calf muscle[s] were equal prior to claimant’s injury in January of 2005. That is simply NOT the case. The claimant’s left leg has been small[er] than his right leg most of his life.” The record simply does not support a finding that Dr. Pace and Dr. |7Shahim based them opinions on the size of appellant’s calf muscle as an indication of muscle wasting. While we make no finding regarding the weight that this evidence should be given, we note that the record contains evidence of several other factors that both doctors considered. Dr. Pace had before him appellant’s “classic symptoms” of radiculopathy, positive straight leg tests, MRI, and the nerve conduction study. Dr. Shahim reviewed an MRI, a myelogram, and a post-myelo-gram CT. Additionally, Dr. Shahim’s only comment regarding the calf muscle was that appellant “has some signs of muscle atrophy in the lower extremity involving the left calf muscle, although this is not significant.”
Because this court does not review decisions of the Commission de novo on the record, Roberts v. Whirlpool, 102 Ark.App. 284, 284 S.W.3d 100 (2008), we are required to reverse the Commission’s decision and remand for a full examination of the relevant evidence presented. Id.
Reversed and remanded.
HART, GLOVER, and HENRY, JJ„ agree.
VAUGHT, C.J., and GLADWIN, J., dissent. | [
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M. MICHAEL KINARD, Judge.
|, Appellant Robert Maulding appeals from the Commission’s opinion affirming and adopting the decision of the administrative law judge (ALJ), who found that appellant is not permanently and totally disabled; that he is entitled to a ten-percent permanent anatomical impairment rating; that, for purposes of calculating appellant’s average weekly wages, appellant was not a full-time employee at the time of his injury; and that Cincinnati was entitled to a three-percent offset against future amounts owed for its previous overpayment of benefits. Appellees Price’s Utility Contractors, Inc. (Price’s Utility) and Cincinnati Indemnity Co. (Cincinnati) cross-appeal the ALJ’s findings that appellant sustained wage-loss disability in the amount of twenty-five percent and that the Second Injury Fund is not liable for the wage-loss benefits. Appellee Second Injury Fund (SIF) has also filed a brief. We affirm on both direct appeal and cross-appeal.
Appellant began working for appellee-employer Price’s Utility in 1977. He worked as a construction worker, and while he had begun working in a supervisory capacity by the time of his injury, he was still required to perform heavy labor. On April 3, 2006, appellant sustained a compensable back injury when he fell through a barn roof approximately sixteen feet to the ground. Appellant sustained vertebral spine fractures at LI and L3. Appellant underwent a double kyphoplasty on LI and L3 on May 15, 2006. The parties stipulated that appellant reached maximum medical improvement on July 21, 2006. A functional capacity evaluation on July 17, 2006, showed that appellant was capable of performing light duty work. Appellant used vacation time from the date of his injury until August 31, 2006, when he was terminated because there was no light-duty work available.
The issues litigated before the ALJ included appellant’s correct average weekly wage pursuant to Ark.Code Ann. § 11 — 9— 518 (Repl.2002) and whether he had previously been paid temporary disability benefits and permanent disability benefits for anatomical impairment at an incorrect rate; whether Price’s Utility is bound by its prior acceptance of a thirteen-percent (13%) anatomical impairment, and if not, whether appellant’s correct anatomical impairment is ten percent (10%) or thirteen percent (13%) to the body as a whole; the SIF’s contention that the extent of disability is a premature issue until the vocational rehabilitation process has been completed; permanent and total disability, or in the alternative, wage-loss disability in excess of appellant’s permanent anatomical impairment; SIF liability; and evidentiary issues that arose during the course of the hearing. We will discuss the Commission’s rulings as they relate to each issue on appeal.
The appellate court’s standard of review in workers’ compensation cases has been set forth as follows:
It is settled law that on appellate review of workers’ compensation cases, we view the evidence and all reasonable inferences from it in the light most favorable to the Commission’s findings. A decision of the Commission is reversed only if we are convinced fair-minded persons using the same facts could not reach the conclusion reached by the Commission. In our review, we defer to the Commission in determining the weight of the evidence and the credibility of the witnesses. The issue is not whether we may have reached a different conclusion or whether the evidence might have supported a contrary finding.
Ellison v. Therma-Tru, 66 Ark.App. 286, 289, 989 S.W.2d 927, 928 (1999) (citations omitted). While we normally review only the opinion of the Commission, we consider both the Commission’s opinion and that of the ALJ when the Commission affirms and adopts the conclusions of the ALJ, as it did in the present case. Death & Permanent Total Disability Trust Fund v. Branum, 82 Ark.App. 338, 107 S.W.3d 876 (2003).
Direct Appeal
I. Substantial Evidence Supports the Commission’s Finding that Appellant Is Not Permanently and Totally Disabled.
For his first point on appeal, appellant argues that the Commission erred in finding that he is not permanently and totally disabled. Appellant points to Commissioner Hood’s concurring and dissenting opinion, in which the Commissioner states that the ALJ considered only the wage-loss claim and did not conduct the relevant inquiry into appellant’s entitlement to permanent and total disability benefits. However, Commissioner Hood concedes that “[t]he same factors considered when analyzing wage loss disability claims are usually considered when analyzing permanent and total disability claims.” As explained below, we hold that the Commission’s finding that appellant failed to establish that he is permanently and totally disabled is supported by substantial evidence.
A worker who sustains an injury to the body as a whole may be entitled to wage-loss disability in addition to his anatomical loss. See, e.g., Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961). The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Emerson Elec. v. Gaston, 75 Ark.App. 232, 58 S.W.3d 848 (2001). In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent physical impairment, the Workers’ Compensation 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 or her future earning capacity. Ark.Code Ann. § 11 — 9— 522(b)(1) (Repl.2002). These “other matters” include motivation, post-injury income, credibility, demeanor, and a multitude of other factors. See Grimes v. North Am. Foundry, 316 Ark. 395, 872 S.W.2d 59 (1994). In considering factors that may affect an employee’s future earn ing capacity, the Commission considers the claimant’s motivation to return to work, since a lack of interest or a negative attitude impedes an assessment of the claimant’s loss of earning capacity. Logan Cnty. v. McDonald, 90 Ark.App. 409, 417, 206 S.W.3d 258, 263 (2005).
Permanent total disability means inability, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment. Ark.Code Ann. § 11 — 9—519(e)(1) (Repl. 2002). The burden of proof is on the employee to prove inability to earn any meaningful wage in the same or other employment. Ark.Code Ann. § 11 — 9— 519(e)(2). Here, the Commission, in adopting the ALJ’s opinion, found that appellant failed to establish that he is permanently and totally disabled. The ALJ found that appellant was entitled to a twenty-five-percent wage loss in excess of his ten-percent permanent anatomical impairment.
Despite appellant’s argument to the contrary, a review of the record reveals that the ALJ considered the proper factors in making the above findings. Appellant was sixty-one years old at the time of the hearing. Appellant received a bachelor’s degree in forestry in 1975, but never subsequently worked in forestry. His work history included service in the Air Force and work in a body shop, during which time he lost the ability to see out of his left eye due to a work-related injury. In addition, appellant built the house he currently lives in and at one time could dismantle cars and rebuild them. The ALJ noted that appellant’s symptoms had “not prevented him from driving or riding to hot rod shows, with some antique shopping.”
Appellant points to a statement by Dr. Eric Akin, appellant’s treating neurosurgeon, that appellant was “totally disabled by this injury” and argues that the Commission arbitrarily ignored Dr. Akin’s opinion. This argument fails to consider that the Commission is charged with the duty of determining disability based upon consideration of medical evidence and other matters affecting wage loss, such as the claimant’s age, education, and work experience. See Logan Cnty. v. McDonald, 90 Ark.App. 409, 417, 206 S.W.3d 258, 263 (2005). Thus, Dr. Akin’s opinion — which the Commission was not required to accept as true — was hardly conclusive on the issue of wage loss or permanent total disability.
The results of a July 2006 functional capacity evaluation (FCE) showed appellant to be capable of work in the “light” category. Appellant demonstrated the ability to occasionally lift or carry up to thirty pounds when lifting from knee to shoulder level; he demonstrated the ability to lift only ten pounds from the floor level. He demonstrated limited ability to perform stooping and bending. Appellant’s work history consisted of heavy labor construction work, which is considerably more physically demanding than the light category that appellant is capable of performing following his back injury. However, the ALJ found credible expert witness Heather Taylor’s identification of several aspects of appellant’s “skills, education, and experience which are transferable, including his five or six years of management experience at Price’s Utility Contractors; his experience, though very limited, bidding jobs; his stable work history; his ability to follow instructions; his ability to learn tasks easily by direction; his experience performing repetitive tasks without difficulty throughout the day; his experience operating equipment; and his college degree.” Thus, while appellant was no longer capable of performing his job as a construction worker, there was substantial evidence that he was employable.
As to Ms. Taylor, who testified as an expert in “re-employment issues,” appellant argues that her testimony was conflicting and that it was error to admit her as an expert witness. As the ALJ noted, any conflict in Ms. Taylor’s testimony simply goes to the weight it should be given. Ms. Taylor’s qualifications include a master’s degree in rehabilitation counseling completed in 1999, certification as a rehabilitation counselor, and employment as a rehabilitation counselor. We hold that the ALJ did not abuse his discretion in allowing Ms. Taylor to testify as an expert.
Appellant seems to argue that he is permanently and totally disabled because he could not perform his former job or obtain a different job earning the same wage ($16.90 per hour). He contends that he is permanently and totally disabled because, despite his best attempts to find work, he was unable to find a job earning a “meaningful wage” under section 11-9-519. Appellant contends that his testimony that he considered a meaningful wage to be what he was making at the time of his injury — $16.90 per hour plus two weeks vacation time and health insurance — was the only evidence of the term “meaningful wage” and that the Commission would “have to resort to something outside the record to find $16.90/hour was not a meaningful wage.” Questions of weight and credibility are within the sole province of the Commission, which is not required to believe the testimony of the claimant or any other ^witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Cottage Café, Inc. v. Collette, 94 Ark.App. 72, 226 S.W.3d 27 (2006). Thus, we hold that substantial evidence supports the Commission’s finding that appellant failed to meet his burden of proving that he is permanently and totally disabled.
Finally, appellant argues that Rule 615 of the Arkansas Rules of Evidence regarding exclusion of witnesses was violated when Ms. Taylor was permitted to testify regarding potential income for appellant. However, the Commission is not bound by technical or statutory rules of evidence. Ark.Code Ann. § ll-9-705(a)(l). Thus, we affirm on this point.
II. Substantial Evidence Supports the Commission’s Finding that Appellant Was Entitled to a Ten-percent (10%) Permanent Anatomical Impairment.
For his second point on appeal, appellant argues that the Commission erred in not awarding him an additional five-percent (5%) permanent anatomical impairment. Appellant argues that the Commission should. have found that he sustained three — not two — lumbar fractures. He argues that he is entitled to an additional five-percent permanent impairment rating for an L2 fracture. Appellant acknowledges that the record refers to three lumbar fractures in some places and two lumbar fractures in others.
The ALJ explained in detail his finding that appellant’s appropriate anatomical impairment rating is ten percent (10%) to the body as a whole — despite there being some evidence of three fractures, not two. The ALJ found that “a preponderance of the credible evidence establishes that the claimant sustained two levels of lumbar compression and not three levels.” The Commission has the duty of weighing conflicting medical evidence and translating it into findings of fact. See Hamilton v. Gregory Trucking, 90 Ark.App. 248, 205 S.W.3d 181 (2005). There is substantial evidence in the record to support the ALJ’s finding that appellant sustained only two lumbar fractures. Thus, we affirm on this point.
III. Substantial Evidence Supports the Commission’s Finding that Appellant Was Not a Full-time Employee at all Relevant Times.
For his third point, appellant argues that the Commission erred in finding that appellant was not a full-time employee at all relevant times. The ALJ, in the opinion adopted by the Commission, found that appellant was not a full-time employee and that appellees correctly calculated his average weekly wage by dividing his actual earnings for the fifty-two week period immediately preceding the week of his injury by the number of weeks actually worked. The relevant statute provides:
(a)(1) Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident and in no case shall be computed on less than a full-time workweek in the employment.
(c) If, because of exceptional circumstances, the average weekly wage cannot be fairly and justly determined by the above formulas, the commission may determine the average weekly wage by a method that is just and fair to all parties concerned.
Ark.Code Ann. § 11-9-518 (Repl.2002).
In the case at hand, appellant stated in a response to interrogatories that he “sometimes work[ed] less than 40 hours per week because I wanted to and could.” Appellant testified that appellee-employer consented to an arrangement by which appellant could take time off without pay when he desired to do so, as long as there were enough people present to get the work accomplished; that there was always enough work available if he chose to work forty hours per week; that he was allowed to take this time off from work without pay “to do some of the stuff I like to do and save my vacation time in case I had to go back to the hospital”; that this arrangement began before he began to have heart problems in 2008; and that a lot of the time he took off without pay was for personal things (including traveling), although some of the time could have been taken off for bad weather.
Appellant argues that, because no exceptional circumstances existed in this case, it was error for the Commission to compute his earnings by taking his annual earnings immediately preceding the injury and dividing by fifty-two weeks, without taking into account his vacation time. The Commission reasoned that exceptional circumstances existed because appellant took unpaid time off from work for personal reasons. According to appellant, this reduced his average weekly wage from $676 per week to $612 per week. Appellant points to Chapel Gardens Nursery v. Lovelady, 47 Ark.App. 114, 885 S.W.2d 915 (1994), in which this court held that it was not error for the Commission to compute the appellee-claimant’s compensation on the basis of a full-time work week under Ark.Code Ann. § 11 — 9—518(a)(1). In Chapel Gardens, the claimant was a seasonal worker under an employment contract that provided for a forty-hour work week whenever work was available. The instant case is easily distinguishable from Chapel Gardens. Here, appellant’s agreement with his employer allowed him to take unpaid time off from work when he wanted to. Thus, the fact that appellant was working less than full time was his decision and was not related to the availability of work. We see no reason why this could not be considered an “exceptional circumstance” under the statute.
IV. The Commission Did Not Eit in Approving a Three-percent (3%) Offset Award to Appellee Cincinnati Indemnity Co., Inc. Against Appellant’s Future Benefits.
Finally, appellant contends that the Commission erred in approving a three-percent offset for overpayment of appellant’s permanent anatomical impairment rating to Cincinnati against his future benefits. Appellees initially accepted and paid benefits for a thirteen-percent permanent partial disability. After Dr. Akin testified at a December 2006 deposition that the thirteen-percent rating was an error and that appellant’s impairment rating for two compression fractures should have been ten percent, appellees contended that they were entitled to a credit for overpayment. The ALJ found appellant’s impairment rating to be ten percent to the body as a whole and held that appellees were entitled to a credit for any overpayment of benefits beyond the appropriate ten-percent rating.
Appellant argues that the payment of benefits for a thirteen-percent impairment rating was a voluntary payment and cites the common-law rule that “when one pays money on demand that is not legally enforceable, the payment is deemed voluntary.” Vandiver v. Banks, 331 Ark. 386, 393, 962 S.W.2d 349, 353 (1998). Absent fraud, duress, mistake of fact, coercion, or extortion, voluntary payments cannot be recovered. Id. Appellant also seeks to characterize appellees’ acceptance of the thirteen-percent impairment rating as a “stipulation” that is binding on them.
We find none of appellant’s arguments to be persuasive. Arkansas Code Annotated section ll-9-807(a) (Repl.2002) provides: “If the employer has made advance payments for compensation, the employer shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due.” The Commission has the “full power and authority ... [t]o approve agreements, make, modify, or rescind awards, and make and enter findings of fact and rulings of law.” Ark. Code Ann. § ll-9-207(a)(5) (Repl.2002). Further, the legislature has given the Commission the power to “order the reimbursement of employers for amounts advanced.” Ark.Code Ann. § ll-9-207(a)(7). Appellant contends that the amount at issue was not an advance payment “because Cincinnati’s position throughout the case has been that there was no wage loss.” Nonetheless, the ALJ’s opinion, which was adopted by the Commission, cites numerous examples of the Commission awarding a credit against future compensation for overpayment of permanent partial disability benefits. We hold that it was not error for the Commission to do so in this case.
Furthermore, there are sound policy reasons for awarding a credit when the Commission finds that there has been an overpayment of benefits. To allow a claimant to receive and not be required to account for an overpayment of benefits sends a message to employers that they have nothing to gain by accepting a claim as compensable because they are not going to be entitled to a credit if the claim is eventually found not compensable. Here, appellees were acting in good faith and appellant should not now receive a windfall as a result.
Based on the foregoing, we affirm the Commission’s award of a credit to appel-lees for any overpayment of the impairment rating.
Cross-Appeal
I. Substantial Evidence Supports the Commission’s Award, of Twenty-five Percent (25%) Permanent Partial Disability to Appellant in Excess of His Permanent Anatomical Impairment.
Appellees Price’s Utility and Cincinnati contend that appellant is not entitled to any amount of wage-loss disability benefits. They argue that appellant is not entitled to permanent partial disability in excess of the percentage of permanent physical impairment established by objective medical findings because he “refuse[d] to participate in or cooperate for reasonable cause with either an offered program of rehabilitation or job placement assistance.” Ark.Code Ann. § 11 — 9—505(b)(3). Because appellees failed to raise this argument below, it is not preserved for appellate review. Finley v. Farm Cat, Inc., 103 Ark.App. 292, 288 S.W.3d 685 (2008).
II. Substantial Evidence Supports the Commission’s Finding that SIF Is Not Liable for Payment of any Wage-loss Benefits Awarded.
Appellees argue that if this court affirms appellant’s wage-loss award, SIF should be held liable for those benefits. Appellees point to both appellant’s blindness in his left eye and to his heart problems and other health issues. Appellees contend that these are pre-existing conditions that have combined with appellant’s compensa-ble back injury to produce his current disability status.
The ALJ found that appellant’s loss of vision in one eye does not cause any greater disability than the disability produced by the back injury considered alone. The ALJ reasoned that while the loss of vision would prevent appellant from obtaining his commercial driver’s license and might affect his ability to weld, appellant was never employed as either a commercially licensed driver or a welder before or after his eye injury. After his eye injury, appellant obtained a college degree and worked for Price’s Utility from 1977 to 2006, and the only limitation that his loss of vision imposed was that co-workers knew not to throw tools in his direction. The ALJ also noted that appellant’s loss of vision in one eye does not prevent him from being able to read or study if he chooses to do so and does not contribute to his physical limitations due to back pain. Furthermore, the ALJ found that appellant’s prior kidney stones and his 2003 heart stint are neither pre-existing disabilities nor impairments. See Mid-State Construction Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988) (holding that for SIF liability to attach a claimant’s prior impairment must have been of a physical quality sufficient in and of itself to support an award of compensation had the elements of compensa-bility existed as to the cause of the impairment).
The relevant statute provides:
If any employee who has a permanent partial disability or impairment, whether from compensable injury or otherwise, receives a subsequent compensable injury resulting in additional permanent partial disability or impairment so that the degree or percentage of disability or impairment caused by the combined disabilities or impairments is greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of combined disabilities or impairments, then the employer at the time of the last injury shall be liable only for the degree or percentage of disability or impairment that would have resulted from the last injury had there been no preexisting disability or impairment.
Ark.Code Ann. § 11 — 9—525(b)(3) (Supp. 2009). The stated purpose of the SIF is “to ensure that an employer employing a worker with a disability will not, in the event that the worker suffers an injury on the job, be held liable for a greater disability or impairment than actually occurred while the worker was in his or her employment,” thus encouraging employment of handicapped or disabled workers. Ark. Code Ann. § 11 — 9—525(a)(1); Nelson v. Timberline Intern., Inc., 332 Ark. 165, 964 S.W.2d 357 (1998). For the Second Injury Fund to be liable under workers’ compensation law, the employee must have suffered a compensable injury at his present place of employment, prior to that injury the employee must have had a permanent partial disability or impairment, and the disability or impairment must have combined with the recent comperisable injury to produce the current disability status. Rice v. Georgia Pacific Corp., 72 Ark.App. 148, 154, 35 S.W.3d 328, 332 (2000).
At issue in the present case is whether appellant’s preexisting health problems (blindness in one eye, heart problems, kidney stones) combined with his back injury to produce his current disability status. The Commission found that appellant’s previous injuries, when combined with his compensable back injury, did not render him any more disabled than the back injury alone would have. After reviewing this point under the proper standards, we affirm the Workers’ Compensation Commission.
Affirmed on direct appeal; affirmed on cross-appeal.
PITTMAN and HART, JJ., agree.
. Some medical reports indicate that there was a third fracture at L2. | [
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JjMOTION FOR RULE ON CLERK
PER CURIAM.
Appellant Daniel Dorsey, by and through his attorney Richard R. West, seeks a motion for rule on clerk. The State has not responded to the motion. Our clerk refused to accept the record because of a failure to show strict compliance with Ark. R.App. P.-Civ. 5(b)(1)(C).
Appellant timely filed a notice of appeal on September 15, 2008, making the record due in this court on December 15, 2008. On November 17, 2008, the circuit court entered an order granting an oral motion made by Appellant to extend the time for filing the record until April 5, 2009. In the instant motion, Mr. West states that the circuit court advised him that the court reporter could not complete the appellate transcript in Appellant’s case in ninety days and, thus, entered the order of extension, although no written motion was filed and no hearing was held on the motion. Mr. West accepts fault, stating that he should have insisted on filing a written motion and requested a hearing on the matter.
|2We have held that Rule 5(b)(1) applies to both civil and criminal cases for the determination of the timeliness of a record on appeal. See Bond v. State, 373 Ark. 37, 280 S.W.3d 20 (2008) (per curiam). Nevertheless, on September 18, 2008, this court adopted a rule change to Ark. RApp. P-Crim. 4, specifically Rule 4(c), to provide for notice to prosecutors of record extensions and a deemed consent to the extension if the prosecutor does not object within ten days after being served a copy of the extension motion:
A motion by the defendant for an extension of time to file the record shall explain the reasons for the requested extension, and a copy of the motion shall be served on the prosecuting attorney. The circuit court may enter an order granting the extension if the circuit court finds that all parties consent to the extension and that an extension is necessary for the court reporter to include the stenographically reported material in the record on appeal. If the prosecuting attorney does not file a written objection to the extension within ten (10) days after being served a copy of the extension motion, the prosecuting attorney shall be deemed to have consented to the extension, and the circuit court may so find.
In re Rules of Suprems Court & Court of Appeals, Rule 4-3, 374 Ark. App’x -, - (Sept. 18, 2008) (per curiam).
Rule 4(e)(1) provides that a copy of the motion shall be served on the prosecuting attorney. No motion was filed or served on the prosecuting attorney in this case. The circuit court’s November 17, 2008 order granting the extension of time under Rule 4 stated it was granting an oral motion. We view this matter under Rule 4 as we do a violation of Ark. R.App. P.-Civ. 5. See Gwathney v. State, 2009 Ark. 192, 306 S.W.3d 1 (per curiam). As fault is apparent, we grant the motion for rule on clerk. See McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). A copy of this opinion will be forwarded to the Arkansas Supreme Court Committee on Professional Conduct.
Motion for rule on clerk granted.
. Although Mr. West does not specifically accept fault for tendering the record and filing the instant motion on April 6, 2009, one day past the extension granted by the circuit court, we nonetheless grant the instant motion for the reasons set forth in this per cu-riam. | [
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MOTION FOR RULE ON CLERK
PER CURIAM.
| tAppellant Jamie Deachell Fox, by and through her attorney, Brian Williams, has filed a motion for rule on clerk. The clerk of this court refused to file the record in this case, concluding that the order extending the time within which to file the record failed to comply with Arkansas Rule of Appellate Procedure — Civil 5(b)(1)(A). However, Arkansas Rule of Appellate Procedure — Criminal 4 was amended and made effective October 1, 2008. See In re Rules of Supreme Court and Court of Appeals, Rule 4-3; Rules of Appellate Procedure-Criminal, Rule 4; and Rules of Criminal Procedure, Rule 24.3, 374 Ark. App’x - (Sept. 18, 2008). Arkansas Rule of Appellate Procedure— Criminal 4, rather than Arkansas Rule of Appellate Procedure — Civil 5, now provides the procedure to be followed in a criminal case when an extension of time is sought within which to file the record.
The judgment and commitment order was filed on September 2, 2008. The notice of appeal was timely filed on September 25, 2008. The record had to be filed within ninety |2days of the date that the notice of appeal was filed, making the record due no later than December 24, 2008. See Ark. R.App. P. — Crim. 4(b). On December 12, 2008, the circuit court granted an oral motion for an extension of time and entered an order extending the date for filing the record by four months. The order indicates that the attorney for the State had been notified of the Motion for Extension of Time to File Record and had an opportunity to be heard.
An extension is permitted where the requirements of Rule 4 are met:
Rule 4(c)(1) provides in pertinent part as follows:
If any party has designated stenographi-cally reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (b) of this rule or by a prior extension order, may extend the time for filing the record. A motion by the defendant for an extension of time to file the record shall explain the reasons for the requested extension, and a copy of the motion shall be served on the prosecuting attorney. The circuit court may enter an order granting the extension if the circuit court finds that all parties consent to the extension and that an extension is necessary for the court reporter to include the stenographically reported material in the record on appeal. If the prosecuting attorney does not file a written objection to the extension within ten (10) days after being served a copy of the extension motion, the prosecuting attorney shall be deemed to have consented to the extension, and the circuit court may so find.
Rule 4(c)(1) provides that a copy of the motion shall be served on the prosecuting attorney. The extension was granted based on an oral motion. Therefore, no motion was filed or served on the prosecuting attorney in this case. The circuit court’s December 12, 2008 order granting the extension of time stated it was granting an oral motion. We view this matter under Rule 4 as we do a violation of Arkansas Rule of Appellate Procedure-Civil 5. Attorney Williams admits he is responsible for filing the record. We grant the motion for rule on the clerk. See McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). A copy of this opinion will be forwarded to the Arkansas Supreme Court committee on Professional Conduct
Motion granted. | [
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PER CURIAM.
| [Terrance M. Rhodes, by his attorney, J. Brent Standridge, has filed a motion for belated appeal.
The record reflects the following facts. During Rhodes’s trial, he was represented by Paul K. Lancaster. On July 14, 2008, the circuit court entered a judgment and commitment order convicting Rhodes of murder and aggravated robbery and sentencing him to 720 months’ imprisonment. Rhodes’s notice of appeal would have been due by August 13, 2008, but none was filed. On August 15, 2008, at 2:23 p.m., an order substituting and appointing J. Brent Standridge as counsel for Rhodes was filed, and at 2:24 p.m., Mr. Standridge filed a notice of appeal on Rhodes’s behalf. Rhodes’s record would have been due to this court by November 13, 2008; however, Rhodes timely filed a motion for extension of time, which was granted by the circuit court, extending the time in which to file the record until January 9, 2009. On January 8, 2009, the record was ten dered to this court, and Rhodes now moves lathis court for a belated appeal.
In the instant motion, Mr. Standridge takes responsibility for failing to ensure that a timely notice of appeal was filed. However, Mr. Standridge, at the time Rhodes’s notice of appeal was to be filed, was not counsel of record for Rhodes. Arkansas Rule of Appellate Procedure-Criminal 16 (2008) provides, in pertinent part, that “[tjrial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal ..., unless permitted by the trial court or the appellate court to withdraw in the interest of justice or for other sufficient cause.” Accordingly, until relieved by the trial court, Mr. Lancaster was charged with the responsibility of filing a timely notice of appeal on Mr. Rhodes’s behalf, not Mr. Standridge.
This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said:
Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason ean be made in the motion, and this Iscourt will decide whether good reason is present.
356 Ark. at 116, 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he or she has erred and is responsible for the failure to perfect the appeal. See id. When it is plain from the motion, affidavits, and record that relief is proper under either rule based on error or good reason, the relief will be granted. See id. If there is attorney error, a copy of the opinion will be forwarded to the Committee on Professional Conduct. See id.
It is plain from the record that Mr. Lancaster was at fault for failing to file a timely notice of appeal. Pursuant to McDonald v. State, supra, we grant Rhodes’s motion for belated appeal and forward a copy of this opinion to the Committee on Professional Conduct.
Motion granted.
. We note, though, that because Mr. Stand-ridge was substituted and appointed counsel for Rhodes prior to any notice of appeal being filed, the circuit court was within its jurisdiction to appoint Mr. Standridge, and his appointment stands. See Ark. R.App. P.-Crim. 16(a) ("After the notice of appeal of a judgment of conviction has been filed, the appellate court shall have exclusive jurisdiction to relieve counsel and appoint new counsel.”). | [
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ROBERT J. GLADWIN, Chief Judge.
|,Appellant Michele Keith’s sole point on appeal is that the Ouachita County Circuit Court erred by changing custody of her children to appellee Steven Keith. We affirm.
I. Procedural and Factual History
The parties were divorced by decree filed July 12, 2011, and appellant was awarded custody of their four children, M.K. (age 10), R.K. (age 8), G.K. (age 6), and Mc.K. (age 8). Because appellee lived in Little Rock, Arkansas, and appellant and the children lived in Camden, Arkansas, the parties would meet halfway between their houses for visitation exchange on alternating weekends.
A contempt order was filed on October 7, 2011, finding appellant in contempt because she had, on two separate occasions, willfully and intentionally refused to permit appellee visitation with the children. The order states in paragraph 2:
|2The [appellant] is forewarned and advised that to willfully and intentionally refuse to allow Court ordered visitation with the children constitutes conduct that this Court could consider as a basis for a change of custody.
On March 29, 2012, appellee filed a motion for contempt and for change of custody, alleging that appellant and the four children had moved to the Houston, Texas area where appellant had been offered part-time work in a family-related business. He claimed that he had not been informed of the move and no adjustment had been arranged for his visitation sched ule. He alleged that the move was an intentional denial of his visitation. He further alleged that he did not have appellant’s current telephone number. He asked that appellant be held in contempt and claimed that her alleged reason for relocating — finding employment — was a pretense for impeding and interfering with his visitation. He argued that her move would adversely affect his relationship with the children and the children’s relationship with their grandparents and family members in Camden and Little Rock. Finally, he asserted that it was not in the children’s best interest to be moved from their school in the middle of the semester. Based on these claims, appellee asked for custody of the children.
At the hearing on appellee’s contempt motion held on June 27, 2012, appellant testified that she moved with the children the weekend of March 16, 2012. She admitted that she did not telephone appellee to notify him of their move. She claimed that her attorney sent a letter to appellee, and that appellee knew that she was moving because he was texting her daughter while they were en route to Texas. She explained that she did not notify him sooner because she wanted to avoid a fight.
| sIn an order filed August 23, 2012, the circuit court held as follows:
6. ... The Court finds that the [appellant] failed to give reasonable notice to the [appellee] of her move to Texas with the children. It is obvious to the Court that she did this in order to prevent [appellee] from taking any legal action to prevent the move. However, there is no order of this Court requiring notice to be given.
The circuit court did not find appellant in contempt regarding appellee’s missed visitation on March 24-25, 2012, nor did the court find that she willfully denied appellee access to a telephone number where she could be reached.
The circuit court held a separate hearing on appellee’s motion for change of custody on August 27, 2012. Testimony was taken from Olivette Price, appellant’s mother; Hannah O’Dell, appellant’s half sister; Jackie Bowen, appellee’s mother; T.K. (age 14), appellee’s son by a prior marriage and who lives with appellee; appel-lee; appellant; Marie McCormick, appellant’s stepmother; Clint Price, appellant’s stepbrother; M.K.; and R.K. The circuit court’s letter opinion described the testimony and its findings, stating as follows:
Since [appellant] moved with the children to Texas to live with her father, she has changed her residence two additional times. She presently resides with her step sister who runs a chiropractic clinic and for whom she works part time at home. The children were enrolled in the Danbury schools and their academic performance continues to be satisfactory as it was in Ouachita County. [Appellant] contends that she continues to search for full time employment in Texas.
[Appellant] basically gave two reasons for moving to Texas with the children during the course of the school year. She contends that there were no job opportunities in the Ouachita County area for her and that it was important that she move away from her mother and step father who resided there. Testimony of the parties confirmed that since their divorce, [appellant’s] step father had serious issues with alcohol and it was not appropriate for the children to be in his care. Prior to this development the children were very close to their step grandfather and continue to be close to their grandmother, the mother of [appellant]. The step grandfather has, for some time, been sober and there appears no reason for continued separation from the children.
L [Appellant] is presently estranged from her mother and her younger sister. She testified that the reason for the estrangement was her mother’s support of [appellant’s former] husband related to issues involving the children, including petitions to the Court.
[Appellee] continues to be employed at Falcon Jet in Pulaski County, where he resides. He has maintained employment with that company and its predecessors for over twenty years, and his job position appears to be very stable. [Appellee’s] parents would welcome the children of the parties into the home. The children resided in the home in Little Rock for a period of six weeks during the summer.
[Appellee] contends that [appellant’s] move to Texas with the children was yet another act taken for the purpose of alienating him and other family members from them. It is apparent from the testimony that [appellant] has, since the divorce, pursued a continued course of conduct for the purpose of adversely affecting [appellee’s] ability to have a meaningful relationship with the children. [Appellant] has, on several occasions, not placed the needs nor the well being of her children before her desire to hurt or humiliate the children’s father. She has shown a definite insensitivity to the welfare of the children, their pets and their possessions.
Unfortunately, [appellant’s] focus has lately been to promote the severance of relationships to the detriment of the children and not to provide for and insure their best interest. These actions have continued though [appellant] has been forewarned by Court order that her continued conduct might result in a change of custody being granted.
There indeed has been a material change in the circumstances of the parties since [appellant] was granted custody in the divorce action. [Appellee] has met his burden of proving such a change. This Court recognizes that in order to promote stability and continuity for the children and to discourage repeated litigation of the same issues, it is required that a more rigid standard for custody modification be met.
The Court has given due consideration to the factors to be addressed in regard to [appellant’s] relocation to Texas with the children. The reason given for the relocation by [appellant] does not appear compelling. She did not make reasonable efforts to obtain employment in Ouachita County and her “employment” with her step sister’s clinic is questionable as to its viability.
The educational, health and leisure opportunities in Texas as opposed to Pulaski County, Arkansas, would appear to be comparable. The move to Texas, some 450 miles distant from the father of the children and extended family has adversely affected the relationships involved especially given [appellant’s] continued refusal to encourage | ^successful and meaningful visitations and communications between the children and their father.
This Court has taken into consideration the testimony of the two oldest children regarding their preferences [to stay with their mother]. The children had nothing negative to offer as to their father or the home he could provide for them. [Appellee] can provide the children with the necessary nurture, structure and stability for them to grow and prosper. [Appellee] has met his burden to overcome any presumption in favor of the relocation by [appellant] and has shown the move was not in the best interest of the children. Taking all into consideration it is in the best interest of these children that they be placed with [appel-lee] and that legal custody be vested in him.
An order was filed on September 10, 2012, reflecting the circuit court’s opinion letter. Appellant filed a timely notice of appeal, and this appeal followed.
II. Standard of Review
The Arkansas Supreme Court recently held:
In reviewing child-custody cases, we consider the evidence de novo, but will not reverse a circuit court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. See Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses. See id. This deference to the circuit court is even greater in cases involving child custody, as a heavier burden is placed on the circuit court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. See id. Where the circuit court fails to make findings of fact about a change in circumstances, this court, under its de novo review, may nonetheless conclude that there was sufficient evidence from which the circuit court could have found a change in circumstances. See id. (citing Campbell v. Campbell 336 Ark. 379, 985 S.W.2d 724 (1999); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988)).
Arkansas law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. See Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005). A judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child, or when there is a showing of facts affecting the best interest of the child Rthat were either not presented to the circuit court or were not known by the circuit court at the time the original custody order was entered. See id.
McNutt v. Yates, 2013 Ark. 427, at 8-9, 430 S.W.3d 91, 97, 2013 WL 5859515.
III. Discussion
Appellant contends that the circuit court’s error was the determination that there had been a material change in circumstances. She claims that the problem is that the only discussion by the circuit court revolved around appellant’s relocation to Texas. She cites Hollandsworth v. Knyzewski, 353 Ark. 470, 485, 109 S.W.3d 653, 663 (2003), for the proposition that the non-custodial parent has the burden to rebut the presumption in favor of relocation for custodial parents with primary custody. Hollandsworth examined five criteria in making a relocation determination that would be in the best interest of a child:
(1) the reason for the relocation; (2) the educational, health, and leisure opportunities available in the location in which the custodial parent and children will relocate; (3) visitation and communication schedule for the noncustodial parent; (4) the effect of the move on the extended family relationships in the location in which the custodial parent and children will relocate, as well as Arkansas; and, (5) preference of the child, including the age, maturity, and the reasons given by the child as to his or her preference.
Hollandsworth, 353 Ark. at 485, 109 S.W.3d at 663-64. Our supreme court held that relocation alone is not a material change in circumstances. Id. at 485, 109 S.W.3d at 663. Therefore, appellant argues that there must be some other factors that constitute a material change of circumstances. She maintains that none were proved by appellee.
Appellant contends that her relocation cannot be viewed as an attempt to hamper appellee’s visitation rights because his latest contempt motion against her did not result in a contempt finding. She claims that, even if interference had occurred, a change of custody |7is not always in the best interest of the children. She complains that the circuit court did not recognize the presumption set forth in Hol-landsworth when it concluded that her reason for relocating was not compelling. She maintains that she was not required to prove any reason for relocation. Fischer v. Smith, 2012 Ark. App. 342, at 5, 415 S.W.3d 40, 42 (A custodial parent’s desire to leave his or her place of residence, without more, is not a legal barrier to relocation.).
Appellant argues that the circuit court did not follow HollandswoHh, supra, because it compared the educational, health, and leisure opportunities in Texas and Pulaski County, rather than Ouachita County. Also, appellant argues that it was error for the circuit court to find that the move adversely affected the relationships between the children and appellee. She claims that appellee had to show that he would have no meaningful relationship with the children based on the relocation. She maintains that the 450-mile distance is less than the 500-mile distance in Hol-landsworth, where the court found that a parent could have adequate visitation. Hollandsworth, 353 Ark. at 486, 109 S.W.3d at 664. See also Fischer, supra (where adequate visitation found when relocation was to Virgin Islands). Thus, she argues that her relocation to Texas alone did not mean that appellee could not have a meaningful relationship with the children.
Appellant also argues that the circuit court discounted the children’s preference to live with her in Texas. Further, she maintains that the relocation to Texas was based on a need for family support from her father and sisters more than her need for employment opportunities. Appellant concludes that appellee was not concerned about the children’s ^welfare because he requested, alternatively, that she be forced to move back to Arkansas or that custody be changed. She maintains that custody was changed solely based on her relocation and that this court should reverse the circuit court’s ruling.
Appellee responds that the circuit court did not fail to apply the presumption found in HollandswoHh, supra, and that the circuit court correctly determined that the presumption had been rebutted. He then argues that relocation was not the sole factor relied on by the circuit court in finding a material change in circumstances. We agree.
The circuit court found that appellant had pursued a continued course of conduct for the purpose of adversely affecting ap-pellee’s ability to have a meaningful relationship with the children. We hold that the application of HollandswoHh is not relevant because we are not reviewing a case granting or denying a custodial parent’s petition to relocate. The circuit court made a determination on a petition to change custody, which was premised on a change of circumstances that included the fact that appellant had moved.
The material change in circumstances included that, in the face of a court order stating that preventing visitation could re- suit in a change of custody, appellant moved with the children to Texas without prior notification to appellee and without adjustments to the visitation schedule. The move occurred in the middle of the semester. There was evidence that appellant said “shit” in the children’s presence immediately after a court hearing, where the circuit judge admonished the parties to get along. There was testimony that appellant called appellee names in the presence of the children, and that the children grew timid around appellant. Pictures of the condition of the children’s rooms were presented in |aevidence, reflecting the rooms in disarray with clothes thrown throughout. Finally, appellee took G.K. to the doctor because he woke up with a severe headache on the first day of his visitation with appellee. G.K. was treated for malnutrition and dehydration. Appellant later told appellee that G.K. had been complaining about a headache for a couple of weeks prior to the visitation.
Therefore, relocation was not the sole factor on which the circuit court relied in finding a material change in circumstances. Based on our de novo review, the circuit court’s decision — that it was in the children’s best interest to change custody to appellee — was not clearly erroneous.
Affirmed.
WALMSLEY and GRUBER, JJ., agree. | [
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JOHN MAUZY PITTMAN, Judge.
hln this products-liability case, appellants Michael Gartman and Kemal Kutait, as representative of his daughter Rebecca’s estate, appeal from a jury verdict in favor of appellee Ford Motor Company. We affirm.
The parties agree on the essential facts. On January 25, 2004, at approximately 3:00 a.m., Michael Gartman and his girlfriend, Rebecca Kutait, were involved in a one-vehicle accident on Interstate 30. Earlier that evening the couple had visited friends, and Michael consumed several beers. They left the gathering with Michael at the wheel of his Ford pickup. While driving on Interstate 30, Michael and Rebecca argued, and Rebecca grabbed the wheel. Michael could not control the vehicle, and it left the highway, colliding with [¡¡several trees before coming to rest on its side. According to Michael, he and Rebecca did not sustain life-threatening injuries at that point, even though they were trapped in the truck. Several minutes after the crash, however, the truck caught fee. Passersby rescued Michael, who suffered serious burns. They could not save Rebecca, and she died in the fee. Michael’s blood-alcohol content (BAC) after the accident measured .08.
In 2007, appellants sued appellee as the manufacturer of the truck. They claimed that Michael’s injuries and Rebecca’s death were caused by the truck’s inability to withstand the crash without catching fee, i.e., its lack of crashworthiness. At trial, appellants offered expert testimony that the truck caught fee due to a defect in the fuel line. Appellee defended on the grounds that the truck was properly designed and that Michael was partly at fault for causing the initial crash, due to his inability to control the vehicle while intoxicated. The jury found in favor of appellee, leading to this appeal.
I. Comparative Fault
Over appellants’ objections, the circuit court admitted evidence of Michael’s alcohol consumption and BAC; instructed the jury that Michael’s intoxication could be considered evidence of negligence; and instructed the jury on Michael’s comparative fault. Appellants argue on appeal that the court’s rulings were in error because any fault Michael may have borne in the initial crash was irrelevant, given the nature of their crash-worthiness claim. We review the court’s rulings for an abuse of discretion. Washington v. Washington, 2013 Ark. App. 54, 425 S.W.3d 858; Gross & Janes Co. v. Brooks, 2012 Ark. App. 702, 425 S.W.3d 795.
|sThe crashworthiness doctrine recognizes that a manufacturer may be held liable for an enhanced or greater injury that occurs following an initial accident, which was brought about by some independent cause. See Bishop v. Tariq, 2011 Ark. App. 445, 384 S.W.3d 659. According to appellants, the injuries for which they sought compensation arose solely from the faulty manufacture or design of appellee’s product, and not from any fault of Michael’s in precipitating the crash. Consequently, they maintain, proof of Michael’s alcohol consumption should not have been admitted into evidence or used as a basis for comparing fault.
We disagree with appellants’ premise. Arkansas follows the majority view that a plaintiffs fault is relevant in a crashworthiness case for the purpose of apportioning the overall responsibility for damages. In Bishop v. Tariq, supra, we relied on the language of our comparative-fault statute to hold that a plaintiffs fault could be compared with a defendant’s fault in a crashworthiness or enhanced-injury case. The comparative-fault statute, Arkansas Code Annotated section 16-64-122(a) (Repl.2005), provides that, in all actions for personal injuries or wrongful death in which recovery is predicated on fault, liability shall be determined by comparing the fault chargeable to a claiming party with the fault chargeable to the party from whom he seeks to recover. The statute additionally provides that “fault” shall include any act, omission, conduct, risk assumed, breach of warranty, or breach of any legal duty which is a proximate cause of any damages sustained by any party. Ark.Code Ann. § 16-64-122(c) (Repl.2005). This broad language and our holding in Tariq stand at odds with appellants’ claim that a plaintiffs fault should not be compared to the defendant’s in a crashworthiness case. See also Williams v. Mozark Fire Extinguisher Co., 318 Ark. 792, 888 S.W.2d 303 (1994). We further note that Arkansas recognizes that the acts or omissions of two or more persons may work together to produce damages. See Villines v. North Arkansas Regional Medical Center, 2011 Ark. App. 506, 385 S.W.3d 360; AMI Civ. 501 (2012).
Appellants contend that their case is distinguished by the fact that the truck fire did not occur until fifteen or twenty minutes after the initial crash. This time gap does not foreclose the application of comparative fault. It was for the jury to decide whether Michael’s fault, if any, served as a proximate cause.
Appellants also argue that the only actions relevant for comparing fault in a products-liability case are found in AMI Civ. 1014 (2012). Such actions include the plaintiffs misusing the product in an unforeseeable manner, using the product beyond its anticipated life, or unforeseeably altering the product. AMI Civ. 1014, however, does not purport to contain an exhaustive list of the ways in which a plaintiff may be at fault in a products-liability case. The Notes on Use accompanying AMI Civ. 1014 state that it may be used in conjunction with AMI Civ. 2101 (2012), the general comparative-fault instruction.
Finally, appellants argue that, even if evidence of Michael’s alcohol consumption was relevant, it was more prejudicial than probative because the trial took place in a dry county, and because there is a “negative attitude in this country today toward drinking and driving.” Rule 403 of the Arkansas Rules of Evidence (2013) provides that relevant evidence may be | r,excluded if its probative value is substantially outweighed by the danger of unfair prejudice. We conclude that no unfair prejudice occurred. A dim view of drinking and driving is to be expected no matter what the circumstances or jurisdiction.
Based on the foregoing, we see no abuse of discretion in the circuit court’s allowing evidence of Michael’s alcohol consumption and instructing the jury on comparative fault.
II. Expert Testimony
The circuit court excluded the testimony of appellants’ expert, Dr. William Hickerson, who opined that Michael’s BAC reading was unreliable due to his burn injuries. Appellants argue that Dr. Hick-erson’s testimony should have been admitted as reliable scientific evidence. Again, we apply the abuse-of-discretion standard of review. Derry Berrigan & Co. v. KBS Leasing, Inc., 2013 Ark. App. 196, 2013 WL 1228035.
Michael’s BAC reading was taken by the Arkansas State Police approximately two hours after the accident and registered .08. Later, Michael was treated for his injuries by Dr. Hickerson, a certified plastic surgeon and general surgeon. During Dr. Hickerson’s pretrial deposition, he stated that he was taught during his residency that a burn victim’s blood-alcohol level could be falsely elevated due to metabolic acidosis. He testified that he worked with burn victims at a trauma center in Memphis and that he had admitted many patients with blood-alcohol content. He stated, however, that he was not “boarded” in toxicology, pathology, or hematology; that he had not published articles on toxicology or how burns affect BAC readings; and that he did not consider himself an expert in blood-alcohol concentration. He further testified that the only basis for his opinion that Michael’s BAC | ^reading could be considered unreliable due to burn injuries came from courses he took during his residency many years earlier.
The circuit court ruled that Dr. Hickerson’s opinion did not meet the test of admissibility set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In Daubert, the United States Supreme Court held that a trial court must make a preliminary assessment of whether the reasoning or methodology underlying expert testimony is valid and whether the reasoning or methodology has been properly applied to the facts of the case. Richardson v. Union Pacific Railroad Co., 2011 Ark. App. 562, 386 S.W.3d 77. The objective of a Daubert inquiry is to ensure the relevance and reliability of expert testimony and to make certain that the expert, whether basing testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Bayer CropScience LP v. Schafer, 2011 Ark. 518, at 17, 385 S.W.3d 822, 833 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).
Many factors may bear on the inquiry into the reliability of the expert testimony. A key question is whether the scientific theory has been or can be tested. Richardson, 2011 Ark. App. 562, 386 S.W.3d 77. It is also significant whether the scientific community has accepted the theory. Id., 386 S.W.3d 77. In any event, the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. Schafer, 2011 Ark. 518, at 17, 385 S.W.3d at 833-34 (quoting Kumho Tire Co., 526 U.S. 137, 119 S.Ct. 1167).
|7Assuming that Daubert applied to the testimony offered by Dr. Hickerson, the circuit court did not abuse its discretion in excluding it. The doctor possessed a general knowledge of blood-alcohol levels, but his testimony regarding the effect of burns on blood alcohol was little more than anecdotal, based on teachings he remembered from his residency. He offered no science or expertise to support his opinion. We therefore affirm the court’s ruling.
III. AMI Civ. 1013
The court refused appellants’ request to instruct the jury with a particular portion of AMI Civ. 1013 (2012), an instruction used in products-liability litigation involving two or more theories of liability. The jury in this case was instructed on strict liability and negligence, so AMI Civ. 1013 was generally applicable. Appellants, however, asked the court to include the following language in AMI Civ. 1013:
With respect to proof of a defective condition, if you find that in the normal course of events no (injury) (death) (or) (property damage) would have occurred in the absence of some defect, then you are permitted, but not required, to infer that a defect existed.
Allowing the jury to infer the existence of a defect is necessary only when, in the absence of direct proof of a specific defect, the plaintiff must rely on circumstantial evidence that a defect existed. See generally Petrus Chrysler-Plymouth v. Davis, 283 Ark. 172, 671 S.W.2d 749 (1984); Harrell Motors, Inc. v. Flanery, 272 Ark. 105, 612 S.W.2d 727 (1981). Here, there were no mysterious malfunctions that necessitated reliance on circumstantial evidence. Instead, appellants pinpointed the fuel line as the defect and offered direct proof and expert testimony on the cause of the fire that led to their damages. Accordingly, they were not | ^prejudiced by the court’s refusal to instruct the jury with the circumstantial-evidence portion of AMI Civ. 1013.
IV. Verdict Interrogatory
Appellants’ final argument is that the verdict interrogatory answered by the jury in favor of appellee was confusing. The interrogatory read as follows:
Do you find by a preponderance of the evidence that there was fault on the part of Ford Motor Company which was a proximate cause of any damages plaintiffs] Michael Gartman and Kemal Ku-tait, as administrator of the Estate of Rebecca Kutait, may have sustained?
The jury answered “no” to this interrogatory and returned their verdict in favor of appellee.
Appellants contend that the word “fault” in the interrogatory confused the jury because it did not “ask the jury whether they found the vehicle uncrashworthy or that the fuel system was defective.” Appellants’ argument is procedurally barred.
No party shall assign as error the giving or the failure to give an instruction unless he objects thereto before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds for his objection. Ark. R. Civ. P. 51 (2013). Failure to make a specific objection means that the issue has not been preserved for review. Agracat, Inc. v. AFS-NWA, LLC, 2012 Ark. App. 372, 2012 WL 1943334. At trial, appellants argued generally about the concept of fault in a products-liability case, but they did not object to the court’s use of the 19above interrogatory on the ground asserted on appeal. Given the lack of a specific objection, we must affirm.
Affirmed.
GLADWIN, C.J., and WOOD, J., agree.
. We previously dismissed this appeal for lack of finality. Gartman v. Ford Motor Co., 2012 Ark. App. 693, 2012 WL 6197717. Appellants have now obtained a final order, giving us jurisdiction to proceed to the merits.
. It is not clear whether the jury actually reached the issue of Michael’s comparative fault — it answered only one verdict interrogatory, absolving appellee of liability. But, because we cannot discount the possibility that the jury, in so finding, simply assigned a majority of the fault to Michael, we have chosen to address the merits of this issue.
. The exact basis for the court’s ruling on this issue is unclear from the record. Nevertheless, we may affirm if the trial court was correct for any reason. Winrock Grass Farm, Inc. v. Affiliated Real Estate Appraisers of Ark., Inc., 2010 Ark. App. 279, 373 S.W.3d 907. | [
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RITA W. GRUBER, Judge.
liBettye McDougal died at home on February 17, 2011, at age sixty-four. She had become unable to leave her recliner or bed in her final days, was under the care of hospice, received visits from a home health-care nurse, and was constantly cared for by close friends and relatives. The Circuit Court of Union County admitted to probate a copy of an April 6, 2007 will proffered on March 21, 2011, by her brother, Bobby Long, as her last will and testament. The will nominated Mr. Long as executor; left the bulk of the estate to him; excluded Ms. McDougal’s only child and intestate beneficiary, Todd Whatley; and made specific bequests to fiiends including Albert Warren, who had lived with her for twelve years, as well as to a trust for her two grandchildren.
Mr. Whatley objected to probation of the copy of the will, stating that the original had not been located and that he believed his mother had intentionally destroyed it before her death. He asked the court to find that she died intestate and— because Mr. Long had a | ¡.conflict of interest with the estate — to appoint a different executor. At trial — conducted on February 6 and June 11, 2012-Mr. Whatley stipulated that his mother properly executed a will on April 6, 2007, at the office of her lawyer. The parties did not dispute that Ms. McDougal left the lawyer’s office with the original will and that it was not found after her death.
Much of the testimony at trial focused on decedent’s strong-willed personality and business acumen; on knowing what she wanted; on her fifteen-year strained relationship with her son; and on the fact that she often publicized her intention to cut him out of her will. Her estrangement with him began after his wife, Regina Whatley, stole money from decedent’s trucking business and his relationship "with his wife continued despite decedent’s wishes. From then on, neither Todd Whatley nor his and Regina’s young son visited decedent again until the week before her death. She began spending all holidays with her brother and his wife, Janice Long, and never had a visit with her second grandchild, who was born after the estrangement began.
In its written order, the court deemed the testimony of decedent’s brother and his wife and of decedent’s friends Horace “Hermie” McAlister, Meredith Bastien, Terry Graves, and Jimmy Lou Bates to be credible and persuasive for the estate. It found that decedent strongly felt she had been wronged by her daughter-in-law and son and that she cut them out of her estate in retaliation. The court discussed decedent’s physical condition as a factor in her inability to access either a safe in a downstairs closet, where she kept papers and valuable property and which could not be reached without kneeling and crawling, or her upstairs Isoffice, where an empty envelope that had contained her will was found. The court found that the inaccessibility of these places — particularly by the time decedent had round-the-clock care and in her final six days of life after her son’s visit — argued against her revocation of her will by destruction. Based on these findings, the court concluded that the estate had satisfied the statutory requirements of Arkansas Code Annotated section 28-40-302 and had sufficiently rebutted the presumption of revocation by destruction. The original will was therefore found to have been in existence at the time of her death and to have been lost or misplaced. The court declined to appoint Mr. Long as executor and instead appointed Simmons First Bank of El Dorado, a neutral third party.
Mr. Whatley appeals, contending that the circuit court clearly erred in admitting the copy of the will to probate. He contends that the proponent of the will, Mr. Long, failed to present any evidence that the original will was in existence at the time of the testator’s death, as is required by statute.
Arkansas Code Annotated section 28-40-302 (Repl.2012) states that no will of a testator shall be allowed to be proved as a lost or destroyed will unless
(1) The provisions are clearly and distinctly proved by at least two (2) witnesses, a correct copy or draft being deemed equivalent to one (1) witness; and
(2) The will is:
(A) Proved to have been in existence at the time of the death of the testator; or
(B) Shown to have been fraudulently destroyed in the lifetime of the testator.
Under this statute, the proponent of a lost will must prove two things: first, the will’s | execution and its contents by strong, cogent, and convincing evidence; second, that the will was still in existence at the time of the testator’s death (i.e., had not been revoked by the testator) or was fraudulently destroyed during the testator’s lifetime. Abdin v. Abdin, 94 Ark. App. 12, 223 S.W.3d 60 (2006). Proof of the second statutory element is necessary because the law presumes that an original will that cannot be found after a testator’s death has been revoked. Id. It is the failure to produce the original will that gives rise to the presumption; the presumption may be overcome if the proponent of the lost will proves, by a preponderance of the evidence, that the will was not revoked during the testator’s lifetime. Id.
It will be presumed that a testator destroyed a will executed by the testator in his or her lifetime, with the intention of revoking same, if he or she retained custody thereof or had access thereto, and it could not be found after the testator’s death. Wharton v. Moss, 267 Ark. 723, 594 S.W.2d 856 (Ark.App.1979); Rose v. Hunnicutt, 166 Ark. 134, 265 S.W. 651 (1924). The burden is upon the proponent of the will to prove by a preponderance of the evidence that the decedent did not revoke it during his or her lifetime. Thomas v. Thomas, 30 Ark.App. 152, 784 S.W.2d 173 (1990). Thus, it is not necessary for the trial court to determine what became of the will; it is enough that the court determine that the will was not revoked or cancelled by the decedent. Id.
Probate cases are reviewed de novo, but we will not reverse the probate judge’s findings of fact unless they are clearly erroneous. Remington v. Roberson, 81 Ark.App. 36, 98 S.W.3d 44 (2003). A finding is clearly erroneous when, although there is evidence to support | ,⅛ we are left on the entire evidence with the firm conviction that a mistake has been committed. Id. Due deference is given to the superior position of the trial judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Id.
In the present case, the circuit court found that the second prong of the statute was established by indirect evidence that the original will was in existence at the time of decedent’s death. Decedent’s safe was secured by both a key and a combination lock, and it was accessible only by her or someone at her direction. Albert Warren knew how to access the safe and had done so before at her direction; Bobby Long knew the location of the key, but decedent kept the combination to the safe. Todd Whatley visited her only the one time after their estrangement, was never alone with her, and was never alone in the house. Family and friends who were periodically alone with her in her last days were the beneficiaries under the will. Decedent had told them that all the papers for her estate were in the safe; other documents were found in there, but not the will. Decedent kept valuables in odd places, Albert Warren had the onset of dementia during her last year, and no one made a thorough and exhaustive search of the house.
Mr. Whatley argues that the circuit court clearly erred in admitting to probate the copy of his mother’s April 6, 2007 will because the will’s proponent failed to present any evidence that the original was in existence at her death or any time after being delivered to her shortly after it was executed. He asserts that the only witnesses who testified to seeing the will were Joe Hickey — the attorney who prepared it — and his employee who witnessed its execution. Mr. Whatley argues that because there was no evidence that the original will was in existence | fiat the time of his mother’s death, there was no rebuttal of the presumption that her original will— known to have been in her custody and not found after her death — was destroyed by her with the intent to revoke it. He asserts that there was ample testimony that his mother put her affairs in order when she knew the end was near: she directed her funeral plans, the writing of her obituary, the delivery of jewelry for safekeeping and of cash for payment of final expenses, and the removal of important papers from her safe and refrigerator; and she rationed her pain medication so that she could remain clear-headed. Mr. Whatley notes that when he and his son visited decedent shortly before her death, she discussed buying vehicles for her grandchildren, a provision not found in the trust or the will, and she was wondering if she had delayed her grandchildren’s receipt of benefits from the trust. He asserts that “in spite of the strained relationship, it was undisputed that she loved her son and grandchildren.”
Mr. Whatley argues that none of Mr. Long’s witnesses — although testifying that decedent did not want to make changes after Mr. Whatley’s visit — testified that they had seen the original will and knew it to be in existence at the time she denied wanting any changes. He asserts that decedent’s statements — that everything was taken care of and she had no need or desire to make changes — are as consistent with her having destroyed the will to revoke it years ago as they are to indicate that it was in existence at the time of her death. He argues that those statements, taken with decedent’s continuing to give directions to people around her in her last days but not giving direction to the location of the will, actually tend to show that the will was no longer in existence. He asserts that testimony of decedent’s being physically incapable of reaching her safe or upstairs office in her final days was also insufficient l7to demonstrate that the will was in existence at the time of her death because it is unaccompanied by evidence that the will was actually in either of those places.
Joe Hickey testified at trial that decedent brought to his office in 2007 a paper in her handwriting, which she said was her will. It was dated February 26, 2007, and specified how she wanted her estate divided. In this holographic will, she left her son “all the love that I was not allowed to give you and $100.00” for choosing not to speak to her over a wrong done by his wife. She wrote that she had told several friends her wishes and that she hoped her son would not “try to break this and take more of my money from me. I think you and your wife have taken more than your share.” The will was not signed.
Mr. Hickey prepared decedent’s April 6, 2007 will along with a 2007 Bettye McDou-gal Trust Agreement. This trust created the Bettye McDougal Grandchildren’s Trust and ordered that $200,000 be distributed to it upon her death, specifying that “under no circumstances shall any payment or distribution ever be made to Billy Todd Whatley or [his wife] Regina What-ley.” Decedent told Mr. Hickey that she wanted her brother to be the executor because “he knows what I want and he’ll do it right.” She also wanted her brother to be trustee but did not want him “to have too much problem with it.” She chose a corporate institution because she wanted the money “tied up for a long time for the grandchildren.” The trust instrument provided that if the corporate trustee was not acting satisfactorily for her grandchildren’s benefit in her brother’s estimation, he could fire the corporate trustee and name another. Mr. Hickey recalled that decedent told him she was leaving her son out because his wife had taken money from her and he had sided with his | swife, and afterward there was a falling out that resulted in very little contact and decedent’s not being allowed to see her grandchildren. Decedent wanted money to be held in trust for her grandchildren until the time when they could control the money and not be subject to possibly their mother controlling it.
Mr. Hickey’s office made photocopies for his file after decedent signed the original trust and will, which she took with her when she left. He kept the original of a first amendment and restatement of the Bettye McDougal 2007 Trust, which decedent dated and signed on April 3, 2009, and which again did not include her son. After decedent knew that she had cancer, Mr. Hickey prepared an August 11, 2010 durable power for health care that appointed her brother as agent, which she signed in Mr. Hickey’s office. He also prepared a durable power of attorney signed by her on January 31, 2011, appointing her brother.
Janice Long, decedent’s sister-in-law, testified that she and her husband (Bobby Long) never found decedent’s original will and that she believed it had been lost. She testified that Mr. Warren thought the will was in the safe and that she and her husband thought it would be either in the safe or the office — where they had found the trust instrument. She found an empty envelope that she thought might have had a will in it; when she took it to Joe Hickey’s office, he told her it was not the envelope in which he put the will.
Terry Graves, a friend whom decedent trained as a real-estate appraiser, was aware from at least 2004 until decedent’s death of the difficult relationship with her son. Ms. Graves witnessed that he would not acknowledge his mother or speak to her at realtors’ meetings, Christmas parties, and business functions. Ms. Graves went to Mr. Whatley’s office when she lflfirst began working and expressed her viewpoint that he and decedent needed to “sit down and talk it out.” He told Ms. Graves his side of the story.
Ms. Graves went with decedent numerous times to see a wellness doctor in Missouri, went with her for hospitalization, and was with her when exploratory surgery revealed ovarian cancer. Because Mr. Warren was not always reliable, decedent relied on Ms. Graves and Jimmy Lou Bates. Ms. Graves kept notes of phone calls to doctors and of medication times and doses. She repeatedly told doctors that decedent would break out in a cold sweat, “start talking delirious off the top of her head,” and “see things” when she took morphine. After a reaction on August 3, 2010, decedent had her attorney draw up a durable power of attorney so that no one would ever again give her morphine or put a gastric tube down her throat. Ms. Graves testified that decedent trusted Bobby and that “she wanted power of attorney for him in her estate, her medical records, everything. They were close.”
Beginning in August, decedent discussed with Ms. Graves what she wanted to happen when she died — she dictated her obituary and discussed funeral arrangements. Decedent’s feeling toward her son had not changed in February, the day after he came to see her. She told Ms. Graves that he had come because she was sick and to save face after not coming for fifteen years; Ms. Graves replied that she had told him he needed to come and had talked to him by telephone. Decedent did not discuss details of her will, but she told Ms. Graves that she had not left her son anything. She said that she left each grandchild $100,000: they were to get half the amount at age thirty and the other half at thirty-five, when they would be on their own and their parents could not get their hands on it. She felt that she and her son still hnhad a relationship, but she wanted nothing to do with him because he had chosen his wife over her. Decedent told Ms. Graves that the estate was “all handled, the lawyer has got it all.” Ms. Graves assumed that the important paperwork was in Mr. Hickey’s office or decedent’s safe.
Ms. Graves brought decedent home from the hospital for the last time on February 3, 2011, and she was never left alone until her death. The primary caregivers were Ms. Graves, Jimmy Lou Bates, and Albert Warren, with Bobby and Janice Long “in and out” all the time and Hermie McAlister coming to check on his friend. Ms. Graves said that Mr. Long and Mr. McAlister could be called when anything was needed.
Meredith Bastien, a friend who shared decedent’s interest in alternative medicine, testified that decedent talked often about dying and was open with everyone about cutting her son out of her will. Ms. Bas-tien relayed decedent’s feeling that Regina Whatley stole money from her the night decedent’s husband died, decedent’s saying many times that Ms. Whatley would not get a penny, and decedent’s wanting almost everything to go to her grandchildren because she felt she had been robbed of their lives during her life. Ms. Bastien described decedent as a strong-willed and resolute person who took care of business. Decedent told her toward the end of the last month of life that everything was in order and, within Ms. Bastien’s knowledge, never changed her mind about what she wanted done with her estate. Ms. Bastien was surprised to learn that the will was missing and testified that she would be shocked to learn that decedent had left her son anything.
Hermie McAister, decedent’s neighbor, testified that they had been friends for years |nand that he saw her at least every other day before she died. She mentioned in the last few weeks of life what she wanted to happen with her estate — eventually saying that she wanted her grandchildren to get it, that she had a will, and that what she wanted done was “all mapped out.” On Saturday before her death, she was excited that her grandson had been there, and she told Mr. McAister that they had a good time talking about cooking, fishing, and what they “could have done.” Her son had also been there; Mr. McAister asked her if that had changed anything, and she said “no.” Mr. McAis-ter was there again on Sunday when decedent was not doing nearly as well, and they had no more conversation about her estate or will.
Jimmy Lou Bates, decedent’s hairdresser and friend of forty-two years, did not personally know Ms. Graves until the two women stayed with decedent in the hospital through illnesses and surgeries. Decedent discussed with Ms. Bates on numerous occasions her relationship with Todd Whatley, saying that she did not want him to have a thing and wanted her grandchildren “to have what was left of her estate[.]” She told Ms. Bates that “everything was fixed” the way decedent wanted it and “the paperwork was in the safe.” In her last week, decedent kept telling Ms. Bates, Mr. and Ms. Long, and whoever was around that everything they would need was in the safe and that everything was handled. Ms. Bates asked after Mr. Whatley’s visit if any changes needed to be made and if the lawyer should be called; decedent replied, “Nope.” Until her last three days, when she became unable to speak, she kept telling Ms. Bates that everything was in the safe. She never told Ms. Bates that she had destroyed the will.
In Garrett v. Butler, 229 Ark. 653, 317 S.W.2d 283 (1958), Butler petitioned the probate court for restoration of a lost will in which decedent devised a large portion of his estate to Butler. A carbon copy of the will was introduced into evidence. There was proof that the will, written by decedent’s attorney, was properly executed and witnessed; that decedent had good reasons for making Butler his chief beneficiary; that nothing occurred to change or alter those reasons; and that decedent indicated to a disinterested witness shortly before his death that he expected Butler to have some control over his affairs after his death. There was a total absence of any testimony that decedent tried or wanted to make any changes or revoke his will, and there was opportunity during his last illness for people including his brother, an interested party who did not testify, to handle and destroy or misplace the will. Our supreme court wrote:
As was said in [Bradway v. Thompson, 139 Ark. 542, 214 S.W. 27, 33], in speaking of the problem facing the trial judge in this kind of a case: “It was not indispensable that he should determine what became of the will. It was enough that he should find that it was not revoked or cancelled by the testator.”
Garrett, 229 Ark. at 657, 317 S.W.2d at 285; see Thomas, 30 Ark.App. 152, 784 S.W.2d 173. The Garrett court concluded that the testimony and attending circumstances were sufficient to overcome the presumption that decedent’s will had been revoked.
In the present case, as in Garrett, the testimony and attending circumstances were sufficient to overcome the presumption of revocation. It was up to the circuit court to determine the credibility of the witnesses and the weight to be accorded their testimony. There was ample evidence that decedent was determined that her son inherit nothing upon her death; that she believed, and told many people, that her plans for distribution of her estate 113were taken care of; and that she, as well as relatives and friends attending her in her final days, believed the necessary papers were in her safe or her attorney’s office. This evidence argues against revocation or destruction of the will that insured her plan would be carried out, and it supports a conclusion that the will was in existence at the time of her death. It was not necessary that the circuit court determine what happened to decedent’s original will; it was enough that the court found that the will was not revoked or cancelled by her.
Affirmed.
GLADWIN, C.J., and WALMSLEY, J., agree. | [
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PER CURIAM.
| TAppellant, Samantha Villasaldo, by and through her attorney, H. Keith Morrison, has filed a motion for rule on clerk. The circuit court entered an order on June 11, 2013, terminating Villasaldo’s parental rights. Villasaldo filed a notice of appeal on June 24, 2013.
Pursuant to Arkansas Supreme Court Rule 6-9(d) (2013), in dependency-neglect cases, the record shall be filed with the Clerk of the Supreme Court within seventy days of the filing of the notice of appeal. Here, Attorney Morrison tendered the record on September 16, 2013, fourteen days after it was due.
Where an attorney candidly admits fault for failing to perfect an appeal, we will grant the motion for rule on clerk, and a copy of the opinion will be forwarded to the Committee on Professional Conduct. See McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). Attorney Morrison states in the motion that he accepts full responsibility for failing to ensure that the correct date was calculated for the record due date and for failing to timely lodge the | ¡¿record with the court. Accordingly, we grant the motion and forward a copy of this motion to the Committee.
Motion granted. | [
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KENNETH S. HIXSON, Judge.
hThe appellants in this case are Effie Collins and Collins Chapel Mortuary, Inc. (Collins Chapel). Ms. Collins was licensed as a funeral director, and she owns Collins Chapel, which held a funeral establishment license. The appellants’ licenses were previously revoked, and the appellants applied for reinstatement. After a hearing, the Board of Embalmers and Funeral Directors denied the appellants’ license applications. The circuit court affirmed the Board. In this appeal, Ms. Collins and Collins Chapel argue that the Board’s decision was not supported by substantial evidence, and that the decision was arbitrary and capricious. We affirm.
Our review of the decisions of administrative agencies is limited in scope. Ark. Bd. of Embalmers & Funeral Dirs. v. Reddick, 366 Ark. 89, 233 S.W.3d 639 (2006). With respect to issues of fact, the decisions on credibility and weight of the evidence is within the | ¡¡administrative agency’s discretion. Id. With respect to legal issues, administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. Id.
Pursuant to Arkansas Code Annotated section 25-15-212(h) (Repl.2002), the circuit court or appellate court may reverse the agency decision if it concludes that the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
The standard of review to be used by both the circuit court and the appellate court is whether there is substantial evidence to support the agency’s findings. Ark. Dep’t of Human Servs. v. Bixler, 364 Ark. 292, 219 S.W.3d 125 (2005). Thus, our appellate review is directed not to the circuit court’s decision, but rather to the decision of the administrative agency. Id.
In determining whether a decision is supported by substantial evidence, we review the record to ascertain if the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Zepecki v. Ark. Veterinary Med. Examining Bd., 2010 Ark. App. 187, 375 S.W.3d 41. The requirement that administrative action not be arbitrary or capricious is less demanding than the requirement that it be supported by substantial evidence. Capitol Zoning Dist. Comm’n v. Cowan, 2012 Ark. App. 619, 429 S.W.3d 267, 2012 WL 5353362. When an agency’s decision is supported by substantial evidence, it automatically follows that it cannot be classified as unreasonable or arbitrary. Id.
The lengthy procedural history of this case began in April 2008, when Ms. Collins’s funeral-director license was suspended and she was fined $1500. The Board imposed these sanctions after finding that Ms. Collins violated a statute by failing to file the death certificate of Fanny May Jackson after Ms. Collins and Collins Chapel handled her funeral in May 2007. The evidence showed that Ms. Collins ignored repeated contacts from the Division of Vital Records, requiring the Division to take the extraordinary step of issuing the death certificate under its own authority. Ms. Collins appealed the Board’s decision, and it was affirmed by the circuit court and then affirmed by the court of appeals. See Collins v. Ark. Bd. of Embalmers & Funeral Dirs., 2009 Ark. App. 498, 324 S.W.3d 716.
A subsequent complaint was made against Ms. Collins and Collins Chapel regarding the funeral services they provided for Jeffrey Hampton in November 2007. After a hearing, the Board entered a decision on July 24, 2008, finding that Ms. Collins committed numerous violations of state and federal law, including that the statement of goods and services selected, the general price list, and the outer-burial-containing price were all in noncompliance. The Board suspended Ms. Collins’s license for an additional year, and placed Collins Chapel’s establishment license on probation for two years. On appeal of that decision, the circuit court found substantial evidence to support the above violations, but found other findings unsupported and remanded to reconsider sanctions. Our record, however, does not contain any further action on those proceedings.
|4On June 3, 2009, the Board revoked both Ms. Collins’s and Collins Chapel’s licenses. Those revocations were based on the Board’s findings that, during Ms. Collins’s license suspension in August 2008, Ms. Collins acted as the funeral director and Collins Chapel handled the funeral of Charles Jefferson. In addition to finding that Ms. Collins acted as a funeral director without a license, the Board found that she committed other violations while handling the funeral, including misrepresentation and fraud. The revocations were appealed to the circuit court and affirmed on March 16, 2011.
In March 2011, Ms. Collins and Collins Chapel requested reinstatement of their funeral-director and funeral-establishment licenses. A hearing on these applications was scheduled for March 15, 2011, and was continued until May 24, 2011.
At the May 24, 2011 hearing, it was established that the Board had received complaints that Ms. Collins was acting as a funeral director after her license had been revoked. The Board had previously referred these complaints to the prosecutor, and on February 17, 2011, Ms. Collins pleaded nolo contendere to operating a funeral home without a license, for which she received a one-year suspended imposition of sentence. A newspaper dated September 9, 2009, was introduced into evidence, and it included two obituaries listing Collins Chapel as the provider of funeral services. Boyd Heath, an inspector for the State Board of Embalmers and Funeral Directors, and Captain Larry Robinson, a criminal investigator, testified that they observed Ms. Collins providing these funeral services in September 2009. These witnesses observed a casket being loaded from the Collins Chapel mortuary building into a hearse, and both witnesses observed graveside services being conducted by Ms. Collins. Also | ¿Introduced at the hearing was a letter from embalmer Rodney Williams to the Board, wherein Mr. Williams stated that Ms. Collins had listed him as the embalmer on several death certificates, but that he had never embalmed for Ms. Collins.
On August 15, 2011, the Board entered a decision denying Ms. Collins’s and Collins Chapel’s requests to have their licenses reinstated, specifically finding that Ms. Collins and Collins Chapel provided funeral services after their licenses were revoked. The appellants filed a petition for judicial review, and the circuit court entered an order affirming the Board’s decision on November 7, 2012, concluding that the Board’s decision was supported by substantial evidence. Ms. Collins and Collins Chapel now appeal to this court.
On appeal, Ms. Collins and Collins Chapel contend that the Board’s actions were an abuse of power and based on a petty grievance with an agenda to harm Ms. Collins. The appellants particularly take issue with Board members Effie Clay, Terry Woodard, and Garland Camper, arguing that these members poisoned the proceedings and were biased against Ms. Collins, engaging in an intentional course of conduct to deprive her of a license as a funeral director. The appellants also argue that the Board’s decision was based entirely on hearsay evidence, that she was denied due process and equal protection as guaranteed by the United States Constitution, and that she was a victim of sex discrimination. The appellants further note that Ms. Collins’s criminal record for operating a funeral home without a license was expunged in March 2012, and they assign error to the Board’s consideration of its prior orders of suspension and revocation and the findings contained therein. The appellants also dedicate a considerable portion of their brief to challenging the Board’s suspension of |fiMs. Collins’s license in April 2008. The appellants argue that the Board’s denial of them requests for reinstatement was unsupported by substantial evidence and was arbitrary and capricious, and therefore that the Board’s decision should be reversed.
Pursuant to Arkansas Code Annotated section 17-29-201 et seq. (Repl.2010), the Arkansas State Board of Embalmers and Funeral Directors is the state agency charged with the task of regulating the funeral-services profession, which includes licensure and regulation of funeral directors and funeral establishments. The Board is authorized to suspend or revoke licenses of funeral directors for violations of the licensing law under section 17-29-311, and to revoke establishment licenses under section 17-29-307. Ark. Bd. of Embalmers & Funeral Dirs. v. Richardson, 2009 Ark. App. 447, 2009 WL 1553632. Arkansas Code Annotated section 17-29-311(a)(9) provides that the Board may “refuse to issue or renew a license” upon a finding that the party in question has “[v]i-olated any provision of this subchapter.” Arkansas Code Annotated section 17-29-311(e) provides:
It shall be unlawful for any person, partnership, corporation, or association who has not been licensed or registered as specified in this subchapter to transact, practice, or hold himself or herself or itself out as transacting or practicing embalming or funeral directing or operating or maintaining a funeral establishment within this state.
Contrary to the appellants’ argument, in reaching its decision in this case as to whether to reinstate appellants’ licenses, it was relevant for the Board to consider the previous infractions against appellants resulting in their licensure suspensions and revocations. The record demonstrates that beginning in May 2007, the appellants engaged in a systematic course of committing violations, resulting in suspensions, probation, and ultimately revocation of their funeral-director and funeral-establishment licenses. Although appellants argue on appeal that |7Ms. Collins’s initial suspension in April 2008 was improper, that suspension was affirmed in a prior appeal to this court, and this argument is now barred by res judicata. See City of Fayetteville v. Fayetteville Sch. Dist. No. 1, 2013 Ark. 71, 427 S.W.3d 1 (res judicata precludes relitigation of a cause of action). The record shows that after the suspension Ms. Collins’s and Collins Chapel’s licenses were revoked for providing funeral services without a license, and in the hearing on appellants’ requests for reinstatement evidence was presented showing that even after their licenses were revoked the appellants continued to conduct funerals in violation of our statutes. In light of the pattern of violations and the appellants’ complete and intentional disregard of the Board’s prior orders of suspension and revocation, we have no hesitation in holding that the Board’s denial of appellants’ requests for licensure reinstatement was supported by substantial evidence and was not an arbitrary or capricious decision.
Although the appellants also argue on appeal that their constitutional rights were violated, most of these arguments, including Ms. Collins’s claim that she was a victim of sex discrimination, were not made to the Board and thus are not preserved for review. See Ark. Bd. of Exam’rs in Counseling v. Carlson, 334 Ark. 614, 976 S.W.2d 934 (1998) (It is essential to a review under the Administrative Procedure Act that issues must be raised before the administrative agency appealed from or they will not be addressed by the appellate court.). Moreover, there is nothing in this record to demonstrate any constitutional violations. |sMs. Collins did file a motion below for Board member Garland Camper to recuse, noting that he had previously resigned as Pulaski County Coroner and arguing that due process required that he recuse or be removed from the Arkansas State Board of Embalmers and Funeral Directors. However, employment as a county coroner is not among the requirements for any Board position, see Ark.Code Ann. § 17-29-201, and there was no evidence presented showing that Mr. Camper was unqualified to serve on the Board or biased against Ms. Collins. Although appellants also challenge on appeal the presence of Mr. Woodard and Ms. Clay as members of the Board, the record shows that Mr. Woodard recused himself from these proceedings, and there is nothing in the record showing that appellants asked Ms. Clay to recuse. Furthermore, there was no evidence presented to indicate that any Board member was biased against Ms. Collins as appellants now suggest. Finally, as to appellants’ argument that the Board’s decision was entirely based on hearsay, we observe that the Board heard direct testimony at the hearing that appellants were conducting a funeral without a license. Moreover, we have held that hearsay is normally admissible in administrative proceedings if it is reliable and probative. Ark. State Bd. of Nursing v. Long, 8 Ark.App. 288, 651 S.W.2d 109 (1983).
We conclude that none of the contentions presented by the appellants in this appeal are persuasive, and on this record we hold that the Board’s decision was supported by substantial evidence. Therefore, we affirm the decision of the Board.
Affirmed.
WALMSLEY and BROWN, JJ., agree.
. Although Ms. Collins's criminal record for operating a funeral home without a license was later expunged, the expungement was not before the Board because it came after the Board’s decision. Moreover, there was ample evidence outside of her criminal record to support the Board’s finding that Ms. Collins conducted funerals after her license had been revoked. | [
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ROBIN F. WYNNE, Judge.
11 Catherine Chester appeals from the circuit court’s order regarding Kevin Pil-cher’s visitation with their two minor children. She argues on appeal that Kevin failed to show a material change in circumstances, that she did show a material change in circumstances, and that even if there had been a material change in Kevin’s favor, increased visitation was not in the children’s best interest. We affirm.
The parties, who were never married, have two children — J.P. (born 9/29/2008) and D.C. (born 4/16/2010). On September 21, 2010, after an order of protection had been entered in a separate case, Catherine filed a petition for child custody, child support, and visitation in the domestic-relations division of the Hot Spring County Circuit Court. She sought an adjudication of paternity, continued child support, and supervised visitation for Kevin. Kevin responded, pointing out that J.P. already received monthly Social Security | ^benefits in the amount of $420 as a result of Kevin’s disability and arguing that he was a suitable parent entitled to normal and regular visitation.
On December 15, 2010, the court held a hearing on the motion. The court awarded custody of J.P. and D.C. to Catherine and set out a visitation schedule for Kevin, under which visitation would gradually increase as the children got older. The court also ordered that the full amount of each child’s benefits received due to Kevin’s disability should be paid to Catherine in fulfillment of Kevin’s duty to pay child support. The court’s rulings included the following:
The Court finds that the Defendant, Kevin Pilcher, shall have visitation with J.P. every other Saturday from 9:00 a.m. to 5:00 p.m. and every other Sunday from 9:00 a.m. to 5:00 p.m. until he turns 3 years old. At that time the Defendant shall have visitation every other Saturday at 9:00 a.m. until Sunday at 5:00 p.m. When J.P. turns 4 years old, Defendant shall have visitation every other weekend from 5:00 p.m. Friday to 5:00 p.m. Sunday.
The Defendant shall have two nonconsecutive weeks of Summer visitation when J.P. is 3 years old. When he turns 4, Defendant shall have three non-consecutive weeks. When he turns 5, Defendant shall have four weeks, but no more than two consecutive weeks at a time unless the parties agree otherwise.
The Defendant shall have visitation with D.C. every Saturday for two hours and every Sunday for two hours. When D.C. turns 1 year old, Defendant shall have every other Saturday and Sunday from 9:00 a.m. to 5:00 p.m. When D.C. turns 2, the Defendant shall have the same visitation guidelines for J.P. as set out above.
In August 2012, Catherine filed a motion for modification of visitation. She argued that Kevin’s visitation should be suspended based on the following changes in circumstance:
the Department of Human Services is currently conducting an investigation regarding alleged sexual abuse of the children; the Plaintiff fears that the children have been sexually abused at a time when the Defendant had visitation; that the Defendant lives 13with his sister, Amanda Lewis; that Amanda Lewis’ children have been allegedly removed from her custody due to abuse at her hands; that the Defendant is romantically involved with Verona Pilcher in the presence of the children; that the Defendant is allowing multiple males to reside in the home; that the mobile home that the Defendant lives in has subfloor with no covering due to dog urine ruining the carpet and is filthy and is littered with open alcoholic beverage containers despite a direct order from this Court to keep the home clean and not use alcohol in the children’s presence; the children have no beds at the Defendant’s home; that the Defendant continues to have pit bull dogs despite a direct order from this Court not to; when the Defendant returns the children to the Plaintiff they are unkempt and in urine soaked clothing and diapers despite the Plaintiff providing the Defendant with diapers multiple times; the children have come back home ill on several occasions; the Defendant refuses to follow Doctor’s orders, including not withholding soda and solid foods following a yeast infection and removal of tonsils because he says, “all doctors are quacks”; the Defendant refuses to use a car seat to transport the children despite the Plaintiff loaning him a car seat multiple times; the Defendant transports the children in a car that is unsafe; the Defendant teaches the children to punch, hit and be disrespectful and return cussing; the Defendant uses the F-word in the children’s presence and calls the minor child Fat A* *; the Defendant admitted to the Plaintiff that he tested positive for THC on a recent drug test conducted by DHS; among other issues and facts.
Catherine asked that Kevin’s visitation be suspended until the DHS investigation was complete and until he proved that his home was safe and suitable and that he was drug-free. Kevin responded to the motion for modification of visitation and included a countermotion for contempt. He denied Catherine’s allegations and asked the court to hold her in contempt for violating the court’s ruling by suspending his visitation privileges. He amended his motion for contempt to include the allegation that Catherine had filed a false report against him with DHS and asked that the court grant him visitation with both children “at the same time rather than the graduated visitation schedule as ordered in the hearing” in December 2010.
On November 27, 2012, the court held a hearing on Catherine’s motion for modification of visitation and Kevin’s countermotion for contempt. At that time, the 14children were four and two-and-a-half years old. Catherine testified that the children had last seen their father on June 24, 2012. After that visit, she suspected that D.C. had been sexually abused; she took him to a hospital for examination, the police were contacted, and Catherine suspended visitation and contacted DHS. She later suspected that J.P. had also been sexually abused. Catherine testified that she had other concerns about the visitations, including the following health concerns: the children being exposed to cigarette smoke despite D.C. having bronchitis; J.P. coming home having had only an apple and some crackers to eat all day; consistently feeding the children non-nutritious food; feeding J.P. hard cookies the day after having his tonsils removed; and refusing to follow the doctor’s orders that J.P. should only be allowed to drink milk or water for three months due to a yeast infection of his esophagus.
In addition, Catherine testified that Kevin had people living in his home that caused her concern. She stated that Jimmy Dyer, who was an alcoholic and illegal-drug user, was living there, as was Amanda Lewis, who had been arrested for prostitution. Catherine objected to him living with someone with whom he was romantically involved but not married to. In addition, she testified that another man lived in the mobile home, as did Debbie Griger and her husband and three children. Catherine stated that “it’s whoever has money comes to stay there.” Catherine also asserted that the home and yard were not clean. She submitted pictures of the outside of the home, with trash in the yard and beer cans on the porch, which she said she had taken in October 2011. Additional pictures showed the cracked windshield of a truck that Catherine alleged Kevin had been driving the children in, a pit bull chained in the yard, and a child’s cup that had mold floating in it. Catherine Istestified regarding the conditions inside the mobile home. She also testified that the children were coming home dirty and sick after visiting their father; after the visits had stopped, the children were not getting sick. She testified that the children were misbehaving and using profanity after coming home from their father’s house; she offered several pages from Kevin’s Facebook page in which he had posted profanity-laden comments, some about Catherine, and a similarly profanity-laden recording of a message Kevin had left on her phone. On cross-examination, Catherine acknowledged that she had not seen Kevin’s home since June.
Kevin’s cousin, Debbie Griger, testified that she had signed an affidavit on October 80, 2012, about the condition of Kevin’s three-bedroom, two-bath mobile home. She stated that the home had been full of bed bugs and roaches when she and her family lived with Kevin, but they moved out in September 2012 and she believed that he had since taken care of it.
Catherine’s husband, David Chester, testified that he and Catherine married in 1992 and had two children together, who were now seventeen and nearly fifteen. After about twelve years of marriage, they divorced and were apart for about five years, but they had remarried in August 2012. His biggest concern with his stepchildren was that J.P. was acting inappropriately in a sexual way at the age of three. These incidents happened three or four times, toward the end of the visits with their father. Other concerns included that the children were sick a lot, that they used inappropriate language, and that they were aggressive — hitting, screaming, and yelling were the main ways they communicated.
%6 6Catherine’s father, David Overturf, also testified that, upon coming home from visiting their father, the children were violent and used bad language, including calling their mother bad names.
Kevin testified that his little sister Rachel and his nephew lived with him at the time of the hearing. He stated that he had a lot of close friends come over to visit, sometimes staying the night or spending short periods of time there. Kevin testified that he did not think it would matter because he did not get much visitation. He explained why the trash was in his yard and testified that he had hauled it away nearly two years before. Kevin testified that he had not had any alcohol in his house since his father died nearly three years before. He denied telling Catherine that he had tested positive for THC. Kevin introduced documentation from the Arkansas State Police Crimes Against Children Division. The first (dated August 6, 2012) was a notice that the allegation of sexual abuse of D.C. involving Kevin, which was reported on June 29, 2012, was unsubstantiated. The second (dated September 6, 2012) was a notice that the allegation of sexual abuse of J,P. involving Kevin, which was reported on August 6, 2012, was unsubstantiated.
In an order entered December 3, 2012, the court denied Catherine’s motion to modify visitation, found her in contempt for violating the visitation order but did not issue any punishment, granted Kevin visitation with both children from 5:00 p.m. Friday to 5:00 p.m. Sunday every other weekend beginning November 30, 2012, enjoined the parties from saying anything negative about each other in the children’s presence, granted Kevin one extra weekend of visitation a month from December 2012 to May 2013, and changed D.C.’s surname to Pilcher. On December 17, 2012, the court entered an amended order regarding j7the initial custody and visitation determination; the only change from the order entered on November 6, 2012, was a correction of the date of the initial hearing to reflect the correct date of December 15, 2010.
Catherine filed a notice of appeal from the December 3 order on December 20, 2012. She filed an amended notice of appeal on January 8, 2013, stating that she was appealing both the December 3 and December 17 orders of the court.
Our supreme court recently set out the standard of review applicable to child-visitation cases:
In reviewing domestic-relations cases, appellate courts consider the evidence de novo. We will not reverse the circuit court’s findings unless they are clearly erroneous. When the question of whether the circuit court’s findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the circuit court to evaluate the witnesses, their testimony, and the child’s best interest.
A circuit court maintains continuing jurisdiction over visitation and may modify or vacate those orders at any time when it becomes aware of a change in circumstances or facts not known to it at the time of the initial order. Although visitation is always modifiable, to promote stability and continuity for the children and to discourage repeated litigation of the same issues, courts require more rigid standards for modification than for initial determinations. Thus, the party seeking a change in visitation has the burden to demonstrate a material change in circumstances that warrants such a change.
The primary consideration regarding visitation is the best interest of the child. Important factors the court considers in determining reasonable visitation are the wishes of the child, the capacity of the party desiring visitation to supervise and care for the child, problems of transportation and prior conduct in abusing visitation, the work schedule or stability of the parties, and the relationship with siblings and other relatives. Fixing visitation rights is a matter that lies within the sound discretion of the circuit court.
Brown v. Brown, 2012 Ark. 89, at 6-7, 387 S.W.3d 159, 163 (quoting Baber v. Baber, 2011 Ark. 40, at 9-10, 378 S.W.3d 699, 705) (internal citations omitted).
|J. Material Change in Circumstances
Catherine argues on appeal that the trial court clearly erred in modifying visitation in Kevin’s favor. Catherine contends that Kevin failed to show a material change in circumstances and that she did show a material change in circumstances warranting a decrease in visitation. Catherine believes that the trial court’s order increased Kevin’s visitation with D.C.; however, Catherine errs in assuming that the court increased Kevin’s visitation.
In its ruling from the bench, the trial court made it clear that Kevin would “resume the visitation schedules with both children as set out in the Order that was entered pursuant to the December 15, 2012 hearing.” The pertinent part of the trial court’s December 2010 ruling provides, after setting out the above-referenced graduated visitation schedule for J.P.:
The Defendant shall have visitation with D.C. every Saturday for two hours and every Sunday for two hours. When D.C. turns 1 year old, Defendant shall have every other Saturday and Sunday from 9:00 a.m. to 5:00 p.m. When D.C. turns 2, the Defendant shall have the same visitation guidelines for J.P. as set out above.
The trial court interpreted this order to mean that, at the age of two, D.C. would have the same visitation as his older brother J.P. As a general rule, judgments are construed like any other instruments; the determinative factor is the intention of the court, as gathered from the judgment itself and the record. Magness v. McEntire, 305 Ark. 503, 506, 808 S.W.2d 783, 784 (1991). From our review of the language in the initial visitation-and-custody order, we cannot say that the trial court misconstrued that order.
The extra weekend visitation that the court granted Kevin from December 2012 to May 2013 is irrelevant for our purposes because it has already taken place. Therefore, whether the trial court erred in granting that visitation is moot. Our supreme court has explained:
IflAs a general rule, the appellate courts of this state will not review issues that are moot. See Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). To do so would be to render advisory opinions, which this court will not do. See id. We have generally held that a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. See id. In other words, a moot case presents no justicia-ble issue for determination by the court. See Shipp v. Franklin, 370 Ark. 262, 258 S.W.3d 744 (2007).
That being said, we have recognized two exceptions to the mootness doctrine, one of which involves issues that are capable of repetition, yet evade review. See Honeycutt v. Foster, 371 Ark. 545, 268 S.W.3d 875 (2007). The other mootness exception concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. See id.
Terry v. White, 374 Ark. 387, 391-93, 288 S.W.3d 199, 202-03 (2008). Neither exception to the mootness doctrine applies in the present case. In summary, there was no modification of the initial visitation order, and appellant’s argument that Kevin failed to show a material change in circumstances has no merit.
Catherine’s argument that the trial court clearly erred in not modifying visitation to decrease Kevin’s visitation also fails. The trial court weighed the evidence that Catherine presented and found that “few, if any, of the allegations that [Catherine] has made are substantiated by the evidence.” The court went on to state that the best evidence before the court on the sexual-abuse allegations — DHS’s investigation — was that they were unfounded. The court did not credit Catherine’s assertions that the children’s illnesses or aggressive behavior could be attributed to Kevin. In sum, the trial court weighed the evidence and assessed the credibility of the witnesses, and this court defers to the trial court on those matters. Therefore, we affirm on this point.
[i0II. Best Interest
Next, Catherine argues that even if there had been a material change in circumstances favorable for Kevin, increasing visitation was not in the children’s best interest. Essentially, while acknowledging that there are no “magic words” that the circuit court was required to use, she argues that the trial court failed to consider the best interest of the children in modifying the visitation schedule. As noted above, the trial court did not modify the visitation schedule. Furthermore, we are not convinced that the trial court failed to consider the best interest of the children.
Affirmed.
HARRISON and BROWN, JJ., agree.
. The circuit court's rulings were not reduced to a written order until November 6, 2012, at which point a different judge was presiding over the case. | [
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COURTNEY HUDSON GOODSON, Justice.
| Appellants Charlotte Hall Hardin, Troy Gentry Guthrey, and Entergy Arkansas, Inc., appeal an order of the Jefferson County Circuit Court granting summary judgment in favor of appellee India Bishop. For reversal, appellants argue that the circuit court erred in its ruling and in dismissing appellants’ claims for double damages, pursuant to Arkansas’s fire-prevention statute found at Arkansas Code Annotated section 20-22-304 (Repl.2005). We accepted certification from the court of appeals and have jurisdiction pursuant to Arkansas Supreme Court Rule l-2(b)(6) (2013). We reverse and remand for further proceedings.
In March 2011, Randy Wardlaw, Bishop’s ex-husband and the father of Bishop’s two children, lived in a rental house on Bishop’s property located east of Pine Bluff. The two were married from 1969 to 1975 and remained close friends over the years. Wardlaw occasionally performed tasks for Bishop, who had been ill, and these tasks included cleaning out ditches, bush-hogging, weed eating, and grading on her property. On March 11, 2011, | ^Wardlaw burned dead vegetation in a drainage ditch on Bishop’s property. Bishop’s farmland adjoined property, including several permanent structures, that belonged to her sister, Hardin. The fire burned out of control and spread onto the premises of American Tire & Truck Repair, a building owned by Hardin and rented to Guthrey for his business, where it caused a $326,000 loss, and the fire also destroyed $12,977.42 in electrical equipment owned by Entergy that was stored inside the building.
Subsequently, appellants Hardin and Guthrey filed a complaint against Bishop and Wardlaw alleging Wardlaw’s negligence and sought to recover damages, including double-damage recovery, pursuant to section 20-22-304. Bishop answered and filed a motion for summary judgment, claiming that no question of material fact existed because Wardlaw caused the damages. She also asserted that Wardlaw was not her agent and that she could not be held liable for his actions. Alternatively, Bishop moved for partial summary judgment on the issue of double damages and requested the court to rule that section 20-22-304 did not apply to her case. With her motion for summary judgment and brief in support, Bishop attached (1) appellants’ complaint, (2) excerpts from Ward-law’s deposition, (3) excerpts from her own deposition, and (4) a letter from Hardin and Guthrey’s counsel.
Appellants responded that Bishop’s motion for summary judgment included questions of fact relating to (1) whether a principal-agent relationship existed between Bishop and Wardlaw, (2) whether Bishop breached her duty as a property owner by allowing ultra-hazardous activity on her property, and (3) whether Bishop could be held strictly liable for the damages caused by hazardous activity. In support, appellants attached Wardlaw’s ^deposition testimony stating that he started the fire to clean a ditch on Bishop’s property; that he did such things for her from time to time; that she would tell him if she did not want him to do something; that he box-bladed and bush-hogged her parking lots and properties; that she did not pay him because it would endanger his unemployment check; that he had previously burned her property as a way of cleaning it; that he was sure that Bishop was aware of the fact that he burned the property; and that he did not think that any burning was outside his authority. In addition to Wardlaw’s deposition, appellants attached an affidavit from Royce Heritage, who stated that Wardlaw told him that Bishop had told him to set the fire. Appellants attached other exhibits, which included Hardin’s affidavit with an attached aerial photograph; an affidavit of Hardin’s husband, T.C. Hardin; a loss estimate on the American Tire & Truck Repair building; an itemized valuation of the inventory and equipment destroyed by the fire; Wardlaw’s conviction record; appellants’ second amended and substituted complaint; and Bishop’s deposition testimony. Additionally, after Bishop filed her motion for summary judgment, appellant Entergy intervened, alleging damages totalling $12,977.42. Appellant Entergy moved to have Bishop’s motion for summary judgment deemed filed against it and to adopt the responses and arguments of other appellants.
On September 14, 2012, after a hearing on the matter, the circuit court entered a default judgment against Wardlaw, ordering him to pay Hardin $228,900 plus costs and to pay Guthrey $453,750 plus costs and interest. Additionally, on September 25, 2012, the circuit court entered an order generally granting Bishop’s motion for summary judgment but |4did not offer a specific basis for its ruling. The circuit court also entered an order granting summary judgment against appellant Entergy. Appellants timely filed a notice of appeal with the court of appeals.
We accepted certification of this case from the court of appeals because of an issue presented by Bishop. In her brief, Bishop argues that appellants failed to obtain a ruling from the circuit court on the issues raised in their appeal, and therefore, this court is procedurally barred from addressing the merits of appellants’ appeal. Specifically, Bishop contends that appellants failed to obtain a ruling from the circuit court because it merely found that no genuine issues of material fact existed. It is true that, in its order, the circuit court generally granted Bishop’s motion for summary judgment without ruling specifically on the arguments presented in the parties’ motions, briefs, and oral arguments. Although the circuit court did not expressly state the basis for its grant of summary judgment, the primary argument advanced below by Bishop was that she could not be held liable to appellants because Wardlaw did not act as her agent at the time of the fire. Appellants assert that summary judgment was improper because the issue of whether Wardlaw acted as an agent for Bishop was a genuine issue of material fact yet to be determined.
The circuit court granted summary judgment pursuant to Arkansas Rule of Civil Procedure 56 (2012), which provides as follows:
(2) The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law on the issues specifically set forth in the motion.
| [¡(Emphasis added.) In accomplishing its review of a summary-judgment motion, the circuit court is not required to make findings of fact and conclusions of law, pursuant to Rule 52(a) of the Arkansas Rules of Civil Procedure. Rule 52(a) plainly states that “[fjindings of fact and conclusions of law are unnecessary on decisions of motions under these rules.” Ark. R. Civ. P. 52(a) (2013). However, when a case does not involve a motion, we typically adhere to our well-established principle that the failure to obtain a ruling on an issue at the trial court level precludes a review of the issue on appeal. Technical Servs. of Ark, Inc. v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995); Parmley v. Moose, 317 Ark. 52, 876 S.W.2d 243 (1994).
In the present case, Bishop raised the sole ground of agency in her motion for summary judgment and, as an alternative ground for partial summary judgment, the issue of double damages. The parties clearly raised the agency issue in motions before the circuit court and attached exhibits in support. The parties also argued the issue to the court at the summary-judgment hearing. As a result, the circuit court’s order states that it made its findings “[biased upon the adopted pleadings and argument of counsel” in ruling that “no genuine issue of material facts exists.” Thus, the circuit court’s grant of summary judgment encompassed the sole issue of agency presented to it in the motions, briefs, and arguments by counsel at the hearing. Because it granted summary judgment on agency, the court did not need to rule on the alternative ground of damages. Therefore, pursuant to Rule 52(a), we conclude that the circuit court was not required to make specific findings of fact and conclusions of law, and the failure to do so does not preclude our appellate review of the order granting summary judgment.
| fiHowever, we recognize a line of summary-judgment cases in which the circuit courts have granted summary judgment, and on appeal, we have held that, because the circuit courts made no specific ruling on numerous claims, we were precluded from considering the issues on appeal. See e.g., In re Estate of Keathley, 367 Ark. 568, 242 S.W.3d 223 (2006); Hanks v. Sneed, 366 Ark. 371, 235 S.W.3d 883 (2006); Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997). To the extent that those cases and their progeny are inconsistent with the holding in the present case, we overrule them. See Jackson v. Ivory, 358 Ark. 847, 862, 120 S.W.3d 587, 596 (2008) (holding that a circuit court’s order stating that “[t]here was no genuine issue as to any material fact” was sufficient to preserve appellant’s issue on appeal when the issue had been presented to the circuit court).
We now reach the merits of appellants’ arguments. For the first point on appeal, appellants argue that the circuit court erred in granting Bishop’s motion for summary judgment on the basis that no genuine issue of material fact existed. Appellants claim that, notwithstanding Bishop’s assertions, there was ample proof to create a jury question that an agency relationship existed between Bishop and Wardlaw. In response, Bishop contends that the circuit court properly granted her motion 'for summary judgment, finding that she could not be vicariously liable for the alleged negligent acts or omissions of Wardlaw.
The law is well settled that summary judgment is to be granted by a circuit court only 17when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Harrisburg Sch. Dist. No. 6 v. Neal, 2011 Ark. 233, 381 S.W.3d 811. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. Cent. Okla. Pipeline, Inc. v. Hawk Field Servs., LLC, 2012 Ark. 157, 400 S.W.3d 701.
A party asserting the existence of an agency relationship has the burden of proving that an agency relationship exists. Taylor v. Gill, 326 Ark. 1040, 934 S.W.2d 919 (1996). The two essential elements of an agency relationship are (1) that an agent have the authority to act for the principal, and (2) that the agent act on the principal’s behalf and be subject to the principal’s control. Pledger v. Troll Book Clubs, Inc., 316 Ark. 195, 871 S.W.2d 389 (1994). Ordinarily, agency is a question of fact to be determined by the jury; but where the facts are undisputed, and only one inference can be reasonably drawn from them, it becomes a question of law. Campbell v. Bastian, 236 Ark. 205, 365 S.W.2d 249 (1963). Agency can be proved by circumstantial evidence, if the facts and circumstances introduced into evidence are | ssufficient to induce in the mind of the finder of fact the belief that the relation did exist and that the agent was acting for the principal in the transaction involved. Id. Mere relationship or family ties, unaccompanied by any other facts or circumstances, will not justify an inference of agency, but such relationship is entitled to great weight, when considered with other circumstances, as tending to establish the fact of agency. Schuster’s, Inc. v. Whitehead, 291 Ark. 180, 722 S.W.2d 862 (1987); Braley v. Arkhola Sand & Gravel Co., 203 Ark. 894, 159 S.W.2d 449 (1942).
Bishop relies on Taylor, supra, for the proposition that the question of agency between appellant Taylor and the tortfeasor, Willis, survived summary judgment and went to the jury. In Taylor, the circuit court denied summary judgment and allowed the question of agency between Taylor and Willis to go to the jury. This court reversed, holding that, as a matter of law, Taylor’s degree of control over Willis was not enough to qualify as an agent. Id. However, the case at bar is distinguishable from Taylor, supra, because of its procedural posture. We have stated that the object of summary-judgment proceedings is not to try the issues, but to determine if there are any issues to be tried. Walls v. Humphries, 2013 Ark. 286, 428 S.W.3d 517. The standard is whether there is evidence sufficient to raise a factual issue, rather than evidence sufficient to compel a conclusion on the part of the fact-finder. Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998). Here, the circuit court determined that there were no issues to be tried, and as a result, a jury never heard the facts or applied agency principles because the circuit court granted summary judgment. Therefore, Taylor, supra, is inapplicable in our review of the case at bar.
| gIn the present case, appellants met proof with proof and demonstrated the existence of a material issue of fact as required by this court in summary-judgment cases. Couch v. Farmers Ins. Co., Inc., 375 Ark. 255, 289 S.W.3d 909 (2008); Gray v. Mitchell, 373 Ark. 560, 285 S.W.3d 222 (2008). In doing so, appellants presented the following exhibits in response to Bishop’s motion for summary judgment. First, appellants cited Wardlaw’s deposition testimony stating that he and Bishop were best friends. Wardlaw testified that he burned Bishop’s land to clean it, performed bush-hogging, and used a box blade to grade Bishop’s parking lots and roads. He admitted that he had burned off the same area one to two years ago and that he did not tell Bishop about the burning on her property but that she would have seen the results. Wardlaw also admitted that if Bishop had paid him, it would have endangered his unemployment check. Second, Royce Heritage, a witness to the fire, swore in an affidavit that Ward-law told him on the day of the fire that Bishop had instructed him to set the fire. Third, appellants presented deposition testimony from Bishop stating that Wardlaw would have needed her permission to conduct a dangerous activity such as burning tall grass or brush. Thus, a factual question regarding Bishop’s authorization and control over Wardlaw remains to be answered. Based on this conflicting testimony, we conclude that genuine issues of material fact exist regarding the issue of whether Wardlaw acted as an agent of Bishop. For these reasons, we hold that the circuit court improperly granted Bishop’s motion for summary judgment. Accordingly, we reverse and remand for further proceedings.
For the second point on appeal, appellants argue that the circuit court erred in dismissing their claims for double damages. Because we reverse and remand for further | ^proceedings on the issue of agency, we decline to reach the merits of appellants’ claims for double-recovery argument, pursuant to section 20-22-304. Thus, the issue of damages is not ripe for our review, and we reverse and remand for further proceedings.
Reversed and remanded.
BAKER, J., concurs.
. We do not implicate our holding in Arkansas Lottery Commission v. Alpha Marketing, 2012 Ark. 23, 386 S.W.3d 400, where we held that the circuit court’s failure to make an express ruling on the issue of sovereign immunity precluded the Commission from immediately appealing the order. In that case, sovereign immunity was the basis of our juris diction, and as such, that finding was necessary for our review. | [
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RITA W. GRUBER, Judge.
The issue presented in this ease is whether Cubiches Bay (hereinafter sometimes referred to as “the Bay”) is naviga ble. The Prairie County Circuit Court found that it was. Appellants, Henry Nichols and Regions Bank — trustees for Alpha Trust (hereinafter, “Alpha Trust”) which owns most of the land on both sides of Culotches Bay — contend that the circuit court’s determination is clearly erroneous and should be reversed. We affirm the circuit court’s order.
Culotches Bay is approximately 7.4 miles long and up to several hundred feet wide in the part that runs through Alpha Trust’s land. The Bay drains into a narrow ditch, approximately 1.4 miles long, which then empties into the Cache River. The only public entry point is near the Cache River at the Broadwater Access. From there, one must take a boat up a narrow, shallow waterway, or ditch, to get to the Bay. The dispute about the Bay’s navigability began in March 2007, when appellee, Culotches Bay Navigation Rights Committee, LLC, filed a petition for declaratory judgment against Alpha Trust. Appellee, whose members are residents of Prairie County, alleged that Culotches Bay was and had been a navigable stream for over one hundred years. Appellee claimed that Alpha Trust had posted signs where the Bay intersected its property declaring all waters beyond the signs to be the property of Alpha Trust. Disagreeing with Alpha Trust that the Bay was private property, appellee sought a declaration that Culotches Bay was navigable and thus public property.
We rendered a decision in this case in 2009 on Alpha Trust’s appeal from the circuit court’s order granting summary judgment, in which the court found that Culotches Bay was navigable and open to the public. See Nichols v. Culotches Bay Navigation Rights Comm., L.L.C., 2009 Ark. App. 365, 309 S.W.3d 218. In that appeal, we reversed the part of the circuit court’s order granting summary judgment to appellee. On remand, the circuit court held a bench trial and found Culotches Bay navigable, and Alpha Trust filed this appeal.
To determine the navigability of a stream, the court must essentially decide whether the stream is public or private property. State v. McIlroy, 268 Ark. 227, 234, 595 S.W.2d 659, 663, cert. denied, 449 U.S. 843, 101 S.Ct. 124, 66 L.Ed.2d 51 (1980). This determination is a question of fact. Ark. River Rights Comm. v. Echubby Lake Hunting Club, 83 Ark.App. 276, 285, 126 S.W.3d 738, 743 (2003). For years in Arkansas, a water’s navigability depended on its public commercial usefulness. See Lutesville Sand & Gravel Co. v. McLaughlin, 181 Ark. 574, 26 S.W.2d 892 (1930). Navigability was defined in Lutesville Sand & Gravel Co. as follows:
The true criterion is the dictate of sound business common sense, and depends on the usefulness of the stream to the population of its banks, as a means of carrying off the ^products of their fields and forests, or bringing to them articles of merchandise. If in its natural state, without artificial improvements, it may be prudently relied upon and used for that purpose at some seasons of the year, recurring with tolerable regularity, then, in the American sense, it is navigable, although the annual time may not be very long.
Lutesville Sand & Gravel Co., 181 Ark. at 576-77, 26 S.W.2d at 893 (quoting Little Rock, Miss. River & Tex. R.R. Co. v. Brooks, 39 Ark. 403 (1882)). But in McIlroy, the supreme court expanded the definition of navigability to include consideration of the water’s recreational use as well as its commercial use. McIlroy, 268 Ark. at 237, 595 S.W.2d at 665. McIlroy concerned the navigability of the Mulberry-River. After stating that the facts proved that the Mulberry River was capable of recreational use and had been used “extensively for recreational purposes,” the court held that the section of the Mulberry River at issue in the case “can be used for a substantial portion of the year for recreational purposes” and was therefore navigable. Id. In Mcllroy, the evidence illustrated that, for about fifty to fifty-five miles of its length, the Mulberry River could be floated by canoe or flatbottomed boat for at least six months a year. The Ozark Society sponsored numerous float trips on the river; over twenty witnesses testified that they had either swum in or floated the river for years; Arkansas Game and Fish had published a pamphlet in 1978 touting the Mulberry as Arkansas’s finest white water-float stream and as an excellent habitat for small-mouth bass; and the director of Arkansas State Parks and Tourism testified that he considered the Mulberry open to the public. Although the supreme court has since recognized that it extended the definition of navigable waters to those waters suited only for recreational purposes, see State v. Hatchie Coon Hunting & Fishing Club, Inc., 372 Ark. 547, 556, 279 S.W.3d 56, 62 (2008), the court has not had the opportunity to further explain exactly how much recreational use is required to meet the threshold for navigability.
Alpha Trust argues on appeal that the evidence of recreational use in this case did not rise to the level of use found in Mcllroy, and thus that the circuit court clearly erred in finding that Culotches Bay was navigable. To prove recreational use, appellee put on the testimony of five witnesses, each of whom testified that they had fished on Culotches Bay for years. Rayford Jenkins, who was eighty-six years old at the time of the trial, testified that he had fished on the Bay, sometimes daily depending upon the time of year, for twenty or twenty-five years; however, he said that he had not fished on Culotches Bay since 1975 because of arthritis.
Manuel Holcomb, sixty-eight years old at the time of trial, testified that he lived near Culotches Bay in the 1940s and 1950s and swam, boated, and fished in the Bay with friends “every chance [he] got.” He said that he often saw people there, particularly on the weekends, and that a lot of people had trot lines on the Bay. He testified that he had a cabin near the Bay and that before he retired in 1979, he fished in the Bay about once a month. Since retirement, he said that he was there about three times a week and that he had always been able to get his boat into the Bay either by motor or by pulling it over the shallow part of the ditch. He said he had only pulled the boat “three or five” times out of “fifty or a hundred” times. He testified that he had seen others fishing every time he had fished in the Bay.
Billy Don Johnson testified that he was fifty years old and that he and his family had farmed the Brileys’ land, which adjoins Culotches Bay, all of his life. He testified that he had not been on the Bay in twenty years but that he had been on the Bay probably twenty times when he was younger either fishing or duck hunting. He said that before Alpha Trust blocked access to the Bay, people were frequently in the Bay fishing.
Jesse Tackett testified that he had lived in the area for his entire sixty-eight years, that he had been familiar with Culotches Bay for as long as he could remember, and that he had fished on the Bay when he was younger. He also said he had been fishing on the Bay for over thirty years, that he used to fish ten or twelve times a year, and that he had not fished on the Bay much in the past two or three years. He testified that the fishing on the Bay was good and that he generally saw about eight or ten other people fishing on the weekends when he was there. He said he accessed the Bay by using the boat landing on the Cache River and motoring through the shallow part of the Bay. Although he admitted that it would be hard to get into the Bay if the Cache River was below four feet, he said he had never had any problems getting to the Bay in his boat.
Kelly Sanner testified that he was forty-six years old and grew up fishing on the Bay. He said that he had been on Cu-lotches Bay in each of his forty-six years and that he had accessed the Bay with permission of landowners on the Bay. He said that how many people fished the Bay depended upon how good the fishing was. He testified that sometimes, when the fishing was good, there were three or four boats, and sometimes there were five or six boats. Mr. Sanner testified that he had also used the Broadwater Access about fifty times over the past few years and that for about ten months a year a boat could get through to the Bay with no problem. He admitted that the water was shallow, there were logs in the waterway, and he had to be careful, but he testified that he had only turned his boat around twice in his life from the Broadwater Access because it was too shallow to get to the Bay.
Lance Nichols, a beneficiary of Alpha Trust and the manager of the farm owned by the Trust, testified that people did fish on Culotches Bay before Alpha Trust posted the signs on the property and admitted that it was often a good place to fish. He said that the Bay remained muddy much of the year, however, which made it hard to fish. He testified that a person could put a boat in at the Broadwater Access but that log jams would prevent the boat from being able to motor up to Culotches Bay unimpeded without raising the motor. He testified that for about forty percent of the year, a boat could motor up the ditch from the Broadwater Access unimpeded.
Alpha Trust’s witnesses also testified that they had fished on Culotches Bay. Walter Kendricks, who was employed by Alpha Trust to oversee and maintain the farm, testified that, about thirty to forty percent of the time, water levels were deep enough for a boat to motor from the Cache River to Culotches Bay. He said that when the water was high enough for a boat to motor up, he would see “at the most” four or five boats on the Bay. He also testified that he believed the Bay had “silted in” and was shallower than it used to be. He admitted that he had fished Cu-lotches Bay for thirty years, long before he began working for Alpha Trust.
James Lowe, who takes care of the Bri-ley Farm next to Alpha Trust’s property on the Bay, testified that he went to the farm every day in the winter and three or four times each week in the summer. He said that, other than landowners, he would generally see a boat traveling the waterway from the Broadwater Access once or twice a year. He testified that the waterway from the Cache River was a little over a mile long and obstructed by trees and brush and that he did not consider it to be physically navigable by boat.
The circuit court heard all of the testimony and found that Culotches Bay was “regularly fished and hunted on for most of each year by a significant number of people and has been for over 60 years.” The court also found that the continuing use of Culotches Bay by the public was in accord with the public policy of this state to encourage use of its water courses for useful and beneficial purposes. Accordingly, the court found that Culotches Bay was navigable.
Navigability, which is a question of fact, depends upon the usefulness of the waterway to the public. McIlroy, 268 Ark. at 237, 595 S.W.2d at 665. Our standard of review on appeal from a bench trial is whether the trial judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Carpenter v. Layne, 2010 Ark. App. 364, 374 S.W.3d 871; Ark. R. Civ. P. 52(a). Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder. McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 249, 961 S.W.2d 729, 733 (1998).
The supreme court held in Mcllroy that use solely for recreational purposes was sufficient to establish navigability and recognized the following definition for navigability: “If in its natural state, without artificial improvements, it may be prudently relied upon and used for that purpose at some seasons of the year, recurring with tolerable regularity, then, in the American sense, it is navigable, although the annual time may not be very long.” McIlroy, 268 Ark. at 235, 595 S.W.2d at 663 (quoting Lutesville Sand & Gravel Co., 181 Ark. at 577, 26 S.W.2d at 893). In this case, we hold that the testimony supported the court’s determination. If believed, and credibility is a matter for the fact-finder, the testimony established that members of the public regularly fished on Culotches Bay and had been doing so for over sixty years. Thus, we hold that the circuit court’s finding that the Bay could prudently be relied upon with tolerable regularity to be used for recreational purposes is not clearly erroneous. Accordingly, we affirm the circuit court’s order.
Affirmed.
VAUGHT, C.J., and PITTMAN, J., agree. | [
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COURTNEY HUDSON GOODSON, Justice.
| ¡Pursuant to a certification under Rule 54(b) of the Arkansas Rules of Civil Procedure, appellant Ronnie Taylor, as special personal representative of the estate of L.C. Taylor, deceased, and on behalf of the wrongful-death beneficiaries of L.C. Taylor (Ronnie), appeals the orders entered by the Union County Circuit Court granting the motions to dismiss presented by appel-lees MCSA, LLC, d/b/a/ Medical Center of South Arkansas; Courtyard | Rehabilitation and Health Center, LLC; SA Eldercare, LLC; JEJ Investments, LLC; Union Assets, LLC; Summit Health Resources, LLC; ProCare Therapy Services, LLC; John Ponthie; Ross M. Ponthie; and Mark Thompson. For reversal, Ronnie contends that the circuit court erred in ruling that the actions of the prior special personal representative of the estate were invalid and that the complaints filed by the former special personal representative were nullities. Alternatively, he argues that the circuit court erred in finding that the two-year statute of limitations for medical-malpractice claims applies to all causes of action that were asserted in his complaint. We assumed jurisdiction of this case from the court of appeals as involving an issue of first impression; hence, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(b)(1) (2013). We reverse and remand on the first point, making it unnecessary to consider the second issue.
The record discloses that L.C. Taylor was admitted as a patient to appellee Med ical Center of South Arkansas (MCSA) on December 23, 2008, with admitting diagnoses of confusion, dehydration, and renal failure. He remained in the hospital until January 6, 2009. Upon his discharge from MCSA on that date, Taylor became a resident of appellee Courtyard Rehabilitation and Health Center (Courtyard). On February 2, 2009, Taylor returned to MCSA, where he died that same day.
On June 3, 2010, Bobby Taylor, as special personal representative of the estate of L.C. Taylor and on behalf of the wrongful-death beneficiaries of L.C. Taylor (Bobby), filed suit in the Union County Circuit Court against MCSA, Courtyard, and ap-pellees SA Eldercare and JEJ Investments. This civil case was assigned to Circuit Judge Susan O. Hickey. The | scomplaint alleged that Taylor did not have pressure sores when he was admitted to MCSA but that he developed Stage II decubitus ulcers to his right hip and buttocks area prior to his discharge. Bobby claimed that the pressure sores worsened during Taylor’s residency at Courtyard and that, when Taylor was readmitted to MCSA, he was suffering from a severely infected, fist-sized decubitus ulcer on his back and also from other pressure ulcers that had either developed or worsened during his stay at Courtyard. The complaint also alleged that Taylor died as a result of complications associated with the infected pressure sores, and it asserted causes of action for medical malpractice against MCSA and Courtyard; negligence against Courtyard, SA Eldercare, and JEJ Investments (collectively nursing-home defendants); violations of the Arkansas Long-Term Residents’ Rights Act, Arkansas Code Annotated sections 20-10-1201 to -1209 (Repl.2005), against Courtyard; and a claim against the nursing-home defendants for civil liability under Arkansas Code Annotated section 16-118-107 (Repl. 2006). Attached as an exhibit to the complaint was an order appointing Bobby as the special personal representative of the estate entered on March 16, 2009, by Circuit Judge Michael R. Landers, sitting in the Probate Division of the Union County Circuit Court. On May 9, 2011, Bobby filed a first amended complaint to include as additional nursing-home defendants ap-pellees Union Assets, Summit Health Resources, ProCare Therapy Services, John Ponthie, Ross Ponthie, and Mark Thompson.
On July 28, 2011, MCSA filed a motion to dismiss the complaints filed by Bobby in his capacity as special personal representative of the estate. In the motion, MCSA alleged that, during a deposition taken on June 8, 2011, Bobby disclosed that he had been convicted of 14felony mail fraud some thirty years ago. It asserted that, according to Arkansas Code Annotated section 28-48-101(b)(3) (Repl.2012), Bobby, as a convicted and unpardoned felon, was not qualified to serve as special personal representative, and thus he lacked standing to file suit. In turn, MCSA argued that the order appointing Bobby as special representative should be vacated, and it asserted that the complaints he filed in that capacity were nullities. Further, MCSA urged that a dismissal with prejudice should follow because the two-year statute of limitations for medical malpractice had expired. Courtyard and the other nursing-home defendants later joined in this motion.
Ronnie, as the recently appointed special personal representative of the estate, responded to the motion to dismiss. In the response, Ronnie acknowledged that Bobby’s felony conviction rendered him ineligible to serve as a personal representative, but he argued that dismissal of the lawsuit was not warranted. He asserted that the actions taken by Bobby prior to his removal as special personal representative remained valid, even though he was unqualified. Ronnie also contended that only the probate division had jurisdiction to decide whether the order appointing Bobby should be vacated, and he argued that, even if the probate order were vacated, it would not affect the validity of Bobby’s actions as the duly appointed special personal representative. The circuit court held a hearing on August 31, 2011, and took the motion to dismiss under advisement.
| ¡(Thereafter, on October 17, 2011, Ronnie filed a second amended complaint. The style of the complaint again named Ronnie as the plaintiff in his capacity as special personal representative of the estate, and the complaint realleged and reaffirmed the facts and allegations contained in the initial and first amended complaints that were filed by Bobby as the special personal representative of the estate.
Also on October 17, 2011, the circuit court entered an order dismissing with prejudice the complaint against MCSA. The court ruled that Bobby, as a convicted felon, was not qualified to serve as special personal representative of the estate. Citing Brown v. National Health Care of Pocahontas, Inc., 102 Ark.App. 148, 283 S.W.3d 224 (2008), the court also ruled that any action taken by him in that capacity was a nullity, including the filing of the complaints, because he lacked standing to file suit. By like order entered that same date, the circuit court dismissed with prejudice the claims asserted against Courtyard, SA Eldercare, JEJ Investments, Union Assets, Summit Health Resources, and ProCare Therapy Services.
On October 24, 2011, John Ponthie, Ross Ponthie, and Mark Thompson filed a motion for order of dismissal. They alleged that, although they had joined in MCSA’s motion to dismiss, the circuit court inadvertently neglected to include them in the dismissal orders. On November 1, 2011, Ronnie filed a motion to amend the dismissal orders to reflect a dismissal without prejudice of the claims asserted against the various nursing-home defendants for ordinary negligence, the violations of the Arkansas Long-Term Residents’ Rights Act, and for civil liability under section 16-118-107. He asserted that these claims were governed by |fia three-year statute of limitations and that the second amended complaint filed by him was timely with regard to those claims. Ronnie also filed a motion seeking reconsideration of the prior orders declaring that the complaints filed by Bobby were nullities.
After a hearing held on January 31, 2012, the circuit court issued a letter opinion denying Ronnie’s motion for reconsideration. The court confirmed the previous rulings that Bobby did not have the authority to act on behalf of the estate because of his disqualification as a felon and that the complaints he filed were nullities. In this regard, the circuit court reasoned,
Bobby Taylor was a convicted felon long before he ever petitioned the Court to serve in a capacity for which he was by statute unqualified to serve. At no time was he a qualified representative, and at no time did he have the authority to act in behalf of the estate. Therefore, there was no valid probate order appointing Bobby Taylor as personal representative.
The court also denied Ronnie’s motion to amend the previous orders to a dismissal without prejudice, finding that all the claims asserted were governed by the two-year statute of limitations found in the Medical Malpractice Act. The circuit court entered an order dismissing the claims against John Ponthie, Ross Ponthie, and Mark Thompson on June 21, 2012. The court subsequently issued a final order under a Rule 54(b) certificate on November 26, 2012. This appeal followed.
Before reaching the merits of the appeal, we must first address a threshold matter raised 17by appellees in their briefs. They contend that Ronnie, as special personal representative of the estate, never became a party to the litigation because he failed to obtain an order from the circuit court substituting him as the plaintiff after he succeeded Bobby as the special personal representative. Appellees argue that Ronnie lacks standing to prosecute the appeal and that the appeal should be dismissed on grounds of subject-matter jurisdiction because an appellate court cannot act on an appeal by one who was not a party to the action below. Otherwise, appellees assert that they did not waive the issue of standing because Courtyard, John Ponthie, and Mark Thompson noted the lack of substitution in their answers to the second amended complaint filed by Ronnie, and because the matter was mentioned at the hearing held on January 31, 2012. Ronnie responds that appellees did waive this issue, and he also asserts that any argument made by appellees in circuit court was cursory and undeveloped.
Appellees’ complaint is that Ronnie was not formally substituted as the plaintiff after succeeding Bobby as the special personal representative of the estate. Their argument is based on the law of revivor and substitution. On this subject, Arkansas Code Annotated section 16-62-108 (Repl.2005) provides in part as follows:
An order to revive an action in the names of the representatives or successor of a plaintiff may be made forthwith. However, an order to so revive the action shall not be made without the consent of the defendant after the expiration of one (1) year from the time when the order might first have been made.
Also pertinent is Arkansas Code Annotated section 16-62-109 (Repl.2005), which J_gstates,
When it appears to the court by affidavit that either party to an action has been dead, or, where he or she sues or is sued as a personal representative, that his or her powers have ceased for a period so long that the action cannot be revived in the names of his or her representatives or successor without consent of both parties, it shall order the action to be stricken from the docket.
In addition, Rule 25 of the Arkansas Rules of Civil Procedure, which governs the sub stitution of parties, provides in relevant part,
(a) Death. (1) If a party dies and the claim is not thereby extinguished, the Court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party, and such substitution may be ordered without notice or upon such notice as the Court may require.
In discussing the interplay between the revivor statutes and Rule 25, this court made clear in Ausman v. Hiram Shaddox Geriatric Center, 2013 Ark. 66, 426 S.W.3d 379, that while Rule 25 governs the procedure for substituting a party, the one-year statute of limitations found in section 16-62-108 remains in effect.
However, the requirement of substitution is subject to waiver. This court has recognized that, when a motion for revivor is not made in a timely manner, and a representative continues the action without objection, it has generally been considered a waiver of such a motion. Speer v. Speer, 298 Ark. 294, 766 S.W.2d 927 (1989). See also Short v. Stephenson, 239 Ark. 287, 388 S.W.2d 912 (1965); Obennoskey v. Obennoskey, 215 Ark. 358, 220 S.W.2d 610 (1949). We also have declined to address this issue for the first time on | ^appeal. McDonald v. Petty, 254 Ark. 705, 496 S.W.2d 365 (1973). In McDonald, we wrote,
Although the appellees reserved the right to object to the revivor action, no objection was ever raised until after the cause reached this court on appeal. Therefore, since this issue is presented for the first time on appeal, we do not reach it. Griffith v. Rozell, 252 Ark. 280, 478 S.W.2d 762 (1972).
Id. at 710, 496 S.W.2d at 368.
Similarly, in Bulsara v. Watkins, 2012 Ark. 108, 387 S.W.3d 165, the appellee filed a motion to dismiss the appeal in which she argued that the notice of appeal filed by the appellant personal representative was a nullity because the personal representative had been discharged when the notice of appeal was filed. We denied the motion to dismiss, holding that the discharge did not bar the personal representative’s ability to obtain a final order or to prosecute the appeal. In reaching that decision, we quoted our previous decision in Bailey v. Rockafellow, 57 Ark. 216, 21 S.W. 227 (1893), where this court said,
The first question to be decided is raised by the contention of appellees to the effect that Bailey had no right to prosecute the action as administrator after his discharge. Regularly the action should have been revived in the name of the proper parties, but the court did not lose jurisdiction of it. The discharge was no bar to the action. The defendants could have taken advantage of it by a supplemental answer in the nature of a plea in abatement. But they had a right to waive it, and permit the cause to be tried upon its merits, without revivor, and did so with notice of the fact, by a failure to plead it in any manner. Spalding v. Wathen, [70 Ky. 659] 7 Bush, 659 [1871 WL 10278 (1871)]; Mansf. Dig. §§ 5028, 5031.
Bailey, 57 Ark. at 218-19, 21 S.W. at 228.
In this case, Ronnie made no formal request for substitution within the one-year limitations period. However, Ronnie, as the special personal representative of the estate, defended the motions to dismiss that were based on Bobby’s disqualification and later sought reconsideration of the dismissal orders. In his pleadings, Ronnie was named as the plaintiff in the case. The circuit court listed Ronnie as the plaintiff in the case in the dismissal orders | ,nof October 17, 2011, and June 21, 2012. Likewise, the judgment containing the Rule 54(b) certificate entered on November 26, 2012, named Ronnie as the plaintiff. Thus, beginning with his August 15, 2011 response to the motion to dismiss, Ronnie undertook the prosecution of this ease, and the circuit court’s orders reflect this fact. Although the answers to the second amended complaint, dated October 24, 2001, and November 7, 2011, mentioned that no substitution had taken place under the Arkansas Rules of Civil Procedure, appellees “reservefd]” their objections to Ronnie’s standing as the plaintiff. At the January 31, 2012 hearing, the lack of substitution was discussed only briefly as an alternative argument to the statute-of-limitations issue. We note that these answers were filed and that the hearing took place well before the expiration of the one-year limitations period. When that period came to an end, appellees raised no objection. In particular, appellees did not argue that Ronnie lacked standing in opposition to the entry of the judgement and the Rule 54(b) certificate that allowed an appeal to proceed in the absence of a final order. Under these circumstances, we conclude that appellees waived this issue, and we decline to dismiss the appeal.
Having concluded that appellees waived this issue, we necessarily reject their contention that Ronnie’s failure to formally substitute deprives this court of subject-matter jurisdiction because he lacks standing to pursue an appeal. Subject-matter jurisdiction is always open, cannot be waived, can be questioned for the first time on appeal, and is a matter this court is obliged to raise on its own when the parties do not. Jonesboro Healthcare Ctr., LLC v. Eaton-Moery Envtl. Servs., Inc., 2011 Ark. 501, 385 S.W.3d 797. Our law is clear that substitution can be waived and that it is an issue that we need not address for the first time on [^appeal. Speer, supra; McDonald, supra. Because substitution can be waived and may not be raised for the first time on appeal, it follows that the failure to substitute does not call into question the jurisdiction of this court.
Pivoting to the issue raised on appeal, Ronnie contends that the circuit court erred in concluding that the actions taken by Bobby when he served as special personal representative were invalid and that the complaints Bobby filed were nullities. Ronnie asserts that Bobby’s appointment was merely voidable but not void, and in making this argument, he refers us to Arkansas Code Annotated section 28-48-105(b) (Repl.2012), and our decision in Nickles v. Wood, 221 Ark. 630, 255 S.W.2d 433 (1953). In support of the circuit court’s decision, appellees rely on caselaw where complaints filed by personal representatives were considered nullities when the personal representatives were not empowered to act when the lawsuits were initiated. For instance, in Brown, supra, the court of appeals held that an amended complaint was a nullity because the special personal representative was appointed for a limited time, and the amendment was filed after the time period had expired. Also, in Hubbard v. National Healthcare of Pocahontas, Inc., 371 Ark. 444, 267 S.W.3d 573 (2007), the administratrix filed suit before the order appointing her was entered, and thus the complaint she filed was deemed a nullity. Likewise, in Johnson v. Greene Acres Nursing Home Association, 364 Ark. 306, 219 S.W.3d 138 (2005), the executor of the estate had been discharged. Although the executor had filed a motion to reopen the estate, the circuit court had not acted on the motion at the time the executor filed the complaint. Therefore, this court held that the complaint filed by the executor was a nullity. Ronnie responds that these cases are distinguishable because, here, Bobby had been appointed as the special personal representative 112by the probate court when he filed the complaints.
The argument that Ronnie advances on appeal is the same one that is raised in the companion case being handed down this same day, Estate of Taylor v. MCSA, LLC, 2013 Ark. 429, 430 S.W.3d 120, 2013 WL 5883804, where this court held that Bobby’s acts as special personal representative were valid and that his appointment was not void ab initio. Based on the analysis and reasoning explained in that case, we also reverse and remand in this case. In light of this disposition, we need not reach Ronnie’s alternative argument regarding the statute of limitations, as the complaints filed by Bobby were not untimely under either limitations period.
Reversed and remanded.
HART, J., not participating.
. The record reflects that Ronnie succeeded Bobby as the special personal representative of the estate by an order of the probate division dated July 28, 2011.
. In the heading of the response, Ronnie, as the special personal representative, was named as the plaintiff in place of Bobby.
. Judge Hickey entered the dismissal orders just prior to her resignation as circuit judge.
. At this point in the litigation, Judge Landers was presiding over both the civil case and the probate case.
. Courtyard and the nursing-home defendants had filed a cross-claim against MCSA, and in turn MCSA had filed a cross-claim against them. The cross-claims remained outstanding.
. Appellees first raised this issue in a motion to dismiss when the case was pending before the court of appeals. The court of appeals denied the motion by syllabus entry.
.We note that appellees cite Arkansas Code Annotated section 16-62-105 (Repl.2005). However, we deemed subsections (a) through (e) of this statute superseded by the Arkansas Rules of Civil Procedure in the per curiam In re Statutes Deemed Superseded by the Arkansas Rules of Civil Procedure, 290 Ark. 616, 719 S.W.2d 436 (1986). See Deaver v. Faucon Props., Inc., 367 Ark. 288, 239 S.W.3d 525 (2006). We also observe that section 16-62-105 was repealed by Act 1148 of 2013. | [
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DAVID M. GLOVER, Judge.
|, James Anthony Gould was charged by criminal' information in the Pope County Circuit Court with first-degree murder and aggravated robbery. A jury acquitted Gould of the murder charge but convicted him of aggravated robbery. He was sentenced to forty years in 'prison, with an additional fifteen-year sentence for use of a firearm during the commission of the aggravated robbery. The sentences were ordered to be served consecutively. Gould appeals, arguing (1) that there was insufficient evidence to convict him of aggravated robbery; (2) that the trial court erred in excluding Gould’s expert witness; (3) that the trial court erred in refusing the proffered jury instruction regarding the crime of possession of a controlled substance; and (4) that the trial court erred in refusing the proffered jury instruction regarding self-defense. We affirm.
On August 26, 2012, Gould and his nephew, Leondre Gould, went to drug dealer Randall Boykin’s house to steal his marijuana. Gould sent his girlfriend, Ashley Ojeda, who |ahad a baby with Boykin, to see if she could get some marijuana from Boykin; Gould thought that, with Ashley being there, Boykin would leave the door unlocked, would be unprotected, and that he and Leondre could just walk into the house and take the marijuana. Leondre had previously robbed Boykin twice and told Gould that it would be “easy” and that Boykin would not fight them.
Gould and Leondre drove to Boykin’s house and placed red bandanas over their faces. Gould wore a fur-lined hat. As they walked up to Boykin’s door and knocked, Gould was holding a .40-caliber pistol in his hand. Boykin looked out of the peephole, saw the two masked men, and warned them to get away from the door because he was “coming out shootin’.” Leondre ran away; Gould and Boykin exchanged gun fire. Gould shot Boykin in the driveway of Boykin’s home; when Gould went to see if Boykin was alive and take his gun, Gould’s gun went off again. Boykin died from his injuries. Gould then went into Boykin’s house and took 6.25 pounds of marijuana that testimony at trial established had a value of approximately $4,800.
I. Sufficiency of the Evidence
Gould first argues that the evidence presented at trial was insufficient to support his aggravated-robbery conviction. A person commits aggravated robbery if he commits robbery as defined in § 5-12-102 and inflicts death upon another person. Ark.Code Ann. § 5 — 12—103(a)(3) (Repl. 2013). A person commits robbery if, with the purpose of committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person. Ark.Code Ann. § 5-12-102(a) (Repl.2013).
| sIn reviewing a challenge to the sufficiency of the evidence, the appellate court determines whether the verdict is supported by substantial evidence; that is, whether the evidence is forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510. The evidence is viewed in the light most favorable to the verdict, and only the evidence supporting the verdict will be considered. Id.
At the close of the State’s case, Gould moved for a directed verdict as to aggravated robbery on the basis that Boykin had no possessory interest in the property alleged to have been taken from him — the over six pounds of marijuana — because it was illegal for Boykin to possess the marijuana. Gould contended at trial, and now on appeal, that there cannot be a theft of properly that would satisfy the robbery portion of the aggravated-robbery statute if the properly in question is marijuana because it is illegal for an ordinary citizen to possess marijuana in Arkansas. We disagree.
In support of his argument, Gould cites Daniels v. State, 373 Ark. 536, 285 S.W.3d 205 (2008) (overturned due to legislative action in Act 460 of 2009), and Heard v. State, 2009 Ark. 546, 354 S.W.3d 49. Neither of these cases is dispositive of the issue in the present case; Daniels concerned the retaking possession of money lost while gambling, while the issue in Heard involved the forcible taking of money to recover a debt owed. These cases fail to support Gould’s argument that contraband, in this case marijuana, cannot be owned simply because it is illegal. Our forfeiture statute provides, in pertinent part, that “[a]ny seized properly shall be returned to the rightful owner or possessor of the seized properly except | contraband owned by a defendant.” Ark. Code Ann. § 5-5-101(a) (Repl.2013). We note that the statute discusses disposition of seized contraband in the context of ownership, providing that contraband owned by a defendant will not be returned, thus recognizing the aspect of ownership, even if the property is contraband. We also note that our theft statutes define “property,” in pertinent part, as tangible personal property that represents or embodies anything of value. Ark.Code Ann. § 5-36-101(7) (Repl.2013). “Property of another person” is defined as any property in which any person other than the actor has a possessory or proprietary interest. Ark. Code Ann. § 5-36-101 (8)(A). Clearly, marijuana has value — in this case, there was testimony that the marijuana was worth approximately $4,800 — and is subject to possession. Marijuana, therefore, falls within the definitions of “property” and “property of another person” as set forth in the theft statutes. Here, there is sufficient evidence that Gould committed aggravated robbery, and his argument fails.
II. Exclusion of Expert-Witness Testimony
Gould next argues that the trial court erred in excluding the expert testimony of attorney John Irwin. The decision of a circuit court to admit or exclude expert testimony is reviewed on an abuse-of-discretion standard. Gordon v. State, 2012 Ark. 398, 2012 WL 5304077. The proffer of Irwin’s testimony revealed that his testimony would be, in pertinent part, that a private citizen has no legal right to possess marijuana in Arkansas; that Boy-kin’s possession of marijuana was not protected by law; and that because Boykin could not possess the marijuana, it was not his property. Based on our disposition of Gould’s first argument, we hold that the trial court did not abuse its discretion in excluding Irwin’s testimony.
|fiIII. & IV. Jury Instructions
Gould’s last two points of appeal concern the trial court’s refusal to give two jury instructions. A party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). The standard of review regarding the use of jury instructions is abuse of discretion. Id.
The first jury instruction at issue is a non-AMCI jury instruction that stated that it is unlawful for a person to possess a controlled substance. A non-AMCI instruction can only be given when the trial court determines that AMCI does not contain an instruction on a subject upon which the jury should be instructed or when an AMCI instruction cannot be modified to submit the issue. Re: Arkansas Model Crim. Instructions, 264 Ark. 967 (1979) (per curiam). Based on our disposition of Gould’s first point on appeal, we determine that he cannot show that the trial court’s refusal to instruct the jury as requested was an abuse of discretion, and we affirm on this point.
The second jury instruction concerns AMI Crim.2d 705, which involves the justification of the use of deadly physical force in defense of a person. This jury instruction comports with Arkansas Code Annotated section 5-2-607 (Repl.2013), which provides, in pertinent part:
Use of deadly physical force in defense of a person.
(a) A person is justified in using deadly physical force upon another person if the person reasonably believes that the other person is:
(1) Committing or about to commit a felony involving force or violence;
(2) Using or about to use unlawful deadly physical force; or
|ñ(3) Imminently endangering the person’s life or imminently about to victimize the person as described in § 9-15-103 from the continuation of a pattern of domestic abuse.
(b) A person may not use deadly physical force in self-defense if the person knows that he or she can avoid the necessity of using deadly physical force with complete safely:
(1)(A) Byretreating.
(B) However, a person is not required to retreat if the person is:
(i) In the person’s dwelling or on the curtilage surrounding the person’s dwelling and was not the original aggressor; or
(ii) A law enforcement officer or a person assisting at the direction of a law enforcement officer; or
(2) By surrendering possession of properly to a person claiming a lawful right to possession of the properly.
However, Gould’s proffered instruction was an incorrect version of AMI Crim.2d 705; it did not properly state the law, as it provided, in pertinent part:
A person is not justified in using deadly physical force if he knows that the use of deadly physical force can be avoided with complete safely,
(a) by retreating and was not the original aggressor.
It is an appellant’s duty to submit a wholly correct instruction. Ghoston v. State, 84 Ark.App. 387, 141 S.W.3d 907 (2004). If an instruction does not contain a complete statement of the law, it is not error to refuse it. Id. Here, sub-part (a) of Gould’s proffered instruction incorrectly merges the above-cited subsections (b)(1)(A) and (b)(l)(B)(i) of section 607. While the incorrectness of the proffered instruction here was not the basis for the circuit court’s refusal to give it, we will affirm the circuit court’s ruling if it reached the right result, even for the wrong reason. Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001).
Affirmed.
HARRISON and WYNNE, JJ., agree. | [
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PHILLIP T. WHITEAKER, Judge.
| T Appellant Jonathan Johns was charged by felony information with one count of maintaining drug premises, a Class C felony; one count of possession of less than two grams of a controlled substance, a Class D felony; and one count of possession of drug paraphernalia, also a Class D felony. The information also reflected that Johns, who had been previously convicted of four or more felony offenses, was subject to the sentence-enhancement provisions of Arkansas Code Annotated section 5-4-501(b) (Repl.2006). Johns waived his right to a jury trial, and the Pulaski County Circuit Court found him guilty of the two Class D felonies. He was acquitted of maintaining a drug premises. After a separate .sentencing hearing, the court sentenced Johns to three years on each count, to be served concurrently. On appeal, Johns asserts that the written jury-waiver form he filled out was ^invalid because the waiver did not specifically state that he was facing habitual-offender sentencing on each of the charges. We find no error and affirm.
The right to be tried by a jury is guaranteed under the Sixth Amendment to the United States Constitution and article 2, section 7, of the Arkansas Constitution. When a defendant exercises his constitutional right to be tried by a jury, then the jury in a separate proceeding fixes the appropriate statutory punishment. See Ark.Code Ann. § 5-4-103(a) (Repl.2006).
While the constitution guarantees a right to be tried by a jury, there is no constitutional right to be sentenced by a jury. Bunch v. State, 344 Ark. 730, 738, 43 S.W.3d 132, 137 (2001) (citing Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984); Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988)). A defendant may, moreover, waive his constitutional right to be tried by a jury. Ark. R.Crim. P. 31.2. When a defendant waives his right to be tried by a jury, he waives his statutory right to be sentenced by a jury. See Ark.Code Ann. § 5-4-103(b)(2) (Repl.2006) (“The court shall fix punishment as authorized in this chapter in any case in which ... [t]he defendant’s guilt is tried by the court.”). In order for one’s jury-trial right to be abrogated, there must be a showing of a knowing and voluntary waiver made and | ¡¡demonstrated on the record. Medlock v. State, 328 Ark. 229, 942 S.W.2d 861 (1997); Williams v. State, 65 Ark.App. 176, 986 S.W.2d 123 (1999). Absent a waiver, it is generally improper for a circuit court to assess a defendant’s sentence in place of a jury. Davenport v. State, 2013 Ark. 508, at 7, 431 S.W.3d 204, 208 (citing Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975); Redding v. State, 254 Ark. 317, 493 S.W.2d 116 (1973)). In order for a defendant to waive his right to a jury trial, the circuit court must ensure that the waiver is knowingly, intelligently, and voluntarily made. Barrow v. State, 2010 Ark. App. 589, 377 S.W.3d 481.
Rule 31.2 also requires that there must be a verbatim record of any proceedings at which the defendant waives his right in person or through counsel that must be preserved. Barrow, supra. Here, the circuit court made a verbatim record of the defendant’s written waiver. Johns executed a written waiver of his right to jury trial; the waiver form contained the following language:
I understand that I have a right to a jury trial where no verdict would be accepted unless all twelve jurors agreed. If the jury found me to be guilty of anything, I would have the right to have the jury set my punishment.
I waive my right to have a jury trial. I ask that the judge hear and weight [sic] the evidence and, after applying the law, make a decision if I am guilty of anything. If the judge finds me guilty, the judge sets my punishment.
I understand that I keep all of my other rights.
The form was signed by Johns, his defense attorney, the prosecuting attorney, and the judge.
Moreover, the circuit court made a verbatim record of Johns’s personal waiver of his right to jury trial in open court, ad dressing the waiver in the following colloquy at the omnibus hearing:
UCourt: In Case 12-3853, you are charged at count one with maintaining drug premises. That is a Class C felony which, upon conviction, would carry a punishment ranging from three years to thirty years in the state penitentiary and/or a $10,000 fíne.
At count two, you’re charged with possession of [a] controlled substance, cocaine, which, upon conviction, would carry a punishment of up to fifteen years in the state penitentiary and/or a $10,000 fine.
At count three, you are charged with possession of drug paraphernalia, which, upon conviction, would carry a punishment of ranging up to fifteen years in the state penitentiary and/or a $10,000 fine.
Do you understand the charges against you and the punishment range, sir?
Johns: Yes, sir.
Court: You have the right to a jury trial where no verdict would be accepted . unless all twelve jurors agreed. If the jury found you guilty of anything, you would have the right for the jury to set your punishment. By waiving your right to a jury trial, you ask that the judge hear the evidence against you, weigh the evidence, and apply the law to it and determine whether you are guilty of anything or not.
If the judge finds you guilty, then the judge will set your punishment. You keep all your other rights. Do you understand that?
Johns: Yes, sir.
Court: Does the State have any objection to the jury waiver in 2012-3853?
State: No, Your Honor.
COURT: The court finds, Mr. Johns, you have knowingly, voluntarily, and intelligently waived jury trial in Case 12-3853 and the court accepts your jury waiver.
Despite the verbatim record,' Johns argues that his jury waiver was defective because the written waiver form did not specifically spell out the fact that he was subject to ^sentencing as a habitual offender. Johns acknowledges that a criminal defendant in Arkansas has neither a federal nor a state constitutional right to be sentenced by a jury. See Bunch, supra; Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960). However, he likens his right to be sentenced by a jury as a habitual offender to his right to be sentenced by a jury on a substantive criminal charge. First, he contends, a habitual-offender charge must be set forth in the criminal information filed against the defendant. See Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977). Second, he asserts that the defendant’s previous convictions, like the elements of a substantive charge, must be proved by the State beyond a reasonable doubt. See Ark.Code Ann. § 5-4-504(a) (Supp.2011). Third, he notes that, as with a substantive charge, a jury imposes sentence on a habitual offender. See Ark.Code Ann. § 5-4-502(4) (Supp. 2011). Therefore, Johns argues that a habitual-offender charge is similar enough to a substantive criminal charge that “a jury-waiver form should reference a habitual-offender charge with the same degree of specificity used to reference substantive criminal charges.” The failure to do so, he maintains, results in a jury waiver that is not knowingly, intelligently, and voluntarily waived. Johns additionally argues that the waiver form and colloquy failed to apprise him that he would be sentenced by the circuit court as a habitual offender.
We disagree. As this court noted in Brock v. State, 90 Ark.App. 164, 204 S.W.3d 562 (2005), “a-defendant may waive his constitutional rights and consent to judicial factfinding as to sentence enhancements.” Id. at 172-73, 204 S.W.3d at 567 (citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)). Here, the waiver form was signed by Johns, his defense attorney, the prosecuting attorney, and the judge. The waiver form specifically reflected that Johns was | (¡waiving his right to be tried by a jury on the substantive charges of maintaining a drug premises, possession of a controlled substance, and possession of drug paraphernalia. Because he was waiving his right to be tried by a jury on these charges, he was also waiving his right to be sentenced by a jury on these charges. For the Class D felonies with which he was charged, the waiver form provided that Johns was facing sentences of “up to 15 years ADC.” This sentencing range clearly reflects the enhanced sentencing range found in section 5 — 4—501(b)(l)(A)(ii). Moreover, in the waiver colloquy, the court directly referenced the enhanced punishment ranges; it specifically inquired whether Johns had spoken to his attorney about the jury waiver and understood the punishment ranges; and it ensured that Johns understood that, if found guilty, he would be sentenced by the court.
This is not a case, as Johns suggests, where we must presume a waiver from a silent record. Johns was made aware of the enhanced sentencing ranges, he acknowledged that he was aware of the possible punishment, and he explicitly agreed to waive a jury in light of all these factors. Accordingly, we conclude that Johns’s jury waiver was valid, and we affirm his convictions.
Affirmed.
HIXSON and BROWN, JJ., agree.
. Johns concedes that he is raising this argument for the first time on appeal. The validity of a jury waiver, however, is an issue that may be raised for the first time on appeal. See Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992); Moten v. State, 2011 Ark. App. 417.
. Sentencing in Arkansas is entirely a matter of statute. Bunch v. State, supra; State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993).
. Ordinarily, when an individual is convicted of a Class D felony, the sentence shall not exceed six years. Ark.Code Ann. § 5-4-401(a)(5) (Supp.2011). | [
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JOSEPHINE LINKER HART, Justice.
|,A Faulkner County jury found appellant, Bryant E. Turner, guilty of aggravated robbery and theft of property. Because the total sentence imposed was life imprisonment, his appeal was filed with this court. Ark. Sup.Ct. R. 1 — 2(a)(2) (2014). On appeal, Turner challenges the sufficiency of the evidence to support the convictions. We affirm.
On August 27, 2012, Austin Casher and Taylor Mitchell were working at Game Point, a video-game retail store in Conway, Arkansas. While Casher and Mitchell were preparing to close the store, a man came to the counter, reached into a Nike backpack that he was carrying, and raised a gun. According to Casher, the man stated, “I need all the money. No one is going to get hurt if you cooperate. I need all the money.” He ordered Casher and Mitchell to the floor and removed the cash from all the registers and a lockbox, approximately $1200. According to Casher, just before the man left, he said, “I want you guys to remember me because I spared your lives.” After the police arrived, Casher discovered the backpack on | athe floor. The backpack contained a bottle of mouthwash.
On the same day as the crime, Casher and Mitchell separately viewed a black- and-white photographic spread that did not contain Turner’s photograph. Casher picked one person — who was incarcerated in Texas — with a certainty of 75% to 80%. Two days later, Casher viewed a color spread. Casher picked Turner as the person who had committed the crimes and told police that he was 100% positive. In court, Casher identified Turner as the person who had committed the crimes. Cash-er also viewed a videotape taken from the store’s security cameras, and he identified Turner and Turner’s backpack. He also identified the backpack introduced into evi dence as the one Turner had left at the store. On cross-examination, Casher testified that because the second spread was in color, it was easier to determine facial features and skin tone, and he was not in as much shock when he viewed it.
Mitchell testified that he also viewed the black-and-white spread and chose a person — the same person chosen by Casher— with a certainty of 60% or 70%. He further testified that when he viewed the color spread, he chose Turner and indicated to police that he was 60% certain. He testified that the color photographs made it easier to make an identification. Mitchell, in court, identified Turner as the person who had committed the crimes. He also identified the backpack introduced into evidence as the one that Turner had left at the store.
In addition to testimony from Casher and Mitchell, the State introduced testimony from a forensic-DNA examiner who testified that Turner’s DNA was found on the inner cap of the bottle of mouthwash. The DNA examiner also testified that DNA from more than two [.^persons was present on a cutting from the Nike backpack. A latent-print examiner testified that he was unable to attribute to Turner any of the fingerprints lifted by the police.
In his directed-verdict motions, Turner challenged the sufficiency of the evidence to support the aggravated-robbery and theft-of-property charges. Turner asserted that the identification evidence was, at best, “shaky,” and that’there was no proof that he was involved in the crimes. Turner further contended that there was no proof relating to how the mouthwash bottle arrived at the store and that the backpack, which had on it DNA of more than two persons, could have been placed there by someone else. He further argued that there was no evidence that a deadly weapon had been used. The circuit court denied the motions. After he was convicted, he appealed, challenging the sufficiency of the evidence to support the verdicts.
On appeal from the denial of a directed-verdict motion challenging the sufficiency of the' evidence, we view the evidence in the light most favorable to the verdict, considering only the evidence that supports the verdict, and determine whether the verdict is supported by substantial evidence, which is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. See, e.g., Spearman v. State, 2013 Ark. 196, 427 S.W.3d 593. A person commits aggravated robbery if, with the purpose of committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person and is armed with a deadly weapon or represents by word or conduct that he is armed with a deadly weapon. Ark.Code Ann. §§ 5-12-102 to -103(a)(1), (2) (Repl. 2013). A firearm is a “deadly weapon.” Ark. |4Code Ann. § 5-l-102(4)(A) (Repl. 2013). Further, a “firearm” includes any device made to expel a projectile by the action of an explosive. Ark.Code Ann. § 5-l-102(6)(A). A person commits theft of properly if he knowingly takes or exercises unauthorized control over the property of another person with the purpose of depriving the owner of the property. Ark. Code Ann. § 5-36-103(a)(l) (Repl.2013).
In his challenge to the sufficiency of the evidence, Turner argues that there was no physical evidence connecting him to the crime, noting that the State was unable to match to him either the fingerprints or the DNA found on the backpack. Turner further observes that Casher and Mitchell identified another individual in the first spread as the man who had robbed the store. Turner notes that the second spread was shown to Casher and Mitchell two days later, and Mitchell was only 60% certain of his identification. While he acknowledges that his DNA was found on the bottle of mouthwash, he asserts that there was no evidence regarding how the mouthwash arrived at the store. Finally, Turner argues that because the State did not introduce any weapons into evidence or present testimony about the gun seen in the video, there was no proof that he was armed with a deadly weapon.
In focusing on evidence that, arguably, might support his claim that he was not the person who committed the crimes, Turner misapprehends our standard of review. As stated above, we view the evidence in the light most favorable to the verdict. Despite an initial identification of another person in the first spread by both Casher and Mitchell, both identified Turner in the second spread, with Casher being 100% certain. The jury was also shown a video and still photographs of the incident. Further, the jury had before it both | sCasher’s and Mitchell’s in-court identifications of Turner as the perpetrator of the crimes. Absent a constitutional challenge to the identification, it is for the jury to determine whether the eyewitness identification is reliable. See, e.g., Phillips v. State, 344 Ark. 458, 40 S.W.3d 778 (2001). Also, the jury had before it witness testimony, videotape, and still photographs from which it could conclude that Turner brought the backpack into the store and left it there and that Turner’s DNA was present on a mouthwash bottle found in the backpack. Finally, while Turner argues that there was no proof that he used a deadly weapon, as noted above, a “deadly weapon,” by definition, includes a firearm. The jury had before it not only testimony from Casher and Mitchell that Turner used a gun, but also videotape and still photographs in which Turner was in possession of a gun. Given this evidence, we hold that substantial evidence supported the verdicts.
Finally, because Turner received a sentence of life imprisonment, in accordance with Arkansas Supreme Court Rule 4 — 3(i) (2014), the record was examined for objections, motions, and requests made by either party that were decided adversely to Turner. No prejudicial error was found.
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PER CURIAM.
hln September 2010, appellant Marl K. Gray entered a plea of guilty in the Sebastian County Circuit Court, Fort Smith District, to two counts of conspiracy to deliver a controlled substance in case nos. 66CR-10-594 and 66CR-10-596. He was sentenced to 300 months’ imprisonment for each offense. Imposition of an additional 180 months’ imprisonment was suspended in each case. The sentences for the two offenses were ordered to be served concurrently.
On July 9, 2012, appellant filed a motion to modify or vacate the sentence, arguing that the sentence imposed was beyond the statutory maximum for the charges of which he was convicted. The State conceded that the sentence was illegal, and, on August 14, 2012, the pleas in case nos. 66CR-10-594 and 66CR-10-596 were set aside and the judgment-and-commitment order was vacated.
Counsel was appointed to represent appellant, and a hearing was held on October 10, [¾2012, at which time appellant again entered a plea of guilty to the two charges. A judgment-and-commitment order was entered on October 12, 2012, reflecting that appellant was sentenced to 300 months’ imprisonment in case no. 66CR- . 10-594 and that imposition of a sentence of 180 months’ imprisonment was suspended in case no. 66CR-10-596. The 180-month suspended imposition of sentence was to be served consecutive to the 300-month sentence.
An order was entered October 15, 2012, in which the trial court declared that, after hearing testimony, the court was rescinding the August 14, 2012 order and that the “judgment-and-commitment order previously entered after the Defendant’s plea” was to be reinstated. The court further ordered that an amended. judgment-and-commitment order should reflect that defendant had been resentenced in order to correct the illegal sentence originally imposed in 2010. On December 3, 2012, a “second amended” judgment-and-commitment order was entered, reflecting the same consecutive sentences as the judgment under which appellant would serve 300 months’ imprisonment for one offense and suspended imposition of a sentence of 180 months would apply to the second offense.
On January 7, 2013, appellant filed in the trial court a pro se “motion to correct illegal sentence or reduction of sentence” in which he sought to have the court dismiss the original judgment entered in 2010 or to amend the original sentence entered in 2010 to 15 years’ imprisonment on one charge and 15 years’ suspended imposition of sentence on the other charge to be served concurrently. He argued that the trial court either never had, or had lost, jurisdiction on August 14, 2012, when the original plea was vacated because his motion to modify or vacate the judgment invoked Arkansas Rule of Civil Procedure 60, which did not fyapply to criminal cases. The trial court denied the relief sought and also denied in a separate order appellant’s motion to expedite the proceeding. Appellant brings this appeal.
On appeal, appellant argues that the trial court lacked subject-matter jurisdiction to accept a civil petition under Rule 60 that did not apply to his criminal case and to enter an amended judgment, that the sentence had been put into execution and the trial court did not have authority to alter it for that reason, and that he was placed in double jeopardy by being prosecuted and sentenced twice for the same offenses. While appellant is correct that Rule 60 does not apply to criminal proceedings, the trial court treated appellant’s motion as a petition to correct an illegal sentence under Arkansas Code Annotated section 16-90-111 (Supp.2011). The statute allows a trial court to correct an illegal sentence at any time. See Hodges v. State, 2013 Ark. 299, 2013 WL 3946080 (per curiam). The trial court did not err in treating the petition for postconviction relief according to the relief it sought rather than the label placed on it by the appel- ■ lant. See Winnett v. State, 2012 Ark. 404, 2012 WL 5304090 (per curiam) (Petitioner’s invocation of Rule 60 did not require the court to treat the petition under that Rule; rather, the petition was properly considered as a petition pursuant to Arkansas Rule of Criminal Procedure 37.1 because the grounds raised were cognizable under Rule 87.1.).
^Appellant was convicted of conspiracy with intent to deliver a controlled substance, which is a Class A felony. Ark. Code Ann. § 5-3-401 (Repl.2006). A Class A felony is punishable by not less than three years and not more than thirty years’ imprisonment. Ark.Code Ann. § 5-4-401(a)(2) (Repl.2006). Accordingly, the sentence imposed on him for each offense was not outside the statutory range for the offense. Sentencing in Arkansas is entirely a matter of statute. State v. O’Quinn, 2013 Ark. 219, 427 S.W.3d 668. If a sentence is within the limits set by the legislature, it is legal. Lambert v. State, 2012 Ark. 310, 2012 WL 3373199 (per curiam).
Appellant here has not established that the trial court was without authority to correct the original sentence, which was illegal on its face inasmuch as the sentence imposed for each of the two offenses exceeded the statutory range, or that the trial court did not have authority to correct the illegal sentence at any time. Likewise, he has not demonstrated that he was placed in double jeopardy by the correction of the sentence.
With respect to whether the trial court was allowed by statute to run the sentence of 300 months’ imprisonment and the 180-month suspended imposition of sentence consecutively, we have held that proper sentencing procedure requires periods of suspension to run concurrently with other suspended sentences and other terms of imprisonment. Ark.Code Ann. § 5 — 4—307(b)(1) & (2); State v. Colvin, 2013 Ark. 203, 427 S.W.3d 635; see also Hendrix v. State, 291 Ark. 134, 722 S.W.2d 596 (1987) (holding that section 41-1206, now codified as section 5-4-307, prevents the stacking of periods of suspension or probation).
Because the issue of the consecutive sentencing does not relate to appellant’s guilt, we can correct the sentence in lieu of remanding the matter. Walden v. State, 2014 Ark. 193, 433 S.W.3d 864, citing Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003). Accordingly, we affirmed the trial court’s order but modify the suspended sentence in case no. 66CR-10-596 to run concurrently with the sentence of 300 months’ imprisonment in case no. 66CR-10-594.
Order affirmed as modified.
. Arkansas Rule of Civil Procedure 60(a) allows for a circuit court to modify or vacate a judgment, order, or decree, within ninety days of its having been filed with the clerk. This court has emphatically stated that Rule 60(a) does not apply to criminal proceedings. Ibsen v. Plegge, 341 Ark. 225, 15 S.W.3d 686 (2000). Nor has this court allowed the application of Arkansas Rule of Civil Procedure 60(c), which permits a court to set aside judgment more than ninety days after the entry of judgment. See McArty v. State, 364 Ark. 517, 221 S.W.3d 332 (2006); Ibsen, 341 Ark. 225, 15 S.W.3d 686. The trial court here did not apply Rule 60 to the judgment in appellant’s case. | [
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PER CURIAM.
In 2005, appellant Laurie Jamett, who is also known as Laurie Jammett, was charged with two counts of delivery of a controlled substance, one count of possession of a controlled substance with intent to deliver, one count of possession of a controlled substance, and one count of possession of drug paraphernalia. Subsequent to an adverse ruling on appellant’s motion to suppress evidence, appellant entered a conditional plea of guilty, pursuant to Arkansas Rule of Criminal Procedure 24.3(b) (2006), reserving in writing the right to withdraw the guilty plea should the trial court’s determination on the suppression motion be overturned on appeal. The court accepted appellant’s guilty plea and imposed, as negotiated, an aggregate sentence of twenty-five years’ imprisonment in the Arkansas Department of Correction and twenty-five years’ suspended imposition of sentence, the two periods to run consecutively.
Pursuant to the condition of the plea, appellant timely filed a direct appeal of the trial court’s suppression ruling; the court of appeals affirmed. Jammett v. State, CACR 06-915, 2007 WL 1697315 (Ark.App. June 13, 2007). Appellant then timely filed a petition for postconviction relief in the trial court pursuant to Arkansas Rule of Criminal Procedure 37.1 (2007) on August 17, 2007. The petition was denied without a hearing by the trial court on May 14, 2008. Appellant timely filed the instant appeal on June 9, 2008.
As grounds for relief under Rule 37.1, appellant alleged that trial counsel was ineffective for failing to present certain mitigating evidence to the trial court during sentencing; that the prosecutor breached his duty to inform the trial court of certain mitigating evidence; and that, due to the failures of trial counsel and the prosecutor, appellant was sentenced in a constitutionally defective process in violation of her due process rights. On appeal, appellant contends that the trial court erred in denying the claims and in dismissing her petition without a hearing. Appellant asks that the matter be remanded to the trial court for an evidentiary hearing. We find no error, and we affirm.
This court does not reverse a denial of postconviction relief unless the trial court’s findings are clearly erroneous. Britt v. State, 2009 Ark. 569, 349 S.W.3d 290 (per curiam); Davis v. State, 366 Ark. 401, 235 S.W.3d 902 (2006) (per curiam). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Anderson v. State, 2009 Ark. 493, 2009 WL 3235533 (per curiam); Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007) (per curiam).
When a defendant pleads guilty, the only claims cognizable in a proceeding pursuant to Rule 37.1 are those that allege that the plea was not made voluntarily and intelligently or was entered without effective assistance of counsel. French v. State, 2009 Ark. 443, 2009 WL 3047356, at 2-3 (per curiam); State v. Herred, 332 Ark. 241, 964 S.W.2d 391 (1998). This is true even of a conditional guilty plea, as a defendant’s receipt of an unfavorable ruling on appeal makes that plea final and it is treated the same as any other plea of guilty. Scalco v. City of Russellville, 318 Ark. 65, 69, 883 S.W.2d 813, 815 (1994). Thus, we will only address appellant’s ineffective assistance of counsel claim and her argument that the trial court erred in dismissing appellant’s Rule 37.1 petition without holding an evidentiary hearing. Appellant’s additional arguments alleging prosecutorial misconduct and due-process violations are procedurally barred.
In an appeal from a trial court’s denial of postconviction relief on a claim of ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel’s performance was effective. Small, 371 Ark. 244, 264 S.W.3d 512. Under the Strickland test, a claimant must demonstrate both that counsel’s performance fell below an objective standard of reasonableness and that counsel’s deficient performance prejudiced his defense to such an extent that the petitioner was deprived of a fair trial. Thomas v. State, 330 Ark. 442, 447, 954 S.W.2d 255, 257 (1997); see also Walker v. State, 367 Ark. 523, 241 S.W.3d 734 (2006) (per curiam). An appellant who has pleaded guilty normally will have considerable difficulty in proving any prejudice as her plea rests upon her admission in open court that she did the act with which she was charged. Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989). To establish prejudice and prove that she was deprived of a fair trial due to ineffective assistance of counsel, an appellant who has pleaded guilty must demonstrate a reasonable probability that, but for counsel’s errors, petitioner would not have so pleaded and would have insisted on going to trial. Buchheit v. State, 339 Ark. 481, 483, 6 S.W.3d 109, 111 (1999) (per curiam) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).
Appellant argues that trial counsel was ineffective for failing to inform the court prior to sentencing about a conversation appellant allegedly had with Detective Kelly of the Rogers Police Department. According to appellant, after she was arrested, she was told by Detective Kelly that, if she would assist the police in setting up the arrest of her drug supplier through a controlled buy in her home, the police would make sure that the prosecutor and trial court were aware of her help so that it could be taken into consideration during sentencing. Appellant “understood [this promise] to mean that [Detective Kelly] would make sure the prosecutor and the judge knew that [she] had cooperated with the police, and would ask for a lenient sentence.”
Appellant claims that, based on her understanding of Detective Kelly’s offer, she agreed to help the police the following day. An unknown number of officers hid in and around appellant’s house while appellant, wearing a surveillance wire, purchased a quantity of drugs from a man known as “Julio.” When the sale was completed, appellant states that the police “burst into the room with guns drawn ... and arrested [Julio].”
Appellant further alleges that she disclosed all of this information to her trial counsel, but trial counsel never confirmed to appellant whether he had relayed the information to the prosecutor. Instead, appellant claims that trial counsel first informed her of the aforementioned negotiated plea offer on the day of trial, that counsel claimed those were the only terms that the prosecutor was willing to offer, and that a sentence resulting from a guilty verdict at trial would be worse. During the plea hearing, trial counsel, the prosecutor, and appellant all failed to mention to the court appellant’s assistance to the police or her conversation with Detective Kelly.
Appellant now contends that such failure by her attorney amounts to ineffective assistance of counsel under Strickland. Appellant is explicit that she is not challenging her figuilty plea itself, or even that, had trial counsel informed the judge of appellant’s conversation with the police, she would not have pleaded guilty and would have, instead, taken her chances at trial. Rather, appellant argues that she had a guaranteed right to present mitigating evidence to the court for sentencing purposes, that trial counsel’s failure to so inform the court abrogated appellant’s right, and that this failure became ineffective assistance of counsel when it resulted in prejudice in the form of a more severe sentence than appellant might have otherwise received. This argument is unavailing; appellant is incorrect with respect to her right to present mitigating evidence following her guilty plea, and she fails to establish prejudice under Buchheit v. State, 339 Ark. at 483, 6 S.W.3d at 111.
Appellant ignores the fact that the sentence imposed was part and parcel of the plea agreement itself. The plea agreement signed by appellant stated that she “agree[d] to enter a conditional plea of guilty to” the five charges against her. In exchange, the “prosecuting attorney agree[d] to recommend the following: 1. Commitment/Suspended Sentence: 25 years with [an additional] 25 years suspended.” We apply general contract principles in interpreting plea agreements. Green v. State, 2009 Ark. 113, 313 S.W.3d 521. Under the terms of the agreement, both parties bargained for and received substantial benefits. See id. A subsequent attempt by appellant to alter the terms of the agreement by seeking a lower sentence than the one she contracted for would have been a breach of the agreement. Id. The appropriate remedy for such a breach would have been for the trial court to vacate the plea agreement and restore the parties to the respective positions prior to the agreement. Id. Thus, an attempt to mitigate and reduce the agreed-upon term of years could not have resulted in a lower sentence for appellant; she would have lost her bargained-for sentence entirely and gone to trial, where she faced possible life imprisonment if convicted.
Inasmuch as appellant ignores the contractual implications of a plea agreement, her citation to Hunter v. State, 264 Ark. 195, 570 S.W.2d 267 (1978), for the proposition that a criminal defendant is always entitled to present mitigating circumstances for sentencing purposes is in error. At issue in Hunter was sentencing by a jury following a trial, not sentencing by the trial court following a guilty plea entered in exchange for a negotiated term of years. Additionally, the proposition in Hunter that appellant points to is arguably dicta, as the issue had not been properly preserved in the trial court for appeal and was therefore not a factor in the appellate court’s decision.
Further, as we have already stated, to establish prejudice and prove that she was deprived of a fair trial due to ineffective assistance of counsel, an appellant who has pleaded guilty must demonstrate a reasonable probability that, but for counsel’s errors, petitioner would not have so pleaded and would have insisted on going to trial. Buchheit, 339 Ark. at 483, 6 S.W.3d at 111. It would defy all logic for appellant to assert that she would not have entered a plea for the agreed-upon sentence if trial counsel had presented mitigating evidence, as any presentation of mitigating evidence would have occurred subsequent to appellant entering the guilty plea, which she admits was entered knowingly and intelligently. Appellant offers no authority to suggest that she can overcome this logical flaw and establish ineffective assistance of counsel under Strickland merely by arguing against the propriety of her sentence.
In addition to this logical flaw, had appellant asserted that she would not have pleaded guilty, her claim would also fail based upon her own statements at the plea hearing. We have stated that, where the record shows that the trial court questioned a defendant about whether he was satisfied with his attorney and whether his guilty plea was freely and voluntarily made, and defendant answered in the affirmative, the defendant could not subsequently claim ineffective assistance of counsel on those grounds in a Rule 37.1 petition because he had an opportunity to raise the issue prior to his plea and failed to do so. Douthitt v. State, 283 Ark. 177, 182-83, 671 S.W.2d 746, 749 (1984). The plea hearing transcript shows clearly that appellant informed the court that she was entering the plea of her own free will, with no outside promises or threats, and that she was satisfied with the performance of her attorney. In addition to her claims regarding trial counsel’s failure to properly inform the trial court, appellant alleges a failure by counsel to investigate mitigating evidence and argues that this failure amounts to ineffective assistance of counsel. This argument was not presented to the trial court in appellant’s original Rule 37.1 petition, however. All grounds for relief pursuant to Rule 37.1 must be asserted in the original or amended petition. Ark. R.Crim. P. 37.2(b), (e) (2006). We do not consider issues that are raised for the first time on appeal. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006).
Appellant also argues that the trial court erred in denying relief on her Rule 37.1 petition without first holding an evidentiary hearing. By way of analogy to Arkansas Rule of Civil Procedure 12(b)(6) (2006), she argues that all allegations made by an appellant should be taken “at face value,” in the light most favorable to the appellant, when a trial court is deciding whether to summarily deny relief on a Rule 37.1 petition without holding an evi-dentiary hearing. We do not agree. The standard we have articulated numerous times is that a court may deny relief without a hearing where the flies and records of the case conclusively show that the petitioner is entitled to no relief. See, e.g., Brown v. State, 291 Ark. 143, 145, 722 S.W.2d 845, 847 (1987). Here, the trial court examined the record, found appellant’s ineffective assistance of counsel claims without merit, entered written findings to that effect, and denied the petition without a hearing. Because we agree that the record conclusively shows appellant’s petition to be without merit, we cannot say that the trial court’s decision to dismiss without a hearing was clearly erroneous. Accordingly, the order is affirmed.
Affirmed.
. Appeal of the trial court’s decision not to hold an evidentiary hearing prior to denying relief on the petition is permissible as an appeal not from the guilty plea, but from the denial of the petition for postconviction relief. See State v. Sherman, 303 Ark. 284, 796 S.W.2d 339 (1990); see generally Bryant v. State, 323 Ark. 130, 913 S.W.2d 257 (1996) (allowing appeal from the trial court's decision to deny Rule 37.1 relief without an evi-dentiary hearing while also noting that the only claims cognizable in Rule 37 proceedings following a guilty plea are those which allege that the plea was not made voluntarily and intelligently or was entered without effective assistance of counsel).
. Appellant also argues that trial counsel’s failure to inform the prosecutor of the mitigating evidence amounts to ineffective assistance of counsel. However, appellant cites no case law that suggests that a failure on the part of trial counsel during plea bargaining may constitute ineffective assistance. We need not consider an argument, even a constitutional one, when a claimant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. Weatherford v. State, 352 Ark. 324, 101 S.W.3d 227 (2003).
. Hunter states only that "the legislature intended for the jury to consider all the aggravating and mitigating circumstances shown by the evidence[.]” Hunter, 264 Ark. at 197, 570 S.W.2d at 268 (emphasis added).
. Any claim of prejudice based on the severity of the sentence is an issue for a plea for executive clemency and is unavailing in a Rule 37.1 petition. Pettit v. State, 296 Ark. 423, 758 S.W.2d 1 (1988). | [
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DONALD L. CORBIN, Justice.
Appellant Peter Rosenow, individually, and on behalf of a class of similarly situated persons, appeals the order of the Saline County Circuit Court denying his motion for class certification. On appeal, Appellant argues that the circuit court abused its discretion (1) by denying class certification on the basis that the elements of commonality, predominance, and superiority could not be satisfied; and (2) by denying his motion to strike the expert opinion of Dr. Jerry A. Hausman, regarding the calculation of potential damages incurred by Appellees. This court assumed jurisdiction of this case; hence, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1 — 2(d) (2009). We reverse and remand this matter to the circuit court.
On February 15, 2006, Appellant filed a complaint, individually, and on behalf of a purported class, against Appellees Alltel Corporation and Alltel Mobile Communications, Inc., alleging damages resulting from Appellees’ imposition of an early termination fee against its customers. In his complaint, Appellant, who initially obtained cellular service with Appellees in 1997, states that he chose to terminate his cellular service because of dissatisfaction with the service Appellees provided. He was then charged an early termination fee of $200. Appellant disputed the fee and requested a copy of the contract that would justify imposition of the fee. Appel-lees refused to provide any contracts, claiming they were not required to do so. Appellant further stated that to his knowledge he never signed any contract or oth erwise agreed to pay an early termination fee. When Appellant refused to pay the fee, Appellees continued to add additional late fees and taxes to his account, with the total due being $229.87. Appellant paid the bill in full, but under protest, on October 17, 2005, out of fear that Appellees would take adverse action against him.
Thereafter, Appellant filed the instant suit alleging that imposition of the early termination fee violated the Arkansas Deceptive Trade Practices Act (ADTPA), and also constituted a violation of the common law theory of unjust enrichment. Appellant further alleged that the requirements for a class action could be satisfied and requested that a class be certified and defined as
[a]ll Arkansas residents, excluding Defendants’ employees, who have paid the Defendants’ early termination fee within the last five years immediately preceding the date of the filing of the Complaint up through and including the date of the judgment in this case.
In his prayer for relief, Appellant requested, among other things, that the circuit court declare the fee to be void, order Appellees to extinguish all such fees on the accounts of class members, and to refund the class members any and all early termination fees and any related fees previously paid.
Appellees opposed class certification. As part of the evidence used to support their position against class certification, Appellees submitted a “declaration” by Dr. Hausman, an economics and telecommunications expert from the Massachusetts Institute of Technology. Dr. Haus-man compared the early termination fee to Appellees’ potential losses and then made the following conclusions: (1) there was no injury to the members of the alleged class; (2) there existed an intraclass conflict based on calling plans, termination dates, etc.; and (3) certification of a class was not warranted because of the necessity of individualized determinations of injuries. Finally, Dr. Hausman stated that there was a possibility that an intraclass conflict might arise because some customers could owe more in damages than the $200 early termination fee and because a majority of subscribers would prefer to sign a contract and be subjected to the early termination fee.
Appellant filed a motion to strike this declaration, arguing that it was not admissible under Ark. R. Evid. 702, as it was a legal opinion that told the court how to rule. Appellant also argued that Dr. Hausman’s opinion was unreliable and therefore inadmissible.
A hearing on the issue of class certification and on the motion to strike the declaration was held on October 8, 2007. Before ruling on the motion to strike, the circuit court allowed Dr. Hausman to testify. His testimony reiterated his conclusions found in the previously submitted declaration. Ultimately, the circuit court denied Appellant’s motion to strike the expert opinion of Dr. Hausman. The court also denied the request for class certification. A written order was entered on January 26, 2009. Therein, the circuit court concluded that Appellant had satisfied his burden under Ark. R. Civ. P. 23, with regard to typicality, numerosity, and adequacy. However, the court further found that Appellant had not satisfied his burden with regard to commonality, predominance, and superiority. Specifically, the circuit court found that each class member would need to prove that “the ETF is disproportionate to Alltel’s actual damages arising out of the particular class member’s breach of contract by terminating early” in order to establish that the fee is not a valid liquid-damages provision. The circuit court concluded that because there was no common amount of damages sustained by Appellees as a result of early termination, it would be necessary to conduct individual comparisons and, thus, class certification was not appropriate. This appeal followed.
As his first point on appeal, Appellant argues that the circuit court abused its discretion in denying his request for class certification. According to Appellant, the circuit court utilized an improper merits-based analysis that led to the conclusion that the requirements of commonality, predominance, and superiority could not be satisfied. Appellees counter that the circuit court did not delve into the merits of the case but rather looked to the elements of Appellants’ claims to determine that class certification was not warranted.
In reviewing a circuit court’s decision to grant or deny class certification, we give circuit courts broad discretion and will reverse only when the appellant can demonstrate an abuse of discretion. Simpson Housing Solutions, LLC v. Hernandez, 2009 Ark. 480, 347 S.W.3d 1. When reviewing a circuit court’s class-certification order, we review the evidence contained in the record to determine whether it supports the circuit court’s decision. Id. Neither this court nor the circuit court delves into the merits of the underlying claims at this stage, as the issue of whether to certify a class is not determined by whether the plaintiff has stated a cause of action for the proposed class that will prevail. Id.; see also Johnson’s Sales Co. v. Harris, 370 Ark. 387, 260 S.W.3d 273 (2007).
Class actions are governed by Rule 23 of the Arkansas Rules of Civil Procedure, which provides in pertinent part:
(a) Prerequisites to Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties and their counsel will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. At an early practicable time after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. For purposes of this subdivision, “practicable” means reasonably capable of being accomplished. An order under this section may be altered or amended at any time before the court enters final judgment. An order certifying a class action must define the class and the class claims, issues, or defenses.
Ark. R. Civ. P. 23(a), (b) (2009). Our law is well settled that the six requirements for class-action certification include: (1) numerosity, (2) commonality, (3) typicality, (4) adequacy, (5) predominance, and (6) superiority. See Flow Doc, Inc. v. Horton, 2009 Ark. 411, 334 S.W.3d 865. We need only discuss the three contested requirements: commonality, predominance, and superiority. We begin with commonality and predominance.
Pursuant to Rule 23(a)(2), the trial court must determine whether “there are questions of law or fact common to the class.” This court has stated that this requirement is case specific. Johnson’s Sales, 370 Ark. 387, 260 S.W.3d 273. We have previously stated the following regarding the commonality issue:
Rule 23(a)(2) does not require that all questions of law or fact raised in the litigation be common. The test or standard for meeting the rule 23(a)(2) prerequisite is ... that there need be only a single issue common to all members of the class.... When the party opposing the class has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected.
Hernandez, 2009 Ark. 480, at 9, 347 S.W.3d at 8 (quoting Herbert B. Newberg, Newberg on Class Actions, § 3.10 (3d ed.1993)). The circuit court “must determine what elements in a cause of action are common questions for the purpose of certifying a class.” Id. at 9, 347 S.W.3d at 8 (quoting Williamson v. Sanofi Winthrop Pharm., Inc., 347 Ark. 89, 96-97, 60 S.W.3d 428, 432-33 (2001)). Moreover, commonality is satisfied where “the defendant’s acts, independent of any action by the class members, establishes a common question relating to the entire class.” Id.
Here, the circuit court did not identify any common issues to be resolved. In ruling that the elements of commonality and predominance could not be satisfied, the circuit court instead focused on the fact that Appellees, depending on the contract terms with its customers and when those customers terminated their service, might have suffered damages in excess of the $200 early termination fee. Thus, according to the circuit court’s reasoning, the claims of prospective class members would be highly individualized and thereby defeat the requirements of commonality and predominance. The circuit court, in its order, stated:
Mr. Rosenow alleges that the ETF is excessive and that it operates as a “penalty” because it is allegedly unreasonable when compared to Alltel’s actual damages. However, there is no common amount of damages sustained by Alltel as a result of an early termination. Because the amount of Alltel’s breach-of-contract damages varies from subscriber to subscriber, individual comparisons must be conducted. As explained below, if this case proceeded as a class action, this Court would have to examine potentially thousands of customer transactions, assessing on a customer-by-customer basis whether the ETF is reasonable in relation to Alltel’s actual damages arising out of each customer’s breach of contract.
The circuit court further reasoned that Appellant was alleging that the early termination fee was a penalty because it was unreasonable when compared to Alltel’s actual damages and, thus, in order to determine if the fee was in fact a penalty, the court would have to conduct a customer-by-customer assessment. The court based this reasoning on the belief that
[a]n essential element of each putative class member’s penalty claim is that the ETF is disproportionate to Alltel’s actual damages arising out of the particular class member’s breach of contract by terminating early.
Relying on Dr. Hausman’s expert opinion, the circuit court noted that, at a minimum, it would be necessary to determine Alltel’s lost profits resulting from a premature termination by reviewing the customer’s wireless plan and how much time remained on the customer’s contract when he or she terminated. Further, the circuit court noted that if the early termination fee was invalidated, Alltel would be enti- tied to a setoff, as it would be allowed to recover its actual damages resulting from each class member’s breach of contract. The circuit court also concluded that there could be an intraclass conflict because if the court invalidates the early termination fee, some class members could be exposed to liability in excess of $200.
Clearly, the reasoning by the circuit court goes well beyond the procedural issues of whether there are any common issues and whether those common issues predominate. The circuit court’s focus in analyzing the requirements of Rule 23 was possible damages sustained by Alltel, and not the claims alleged by Appellant on behalf of the class.
We disagree with Appellees’ assertion that the circuit court had to consider damages, as they were an element of Appellant’s claim. It is true that this court has acknowledged that consideration of the elements of the underlying claim may be important to determine whether any questions are common to the class and whether those questions will resolve the issue. Williamson, 347 Ark. 89, 60 S.W.3d 428. Here, though, the circuit court went beyond a consideration of the elements of Appellant’s claim. In order to reach the conclusion that it did, the circuit court necessarily had to determine that there was no merit to Appellant’s claim that imposition of the fee violated the ADTPA, nor was there merit to the claim that the early termination fee is not enforceable. Conducting this merits-based analysis was an abuse of discretion.
The proper starting point in analyzing commonality is whether there is at least one single issue common to all members of the class. See Union Pac. R.R. v. Vickers, 2009 Ark. 259, 308 S.W.3d 573. In this case, Appellant alleges that the common wrong giving rise to this litigation is that the Appellees engaged in an unfair and deceptive business practice of imposing the early termination fee. Appellant further asserts a laundry list of common questions of law and fact that stem from this alleged common wrong. There must be a determination on these common issues. The mere fact that individual issues and defenses may be raised regarding the recovery of individual members cannot defeat class certification where there are common questions concerning the defendant’s alleged wrongdoing that must be resolved for all class members. Nat’l Cash, Inc. v. Loveless, 361 Ark. 112, 205 S.W.3d 127 (2005). Moreover, an attempt to raise defenses at this stage is an attempt to delve into the merits of the case. Id.; see also Johnson's Sales, 370 Ark. 387, 260 S.W.3d 273 (stating that the possibility that appellant may raise affirmative defenses or counterclaims does not defeat class certification); Fraley v. Williams Ford Tractor & Equip. Co., 339 Ark. 322, 5 S.W.3d 423 (1999) (holding that the circuit court could not examine the affirmative defenses of release and consent in deciding whether to grant certification).
Once commonality is determined, the next question is whether common questions of law and fact predominate over any questions affecting only individual members. Johnson’s Sales, 370 Ark. 387, 260 S.W.3d 273. Notably, the predominance requirement is more stringent than commonality. See Vickers, 2009 Ark. 259, 308 S.W.3d 573.
In Vickers, this court recently summarized the standard for testing predominance:
When deciding whether common questions predominate over other questions affecting only individual members, this court does not merely compare the number of individual versus common claims. Rather, this court decides if the prelimi nary, overarching issues common to all class members “predominate over” the individual issues, which can be resolved during the decertified stage of a bifurcated proceeding. Thus, the mere fact that individual issues and defenses may be raised regarding the recovery of individual members cannot defeat class certification where there are common questions concerning the defendant’s alleged wrongdoing that must be resolved for all class members.
Id. at 9, 308 S.W.3d at 578-79 (citations omitted).
This court has further said that if a case involves preliminary issues common to all class members, predominance is satisfied even if the court must subsequently decertify a class due to individualized damages. See, e.g., Farmers Ins. Co. v. Snowden, 366 Ark. 138, 233 S.W.3d 664 (2006). However, if the preliminary issues are sufficiently individualized, then predominance is not satisfied and class certification is improper. Id. Indeed, a case that presents numerous individual issues regarding the defendants’ conduct, causation, injury, and damages will best be resolved on a case-by-case basis. Teris, LLC v. Chandler, 375 Ark. 70, 289 S.W.3d 63 (2008). Stated another way, predominance does not fail simply because there are individual issues that may arise; the central question to be resolved by the circuit court is whether there are overarching issues that can be addressed before resolving individual issues. See FirstPlus Home Loan Owner 1997-1 v. Bryant, 372 Ark. 466, 277 S.W.3d 576 (2008).
In the instant case, the circuit court concluded that the need to decide individualized issues defeated the predominance requirement. Again, however, the circuit court’s starting point in analyzing the requirements of predominance erroneously focused on Appellees’ potential damages rather than the common wrong alleged by Appellant. As a result, the circuit court abused its discretion by delving into the merits of this case to determine that this requirement was not satisfied.
The final requirement of Rule 23 found by the circuit court to be lacking in this case was superiority. This court has repeatedly held that the superiority requirement is satisfied if class certification is the more efficient way of handling the case and it is fair to both sides. See, e.g., Bryant, 374 Ark. 38, 285 S.W.3d 634. When determining whether a class action is the superior method of adjudication, it may be necessary for the circuit judge to evaluate the manageability of the class. Id. The avoidance of multiple suits lies at the heart of any class-action decision. Id. Furthermore, where a cohesive and manageable class exists, we have often held that “real efficiency can be had if common, predominating questions of law or fact are first decided, with cases then splintering for a trial on individual issues, if necessary.” Snowden, 366 Ark. at 150, 233 S.W.3d at 672.
This court has repeatedly recognized that conducting a trial on the common issue in a representative fashion can achieve judicial efficiency. See General Motors Corp. v. Bryant, 374 Ark. 38, 285 S.W.3d 634 (2008). Furthermore, we have routinely stated that the bifurcated process of class actions is consistent with Rule 23(d), which allows the circuit court to enter orders necessary for the appropriate management of the class action. Id. In fact, we have expressed our approval for the bifurcated approach to the predominance element by allowing circuit courts to divide a case into two phases: (1) certification for resolution of the preliminary, common issues; and (2) decertification for the resolution of the individual issues. Id. The bifurcated approach has only been disallowed where the preliminary issues to be resolved were individual issues rather than common ones. Id.
Here, by focusing on the merits of the case, the court noted that it might be necessary to conduct thousands of minitri-als that would overwhelm its docket and thus concluded that the superiority requirement was not satisfied. However, as we have explained, the circuit court’s reasoning was based on an impermissible evaluation of the merits of this case. Accordingly, the circuit court abused its discretion in finding that the requirement of superiority could not be satisfied.
As his second point on appeal, Appellant argues that it was error for the circuit court to deny his motion to strike the testimony of Dr. Hausman regarding the calculation of Appellees’ damages. Appellant argues that Dr. Hausman’s expert opinion told the circuit court how to rule on the underlying merits of the case and, therefore, invaded the province of the circuit court. He also argues that the testimony was unreliable. Appellees counter that the circuit court did not abuse its discretion in denying the motion to strike.
This court has long recognized that the admissibility of expert testimony rests largely within the broad discretion of the trial court and that an appellant bears the burdensome task of demonstrating that the trial court abused its discretion. Williams v. First Unum Life Ins. Co., 358 Ark. 224, 188 S.W.3d 908 (2004).
Rule 702 provides that a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. Ark. R. Evid. 702 (2009). Rule 704 governs expert opinions touching on the ultimate issue and provides that “[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Ark. R. Evid. 704 (2009).
In Unum, this court concluded that proffered expert testimony from a witness, who was an attorney, regarding whether a term in a contract was ambiguous was properly excluded because such testimony would have been unduly confusing to the jury and would have invaded the role of the circuit court in instructing the jury on the operative law. In this case, Dr. Haus-man’s testimony focused on Alltel’s damages and how other costs might increase if the early termination fees were invalidated. As explained with regard to the requirements of Rule 23, Dr. Hausman’s opinion was concerned with the underlying merits of this case. As it is improper to consider the underlying merits at the class-certification stage of proceedings, Dr. Hausman’s opinion was not relevant to the issue of whether a class should be certified. Moreover, his expert opinion violated Rule 704, as it contained conclusions that invaded the role of the circuit court. Accordingly, the circuit court abused its discretion in denying Appellant’s motion to strike.
We reverse the circuit court’s order denying Appellant’s motion for class certification and denying his motion to strike the expert opinion of Dr. Hausman. We remand to the circuit court for a proper determination of whether the requirements of Rule 23 can be satisfied in this case.
Reversed and remanded.
BROWN, J., dissents in part; concurs in part.
. Although Alltel's assets were purchased by Verizon Wireless and its stores renamed under the Verizon brand, the parties refer to Appellees as Alltel; thus, this court will do the same. | [
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PER CURIAM.
In accordance with section 2(D)(3) of amendment 80 to the Arkansas Constitution and Rule 6-8 of the Rules of the Supreme Court and Court of Appeals of the state of Arkansas, Judge Richard D. Taylor of the United States Bankruptcy Court for the Eastern District of Arkansas, filed a motion and certification order with our clerk on December 30, 2009. The bankruptcy court requests that we answer one question of Arkansas law that may be determinative of a cause now pending in that court, because it appears that there is no controlling precedent in the decisions of the Arkansas Supreme Court.
After a review of the certifying court’s analysis and explanation of the need for this court to answer the question of law presently pending in that court, we accept certification of the following question:
Whether an affidavit of lost mortgage with a copy of the mortgage appended, or merely a copy of an admittedly lost original mortgage, separately or collectively recorded, constitutes constructive notice sufficient to defeat the claim of a bona fide purchaser under the laws of the State of Arkansas.
This per curiam order constitutes notice of our acceptance of the certification of question of law. For purposes of the pending proceeding in this court, the following requirements are imposed:
A. Time limits under Arkansas Supreme Court Rule 4-4 will be calculated from the date of this per cu-riam order accepting certification. The plaintiff in the underlying action, Frederick S. Wetzel, is designated the moving party and will be denoted as the “Petitioner,” and his brief is due thirty days from the date of this per curiam; the defendant, Mortgage Electronic Registration Systems, Inc., shall be denoted as the “Respondent” and its brief shall be due thirty days after the filing of Petitioner’s brief. Petitioner may file a reply brief within fifteen days after Respondent’s brief is filed.
See Ark. Sup.Ct. R. 4-4.
B. The briefs shall comply with this court’s rules as in other cases except for the briefs’ content. Only the following items required in Arkansas Supreme Court Rule 4-2(a) shall be included:
(3) Point on appeal which shall correspond to the certified question of law to be answered in the federal bankruptcy court’s certification order.
(4) Table of authorities.
(5) Statement of the case which shall correspond to the facts relevant to the certified question of law as stated in the federal bankruptcy court’s certification order.
(7) Argument.
(8) Addendum, if necessary and appropriate.
(9) Cover for briefs.
See Ark. Sup.Ct. R. 4-2(a).
C. Oral argument will only be permitted if this court concludes that it will be helpful for presentation of the issue.
See Ark. Sup.Ct. R. 5-1.
D. Arkansas Supreme Court Rule 4-6 applies to amicus curiae briefs.
See Ark. Sup.Ct. R. 4-6.
E. This matter will be processed as any case on appeal.
See Rules of the Supreme Court and Court of Appeals and Rules of Appellate Procedure-Civil.
F. Rule XIV of the Rules Governing Admission to the Bar shall apply to the attorneys for the Petitioner and Respondent.
See Ark. Bar Adm. R. XIV.
Certified question answered. | [
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ROBERT J. GLADWIN, Chief Judge.
1 Appellant Diamante, a Private Membership Golf Club, LLC (Club), appeals the November 14, 2012 order of the Saline County Circuit Court denying its motion to compel arbitration. The Club argues that it did not waive its right to compel arbitration; that its transaction with appellees Gary and Linda Dye did involve interstate commerce and required the application of the Federal Arbitration Act (FAA); and that there was an agreement to arbitrate between the parties. Although we hold that there was a valid arbitration clause contained in an agreement between the parties, we affirm the circuit court’s denial of the Club’s motion to compel arbitration under the specific facts of this case.
Appellees own Lot 5, Block 20 in the Diamante Subdivision of Hot Springs Village, Saline County, Arkansas. On February 2, 2012, appellees filed a petition for declaratory judgment asking the circuit court to declare unenforceable the membership-and-dues requirement contained in the Corrected Supplemental Declaration of Covenants and | ¡¡Restrictions (Supplemental Declaration) filed on December 18, 1997, in connection with their lot in Hot Springs Village.
Appellees signed a contract when they purchased their lot that indicated that their membership and obligation to pay dues would be subject to the articles, bylaws, if any, and rules and regulations of the Club as revised or amended by the Club or any owner of the Club in its sole discretion. Furthermore, the Supplemental Declaration, which is the subject of appellees’ petition for declaratory judgment, states that they shall pay dues and that the membership shall be subject to the provisions and limitations in the Supplemental Declaration and in accordance with the articles, by-laws, if any, and rules and regulations of the Club. Under the Supplemental Declaration, appellees are required to be members of the Club and to pay monthly membership dues to the Club. If appellees fail to pay the monthly dues, the Club may file a lien against their lot and subsequently foreclose on that lien to collect the unpaid dues.
At the time appellees purchased their lot, there were no by-laws in existence for the Club, but by-laws were adopted by the Club in the summer of 2006, more than eight years after appellees had purchased their lot. Among other things, the by-laws provide that most disputes that cannot be filed in small-claims court and that do not concern dues or charges owed by the Club member must be submitted for binding arbitration.
|sThe by-laws state that any controversy, other than nonpayment of dues, charges, and accounts by a member, arising out of, or relating to the by-laws or the rules and regulations, or any member’s membership, or a breach, which is not within the jurisdiction of the small-claims court, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its rules.
Appellees amended their petition for declaratory relief on September 10, 2012, which added a new allegation against the Club. Appellees alleged for the first time in the amended petition that the Club was breaching the Supplemental Declaration by allowing non-full golf members to play golf on the course. On September 19, 2012, the Club filed a motion to compel arbitration pursuant to the arbitration provision in the Club’s by-laws. The circuit court denied the motion pursuant to the order filed on November 14, 2012, and the Club filed a timely notice of appeal on December 7, 2012.
Our rules of appellate procedure allow for interlocutory appeals from orders denying a motion to compel arbitration. Ark. R.App. P.-Civ. 2(a)(12) (2012). We review the denial of a motion to compel arbitration de novo on the record. IIPD, LLC v. TETRA Techs., Inc., 2012 Ark. 408, 424 S.W.3d 304; Alltel Corp. v. Sumner, 360 Ark. 573, 203 S.W.3d 77 (2005); Advoca, Inc. v. Heide, 2010 Ark.App. 825, 378 S.W.3d 779. The appellate court decides the issues on appeal using the record developed in the circuit court without | Reference to the circuit court’s ruling. Wyatt v. Giles, 95 Ark.App. 204, 235 S.W.3d 552 (2006). We are not bound by the circuit court’s decision, but in the absence of a showing that the circuit court erred in its interpretation of the law, the circuit court’s decision will be accepted as correct on appeal. Heide, supra. For purposes of clarity, we will address the Club’s points in a different order from that presented.
I. Agreement to Arbitrate Between the Parties
Arbitration is strongly favored in Arkansas as a matter of public policy and is looked upon "with approval by courts as a less expensive and more expeditious means of settling litigation and relieving docket congestion. Hot Spring Cnty. Med. Ctr. v. Ark. Radiology Affiliates, P.A., 103 Ark. App. 252, 288 S.W.3d 676 (2008). Any doubts and ambiguities must be resolved in favor of arbitration. Id.
Arkansas statutes concerning arbitration make it plain that a clear agreement to submit to arbitration is essential:
(a) This subchapter governs an agreement to arbitrate made on or after the effective date of this subchapter.
(b) This subchapter governs an agreement to arbitrate made before the effective date of this subchapter if all the parties to the agreement or to the arbitration proceeding so agree in a record.
Ark.Code Ann. § 16-108-203 (Supp.2011) (emphasis added). The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate. Ark.Code Ann. § 16-108-206(b) (Supp.2011) (emphasis added). Additionally,
[o]n motion of a person, showing an agreement to arbitrate and alleging another person’s refusal to arbitrate pursuant to the agreement: ... (2) If the refusing party opposes the | ^motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.
Ark.Code Ann. § 16-108-207(a) (Supp. 2011) (emphasis added).
Arbitration is a matter of contract between the parties. Hot Spring Cnty. Med. Ctr., supra. The question of whether a lawsuit should be submitted to arbitration is a matter of contract construction. Id. The elements of a contract are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligations. Sumner, supra.
It is undisputed that the parties in this case are competent. We hold that the subject matter is clear from the arbitration provision in the by-laws, the contract signed by appellees, the Supplemental Declaration, and additional documents such as an Addendum to the original contract signed by appellees and a representative for the Club and a 2007 Membership Change of Status Request document signed by Mr. Dye in which the by-laws were acknowledged. The consideration of appellees is the payment of dues and the purchase of the lot, and the consideration on the part of the Club is allowing appel-lees to use the Club — through their membership — and the sale of the lot. There is a mutual obligation because both sides must arbitrate all controversies other than collection cases and small claims, with both parties treated the same under the arbitration provision. See Hamilton v. Ford Motor Credit Co., 99 Ark.App. 124, 257 S.W.3d 566 (2007).
We also hold that there is mutual agreement, with both parties assenting to the agreement and having a meeting of the minds when the objective indicators are reviewed. See Sumner, supra. Appellees signed an agreement that their membership and obligation to |fipay dues would be subject to the by-laws, if any. After bylaws were adopted in 2006, appellees continued to pay their dues and continued to be members of the Club, as they still are today. Also, in 2007, Mr. Dye signed a Membership Change of Status Request document with the Club in which he acknowledged the by-laws of the Club and agreed to pay certain fees in accordance with the by-laws.
Amended terms to a contract, here the arbitration provisions, can be enforced when there is notice. Tinder v. Pinkerton Sec., 305 F.3d 728 (7th Cir.2002). The objective evidence in this case indicates that appellees knew of the by-laws as evidenced by the fact that Mr. Dye signed a document in 2007 agreeing to pay certain fees in accordance with the by-laws. By continuing to be members of the Club, appellees assented to the terms of the bylaws, which they originally agreed to do when they signed the contract upon buying their lot in the subdivision. Appellees both stated in discovery responses that they had read the by-laws, but they subsequently recanted those responses. Madison Pope, general manager of the Club, testified that the by-laws are on the Club’s website, and that it is the practice of the Club to notify new members of the bylaws. Because the objective evidence points to appellees’ assent to the by-laws and the arbitration provision contained therein, we hold that all the elements of a contract have been met, and the parties entered into an agreement to arbitrate the disputes raised in the amended petition for declaratory judgment.
II. Interstate Commerce and Application of the FAA
Our supreme court has held that the FAA applies if a transaction involves interstate commerce even if the parties did not contemplate an interstate-commerce connection. Pest Mgmt., Inc. v. Langer, 869 Ark. 52, 250 S.W.3d 550 (2007); see also Chenal Restoration Contractors, LLC v. Carroll, 2011 Ark. App. 291, 2011 WL 1496003. In the present case, the developer of the Club sold lots all across the country, and the Club has both in-state and out-of-state members. Although, the Club notes that appellees were paying personal property taxes in Texas when they bought their lot and that their driver’s licenses were still from Texas, we do not find that evidence to be determinative. More significant is that one benefit of being a member of the Club is the ability to play other ClubCorp courses nationwide.
Appellees cite Tyson Foods, Inc. v. Archer, 356 Ark. 136, 147 S.W.3d 681 (2004), in which our supreme court commented that the applicability of the FAA only becomes an issue if a determination is made that the arbitration agreement is valid and enforceable. Id. The threshold requirement to determine applicability of the FAA is found in 9 U.S.C., sec. 2:
A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of a contract.
Appellees argue that the FAA does not apply because this case involves an Arkansas lot, an Arkansas seller, an Arkansas buyer, a contract signed in Arkansas, and by-laws adopted solely by the Club in Arkansas at a time when an agreement to arbitrate in this state had to be in writing. See former Ark.Code Ann. § 16-108-201 (Repl.2006), repealed by Act 695 of 2011, which requires a “written agreement” to arbitrate.
Appellees attempt to distinguish Langer, supra, noting that there was a contract signed by both parties, and the contract contained a written arbitration agreement stating that it |swould be governed by the FAA. Langer, supra. They also challenge appellant’s reliance on Tinder, supra, not1 ing that the case dealt with a specific arbitration clause contained in a pamphlet released by the employer a year later and applied specifically to an at-will employee situation in Wisconsin.
Based on Langer, supra, and Carroll, supra, we hold that the FAA applies. The Club’s sale of lots to both in-state and out-of-state members and the continuing membership benefit of the ability to play other ClubCorp courses nationwide is sufficient to trigger the application of the FAA in this ease.
III. Waiver of Right to Compel Arbitration
As stated in Heide, supra, we review the denial of a motion to compel arbitration de novo on the record. Although we are not bound by the circuit court’s decision, in the absence of a showing that the circuit court erred in its interpretation of the law, the circuit court’s decision will be accepted as correct on appeal. Id.
Our supreme court recently reiterated that when a court is asked to compel arbitration, it is limited to deciding two threshold questions: (1) whether there is a valid agreement to arbitrate between the parties, and if there is, (2) whether the dispute falls within the scope of the agreement. LegalZoom.com, Inc. v. McIllwain, 2013 Ark. 370, 429 S.W.3d 261, (citing TETRA Techs., Inc., supra). Because we have determined that there is a valid agreement between the parties, we now analyze the three factors a court must consider when determining whether a party has waived its right to arbitration: (1) the length of the litigation, (2) the party availing itself of the opportunity to litigate, and (3) the prejudice to |9the opposing party. Heide, supra. Under the specific facts of this case, we hold that the circuit court did not err in finding that the Club waived its right to compel arbitration under its agreement with appellees.
The Club filed its motion to compel arbitration approximately seven months after the appellees had filed their original petition for declaratory judgment. The motion was filed in conjunction with a response to the amended petition for declaratory judgment. The Club asserts that, in this case, seven months is not too long of a period before filing a motion to compel arbitration. The parties had not begun merit discovery, only class discovery, and the Club’s motion was filed with a response to an amended pleading that raised new allegations and claims against the Club.
Additionally, the Club submits that ap-pellees have not been prejudiced by the filing of the motion to compel arbitration seven months after the beginning of the litigation, noting that Mr. Dye expressly testified that he had not been harmed by the motion to compel being filed in September 2012. It is undisputed that appel-lees want to continue to be members of the Club and to pay their dues. Lastly, the contract signed by appellees was not in the Club’s file but was found through discovery, and only after it had been discovered was the motion to compel arbitration filed. For these reasons, the Club claims that it did not waive its right to compel arbitration.
The evidence before us indicates that during the seven-and-a-half months after appellees had filed their original case on February 3, 2012, but before the Club first raised the issue of arbitration on September 19, 2012, the Club filed a motion to dismiss, a motion for | inrecusal, two “withdrawals,” a motion for continuance, as well as responses to several motions filed by appellees. A hearing was held on May 10, 2012, before Judge Arnold, at which rulings on many, if not all, of these motions were obtained.
In Heide, this court noted that
[ojther courts have found waiver when a defendant has taken affirmative steps in an action involving a claim which was allegedly covered by an arbitration agreement. Determining whether a waiver has occurred requires a factually specific inquiry and is “not susceptible to bright line rules.” Generally, “waiver is more likely to be found the longer the litigation goes on, the more a party avails itself of the opportunity to litigate, and the more that party’s litigation results in prejudice to the opposing party.”
Heide, 2010 Ark. App. 825, at 6, 378 S.W.3d at 783-84 (citations omitted). In the present ease, the Club made use of the circuit court to decide motions, raise various defenses and arguments, and participate in a hearing. Appellees indicate that they were forced to spend a great deal of attorney time and expense in the preparation of pleadings and responses, as well as being present at the hearing. In Heide, the time period involved between initial pleading and raising of the arbitration issue was only three months, versus seven months here, and there is no evidence that the matter involved extensive motions as here, or that any hearings were held. Id. The analysis in Heide on the extent of the proceedings in circuit court, as well as the expense of time and/or money incurred in that venue, supports the circuit court’s denial of the Club’s motion to compel arbitration in the instant case. Under our standard of review, we hold that the circuit court did not err in its determination that the Club waived its right to raise the arbitration defense due to unnecessary delay, prejudice |T1 to appellees, and failure to raise the arbitration issue earlier in the prior hearing on the Club’s motion to dismiss.
Affirmed.
PITTMAN J., agrees.
WOOD, J., concurs.
. The by-laws were executed during the first week of August 2006, but state that they were deemed effective as of June 1, 2006.
. The Club claims that this is a matter involving appellees' membership and should be decided by arbitration just as the other issues raised in the petition should be decided by arbitration — and that appellees should not be allowed to raise new allegations against the Club without it being allowed to at least assert its right to arbitrate the issues. | [
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KAREN R. BAKER, Judge.
Appellant Debra Dick appeals the Workers’ Compensation Commission’s denial of benefits, asserting that the Commission erred in finding that she failed to prove that she is entitled to both medical treatment in the form of an MRI for her compensable injury and temporary total disability benefits from May 8, 2007, to a date yet to be determined. We find merit to her argument and reverse and remand for the Commission to enter a decision consistent with this opinion.
A series of disputes regarding the appropriate benefits in this case has resulted in three hearings before the Commission. The process began on September 3, 2000, when appellant sustained an admittedly compensable injury while working for appellant Conley Transport as an over-the-road truck driver. She slipped and fell backward while getting out of her truck, causing her to fall to the ground. A cervical strain was ultimately diagnosed and, when her problems continued, an MRI was ordered.
This first MRI was performed on September 13, 2000, and revealed the following conditions that x-rays did not show:
Dorsal protrusion of the disc material C5-6, leading to flattening and indentation of the thecal sac with slight flattening and dorsal displacement of the cord. Cervical kyphosis C5-6. Mild disc bulge C4-5.
Appellant received treatment for her injuries. Then in February of 2001, at ap-pellees Conley and Virginia Surety Co.’s direction, appellant came under the care of Dr. James Blankenship, a neurosurgeon. Dr. Blankenship advised surgery as one medical treatment for appellant’s injury; however, appellant and her other medical providers entered a more conservative treatment plan consisting of medication and physical therapy. When the conservative treatment failed to alleviate appellant’s problems from the injury, appellant returned to Dr. Blankenship, who again recommended surgery for the herniated disc at C5-6 that was revealed in the earlier MRI. However, Dr. Blankenship wanted to obtain an additional MRI prior to performing the surgery. In reviewing the subsequent MRI, Dr. Blankenship opined that the MRI confirmed “a rather significant disc disruption at C5-6 with forward angulation at that level.” He continued with his evaluation that appellant’s problems were caused by a left C6 radicu-lopathy and offered to perform a C5-6 anterior cervical discectomy and fusion. Again, the MRI showed more detail regarding the extent of appellant’s injury than the x-rays.
On November 11, 2002, the first hearing litigating the extent of benefits was held. An Administrative Law Judge (ALJ) found that appellant continued to suffer from problems that were causally related to her compensable injury and for which medical treatment remained reasonable and necessary. He also found that while she was authorized to receive continued treatment from Dr. Knox, she was not entitled to a requested additional MRI or temporary total disability. In December 2004, Dr. Greenberg performed the surgery, initially identified as appropriate treatment by Dr. Blankenship in 2001, to correct a ruptured disc at the C5-6 level.
A second hearing regarding benefits was held on June 28, 2006. As a result of that hearing, an ALJ found appellant was entitled to another surgery at the C4-5 level occurring as a result of the original injury as additional ruptures are common below or above the sites of the surgical fusions. This surgery was performed by Dr. Green-berg in January 2007. The ALJ also found appellant was entitled to additional total temporary disability (TTD) from the date the surgeon said she re-entered her healing period, August 20, 2005, to a date yet to be determined. The Commission adopted the ALJ’s findings and conclusions on October 16, 2006.
The most recent hearing regarding appellant’s benefits was held on February 12, 2008. The issue was whether additional medical treatment, in the form of an MRI recommended by Dr. Greenberg, was reasonable and necessary, and whether she was entitled to additional TTD from May 8, 2007, to a date yet to be determined. The ALJ found that appellant had not proven that she was entitled to either. He also found that appellees had erroneously overpaid interest on the earlier award as attorney’s fees and credited them with $160.68, and he found that appellant was entitled to a controverted attorney’s fee on the underpayment of TTD benefits from January 28, 2007, through May 7, 2007. The issue of an attorney’s fee was reserved. On January 6, 2009, the Commission’s order adopting the ALJ opinion was filed. Appellant timely filed her notice of appeal.
The ALJ relied on x-rays taken on February 7 and May 7, 2007, to show cervical fusions as stable. The ALJ concluded that the recommendation of Dr. Greenberg, who performed the fusions, that appellant remain off work for three months after those x-rays showed stability, was not explained in the medical records with the exception of his observation that her recovery was still occurring “slowly but steadily.” Based upon this observation, the ALJ declared that “under the law” appellant had reached the end of her healing period.
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. Jones v. Wal-Mart Stores, Inc., 100 Ark.App. 17, 262 S.W.3d 630 (2007). 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; even if a preponderance of the evidence might indicate a contrary result, if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Id. The Commission is required to weigh the evidence impartially without giving the benefit of the doubt to any party. Id.
The Commission also has the duty of weighing the medical evidence as it does any other evidence. Id. The Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Id. When the Commission denies benefits upon finding that the claimant failed to meet his burden of proof, the substantial evidence standard of review requires that we affirm if the Commission’s decision displays a substantial basis for relief. Id.
First and foremost, the ALJ’s summation that either continued improvement at a slow and steady rate or an x-ray report showing stabilization of a surgical fusion means that appellant has reached “the end of her healing period under the law” is a misstatement of the law. This court previously rejected the premise that a medical opinion identifying an anticipated healing process satisfies the law’s requirement for medical evidence of maximum medical improvement sufficient to support the Commission’s finding that an injured employee has reached the end of his or her healing period:
On appeal to this court, appellees argue that the Commission properly inferred from Dr. Bryan’s constructive release of appellant that she had reached the end of her healing period, or that it was imminent, when he saw her on August 14, 2001. Appellees cite no law supporting the premise that our statutory or case law regarding the provision of workers’ compensation benefits recognizes the constructive release of a patient or the inference from such a release that the patient has reached the end of her healing period. Perhaps one practical effect of a failure to timely pay outstanding medical bills could be a delay in obtaining the statutorily required medical opinion identifying the date of maximum medical improvement and assigning an impairment rating.
Nevertheless, our review of the workers’ compensation statutes and their interpretation by case law leads us to reject any suggestion that a party may prove or disprove the end of a healing period through a constructive release of a patient. Section ll-9-102(16)(B) of Arkansas Code Annotated (Repl.2002) provides that medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty. The legislative declaration found in section 11-9-1001 admonishes that any liberalization or broadening or narrowing of the extent to which any physical condition or injury should be excluded from or added to coverage by the law is the sole province of the Arkansas legislature.
Bingle v. Quality Inn, 96 Ark.App. 312, 317-18, 241 S.W.3d 271, 275-76 (2006).
In this case, the Commission rejected Dr. Greenberg’s medical opinion that appellant was medically improving “slowly but steadily” and also rejected his opinion that the “setback” in her recovery could be related to either an additional injury not uncommonly associated with cervical fusions or a problem with the surgical fusion not identifiable in the x-rays. Dr. Green-berg’s desire to perform the MRI was directly related to diagnosing the cause of appellant’s continued healing process following surgery. The medical evidence relied on by the Commission to deny benefits was an x-ray report noting that the fusion “is stabilized by anterior fusion plate ... fusion hardware is stable ... remote C5-6 fusion appears stable with slight fragmentation .... ” The Commission’s reliance on this evidence is factually inconsistent with the fact that previous x-rays failed to show damage as subsequently identified by previous MRI diagnostics. The MRI images more fully depicted the extent of appellant’s injuries, which ultimately led to her surgeries. More significantly, an x-ray report does not equate to a medical opinion regarding the status of an individual’s healing period. The Commission merely substituted its own opinion that the x-ray denoted maximum medical improvement for the opinion of appellant’s attending surgeon. Dr. Greenberg explained that appellant’s condition indicated that there could be a problem with either the surgical repair or an additional disc rupture commonly associated with increased pressure on the adjacent discs arising from the fu sion repair. The uncertainty of the cause of appellant’s condition required further and more appropriate diagnostic testing.
The Commission’s opinion was that appellant’s condition was unchanged because her February 7, 2007 x-rays, compared with x-rays taken on May 7, 2007, reflected that the fusion and the hardware securing the fusion appeared unchanged. The Commission concluded that as a matter of law the appearance of unchanged fusions rendered her at the end of her healing period. The conclusion is not supported by the evidence. Furthermore, this court’s admonition in Bingle that neither the Commission nor this court has the authority to extend or limit coverage by finding a constructive release because the employee was stable and steadily improving is equally applicable here. Without this authority, the Commission cannot substitute the medical opinion that appellant was slowly but steadily continuing her healing process with its own finding that she “had reached the end of her healing period under the law” based upon an x-ray reading that the hardware and fusion appeared stable compared to a previous x-ray. No medical opinion in the record provides that appellant had reached maximum medical improvement within a reasonable degree of medical certainty. Accordingly, we must reverse and remand on that issue.
The ALJ dismissed appellant’s request for the diagnostic test of an MRI saying that nothing connected the potential C3-4 problem to the compensable injury, which therefore “would require that I engage in speculation and conjecture which I am not permitted to do.” The Commission adopted the findings of the ALJ and the assessment that appellant had reached the end of her healing period to deny further treatment in the form of a diagnostic MRI. Appellant was doing well after surgery, with the treating doctor saying she “should” be recovered in a short period of time; however, she unexpectedly reported significant pain. Appellant’s treating physician wanted an MRI to “rule out additional” problems and to make sure that the surgical fusion of appellant’s neck was holding. If the surgical fusion to the admittedly compensable neck injury required additional treatment, it undoubtedly arose from the compensable injury. In addition, testimony of Dr. Greenberg explained that it is not uncommon that a cervical spine fusion creates added pressure above and below the fused discs, creating a substantially higher risk of disc herniation or similar injury at adjacent disc levels. Therefore, the Commission erred in denying the MRI to determine whether appellant’s sudden setback was attributable to either a failure of the surgical fusion performed to address the admittedly compensable injury or perhaps due to added pressure from the cervical spine fusion.
Accordingly, we reverse and remand.
KINARD, J., agrees.
PITTMAN, J., concurs. | [
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COURTNEY HUDSON HENRY, Judge.
Appellant Leonard McCracken brings this appeal from a decree entered by the Conway County Circuit Court divorcing him from appellee Tammy McCracken. For reversal, appellant contends that the trial court erred in determining that the parties’ home and surrounding acreage are marital property. We find no error and affirm.
Before the parties’ marriage in 1999, appellant inherited the family farm in north Arkansas from his father. In 2005, appellant sold the farm and used the proceeds to purchase twenty-six acres of land in Conway County and to build a home on that property. As reflected by the warranty deed evidencing the purchase, title to this property was placed in the names of “Leonard Dan McCracken and Tammy McCracken, husband and wife.” In March 2007, appellee executed a quitclaim deed transferring her interest in the property to appellant.
In October 2007, appellee filed a complaint for divorce on the basis of general indignities. In the proceedings, appellee sought to set aside the quitclaim deed on grounds of coercion and undue influence, and she claimed that the home and twenty-six acres were marital property by virtue of the warranty deed. Appellant opposed appellee’s claim that the home was marital property and contended that, when the land was purchased, the parties had entered into an agreement for appellee to subsequently convey her interest to him so that his son from a previous marriage would inherit the property.
In her testimony at trial, appellee testified that she and appellant decided to sell the farm and use the money to buy other land on which to build a marital home. She explained that she acted as general contractor in the construction of the home and that she worked every day during the five months that the home was under construction. She said that she hired all of the subcontractors and that she also did much of the work herself. When asked who made the decision about placing title to the property in their joint names, appel-lee responded, “I don’t know that we made a decision, it was just what we did.” Ap-pellee stated that holding title jointly was not an issue or even a topic of any discussion. She said that she had no question in her mind about the home being jointly owned property and that appellant never indicated that he felt differently.
Regarding the circumstances surrounding her execution of the quitclaim deed, appellee testified that she owed child support from a previous marriage in the amount of $6,300 and that a court had issued a body attachment for her arrest because of the arrearage. She said that she had no funds of her own to meet that obligation and that appellant agreed to pay the arrearage to prevent her from going to jail. Appellee related that appellant took off a day from work to procure the funds but that, instead of going to obtain the money, appellant drove to an abstract company and demanded that she sign a quitclaim deed before he would pay the arrearage. She testified that appellant dragged her out of the truck by her hair and told her that she could either sign the deed, which was already prepared, or he would take her to jail. Appellee said that she did not want to sign the quitclaim deed but felt that she had no choice in the matter. She testified that, after she signed the deed, they immediately drove to the courthouse where appellant recorded the deed. Afterward, appellant paid ap-pellee’s child-support obligation.
Appellant testified that, before purchasing the twenty-six acres, he and appellee discussed his intention to have the property titled solely in his name so that his son would inherit the property. Appellant said that, at closing, he noticed that the warranty deed listed both of their names and that he voiced an objection about it. He said that appellee agreed to convey her interest to him at some future date and that, based on appellee’s assurances, he went forward with closing because he was concerned that the seller might withdraw from the transaction if there was any delay. Appellant testified that, despite his prompting, appellee did not complete the paperwork necessary to consummate the agreement, so he had the quitclaim deed prepared six weeks before appellee signed it. He said that he had been asking appel-lee to drop by the abstract company to sign the deed and that they did so while they were together that day to pay appel-lee’s child-support arrearage. Appellant said that the signing of the quitclaim deed and his payment of appellee’s arrear-age were unrelated. He denied that he forced appellee to sign the deed.
Appellant agreed that appellee was the contractor for the construction of the home and that she devoted much time and effort to the project without compensation. He testified that he deposited the proceeds from the sale of his farm into a separate account and that he transferred money from that account into a joint account out of which they paid the costs of construction.
At the conclusion of the hearing, the trial court stated its intention to grant appellee’s request for a divorce but asked the parties to brief the issues regarding the status of the home place. The trial court subsequently issued a letter opinion outlining its ruling. The court found that the conveyance to the parties as husband and wife created a tenancy by the entirety. The court also rejected appellant’s claim that there was an agreement for appellee to convey her interest in the property to appellant. Further, the trial court set aside the quitclaim deed, finding that appellant coerced appellee to sign it. Thus, the court concluded that the home place was marital property, which the court ordered to be sold and the proceeds evenly divided.
Appellant’s initial contention is that the trial court erred in finding that the parties intended to create a tenancy by the entirety when the property was purchased. He notes that it is undisputed that the parties used his separate funds to purchase the property and to build the home. Appellant argues that his testimony established that title was placed in their joint names by mistake and that they reached an agreement for appellee to convey the property to him.
Property that is acquired by inheritance is not considered marital property. Ark.Code Ann. § 9-12-315(b)(l) (Repl.2008). Also, property that is acquired in exchange for non-marital property is excluded from the definition of marital property. Ark. Code Ann. § 9-12-315(b)(2). However, when property is placed in the names of a husband and wife, a presumption arises that they own the property as tenants by the entirety. Young v. Young, 101 Ark.App. 454, 278 S.W.3d 603 (2008). This presumption can be overcome only by clear and convincing evidence that a spouse did not intend a gift. Id. Also, when a husband and wife hold real property as tenants by the entirety, it is presumed that the spouse who furnished the consideration made a gift in favor of the other spouse, and this presumption must also be rebutted by clear and convincing evidence. Keathley v. Keathley, 76 Ark.App. 150, 61 S.W.3d 219 (2001).
Although we review traditional equity cases de novo, the test on review is not whether we are convinced that there is clear and convincing evidence to support the trial court’s findings but whether we can say that the trial court’s findings are clearly erroneous. Statler v. Painter, 84 Ark.App. 114, 133 S.W.3d 425 (2003). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake was made. A.R. v. Brown, 103 Ark. App. 1, 285 S.W.3d 716 (2008). In cases where clear and convincing evidence is required, the appellate court still defers to the superior position of the trial court to evaluate the evidence. Hearne v. Banks, 2009 Ark. App. 590, - S.W.3d -, 2009 WL 2958011, (2009).
In this case, appellant used his non-marital funds to purchase the property and to build the home. Yet, the warranty deed conveyed title to both parties as husband and wife. The trial court found that appellant made a gift to appel-lee of the property and funds used to construct the home. In so finding, the trial court expressly rejected appellant’s claim that the parties intended the land and home to remain his separate property. Because we must defer to the trial court’s credibility determinations, we are unable to conclude that the trial court’s decision is clearly erroneous.
Next, appellant argues that the trial court erred by setting aside the quitclaim deed appellee executed conveying her interest in the property to him. Appellant notes that the trial court relied on the decision in O’Quin v. O’Quin, 217 Ark. 321, 230 S.W.2d 16 (1950), to presume that the deed was invalid and to place the burden on him to prove that the transaction was fair and free of undue influence. He further argues that the trial court erred by presuming the deed to be invalid without proof that he was the dominant party in the relationship.
It is well settled that, once a spouse has shown that a confidential relationship has existed with the other, and that the other spouse was the dominant party in the relationship, it is presumed that a transfer of property from the former to the latter was invalid due to coercion and undue influence. Young, supra (citing Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999)). In such a case, the spouse to whom the property was transferred bears the burden of rebutting the presumption by producing evidence showing that the transfer of property was freely and voluntarily executed. Id. In Myrick, supra, the supreme court made it clear that the presumption of invalidity is invoked, not by the mere existence of a relationship of confidence, but only when the testimony further shows that the do-nee occupied such a superior position of dominance or advantage as would imply a dominating influence.
Here, the trial court made no specific finding that appellant was the dominant party in the relationship. However, in the absence of a showing to the contrary, we presume that a court acted properly and made the findings necessary to support its judgment. See Coon v. State, 76 Ark.App. 250, 65 S.W.3d 889 (2001). We observe that appellee testified that appellant had an ongoing drinking problem and that he was emotionally and physically abusive to her. The trial court could rely on this testimony to support a finding of dominance. However, even if the trial court erred by giving appellee the benefit of the presumption of invalidity, the fact that the trial court may have based its decision on an erroneous conclusion does not preclude this court from reviewing the entire case de novo. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). An appeal in an equity case opens the whole case for review. Id. All of the issues raised in the court below are before the appellate court for decision, and de novo review on appeal in equity cases involves the determination of fact questions as well as legal issues, if necessary. See Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000). We will uphold the tidal court’s decision unless it is clearly erroneous. Id.
When it is discovered that the party in whose favor the conveyance was made possessed an undue advantage over the grantor and exercised an improper influence over the grantor, it is an act against conscience and within the cognizance of a court of equity. Duncan v. Hensley, 248 Ark. 1083, 455 S.W.2d 113 (1970). Also, a contract made by a party under compulsion is void because consent is of the essence of a contract, and where there is compulsion, there is no voluntary consent. Id. To sustain a claim of duress, one must prove that she was compelled, not merely persuaded, to do what she did. Oberstein v. Oberstein, 217 Ark. 80, 228 S.W.2d 615 (1950). When it is contended that a deed was obtained by duress or undue influence, the law requires that the proof be clear, cogent, and convincing before the deed can be set aside. Millwee v. Wilburn, 6 Ark.App. 280, 640 S.W.2d 813 (1982).
In the case before us, the trial court accepted as credible appellee’s testimony that appellant coerced her to sign the quitclaim deed. According to appellee, she was under threat of imprisonment for non-payment of child support and lacked the funds to satisfy that obligation. Appellant agreed to provide the money to prevent her from going to jail, but instead of abiding by that promise, appellant drove appellee to an abstract company and demanded that she sign the deed or else he would turn her over to the authorities. In light of these circumstances, we cannot say that the trial court’s findings of coercion and undue influence are clearly erroneous. Accordingly, we affirm the trial court’s decision to rescind the quitclaim deed.
Affirmed.
KINARD, J., agrees.
ROBBINS, J., concurs.
. Appellant makes the argument that O'Quin is no longer the law with the passage of Arkansas Code Annotated section 18-12-401(a) (Repl.2003). This statute provides that "any deed of conveyance ... by a married man directly to his wife or by a married woman directly to her husband shall be construed as conveying to the grantee named in the deed the entire interest of the grantor in the property conveyed ... as fully and to all intents and purposes as if the marital relation did not exist between the parties to the deed.” The statute, however, was enacted in 1935 and thus predates the decision in O’Quin. Therefore, appellant's argument that the statute undercuts the holding in O’Quin is misplaced. | [
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ELANA CUNNINGHAM WILLS, Justice.
| Appellee Clarence Richardson was charged with two counts of theft of property in February 2006. The Phillips County Circuit Court initially dismissed the charges based on an allegedly defective search warrant. However, this court reversed the circuit court and remanded the matter for trial. State v. Richardson, 373 Ark. 1, 4, 280 S.W.3d 20, 23 (2008). Following the remand, Richardson’s trial was scheduled for May 21, 2008.
On the morning the trial began, Richardson attempted to waive a jury trial. The State agreed to the jury waiver, but the circuit court stated its belief that it was “best in this situation that I not be an arbiter of the facts in this case.” The court thus denied the parties’ ^attempt to waive a jury trial. The court then proceeded to seat a jury; twelve jurors and two alternates were selected.
At the conclusion of the trial, the jury retired to deliberate at nearly 4:00 in the afternoon on Wednesday, May 28, 2008. The jurors deliberated until nearly 10:00 that evening. After the jurors informed the court that they were deadlocked, the court gave them an “Allen instruction” the next morning, requesting that they retire for further deliberations in an attempt to reach a verdict.
Later that day, however, a juror sent the court a note stating that one of the other jurors had, among other things, been talking on her cell phone. After questioning the juror, the court discharged her and seated one of the alternate jurors. The court instructed the jury to disregard all of its previous deliberations and commence anew with the newly seated juror. The jury retired at approximately 5:30 p.m., and at 9:01 p.m., it came back with guilty verdicts on both charges.
At a hearing on June 2, 2008, Richardson presented the court with an oral motion for new trial. He argued that the court had erred in denying the request to waive a jury, and he also suggested that a new trial was warranted because of irregularities in the jury’s deliberations. After hearing arguments from Richardson and the State, the court took the matter under advisement and subsequently issued an order on June 5, 2008, granting |sRichardson’s motion for new trial. The court agreed that it should not have denied Richardson’s request to waive a jury trial, and it also determined that the circumstances surrounding the discharge of the juror warranted a new trial. The State filed a timely notice of appeal, and now urges this court that the trial court erred in granting Richardson’s motion for new trial.
Before addressing the merits of the State’s arguments, we must first consider whether this appeal is properly before us. The procedural posture of this case is unique, and although the State asserts that this court’s jurisdiction is proper under Ark. R.App. P. — Crim. 3, we must determine whether there is an appealable order.
The oral motion for a new trial in this case was made before the entry of any judgment and commitment order. Under Rule 33.3 of the Arkansas Rules of Criminal Procedure, a posttrial motion or application for relief that is filed before the
entry of judgment shall become effective and be treated as filed on the day after the judgment is entered. Ark. R.Crim. P. 33.3(b). Here, however, no judgment was ever entered. Instead, as mentioned above, Richardson made an oral motion for new trial after the jury returned with a guilty verdict, but before the jury had the opportunity to deliberate on a sentence. I/The jury’s announcement of a guilty verdict did not constitute the entry of a judgment. Thus, there was never an effective judgment and commitment order. See Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003) (a judgment and commitment order is not effective until it is entered of record); Sup. Ct. Admin. Order No. 2 (A judgment, decree, or order is “entered” only when the clerk “denote[sj the date and time that a judgment, decree or order is filed by stamping or otherwise marking it with the date and time and the word 'filed.’ ”). See also Ark. R.Crim. P. 33.2 (2008) (“Upon the return of a verdict of guilty in a case tried by a jury, ... sentence may be pronounced and the judgment of the court may be then and there entered.”). Accordingly, because no judgment was ever entered, Richardson’s attempt to move for a new trial was premature and ineffective. When a motion is void, this court can treat it as though it was never made. See Brown v. State, 333 Ark. 698, 970 S.W.2d 287 (1998).
Given that Richardson’s motion for new trial was ineffective, we conclude that the circuit court’s order granting the untimely posttrial motion was a nullity. There appears | sto be no provision in our Rules of Criminal Procedure that permits a circuit court to grant a new trial sua sponte. Compare Ark. R. Civ. P. 59(e) (2008) (A court may “on its own initiative order a new trial for any reason for which it might have granted a new trial on motion of the party.”), with Ark. R.Crim. P. 33.1(a) (A “person convicted of ... a felony ... may file a motion for new trial or any other application for relief.”). The absence of a valid judgment and commitment order makes the motion for new trial ineffective, thus depriving the circuit court of any basis in the law for granting the motion. As a consequence, the circuit court’s order granting a new trial is a nullity. Further, because there is no valid order from which the State could have taken an appeal, the State’s appeal is dismissed.
Appeal dismissed.
. Richardson was charged along with six other members of what was, at the time, the West Helena City Council. See State v. Richardson, 373 Ark. 1, 2, 280 S.W.3d 20, 21 (2008).
. Al one point in the hearing, Richardson stated that he had "reduced this to writing,” bul the record does not contain a written motion for new trial.
. Richardson never "filed” a motion for new trial. Rule 33.3 appears to contemplate a written motion for posttrial relief, stating that a person "convicted of either a felony or misdemeanor may file a motion for new trial or any other application for relief.... A copy of any such motion shall be served on the representative of the prosecuting party.” Ark. R. Civ. P. 33.3(a) (emphasis added).
. We acknowledge that Brown v. State, supra, which held that a motion for new trial filed before the entry of a judgment is ineffective, predates the 2001 amendment to Ark. R.Crim. P. 33.3 that treats a premature motion for new trial as being filed on the day after the judgment was entered. The fact remains in this case, however, that no judgment was ever entered. Thus, the motion for new trial is still, as of this date, ineffective.
. A circuit court can, of course, sua sponte declare a mistrial. See, e.g., Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980) (a trial court has a duty to intervene, without an objection, and correct a serious error either by an admonition to the jury or by ordering a mistrial). Indeed, at the hearing on Richardson's new-trial motion, the State argued that the effect of the court's order purporting to grant a new trial was effectively to discharge the jury and terminate the trial after a finding of guilt, which was tantamount to granting a mistrial. The court, however, never ruled on the issue, and the State does not raise this argument on appeal. | [
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JOHN MAUZY PITTMAN, Judge.
| ]This is an appeal from an order terminating appellant’s parental rights to two minor children, C.K. and D.K. Appellant’s attorney has filed a motion to be relieved as counsel pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), asserting that there are no issues of arguable merit to support the appeal. Counsel’s motion was accompanied by a brief listing all adverse rulings made at the termination hearing and explaining why there is no meritorious ground for reversal to each ruling, including a discussion of the sufficiency of the evidence to support the termination order. See Lewis v. Arkansas Department of Human Services, 364 Ark. 243, 217 S.W.3d 788 (2005); see also Ark. Sup. Ct. R. 6—9(i)(l), In re Rules of the Supreme Court and Court of Appeals, Rules 6-9 and 6-10, 374 Ark. Appx. 576, (2008). The clerk of this court sent a copy | ¡¡of counsel’s brief and motion to appellant, informing her that she had the right to file pro se points for reversal. Appellant did not submit any pro se points.
The children were taken into protective custody on November 28, 2006. The petition for emergency custody was based on an attached affidavit. The affidavit stated that the family service worker was called to the Krass residence in Hot Springs on November 28, 2006. Living in the home were the mother, April Krass; the father, James Krass II; seven-year-old D.K., who is the son of April and James Krass II; and twelve-year-old C.K., the daughter of April Krass. The affidavit continued as follows:
The worker questioned C.K. about alleged sexual improprieties inflicted on her by her step-father, James Krass II. The girl told the worker that her stepfather had been performing both oral and digital penetration of her vagina since she was eight years of age on a regular basis. The last time this alleged abuse took place was on November 24, 2006, while her mother was out of the house. April Krass told the worker that C.K. had informed her of her step-father’s sexual activity with her on or about the 24th of November. She said that she intended to have the child seen by a doctor to confirm the sexual abuse, but that it was around the Thanksgiving holiday and that she had been unable to secure a doctor’s appointment. When asked why the child was not taken to an emergency room, the mother responded that this idea did not occur to her. While at the home, the worker came to the conclusion that the children were in imminent danger of serious injury and for their health, safety, and welfare, took both of them into custody.
After determining that there was probable cause to support these allegations and to support the emergency removal of the children, the trial court held an adjudication hearing on January 10, 2007, where it was found that removal was in fact caused by the emergency | described in the petition, that the emergency continued to exist, and that it was in the best interest of the children to remain in foster care. No appeal was taken from that order.
A case plan was developed that required April and James Krass II to submit to psychological testing and counseling, and to participate in counseling and therapy. James Krass II was uncooperative. Despite the unappealed finding of sexual abuse, he denied that such abuse had occurred and refused to participate in counseling, complete parenting and anger management classes, submit to random drug testing when requested, maintain meaningful contact with the children, or pay child support pursuant to the court’s order. April Krass partially complied with the order and obtained psychological testing, individual counseling, and family counseling during supervised visitation with the children. Although the fact of abuse had been founded and was not appealed from, psychological examination showed that April Krass was convinced that the accusations of sexual abuse were unfounded; she was “dogmatically supportive” of her husband and showed no desire to understand or sympathize with her daughter, who she believed was maliciously lying. Because April Krass was completely closed to believing that her husband had in fact committed the abuse, and because she committed a breach of trust by surreptitiously making an audiotape of a counseling session, individual therapy was terminated in July 2007. Group therapy was also terminated because April Krass’s persistent refusal or inability to empathize with her daughter by even considering the possibility that she was telling the truth was causing the b child additional harm and distress. Consequently, more than one year after the children had been removed, a petition to terminate parental rights was filed alleging that April Krass had failed to remedy the condition causing removal, i e., her failure to protect her daughter from sexual abuse.
At the termination hearing, the evidence showed that, because they had offered statements regarding the facts of the abuse, both of the children feared that they would be abused or harmed by the noncompliant James Krass II were they to be returned to the home. Efforts to reconcile April Krass with her daughter were utterly unsuccessful. At the request of and in the presence of a counselor, C.K. again confronted her mother with the details of the abuse. She expressed her hurt at her mother’s indifference when C.K. first told her that she had been abused and pled with her mother to understand and be supportive. Despite her daughter’s pleas and tears, April Krass displayed a very flat affect, showing no emotion. Although the counselor explained that, even if April Krass did not believe the abuse occurred it was crucial that she remain emotionally available and supportive, April Krass showed no concern for her daughter’s distress. Despite their traumatization, both children have made great strides in therapy and are very adoptable. C.K. displayed courage and insight beyond her years by showing empathy for her abuser. There is every reason to believe that these children will benefit greatly from being placed in a loving home.
15There was overwhelming evidence that April Krass had failed to rectify the conditions causing removal. By her own testimony at the hearing, April Krass intended to continue exposing the children to James Krass II without regard to the fears or safety of the children because she was dependent upon him for transportation, although she had never asked the Department for transportation assistance, and despite having been told by a caseworker that continued contact with the named offender would make reunification impossible. And, although April Krass testified at the hearing that she was separated from the abuser and was beginning, possibly, to believe that some form of sexual abuse might have taken place, these were last-minute developments that occurred at the time the case goal was changed from reunification to termination of parental rights.
In light of the foregoing, we hold that any appeal from the order of termination would be frivolous. At best, appellant demonstrated that she possibly made some partial, last-minute progress toward rectifying the condition causing removal. However, evidence of last-minute progress provides no grounds for reversal. In Trout v. Arkansas Department of Human Services, 359 Ark. 283, 197 S.W.3d 486 (2004) (reversing Trout v. Arkansas Department of Human Services, 84 Ark.App. 446, 146 S.W.3d 895 (2004)), and Camarillo-Cox v. Arkansas Department of Human Services, 360 Ark. 340, 201 S.W.3d 391(2005) (reversing Camarillo-Cox v. Arkansas Department of Human Services, 87 Ark.App. 35, 185 S.W.3d 133 (2004)), the Arkansas Supreme Court overturned reversals of | (¡termination proceedings by this court on the grounds that evidence of such eleventh-hour improvement need not be credited by the trial court and will not be held to outweigh evidence of prior failure or noncompliance. It is noteworthy that both of the above-cited cases involved last-minute separations by mothers from child abusers.
Furthermore, it cannot reasonably be argued that the services offered by the Department to reunite appellant with her children were inadequate. Instead, it is clear that these efforts simply could not prevail in the face of appellant’s unwillingness or inability to consider that her husband had sexually abused her daughter. Given appellant’s destruction of the therapist-patient relationship by attempting to make secret audiotapes of the sessions, her unrelenting and dogmatic refusal during therapy to so much as consider the possi- . bility that her daughter was not lying about the sexual abuse, and the uncontra-dicted evidence that the rejection exemplified by her refusal or inability to empathize was causing her daughter additional emotional harm, it is incontestable that appellant was resistant to therapy and that no further treatment would have been effective; appellant responded only to the threat of imminent termination of her pa rental rights more than one year after the children had been removed from her home.
Nor do the evidentiary rulings decided contrary to appellant provide any arguable grounds for appeal. All of the contested evidence, including the taped interview of D.K., was offered in an attempt to cast doubt on the trial court’s finding in the adjudication order 17th at sexual abuse occurred, or to show that the evidence was sufficiently dubious that appellant was reasonably justified in refusing to consider that it might in fact have taken place. However, it is elementary that, in termination cases, a challenge to the finding of abuse must be made, if at all, in an appeal from the adjudication hearing. Dowdy v. Arkansas Department of Human Services, 2009 Ark.App. 180, — S.W.3d -; see Ark. R.App. P. — Civ. 2(c)(3)(A). The law is crystal clear that we are precluded in this appeal from reviewing adverse rulings from the adjudication, review, or permanency-planning hearings. Lewis v. Arkansas Department of Human Services, 364 Ark. 243, 217 S.W.3d 788 (2005). For purposes of this appeal, the fact of sexual abuse is conclusively established. No rational person could argue otherwise.
Furthermore, it is irrelevant whether April Krass acted reasonably in choosing to believe her husband rather than her daughter. It was established by expert testimony — and this is no more than common sense to any parent — that it was not necessary for April Krass to believe her daughter, but that it was essential that she show the child love and concern | sand remain emotionally available to her in light of her obvious and profound distress. This April Krass manifestly failed to do. Instead, her withdrawal of support, icy demeanor, and dogmatic adherence to her belief in her husband’s denials were acts of abandonment that caused her daughter additional and incalculable harm. That she continued in this rigid adherence to her husband’s excuses after the fact of sexual abuse had been established at the adjudication hearing, and corroborated by her husband’s angry refusal to participate in. any of the reunification services, demonstrates the depth of her own need and the extent to which she put her own desires ahead of the welfare of her children. The evidence most favorable to April Krass, given by a social worker who continued to work with her throughout the process, was that she needed to accept the seriousness of the abuse and the need to protect her children from the abuser, and that, while she had begun to make some progress toward that goal at the time of the permanency planning hearing, she was not yet ready to assume her parental responsibility and needed more time to do so. But such last-minute progress is commonplace in termination cases, and any appeal based on evidence of such progress would be unavailing. Trout v. Arkansas Department of Human Services, supra.
Based on our examination of the record and the brief presented to us, we find that counsel has complied with the requirements established by the Arkansas Supreme Court for no-merit motions in termination cases, and we hold that the appeal is wholly without merit. [¡^Accordingly, we grant counsel’s motion to withdraw and affirm the order terminating appellant’s parental rights.
Affirmed.
GLADWIN, HENRY, and BROWN, JJ., agree.
HART and BAKER, JJ., dissent.
. Evidence intended to cast doubt on the fact of abuse could have no relevance to the issues before the court at the termination hearing, i.e., whether April Krass had remedied the conditions causing removal. Only evidence material to the issues on appeal need be included in the abstract and addendum. Ark. Sup. Ct. R. 6 — 9(e)(2)(C).
. Her steadfast refusal to accept the possibility that abuse could have occurred was based chiefly on the lack of forensic evidence. We note in this regard that appellant failed, when her daughter reported the abuse to her, to take any action that would provide such evidence, such as taking the child to a doctor’s office or emergency room. | [
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MOTION TO BE RELIEVED AND FOR APPOINTMENT OF NEW COUNSEL
PER CURIAM.
| Appellant Roderick Williams was convicted of capital murder and additional charges by a Desha County jury on September 26, 2008, and sentenced to life imprisonment and an additional term of years on other crimes. Counsel for appel lant is B. Kenneth Johnson. He filed a timely notice of appeal and designation of the record on October 23, 2008. An order of the Desha County Circuit Court granted the appellant an extension of time to file the record, found that appellant is indigent, and gave him permission to proceed in forma pauperis with his appeal. Johnson lodged the record on April 7, 2009. Appellant’s brief is due on May 18, 2009.
On January 1, 2009, B. Kenneth Johnson took the bench as an elected circuit judge in the Tenth Judicial District and is precluded from practicing law by Canon 4G of the Arkansas Code of Judicial Conduct. He is asking this court to grant his motion to be |2relieved as counsel and to appoint new counsel to pursue this appeal on behalf of appellant.
We find that there is good cause to grant the motion to withdraw under Rule 16 of the Rules of Appellate Procedure and to appoint new counsel for appellant. We hereby appoint Adam L. Hopkins to represent Roderick Williams on appeal.
It is so ordered. | [
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ROBERT J. GLADWIN, Chief Judge.
| Appellant, Dr. Mahmood Ahmad (Ahmad), appeals from a July 26, 2012 order entered by the Independence County Circuit Court. Ahmad argues that the circuit court erred in denying his requests to remove the special master and to set aside the special master’s report for failure to comply with Arkansas Rule of Civil Procedure 53. He also argues that appellee, Horizon Pain, Inc. (Horizon), and original plaintiff, Dr. Meraj Siddiqui (Siddiqui), had no standing and failed to state a factual and legal basis for the derivative action.
Horizon was formed in April 2006 for the purpose of providing medical services to White River Medical Center (WRMC) and other hospitals or medical centers. Its 360 shares were held in equal portions by Siddiqui and Ahmad. Siddiqui was employed by Horizon Land was paid a salary and income generated by him less expenses. In 2006, Ahmad borrowed $178,519.19 from Horizon and Siddiqui. Siddiqui subsequently left the employ of Horizon, established his own relationship with WRMC, asked that Horizon be dissolved, and sued Ahmad for the monies he still owed to Siddiqui and Horizon.
On December 15, 2008, Ahmad filed a motion to dismiss identifying certain deficiencies in the complaint, based upon Arkansas Rule of Civil Procedure 23.1. On December 28, 2008, Siddiqui and Horizon filed an amended complaint rectifying those deficiencies and giving Ahmad credit for $58,817.06 that he had previously repaid, leaving a balance of $132,090.41. Also on December 23, 2008, Siddiqui and Horizon filed a response and brief in support to Ahmad’s motion to dismiss.
On January 12, 2009, Ahmad filed an answer and counterclaim, in which he asserted his right to set-off amounts and sought damages against Siddiqui for tor-tious interference with his business expectancy and breach of fiduciary duty. On March 29, 2011, Siddiqui and Horizon filed a motion for summary judgment regarding Ahmad’s counterclaims. On May 17, 2011, Siddiqui and Horizon filed a motion in limine to exclude certain evidence that Ahmad had belatedly produced related to his claim for setoffs.
Is At an in camera hearing prior to the jury trial set for May 24, 2011, the circuit court granted Siddiqui’s and Horizon’s motion for summary judgment, thereby dismissing Ahmad’s counterclaim, and granted their motion in limine to exclude Ahmad from presenting certain evidence regarding alleged setoffs. An order was presented to the circuit judge but was never entered because the parties reached a settlement and read the terms thereof into the record. The judgment was in favor of Horizon but conditioned upon a subsequent hearing to determine any applicable setoffs. Siddiqui dismissed his personal claims with prejudice, leaving only the dispute regarding what Ahmad owed Horizon. The second proceeding was to be held by a special master to consider all claims and setoffs. The judgment contained a prohibition against any ■execution until after the second proceeding. Over objection by Ahmad, the circuit court appointed Siddiqui’s nominee, John C. Gregg, as special master.
At the beginning of the second hearing, an objection was again raised on the basis of Gregg’s potential conflict of interest. Testimony indicated that Gregg (1) had been consulted by Siddiqui on this very issue, and (2) was the person who drafted the bylaws and advised Siddiqui at the incorporation of Horizon. Ahmad requested recusal by the special master, but that request was denied. After the hearing, the special master denied all of Ahmad’s claims of setoff. The circuit court adopted the special master’s ruling and ordered that, after | collection of the consent judgment against Ahmad, Horizon be dis solved. It is from this order that Ahmad appeals.
I. Denial of Ahmad’s Requests to Remove the Special Master
Although the review of this case is de novo regarding legal issues on appeal, the circuit court’s findings of fact will not be disturbed unless they are clearly erroneous. See Horton v. Ferrell, 335 Ark. 366, 981 S.W.2d 88 (1998); Arkansas Rule of Civil Procedure Rule 53(c) & (e)(1) and (2) (2014). A finding is clearly erroneous when, although there is evidence to support it, the court, on the entire evidence is left with the definite and firm conviction that a mistake has been made by the master. HRR Ark., Inc. v. River City Contractors., Inc., 350 Ark. 420, 87 S.W.3d 232 (2002). When parties stipulate that a master’s findings of fact' shall be final, only questions of law arising from the report shall thereafter be considered. Ark. R. Civ. P. 53(e)(3).
A special master is a judge subject to the Arkansas Code of Judicial Conduct (ACJC) and the application of that conduct code is mandatory. Horton, supra. The ACJC states: “A judge, within the meaning of this Code, is anyone who is authorized to perform judicial functions, including an officer such as a, magistrate, special master, referee, or member of the administrative law judiciary.” Ark.Code Jud. Conduct, Application, § 1(B) (2014). The canons and text of the ACJC establish mandatory standards, not mere guidelines. Farley v. Jester, 257 Ark. 686, 520 S.W.2d 200 (1975).
Rule 2.11 of the Arkansas Code of Judicial Conduct provides that a judge shall disqualify himself in any proceeding in which the judge’s impartiality might be reasonably | .-.questioned, including when the judge has a personal bias or prejudice concerning a party or a party’s lawyer. A trial judge is presumed to be impartial, and a party seeking disqualification bears a substantial burden to prove otherwise. Smith v. Hudgins, 2014 Ark. App. 150, 433 S.W.3d 265. A trial judge’s decision to recuse is within his or her discretion, and we will not reverse absent a showing of an abuse of discretion. Id. An abuse of discretion can be proved by a showing of bias or prejudice on the part of the trial judge. Id. Absent some objective demonstration by the appellant of the trial judge’s prejudice, it is the communication of bias by the trial judge that will cause us to reverse his refusal to recuse. Id. The mere existence of adverse rulings is not enough to demonstrate bias. Id.
The circuit court approved the parties’ settlement contained in the “Consent Judgment Conditioned Upon Stipulated Settlement” (consent judgment), which gave the parties thirty days to agree on a suitable person to serve as special master in this case. The consent judgment provided that if no agreement was reached, then the circuit court would appoint someone to serve. Ahmad’s counsel had advised Siddiqui’s counsel that Ahmad objected to Siddiqui’s counsel’s suggestion for Gregg’s appointment as special master. On August 4, 2011, Siddiqui’s counsel filed a petition to appoint Gregg despite Ahmad’s objections.
On August 12, 2011, Ahmad filed a responsive pleading formally objecting to Siddiqui’s request for Gregg’s appointment as special master. There was also an August 22, 2011 letter from Ahmad’s attorney objecting to Siddiqui’s proposed order appointing Siddiqui’s nomination for special master.
IfiOn August 29, 2011, the circuit court entered the proposed order appointing Gregg as special master over Ahmad’s objections and despite the lack of mutual agreement by counsel for both parties that he was suitable to serve as special master. Approximately eight months later, the hearing before Gregg was scheduled for April 17, 2012. At the beginning of the hearing, Gregg acknowledged that Ahmad’s counsel advised him that it had been recently discovered that Siddiqui had sworn in his prior answers to interrogatories that Gregg had served as his attorney in matters related to issues in this case, including preparation of corporate documents for Horizon. Siddiqui had explained the private consultations he had with Gregg about Horizon incorporation matters.
Gregg reviewed Siddiqui’s answer to the interrogatory listing him as the attorney who provided legal services to Siddiqui but declined to withdraw as special master. He responded that he had no knowledge of Ahmad’s prior objection to his appointment, and that he did not remember any such prior representation of Siddiqui and/or Horizon. Gregg reviewed the documents in question, and he stated that he did not recall preparing any of the corporate documents presented for Siddiqui and/or Horizon. Ahmad then orally renewed his objection to Gregg’s serving as special master because of his apparent conflict of interest, or appearance of impropriety, and his past representation of Siddiqui and/or Horizon. Gregg then commented on his concern about any conflict resulting in an appeal or complaint, and whether he was suitable to serve because he was not an accountant, but he refused to recuse and proceeded with the hearing.
|7Puring the hearing, Siddiqui testified that Ahmad and he were each fifty-percent shareholders in Horizon. During Siddi-qui’s testimony about corporate-accounting records, Siddiqui was asked by appellant’s counsel about an August 22, 2006 check that he wrote for $1,850 for “legal fees” paid from Horizon Pain, Inc., which was entered in a Quick Books report corporate sub-account assigned to Siddiqui. He answered that it was paid by him to “the Master” (Gregg). He further testified that he had randomly selected Gregg as an attorney from the telephone book and paid him to draft bylaws for Horizon, which had been previously incorporated by Ahmad. Siddiqui also testified that he met privately with Gregg in his law office for legal advice regarding Horizon and Siddiqui’s personal-employment contract with Horizon, which Gregg possibly had drafted as his private attorney.
Gregg did not respond or comment after Siddiqui’s admission to the payment for legal services to Gregg. Instead, he simply adjourned the hearing, leaving the record open for two additional witnesses to be produced by deposition over the following sixty days.
The ACJC includes the following relevant provisions:
An independent and honorable judiciary is indispensable in our society.... Canon 1 ACJC; and
A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities. A judge shall respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the | judiciary. Canon 2 ACJC; Rule 2.9(A)(1)(a) concerning ex parte communications with the judge; and Rule 2.11
and
Disqualification. (1) A judge shall disqualify himself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has personal bias or prejudice concerning a party or party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding; (b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it....” Canon 3, E(l)(a) & (b); Rule 2.11(A)(1) ACJC, concerning a judge who has personal knowledge of facts in dispute; and Rule 3.10 regarding the judge’s practice of law. and
A judge should disclose on the record information that a judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.” Canon 3 E(l) ACJC; Commentary
(Emphasis added.)
Ahmad initially objected to Siddiqui’s suggestion that Gregg serve as special master because he believed that this special master had a conflict of interest that disqualified him. With his appointment, Gregg’s rulings on all fact and law issues became the sole basis for the circuit court’s decision in this matter. Ahmad claims that this is an issue because there was no transcript of the proceeding filed in the record for the circuit court to review before ^entering its order, and the order was, in fact, entered without any review of the proceedings, in large part because no transcript was submitted by Gregg.
Ahmad argues that the refusal by Gregg and the circuit court to implement a recusal upon the confirmation of a conflict of interest during the hearing before Gregg violates the judicial principles previously set forth. Despite those refusals, Ahmad continued to object to Gregg and the circuit court about the influence and perception that these past ex parte, privileged communications would cause regarding the findings of fact, as well as the interpretation and application of the law.
Ahmad explained to the circuit court that the completion of this agreed dissolution and liquidation process would not be delayed by an order removing the special master. But the circuit judge simply denied both Ahmad’s request and motion for recusal, and adopted Gregg’s findings of fact and conclusions of law without benefit of a transcript of the proceedings. Ahmad maintains that the circuit court’s refusal to order Gregg’s removal, as well as its adoption of Gregg’s findings of fact and law over objection, without reviewing the mandatory transcript of the proceedings, was reversible error.
We disagree and hold that neither of the subsections of the ACJC relied on by Ahmad requires disqualification of Gregg under these facts. The evidence before us indicates that Siddiqui consulted Gregg in August 2006, at which time Gregg prepared bylaws for Horizon and gave Siddi-qui advice about general business-entity information. Gregg’s recollection of the events was vague; recalling “taking a shot” at drafting an agreement but not believing that |inthe employment agreement ultimately entered into between Sid-diqui and Horizon was drafted by him.
The question of a judge’s bias is usually confined to the conscience of the judge, see Porter v. Ark. Dep’t of Health & Human Servs., 374 Ark. 177, 286 S.W.3d 686 (2008), and the party seeking recusal must demonstrate bias. Smith, supra; see also Turner v. Nw. Ark. Neurosurgery Clinic, P.A., 91 Ark.App. 290, 210 S.W.3d 126 (2005). Gregg properly considered the matters addressed in Ahmad’s motion to compel recusal and concluded, based upon his conscience, that he was not biased and could impartially decide the matters before him. Ahmad has failed to demonstrate bias, as Gregg’s preparation of corporate documents for Horizon, an entity owned equally by Ahmad and Siddiqui, did not cause him to favor one party over the other. The relevant provision of the ACJC requires disqualification when the judge “served as a lawyer in the matter in controversy or was associated with a lawyer who participated substantially as a lawyer in the matter diming such association.” (Emphasis added.)
Horizon cites Little Rock School District v. Armstrong, 359 F.3d 957 (8th Cir.2004), in which the Eighth Circuit Court of Appeals considered whether Judge Bill Wilson should have granted a motion to compel recusal based upon his representation of Judge Henry Woods in 1987, related to a mandamus proceeding arising out of the same desegregation case. In its decision, the Eighth Circuit cited with favor language from a previous case, In re Apex Oil Co., 981 F.2d 302 (8th Cir.1992), in which it found that a judge’s previous representation of parties to the case was not “sufficiently related” so as to constitute the same matter in controversy. Armstrong, 359 F.3d at 961. In Armstrong, the court went on to find |nthat “there is not a sufficient relationship between the recusal proceedings with respect to Judge Woods and the issues now before us on the merits to make them the same ‘matter in controversy.’ ” Id. (Emphasis added.)
Likewise, we hold that there is not a sufficient relationship between Gregg’s drafting bylaws for Horizon and the issues that were before him as special master in these proceedings so as to constitute the same matter in controversy. His specific duties, as stated in the consent judgment, were to “consider all legitimate claims and set-offs of the parties or creditors, and to transfer assets or cash to creditors, claimants, or shareholders of the corporation consistent with his findings by application of Arkansas law, rules of civil procedure, rules of evidence, and existing contracts between the parties.”
Horizon’s only asset, at the time of the hearing before Gregg, was its judgment against Ahmad in the amount of $119,702.13. Gregg’s job as special master was simply to determine how to distribute and allocate those funds among the shareholders of Horizon and any legitimate creditors. Because this function had no relationship to Gregg’s role in preparing the original bylaws for Horizon, it does not constitute the same matter in controversy, and therefore, there is no conflict that would mandate his recusal. Additionally, there is no suggestion that Gregg exhibited any bias in the hearing or in his findings, as Ahmad does not challenge any of the substantive findings made by Gregg.
II. Refusal to Set Aside Report for Noncompliance with Rule 53
Arkansas Rule of Civil Procedure 53(e)(1) provides the following direction for cases being conducted by an appointed master:
112Contents and Filing. The master shall prepare a report upon the matters submitted to him by the order of reference, and, if -required to make findings of fact and conclusions of law, he shall set them forth in his report. He shall file the report with the clerk of the court and unless directed by the order of reference shall file with it a transcript of the proceedings and of the evidence and the original exhibits. The clerk shall forthwith mail to all parties notice of the filing.
(Emphasis added.) Failure to comply with the terms of Rule 58 is reversible error. See Horton, supra (reversing the refusal to remove a master and strike his report that contained information outside the record through his ex parte communications). See also Ark. State Game & Fish Comm’n v. Kizer, 222 Ark. 673, 262 S.W.2d 265 (1953) (holding that a master must report his findings to the circuit court and must also submit a transcript of the evidence taken so that the circuit court may determine whether the findings are supported by the testimony, reasoning that the master cannot base his conclusions upon evidence not in the record).
Ahmad notes that no transcript of the proceedings, exhibits, or evidence was filed with the circuit clerk prior to the entry of a circuit court’s final order adopting all the special master’s findings of facts, law, and plan for distribution of all corporate assets of Horizon to Siddiqui. Accordingly, he requests that the decisions of the circuit court in this matter be reversed, the special master removed, and the special master’s report struck from the record.
We hold that Ahmad waived this argument because he failed to raise it before the circuit court. It is axiomatic that an appellate court will not address an argument that previously has not been raised. Daugherty v. Jacksonville Police Dep’t, 2012 Ark. 264, 411 S.W.3d 196. This is so because the appellate court must determine the issues upon the | TSrecord that was made in the circuit court, and issues not raised below cannot serve as the basis for a decision in this court. Yanmar Co. v. Slater, 2012 Ark. 36, 386 S.W.3d 439.
III. Standing and Factual and Legal Basis for the Derivative Action
The only remaining party plaintiff in this case is Horizon because the other individual plaintiff, Siddiqui, dismissed his personal action with prejudice before the remaining two parties entered into a settlement formalized in the above-referenced consent judgment. The sole remaining action at the time of the settlement was the derivative action. Ahmad claims that he has consistently maintained that there was no standing for Siddiqui and Horizon to bring that action.
His affirmative defenses in his answer and objections to Gregg’s finding of facts and conclusions of law denied Siddiqui’s standing and venue. Ahmad submits that the question of standing is always a threshold issue, see, e.g., Brewer v. Carter, 365 Ark. 531, 231 S.W.3d 707 (2006), and that without it, a party is not properly before the court to advance a cause of action. Grand Valley Ridge, LLC v. Metro. Nat’l Bank, 2012 Ark. 121, 388 S.W.3d 24.
The Arkansas Rules of Civil Procedure provide that a shareholder may bring a derivative action on behalf of a corporation to enforce a right of the corporation when the corporation has failed to do so. Ark. R. Civ. P. 23.1. In the case of Farm Bureau Insurance Company of Arkansas, Inc. v. Running M Farms, Inc., 366 Ark. 480, 237 S.W.3d 32 (2006), our supreme court recognized the “near universal” rule that a corporation and its stockholders are separate and distinct entities, even where a stockholder may own the majority of the stock. Id.
|14In Running M Farms, supra, the majority stockholder attempted to maintain a derivative action for the corporation against a third-party insurance company for crop-damage insurance claims it failed to promptly pay to the corporation. But the court held that in order for a shareholder to bring an individual cause of action against a third party, that shareholder must be injured for a wrong, directly from or independently of, the corporation. See also Golden Tee, Inc. v. Venture Golf Sch., Inc., 333 Ark. 253, 260-61, 969 S.W.2d 625, 629 (1998) (determining “that individual stockholders [have] no standing to sue in their individual capacities for injuries allegedly suffered primarily by the corporation and its shareholders”). See also First Commercial Bank, N.A. v. Walker, 333 Ark. 100, 110, 969 S.W.2d 146, 151 (1998), cert. denied 525 U.S. 965, 119 S.Ct. 410, 142 L.Ed.2d 332 (1998) (holding that “[a] corporate officer has no individual right of action against a third party for alleged wrongs inflicted on the corporation, even if the officer is the sole shareholder”). Additionally, this court has held that “direct suits are appropriate only where a shareholder asserts ⅛ direct injury to the shareholder distinct and separate from harm caused to the corporation.’ ” Golden Tee, 333 Ark. at 261, 969 S.W.2d at 629.
The most current version of Arkansas Rule of Civil Procedure 23.1 regarding derivative actions reads as follows:
(a)Prerequisites. This rule applies when one or more shareholders or members of a corporation or an unincorporated association bring a derivative action to enforce a right that the corporation or association may properly assert but has failed to enforce. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of shareholders or members who are similarly situated in enforcing the right of the corporation or association.
(b) Pleading Requirements. The complaint must be verified and must:
| 1B(1) allege that the plaintiff was a shareholder or member at the time of the transaction complained of, or that the plaintiffs share or membership later devolved on it by operation of law;
(2) allege that the action is not a collusive one to confer jurisdiction that the court would otherwise lack; and
(3) state with particularity:
(A) any effort by the plaintiff to obtain the desired action from the directors or comparable authority and, if necessary, from the shareholders or members; and
(B) the reasons for not obtaining the action or not making the effort.
(c) Settlement, Dismissal, and Compromise. A derivative action may be settled, voluntarily dismissed, or compromised only with the court’s approval. Notice of a proposed settlement, voluntary dismissal, or compromise must be given to shareholders or members in the manner that the court orders.
The complaint filed on November 24, 2008, by Siddiqui and Horizon, contained the following information:
a. The style of the case, the complaint allegations, and the prayer for relief, all allege that both Siddiqui, individually, as a 50% stockholder, and as an employee of Horizon; and Horizon were the two plaintiffs;
b. That the plaintiffs’ unverified complaint is a shareholder’s derivative action pursuant to Rule 23.1 of the Arkansas Rules of Civil Procedure;
c. In paragraphs 11, 12, 15, and 16, plaintiffs alleged that the amount of $3,688.27 allegedly misappropriated by Ahmad from Horizon; along with $119,702.13 Ahmad borrowed from Horizon and owed to Horizon, should be delivered to Siddiqui, as per his employment agreement [with Horizon];
d. That plaintiffs’ complaint referenced and attached as an exhibit a copy of Siddiqui’s employment contract with Horizon, which contains the salary amount and method of calculating other net compensation due Siddiqui as an employee from his employer Horizon.
Ahmad submits that Horizon was admittedly Siddiqui’s employer and the entity with which Siddiqui had privity of contract. He asserts that there is no privity of contract alleged or existing between Ahmad, a third party, and Siddiqui. Siddiqui did not sue Horizon for |1fihis claim of compensation that Horizon allegedly owed him. As a result, Ahmad filed a motion to dismiss Siddiqui’s and Horizon’s joint complaint and supporting brief under Arkansas Rules of Civil Procedure Rules 9, 23.1, 12(b)(6) for failure to state a cause of action, and 12(b)(3) venue stating that the complaint should be dismissed because of:
a. Improper use of Rule 23.1 including lack of verification, inadequate class representation; attempt to use the action for the individual plaintiffs personal benefit instead of the corporation’s benefit; lack of required corporate demand;
b. Rule 9 for failing to state with particularity required for the fraud allegation; and
c. Rule 12(b)(3) improper venue of Independence County, Arkansas, rather than the corporation’s principal place of business and registration in Pulaski County.
Ahmad’s answer to the complaint set forth the same and additional affirmative defenses as well, but the circuit court denied the motion to dismiss. Ahmad argues that the complaint filed by Horizon and Siddi-qui was inadequate on its face and that the circuit court erred in not finding that there was a lack of standing or appropriate pleading to maintain this action, and it also erred in denying Ahmad’s motion to dismiss filed in response to the complaint.
We decline to address the underlying merits of Ahmad’s argument because he waived the right to appeal this issue by virtue of the settlement contained in the consent judgment. Based upon the pretrial rulings by the circuit court, Ahmad agreed to the settlement contained in the consent judgment. In reading the agreement into the record, Ahmad acknowledged that he understood the terms of the settlement and that he understood that he could not appeal the previous rulings made in these proceedings.
Ahmad’s counsel responded as follows to questions by Gregg at the April 17, 2012 hearing when asked what the purpose was for entering into the settlement:
|17Mr. GREGG: Based upon what? Things that were already agreed to at the time of the judgment? How final is this judgment?
Mr. Satterfield: Not at all.
MR. Gregg: Then what was the purpose of entering it?
Mr. Satterfield: Getting out of a tight spot with a jury, with no case, with no evidence and not allowed to go forward in any way, other than to try to resolve it in a way that we could have time later to prove our set offs. And it’s contractual. Both parties were sworn in and asked if they understood it and they did. I believe.
Ahmad now asserts that the circuit court erred in denying his motion to dismiss in its November 5, 2009 order, approximately one-and-a-half years before Ahmad agreed to enter into a settlement and stated on the record his understanding that, by entering into the settlement, he waived his right to appeal the previous rulings of the court.
Horizon correctly notes that a litigant who has, voluntarily and with knowledge of all the material facts, accepted the benefits of an order, decree, or judgment of a court, cannot afterwards take or prosecute an appeal or error proceeding to reverse it. Ark. State Highway Comm’n v. Marlar, 236 Ark. 385, 366 S.W.2d 191 (1963). A consent judgment is a judgment sanctioned by the court, but one that is comprised of terms and provisions agreed to by the parties. Selig v. Barnett, 233 Ark. 900, 350 S.W.2d 176 (1961). Consent excuses error and ends all contention between the parties. Vaughan v. Brown, 184 Ark. 185, 40 S.W.2d 996 (1931). It leaves nothing for the court to do, but to enter what the parties have agreed upon, and when so entered, the parties themselves are concluded. Id.
| j sAhmad knowingly entered into a consent judgment, with the advice of counsel, and accepted the benefits afforded by that judgment. He cannot now challenge the circuit court’s rulings, which predated the consent judgment, on appeal.
Affirmed.
BROWN, J., agree.
VAUGHT, J., concurs.
. We dismissed the original appeal in this case, CA 12-991, without prejudice, see Ahmad v. Siddiqui, 2013 Ark. App. 562, 2013 WL 5592193, after which the circuit court entered a final order disposing of Siddiqui's personal claim.
. Horizon’s claim was based entirely upon an email and spreadsheet sent by Ahmad to Sid-diqui on January 3, 2007, in which Ahmad acknowledged that he owed Horizon $178,519.19, as of that date.
. Ahmad claimed various setoffs, including monies owed by Horizon for hosting services by United Pain Care, Inc., a corporation wholly owned by Ahmad, which contracted to provide certain services to Horizon. Ahmad also claimed setoffs for payments for accounting services and other expenses that he argued should mitigate any amounts owed by him to Horizon or Siddiqui.
. Horizon claims that there is no support for this statement in the record. According to Siddiqui’s testimony, "Mr. Gregg was consulted by me. He did not incorporate but he did the bylaws and gave me some advice about how partners work and how to buy shares, how much you pay, what laws, what the role of the president, all kinds of corporate basic information.” No evidence before us indicates that Gregg provided advice to Siddiqui regarding the matter in controversy before him or related issues.
. This is an older version of the ACJC — the current version that matches up most closely to this language is found at Rule 1.2 (2014), which states that "A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety-”
. This is not listed under current Canon 2, but seems to be covered by the above-referenced language.
. This is now covered in Canon 2, Rule 2.11.
. This language is now contained in Comment [5] to Canon 2, Rule 2.11 (2014). | [
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RITA W. GRUBER, Judge.
| íMCSA, LLC, d/b/a Medical Center of South Arkansas (the hospital) appeals a damages award in a default judgment, challenging the sufficiency of the evidence. We reverse and remand for a new hearing on the amount of damages.
On March 7, 2013, Mickey and Ella Thurmon filed a complaint alleging that Ella sustained injuries at the hospital on June 28, 2011, when she stepped on a slippery substance on a tile floor near where a janitor was working. The Thur-mons alleged that the hospital’s negligence in causing the substance to be placed on the floor and in failing to warn that the floor was slippery caused Ella to sustain damages — some of which were permanent in nature. Ella claimed that she sustained serious bodily injuries, incurred substantial past medical bills, 12and would continue to incur future medical bills; she asked for damages for past and future pain, suffering, and mental anguish. Mickey, her husband, claimed that the hospital’s negligence caused him to lose the companionship and services of his wife.
On May 5, 2013, the Thurmons moved for a default judgment and requested a damages hearing, noting that service had been perfected on the hospital’s registered agent, that the hospital had not filed an answer or otherwise appeared, and that the time for doing so had passed. At the October 22, 2013 hearing on damages, the Thurmons’ proof consisted of their own testimony, medical exhibits, and related travel expenses. The hospital was not notified of the hearing and did not appear. On November 5, 2013, the circuit court awarded a default judgment to the Thur-mons, finding that they were entitled to judgment as a matter of law because the hospital failed to timely respond and awarding damages in the amount of $645,055.98.
On November 20, 2018, the Thurmons contacted the hospital regarding their intent to execute on the judgment. The hospital answered the complaint on November 22, 2013, denying its allegations and affirmatively asserting contributory negligence, assumption of the risk, “obvious danger rule,” comparative fault, and other affirmative defenses.
Also on November 22, 2013, the hospital filed a motion to set aside the judgment, contending that the damages amount should be set aside because the Thurmons failed to notify the hospital of the damages hearing and that the evidence did not support the award granted. The hospital requested that the case be decided on its merits; alternatively, it requested that the award be set aside on the basis that it was clearly erroneous and that another Isdamages hearing be conducted with the hospital’s participation. The motion cited Ark. R.
Civ. P. 55, which states:
The court may, upon motion, set aside a default judgment for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) the judgment is void; (3) fraud, misrepresentation, or other misconduct on the adverse party; or (4) any other reason justifying relief from the operation of the judgment. The party seeking to have the judgment set aside must demonstrate a meritorious defense to the action; however, if the judgment is void, no other defense to the action need be shown.
On December 4, the circuit court conducted a hearing on the motion to set aside the default judgment. The hospital argued in part that the award — roughly twenty times the $30,809.98 in medical expenses — was unreasonable; that the only witnesses were the Thurmons; that their counsel suggested numbers to them and the court merely talked them; that there were no experts or proof that each expense “was related to the damage total”; and that the medical records did not support the damages award. At the conclusion of the hearing, the court denied the motion to strike default liability but took under advisement the issue of setting aside the default-damages award.
On December 14, 2013, the court granted the hospital an extension to file its notice of appeal. On December 18, 2013, the hospital filed its notice of appeal from the default judgment of November 5, 2013. In an order of December 31, 2013, the court denied the hospital’s motion to set aside and explained the damages award:
4. The testimony revealed that at the time of the occurrence giving rise to this lawsuit Ella Thurmon was a healthy, active wife, mother, and grandmother. She worked with her husband in his logging business as a bookkeeper and errand runner. She maintained the house, cooked, did yard work, and helped with the hay harvest. She walked, traveled, was frequently involved in family gatherings, and played with grandchildren on their level. She had been a loving wife and companion to her husband for 40 years.
|45. After her injury on MCSA properly, Ella Thurmon experienced a dramatic change in condition. She suffered from constant pain for which she took prescription medication with little relief. Having birthed four children, Ella Thur-mon described the pain as worse than childbirth because it did not go away and rated it as a 10 on a scale of 1 to 10. She cannot walk, sit, stand, or lie down for any length of time. Consequently, the activities described above have been eliminated or severely curtailed. Also, she cannot sleep well and her personality has changed for the worse, generating emotional consequences. Her medical treatment has been reasonable and necessary for her condition and will continue in the future where her life expectancy is 22 years. The prognosis is that her condition is permanent.
6. Observing the Thurmons in the courtroom, the Court found their testimony to be credible and compelling. The sums awarded for the elements of damage are supported by the evidence and are therefore reasonable and appropriate for the injuries sustained.
7. The Court is aware that the ratio of the judgment to the past medical expenses is a high ratio. However, the assessment of damages cannot always be so mechanical. The injuries sustained by the Thurmons are life-altering injuries. The nature of such injuries is unaffected by what a third party may charge to diagnose, treat, or temporarily alleviate the resulting condition. Likewise, the condition will continue unabated if the injured party chooses not to seek treatment. Medical expenses cannot always be the sole determinative factor in the assessment of damages. The purpose of damages is to compensate for the condition, not the monetary cost of the condition.
8. As of December 4, 2013, the condition of Ella Thurmon is permanent. The negligence of MCSA has sentenced her to a life of constant pain and discomfort, significantly reduced the quality of her life, and left her with no hope for improvement. Under the facts of this ease, the damages awarded to the Thur-mons will remain as originally determined.
On January 30, 2013, the hospital filed an amended notice of appeal from the default judgment and the denial of the motion to set aside the judgment.
In Arkansas, a default judgment establishes liability but not the extent of damages. Volunteer Transp., Inc. v. House, 357 Ark. 95, 162 S.W.3d 456 (2004). Evidence of future pain and suffering and permanent disability must be established with reasonable certainty and must not be left up to speculation or conjecture. Id. A hearing is required to establish damages, Land the plaintiff must introduce evidence to support damages. Entertainer, Inc. v. Duffy, 2012 Ark. 202, 407 S.W.3d 514. This is so even in the absence of the defaulting party. Id. (citing McGraw v. Jones, 367 Ark. 138, 238 S.W.3d 15 (2006)). Thus, a party’s failure to appear at the damages hearing does not procedurally bar it from challenging the award of damages against it. Entertainer, Inc., supra.
In civil cases where the trial court, rather than a jury, sits as the trier of fact, the standard of review on appeal is whether the court’s findings are clearly erroneous or clearly against the preponderance of the evidence. McGraw, supra. Here, the evidence at the damages hearing consisted of the Thurmons’ testimony and their exhibit of medical records with bills and related travel expenses totaling $30,809.98. The Thurmons collectively testified'that Ella, as a result of her injury, could no longer do activities she had formerly done: mow, weed-eat, rake hay, and fix fences; help Mickey in his logging business by keeping the books, being with him at work, and getting parts for him; drive or ride without problems; take regular trips to visit family in Louisiana; play outdoors with her grandchildren; and eat out or walk around Sam’s or Bass Pro Shop while in Monroe or Shreveport. They testified about her medical treatment after the injury — including an MRI, steroid injections, and pain medication — and about her continued pain, difficulty in sleeping, and decrease in activities and enjoyment of life.
Mickey testified that Ella’s inability to help him had been a strain on him, that he recently had open-heart surgery, that they did “not do much” anymore, and that he was “missing out” on companionship with his wife. Ella testified that her pain was “a 10,” worse. | fithan childbirth, and had affected her emotionally. She also stated:
I stay at home. Riding and walking hurt.... My husband had a heart attack this year. I think my injury might have affected his heart. I want my husband to be compensated for his loss of consortium.
She answered affirmatively when her counsel suggested amounts of judgment that would be fair and reasonable:
Counsel: Okay. Do you believe that $250,000 for your bodily injury pain and suffering is a fair amount? ... [D]o you want a judgment for your personal injury part of your pain and suffering for $250,000?
Ella: Yes, sir.
Counsel: All right. Do you want also to be compensated for your mental anguish?
Ella: Yes, sir.
Counsel: And do you want a judgment against the hospital for $250,000 for your mental anguish?
Ella: Yes, sir.
Counsel: All right. Do you want Mickey to be compensated for his loss of companionship and consortium?
Ella: Yes, sir.
Counsel: Do you believe that $100,000 is fair?
Ella: Yes, sir.
COUNSEL: So you will be sixty-four in January ... right?
Ella: Yes, sir.
Counsel: Okay. Looking at the actuary tables, you’ve got at least another 17twenty-two years. Do you want the court to award a reasonable amount that the court determines is reasonable for future medicals?
Ella: Yes, sir.
Counsel: And so far, we’ve got $30,909.98, so you believe that for future medicals reduced down to cash value today, do you believe that $150,000 for future medical bills is fair?
Ella: Yes, sir.
Ella also agreed with her attorney’s assertion that she was seeking judgment of $600,000, plus $30,809.98 for past medicals and $15,000 for future medicals. The court orally assessed damages against MCSA of $645,809.98, stating that its decision was based on the exhibits and testimony and the court’s agreement with counsel’s figures.
The hospital argues that the awarded amounts — $250,000 for pain and suffering, $250,000 for mental anguish, $100,000 for loss of consortium, and $15,000 for future medicals — are simply numbers imagined by the Thurmons’ counsel and have no foundation in the evidence at the default hearing. It also argues that the medical proof does not support opening statements by the Thurmons’ counsel at the damages hearing regarding a diagnosis of spinal injuries resulting from Ella’s fall. Be cause we reverse on the first argument, we need not address the second.
Evidence of future pain and suffering and permanent disability must be established with reasonable certainty and must not be left up to speculation or conjecture on the part of the |sfact-finder. E.g., Volunteer, supra. The $4,835,000 default-damages award in Volunteer included $500,000 for the nature, extent, and permanency of appellee’s alleged back injury; $135,000 for past and future medical expenses; $2,000,000 for past and future pain, .suffering, and mental anguish; and $2,200,000 for past and future lost earnings. Our supreme court reversed and remanded for a damages hearing because no expert medical testimony was presented, appellee was the sole witness regarding damages, there was no specific testimony regarding medical bills or their summary, there was no proof that each expense was necessary or related to the motor-vehicle accident at issue, and the record was silent as to how the trial court arrived at the damages amounts.
In McGraw, supra, the medical-malpractice $500,000 default-damages award was over ten times the amount of appellees’ actual out-of-pocket medical bills and lost wages, but appellees’ attorney characterized past pain and suffering and past and continued- mental anguish as being the “more significant” damages. Our supreme court reversed and remanded for a damages hearing, noting that appellees’ own self-serving testimony was the only proof of the nature, extent, and permanency of injury and that the circuit court apparently had arrived at the $500,000 figure merely at the suggestion of counsel for appellees after a discussion off-record.
Here, the default-damages award of $645,809.98 was over twenty times the only exhibit offered, which was proof of medical bills and related travel expenses. We recognize that the circuit court found the Thurmons’ testimony to be credible and compelling, and we acknowledge the court’s reasoning that the assessment of damages cannot always be |flmechanical. However, we note that theirs was the only testimony, and that, similarly to Volunteer and McGraw, it lacked any supporting computation, analysis, objective proof, or expert opinion. Although counsel suggested separate figures for pain and suffering, mental anguish, loss of consortium, and future medicals, there was no foundation for these figures and no proof other than the Thurmons’ simply agreeing to the amounts. On this record, we hold that these figures were based on speculation and conjecture. The circuit court clearly erred in awarding damages in the amount of $645,809.98. We reverse and remand for a hearing on damages.
Reversed and remanded.
WHITEAKER and VAUGHT, JJ., agree.
. MCSA, LLC, d/b/a Medical Center of South Arkansas, is identified in the pleadings as a for-profit corporation doing business as Medical Center of South Arkansas.
. The resulting written judgment of November 5, 2013, appears to contain a scrivener’s error substituting the amount $645,890.98. The December 31, 2013 order denying the motion to set aside correcdy recites the amount $645,809.98. | [
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RITA W. GRUBER, Judge.
| ¶ Appellants Best Western Inn and Union Insurance of Providence/Employers Mutual Casualty Co. appeal from the decision of the Arkansas Workers’ Compensation Commission adopting the decision of the Administrative Law Judge (ALJ) that appellee Christina Paul was performing employment services at the time of her injury. The only issue on appeal is whether substantial evidence supports the Commission’s decision. We affirm the decision of the Commission.
Appellee worked as a housekeeper for Best Western. She was injured on September 13, 2012, when she slipped and fell on water while walking down a concrete stairway headed to the laundry room. Her right knee “hit the concrete full force.” Medical treatment was initially provided by appellants, but, after an investigation, appellants controverted entitlement to additional benefits. They claimed that appellee was not acting in the course Land scope of her employment at the time of the incident because she was taking food to the laundry room refrigerator for her own benefit when she fell.
At the hearing before the ALJ, the evidence established that appellee had injured her right knee in 2009 by jumping off a horse. Her treating doctor at the time recommended surgery to repair her ACL and medial meniscus, but appellee chose to put off the surgery. In March 2012, she consulted Dr. Scott Walsh, who began treating her and performed surgery on March 80, 2012. Dr. Walsh performed a right knee arthroscopy with ACL reconstruction.
Appellee testified that on September 13, 2012, she was cleaning a room and discovered she needed more towels. So she went downstairs to the laundry room to retrieve them. She testified that she was also carrying food she had found in one of the hotel rooms to put in the refrigerator in the laundry room. She denied that the food was for her own personal use, testified that she had never taken anything from a hotel room for her own personal use, and confirmed that her primary purpose in going to the laundry room was to get clean towels. After appellee fell, she reported it to the hotel manager, Jan Leach.
Ms. Leach testified that she witnessed the fall on a hotel-surveillance video and noticed that appellee had dropped food when she fell. Ms. Leach testified that it was not hotel policy or part of appellee’s job to save food for a guest. Two housekeepers testified that they heard appellee scream when she fell and went to help her. They saw that she had fallen and had food in her hands. Both testified that it was not part of appellee’s job to carry food to the refrigerator. Both also testified that it was part of their job to get towels from the lalaundry room.
According to records of Saline Memorial Hospital, on September 13, 2012, appellee’s right knee was x-rayed and she was diagnosed with a knee sprain. She was discharged and referred to Dr. Walsh. Dr. Walsh saw appellee on September 17, 2012, and noted that she had a lot of pain and swelling. He also noted that he was “worried about ACL re-tear” and he thought that “an MRI [was] important for us to understand the extent of this injury.” Appellants controverted appellee’s entitlement to the MRI.
The ALJ awarded the additional treatment, finding that appellee was performing employment services at the time of the injury. The Commission affirmed the ALJ’s findings, stating that the evidence showed that appellee “was carrying out the employer’s purpose and advancing the employer’s interests in walking to the laundry room for clean towels ... demonstrating] that the claimant was performing employment services at the time of the September 13, 2012 accident.” The Commission found this to be true “whether or not the claimant was also carrying food when she slipped and fell.”
On appeal, this court views the evidence and all reasonable inferences therefrom in the light most favorable to the Commission’s decision and affirms that decision when it is supported by substantial evidence. Honeysuckle v. Curtis H. Stout, Inc., 2010 Ark. 328, at 6, 368 S.W.3d 64, 69. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. There may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we had sat as the trier of fact or heard the case de novo. Id. We will not reverse the Commission’s Ldecision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id. The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the Commission. Cedar Chem. Co. v. Knight, 872 Ark. 233, 237, 273 S.W.3d 473, 475 (2008).
In order for an accidental injury to be compensable, it must arise out of and in the course of employment. Ark.Code Ann. § 11 — 9—102(4)(A)(i) (Repl.2012). A compensable injury does not include an injury inflicted upon the employee at a time when employment services are not being performed. Ark.Code Ann. § 11 — 9— 102(4)(B)(iii). An employee is performing employment services when he or she is doing something that is generally required by his or her employer. Dairy Farmers of Am., Inc. v. Coker, 98 Ark.App. 400, 405, 255 S.W.3d 905, 910 (2007). We use the same test to determine whether an employee is performing employment services as we do when determining whether an employee is acting within the course and scope of employment. Jonesboro Care & Rehab Ctr. v. Woods, 2010 Ark. 482, at 5, 2010 WL 5059566. The test is whether the injury occurred within the time and space boundaries of the employment, when the employee was carrying out the employer’s purpose or advancing the employer’s interest, directly or indirectly. Id. The issue of whether an employee was performing employment services within the course of employment depends on the particular facts and circumstances of each case. Id. at 6.
Appellants first argue that the Commission’s finding that appellee was acting within the course and scope of her employment is not supported by substantial evidence. Appellants |-,claim that ap-pellee was not performing employment services when she was injured because she was taking food from the room of a former motel guest for her own use in violation of hotel policy. Where there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Walker v. Fresenius Med. Care Holding, Inc., 2014 Ark. App. 322, at 8, 436 S.W.3d 164, 170. Questions of weight and credibility are within the sole province of the Commission, which is not required to believe the testimony of the claimant or of any other witness but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Id. at 8-9, 436 S.W.3d at 170.
Appellee testified that she went to the laundry room to retrieve towels. She testified that she was also carrying food she had found in one of the hotel rooms to put in the refrigerator. She denied that the food was for her own personal use, testified that she had never taken anything from a hotel room for her own personal use, and confirmed that her primary purpose in going to the laundry room was to get clean towels. Based on the applicable standard of review, we hold that substantial evidence supports the Commission’s finding that appellee was performing employment services at the time she was injured.
Appellants also contend that the award of additional medical treatment — an MRI — is not supported by substantial evidence. The law requires an employer to provide medical services that are reasonably necessary in connection with the compensable injury received by an employee. Ark.Code Ann. § 11-9-508(a) (Repl.2012). The employee has the burden of proving by a preponderance of the evidence that medical treatment is reasonable and | ^necessary. Stone v. Dollar Gen. Stores, 91 Ark.App. 260, 266, 209 S.W.3d 445, 449 (2005). What constitutes reasonably necessary medical treatment is a question of' fact for the Commission. Nabholz Constr. Co. v. Gates, 2010 Ark. App. 182, at 2, 2010 WL 653563.
Appellants argue that the medical evidence showed only that appellee suffered a sprain and that additional diagnostic testing is related only to the long-standing and ongoing right knee problems that resulted in her ACL reconstruction just months before the accident at Best Western. Saline Memorial Hospital diagnosed appellee with a kn^e sprain and referred her to Dr. Walsh, her treating orthopedic surgeon for her previous knee surgery. Dr. Walsh examined appellee, determined that she had suffered a new injury, and was worried about an ACL re-tear. In order to determine the extent of her new injury, Dr. Walsh recommended an MRI to understand the extent of the injury. We recognize that the Commission has the duty of weighing the medical evidence as it does any other evidence, and it has the authority to accept or reject medical opinions. Coleman v. Pro Transp., Inc., 97 Ark.App. 338, 347, 249 S.W.3d 149, 155 (2007). The interpretation given to medical evidence by the Commission has the weight and force of a jury verdict, and this court is powerless to reverse the Commission’s decision regarding which medical evidence it chooses to accept. Hill v. Baptist Med. Ctr., 74 Ark.App. 250, 250, 57 S.W.3d 735, 737 (2001). We hold that substantial evidence supports the Commission’s decision.
Affirmed.
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BRANDON J. HARRISON, Judge.
| A Jefferson County jury convicted appellant Olivia Moody of second-degree murder in the death of Vanessa Bearden. Ark.Code Ann. § 5-10-103 (Repl.2009). Moody was sentenced to thirty years’ imprisonment as punishment. The issues Moody appeals are that the circuit court erred by (1) permitting the State to cross-examine her about a Facebook post, (2) admitting text messages from her phone, (3) limiting cross-examination of a State witness in violation of her Sixth Amendment rights, (4) abusing its discretion because it failed to submit her proffered instruction to the jury, and (5) denying her direeted-verdict motion because the State failed to negate her justification defense.
We treat motions for directed verdict as challenges to the sufficiency of the evidence. Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005). We will first address Moody’s argument about her justification defense and the court’s denial of her directed-jverdicR motion. Boldin v. State, 373 Ark. 295, 297, 283 S.W.3d 565, 567 (2008). Some of the trial testimony was confusing, but a fair summary of the testimony as a whole is presented below.
I. Justification Defense
Colby Dukes testified during Moody’s trial that the following events occurred on 26 June 2011. Dukes and the victim, Vanessa Bearden, went to the Holiday Apartments in Pine Bluff to visit a friend, Alisha Jeffers. As they pulled into the parking lot, Dukes reported that she and Bearden saw Jeffers “hollering” at a worn- an walking in the street. The woman, who was later identified as Olivia Moody, responded to Jeffers that “I’m not worried about it. So what’s up?” The verbal confrontation eventually resulted in a physical fight between Moody and Jeffers, and a fairly large crowd of people closely gathered around to watch.
Dukes told the jury that at some point during the fight she too fought Moody for about ten seconds and that a man named Brian Caddy pulled Moody off of her. Moody then broke free from Caddy’s grasp and ran straight to Vanessa Bear-den, who was recording the fight on her cell phone. Moody and Bearden fought for a brief time, until Caddy picked up Moody, put Moody in his vehicle, and drove away.
Alicia Jeffers left Dukes’s and Bearden’s company, and Dukes and Bearden walked to a fenced, shaded area in a nearby apartment complex across the street from where Jeffers lived. The two girls sat on the wooden fence while hanging out with a group of people. About forty-five minutes later, Dukes said that they noticed a white Tahoe driving by with Moody sitting in the passenger seat. The vehicle made several passes by |sthe apartment buildings and when the Tahoe came in front of the group of girls sitting on the wooden fence, it slowed. Dukes said that Moody rolled down the passenger side door window and said “Y’all, come on; ya’ll, come see me.” The Tahoe then drove off.
Approximately ten minutes later, according to Dukes, a man named Garyl Allen appeared. Allen testified during the trial that Moody had told him, “Go around and tell them [the girls sitting on the fence] to come around here if they still want to fight and jump on me.” Allen delivered the message, but the girls “didn’t buy into it” and continued to sit on the fence. He then told Moody that “[the girls] didn’t want to fight.” At that time, according to Allen, Moody was about forty yards from a breezeway, where he was standing;' she began to walk straight towards him.
Moody continued to walk past Allen, who was in the breezeway. When Moody came close, Allen said that he noticed that she had a gun in her right hand. Allen followed “two or three feet” behind Moody as she walked. When Moody and Allen reached the end of the breezeway, Allen said that he saw that a few of the girls had “disappeared” from sitting on the fence, but that Bearden was “running back and forwards, like [she] didn’t know which way to go.” According to Allen, when Bearden saw Moody, Bearden turned around to go the other way and Moody “pulled a gun and shot one time.” Allen testified that Bearden and Moody were about six feet apart and that Bearden had nothing .in her hands when she was shot. After Moody shot Bearden, she pointed the gun at another girl sitting on the fence; Allen said that he stopped Moody by saying that the girl on the fence had “nothing to do with it.”
|4Returning to Colby Dukes’s account of events, after Caryl Allen had conveyed the message to the girls on the fence, Vanessa Bearden stood up to go towards the breezeway, but did not get very far. Dukes warned Bearden not to see what Moody wanted because it seemed “fishy.” Bearden then showed Dukes a little pocket knife that she kept tucked in her shorts and covered by her shirt. According to Duke's, Bearden walked about three feet toward the breezeway when Moody appeared with a small gun. Dukes heard Moody yell something provocative, but ran away when she saw Moody had a gun. Dukes turned around when she heard Bearden yell and saw that Bearden was holding herself and running at the same time. Dukes ran for a while before stopping and coming back to the crime scene. When she arrived, Bearden was on her back bleeding. James Barnes, a minister, who had seen some of the prior events, appeared and started CPR.
Reverend Barnes testified that he was across the street in the parking lot of his church when the shooting occurred. Barnes said that he saw one girl running away and that the girl who was running had made it about five steps before she was shot by another girl stánding and holding a gun. The shooter turned around and walked back into the breezeway. Somebody told him that the girl was dying, so he ran to the girl and started CPR. Reverend Barnes testified that he removed a knife on the inside right area of the victim’s clothes before the police and an ambulance arrived.
Dr. Daniel Dye from the Arkansas State Crime Lab testified that Bearden’s death was caused by a wound from a 9mm bullet, which was consistent the with shell casing found on the scene. According to Dr. Dye, the bullet had entered Bearden’s back on the | Bleft side and exited in the front on the right side of her chest. Bearden also had wounds on her knees consistent with a fall.
Pine Bluff police detective Shawn Davis testified that Moody was an immediate suspect in Bearden’s death. Police searched Moody’s apartment but found no weapons. Moody was brought in for questioning the night the shooting occurred. Moody told Detective Davis that she was injured in a fight earlier that day. Davis took photographs of Moody’s injuries, and the State entered them as evidence during the trial. Detective Davis concluded that the photos showed that Moody had no visible or significant injuries.
At the close of the State’s evidence, Moody moved for a directed verdict because “The State has failed to rebut [her] justification defense and has failed to produce any proof ... that [she] could have avoided the necessity of using deadly force with complete safety by retreat.”
Moody testified in her own defense. She explained that Jeffers had dated her ■former boyfriend. On the afternoon of the shooting, Moody said that a group of eight or so girls, including Jeffers, wanted to fight her and that she did not know any of the girls save Jeffers. Moody said that she and Jeffers started fighting, and Moody ended up in a ditch on the opposite side of the street. Moody said she “presumed” that the crowd gathered around to fight her. In Moody’s view, all she could do to protect herself was to cover her face and ball up in the ditch. Moody explained that she broke free from KC.’s (aka Brian Gaddy) grasp to look for her phone, money, and keys. Moody testified that she tried to go home, but the girls who had fought her were in front of her apartment. At some point, Gaddy gave Moody a gun. Moody then returned to her apartment building’s |firear entrance. Moody said that she was afraid because there was a group of girls that she did not know sitting on the fence, and they were waiting to fight her. As she walked through the breezeway with the gun, she was confronted by a group of girls with one saying, “Get her....” Moody feared for her safety because she thought that the girls were going to jump her again. Moody said she fired the gun “to scare them.”
On cross-examination, Moody admitted that Vanessa Bearden did not have a weapon in her hand and that no one had threatened Moody with one. Moody also admitted to having the keys to her apartment on her person, and not going to her apartment; instead, she headed towards the group of girls who had gathered along the fence. Moody said that she had thought the girls would fight her “regard less” and that she went towards the group of girls (holding the gun) to tell them that “fighting me because someone else is fighting me over a boy. That is dumb.”
Moody renewed her motion for directed verdict after all the evidence was presented, arguing that she “feared that she would, in fact, be seriously injured and that she feared for her life when she was in the ditch at the first fight ... And also when the girls came toward her, the five girls, that she was in fear that they would do serious bodily harm to her, if not, you know, cause her death.”
Moody contends here that the circuit court erred when it denied her motion for directed verdict because the State failed to negate her justification defense. We disagree and affirm on this point.
A person commits murder in the second degree if she “[kjnowingly causes the death of another person under circumstances manifesting extreme indifference to the value 17of human life” or “[w]ith the purpose of causing serious physical injury to another person ... causes the death of any person.” Ark.Code Ann. § 5-10-103(a)(1) — (2) (Repl.2013). A justification defense is conditioned on a reasonable belief on the part of the actor that unlawful physical force is about to be inflicted on her. See Ark.Code Ann. § 5-2-607 (Repl. 2018); McDonald v. State, 42 Ark.App. 37, 42, 852 S.W.2d 833, 836 (1993). Under Arkansas law, the State must prove each element of an offense. Ark.Code Ann. § 5 — 1—111(a)(1) (Repl.2013). When the defendant submits evidence supporting a defense, “any reasonable doubt on the issue requires that the defendant be acquitted.” Ark.Code Ann. § 5-1-111(c). Whether circumstances negate a defendant’s excuse or justification is an element of the offense. See Ark.Code Ann. § 5 — 1—102(5)(C); Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003).
In reviewing Moody’s challenge to the sufficiency of the State’s evidence, we ask whether the verdict is supported by substantial evidence; the evidence can be direct, circumstantial, or some combination of the two. Dunn v. State, 371 Ark. 140, 264 S.W.3d 504 (2007). For circumstantial evidence to be substantial, it must exclude every reasonable hypothesis other than the accused’s guilt. The jury gets to decide whether the circumstantial evidence excludes every hypothesis consistent with innocence. Substantial evidence forces or compels a conclusion one way or the other so that the jury does not have to speculate to reach a decision. We will not overturn its determination • unless the verdict required speculation and conjecture. The jury also weighs the evidence and judges witness credibility. Id.
| sMoody argues that she was not the first aggressor, that her apprehension of suffering great bodily harm was reasonable because she had been assaulted by the group of girls approximately one hour before the shooting, and she shot the gun only in an honest attempt to scare the girls. Moody primarily relies on her own testimony.
We hold that substantial evidence exists to support Moody’s conviction for second-degree murder. The jury was not required to believe Moody’s testimony. Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979). Justification is a question of fact that the jury can resolve, and it is largely based on what the jury concluded regarding Moody’s intent. See Smith v. State, 30 Ark.App. 111, 115, 783 S.W.2d 72, 74 (1990). The jury could have reasonably rejected Moody’s justification defense based on the evidence presented at trial. The jury could have, among other things, credited Garyl Allen’s testimony that Moody began to walk straight towards Bearden holding a gun after he told Moody the girls did not want to fight. As for the reasonableness of the Moody’s belief that she was in danger of being killed or suffering great bodily injury, the issue was for the jury to decide based on the evidence presented. See Humphrey v. State, 332 Ark. 398, 408-09, 966 S.W.2d 213, 218 (1998).
The court did not err by denying Moody’s directed-verdict motions based on the record presented.
II. Jury Instruction
A closely related issue comes next: did the court abuse its discretion by refusing to give the jury Moody’s proffered jury instruction on justification? See Clark v. State, 374 | 9Ark. 292, 305, 287 S.W.3d 567, 576 (2008) (reviewing alleged jury-instruction error under an abuse-of-discretion standard). We hold that it did not.
The instruction at issue is AMI Crim.2d 704, which is based on Arkansas Code Annotated section 5-2-607 (Supp.2011). The statute states that:
(a) A person is justified in using deadly physical force upon another person if the person reasonably believes that the other person is:
(1) Committing or about to commit a felony involving force or violence;
(2) Using or about to use unlawful deadly physical force; or
(3) Imminently endangering the person’s life or imminently about to victimize the person as described in § 9-15-103 from the continuation of a pattern of domestic abuse.
(b) A person may not use deadly physical force in self-defense if the person knows that he or she can avoid the necessity of using deadly physical force with complete safety:
(1)(A) Byretreating.
(B) However, a person is not required to retreat if the person is:
(i) In the person’s dwelling or on the curtilage surrounding the person’s dwelling and was not the original aggressor;
(c)As used in this section:
(1) “Curtilage” means the land adjoining a dwelling that is convenient for residential purposes and habitually used for residential purposes, but not necessarily enclosed, and includes an outbuilding that is directly and intimately connected with the dwelling and in close proximity to the dwelling[.]
The Notes on Use to AMI Crim.2d 704 state that the court may decide that one or more options for the jury instruction’s wording, including the curtilage instruction, may be “inserted depending upon the evidence in the case.” When the evidence does not support the giving of an instruction, it is not error to refuse it. Christian v. State, 318 Ark. 813, 889 S.W.2d 717 (1994).
| mHere, the circuit court gave the standard AMI jury instruction (based on section 5-2-607), except that it intentionally omitted the “curtilage” concept because the court thought it had no legal basis to allow the jury to consider it. Moody says that the court’s justification instruction was incomplete without the curtilage language and should not have been submitted to the jury in the form it was. The State, however, presented evidence during the trial that Moody did not enter her apartment and that the breezeway Moody walked through on her way to the fence where the girls were sitting was a common area of a separate apartment unit. Moody argued she was within her apartment’s curtilage because she was close to the apartment.
The circuit court did not abuse its discretion by refusing to include a curtilage instruction. Having looked to some Fourth Amendment caselaw to help inform us on the curtilage question, we do not believe that the grassy area where Moody confronted Bearden and shot her could properly be considered curtilage. See Walley v. State, 353 Ark. 586, 605, 112 S.W.3d 349, 360 (2003) (A person does not have a reasonable expectation of privacy in common driveways and walkways.); see also Gustafson v. State, 267 Ark. 830, 833, 593 S.W.2d 187, 189 (1979) (A defendant had no reasonable expectation of privacy in the wooded area behind his apartment and this area was not within the purview of one’s “curtilage” as defined by our case-law.). It is important to point out that Moody was not prohibited from presenting her justification defense to the jury. The court instead tailored the instruction to fit the facts of the case in light of its understanding of the curtilage concept. It did not abuse its discretion by refusing an optional portion of the model instructions when there was no strong legal reason to characterize the particular ^geographical space where Moody shot Bearden as being within the curtilage of Moody’s dwelling.
III. Cross-Examination of Garyl Allen
The third issue on appeal is whether the court abused its discretion in limiting Moody’s cross-examination of Garyl “G-Rel” Allen. Moody argues that the court placed unreasonable restrictions on her cross-examination because it did not allow her to ask about (1) Allen’s bias due to his probationary status and desire for leniency from the State; (2) Allen’s prior sworn statement about other altercations leading to the shooting of Vanessa Bear-den; and (3) Allen’s prior sworn statement about Moody’s act of self-defense. Moody argues here that the court’s restrictions violated her Sixth Amendment rights under the United States and Arkansas Constitutions.
Our supreme court has held that a defendant’s right to confront witnesses against him or her is guaranteed by the Sixth Amendment to the United States Constitution and article 2, section 10, of the Arkansas Constitution. See Bowden v. State, 301 Ark. 303, 308-09, 783 S.W.2d 842, 844-45 (1990). This constitutional right includes the opportunity to conduct effective cross-examination. Id. But to preserve a confrontation clause argument on appeal, a defendant must obtain a ruling from the circuit court on that specific issue. Bertrand v. State, 363 Ark. 422, 429, 214 S.W.3d 822, 826-27 (2005).
Although Moody objected to the court’s limitation on her cross-examination of Allen during her trial, she did not argue to the circuit court that the lack of cross-examination violated her constitutional rights, nor did she obtain a ruling from the court on any constitutional issue regarding Allen’s testimony. Moody’s appellate argument that 112the circuit court erred under our federal and state constitutions by placing unreasonable restrictions on her cross-examination of Garyl Allen is not preserved for review.
IV. Text Message
Moody also argues that the court erred by permitting the State to cross-examine her about a text message sent to her phone around 9:46 p.m. the night of the shooting. Moody testified that her cell phone was taken during the first fight with Alisha Jeffers. Immediately after Moody’s cross-examination statement, the court held a bench conference outside the hearing of the jury.
The State wanted to introduce a picture of a phone message that was sent to Moody’s phone after the shooting occurred. The message was from Moody’s cousin, who lived in Chicago. Moody argued that the text message was hearsay, that she did not possess the phone when the message was sent, and that the message was sent “way after the' fact.” Moody said it was “highly prejudicial” because it was a message sent by someone else to Moody when she did not have the phone, which was likely already in police custody, and that the jury would get the impression that she was trying to “hide something.” The State argued that it had a right to ask Moody if she talked to her cousin Bianca after the shooting, or if she had seen the message, or knew anything about it. According to the State, “this appeared] to be a message delivered by the shooter or on behalf of the shooter. It will either be authenticated by her or it will not, but [the State] has a right to inquire.” The court ruled that the text message “is never going to get introduced” but that the State could ask Moody about how her cousin knew that | ^somebody had been shot. The court also said it would allow the State to ask Moody about whom she talked to and if she told anyone that she had killed someone.
The trial resumed and the State started to question Moody about her cell phone. Moody said that her cell phone was taken by one or more of the girls that she had originally fought with. She also admitted that her cousin Bianca was a contact in her phone. Moody flatly denied that she had knowledge of any text messages sent to her phone by Bianca. The prosecutor then asked Moody if she recognized the phone he was holding. Moody answered yes, and defense counsel promptly objected. The State then withdrew its question and passed Moody as a witness.
Moody essentially argues that the court abused its discretion by allowing the State to display the cell phone and otherwise “imply that the text message communicated threats and indicated the state of appellant’s mind on the night of the shooting” because she was required to identify the phone and acknowledge the text from her cousin in front of the jury.
The text message was never admitted as evidence, and its content was never revealed to the jury. Second, the court sustained Moody’s hearsay objection to the message, and when she objected the second time to the State asking about her phone, the State withdrew its question. So Moody received all the relief she had requested from the court. There was no abuse of discretion in any event. See Gilliland v. State, 2010 Ark. 135, 361 S.W.3d 279.
|14V. Faceboolc Posts
Moody alleges that another eviden-tiary error occurred when the court allowed the State to cross-examine her about past Facebook posts.
Moody filed a motion in limine seeking to exclude certain “email communications.” She argued that the emails were not material (or probative) to her criminal charges and that some of the emails were prejudicial because they contained “language generally considered vulgar and offensive.” In Moody’s view, the State sought to introduce such evidence to “cast aspersions on [her] character and to unduly prejudice [her] in the eyes of the jury.” The court did not rule on the motion in limine.
The following colloquy occurred between Moody and her lawyer on direct examination:
Defense Counsel: [H]as Alisha [Jeffers] ever said anything to you about her— the young man you used to date?
Moody: Yes.
Defense Counsel: Without telling me what she said, how would you describe her attitude about that in the late spring as we move toward June?
Moody: She was more — I guess she was trying to brag, more like, That’s my boyfriend now; it’s not yours. Like it was more trying to, I guess, make me feel bad now that she was dating my boyfriend — well, my ex-boyfriend.
Defense Counsel: Okay. Did you respond to that?
Moody: No.
Defense Counsel: When she would bring that up, you would not respond — is your testimony?
Moody: That’s my testimony.
11fiOn cross-examination, Moody was asked the following questions:
PROSECUTOR: Now, you indicated that Alisha Jeffers and you — there was some conflict over a boy.
Moody: There was.
PROSECUTOR: And you never responded to any of that conflict?
Moody: I can’t say never. At the time we were fighting, I never responded to anything that she did.
ProsecutoR: You are talking about the day of the fight?
Moody: Right.
PROSECUTOR: Prior to that you had responded to it, hadn’t you?
Moody: Yes.
Prosecutor: And there were several Fa-cebook posts—
Defense Counsel: Objection.
The court held a bench conference outside the jury’s hearing on the Facebook posts. Moody’s counsel argued that the Facebook posts were irrelevant because they were not threatening; the statements were made over ten weeks before the shooting happened; and he never asked Moody about any social media on direct examination. The State responded that Moody had testified on direct examination that she did not respond to Jeffers, and it had a right to cross-examine her on the truth of her statement. The court ruled that the Facebook posts could not be entered as evidence in the record but that the State could ask Moody about .any responses she had to Jeffers.
After the trial reconvened, Moody admitted on cross-examination that she had traded Facebook posts back and forth with Jeffers. She said the Facebook messages were 11Babout “leave me alone; you be with him.” Moody also said that she was unsure if she said anything else to Jeffers but agreed that, at times, it was not a pleasant conversation.
Moody argues here that “the State was allowed to both confuse and mislead the jury by implication of threats purported to exist in Facebook posts which did not exist.” She says that the evidence should have been excluded under Arkansas Rules of Evidence 401 and 403 because the Face-book posts were not relevant and were more prejudicial than probative.
We review matters concerning the scope of cross-examination under an abuse-of-discretion standard. Rodgers v. State, 360 Ark. 24, 27, 199 S.W.3d 625, 627 (2004). Our supreme court has said that the use of cross-examination is an important tool in bringing the facts before the jury and that wide latitude should be afforded by the circuit court. Id. That said, a circuit court must determine when the matter has been sufficiently developed and when the outer limits of cross-examination have been reached. But unless the court’s discretion was exercised thoughtlessly, we will not reverse. Id.
The content of the Facebook messages, whatever it was, was never exposed; no prejudice could therefore have resulted. And the State never alleged, in front of the jury, that threats were made on Face-book — it asserted that the exchanges between Moody and Jeffers were unpleasant. The two concepts (threats versus unpleasant exchanges) as they came up in this case do not establish reversible error. Regarding the scope of the cross-examination being too far, Moody said on direct examination that she had not responded to Jef-fers, so the State’s questioning of Moody on cross-examination about her past responses via Facebook responded to her testimony on direct examination, was probative 117of her truthfulness, and not unduly prejudicial. The court did not abuse its discretion in allowing the cross-examination to proceed as it did.
VI. Conclusion
We affirm Moody’s conviction in all respects and the related sentence.
Affirmed.
WYNNE and GLOVER, JJ., agree. | [
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JIM HANNAH, Chief Justice.
|,Appellant, Billy Ray Hale, appeals the order of the Lee County Circuit Court denying his petition for a writ of habeas corpus. In 1978, Hale entered negotiated pleas of guilty in the Pulaski County Circuit Court to one count of first-degree murder, four counts of aggravated robbery, and one count of first-degree battery for crimes he committed in October 1977. He received concurrent sentences of life imprisonment for the charge of first-degree murder and each of the aggravated-robbery charges and twenty years for the | ¡.battery charge. The sentencing orders for each charge stated, “Defendant is to serve one-third (1/3) of said sentence(s) before becoming eligible for parole.” In 1996, Hale sought a declaratory judgment in the Lincoln County Circuit Court asserting that, even though he had received life sentences, he was eligible for parole. The circuit court denied Hale’s petition for relief, concluding that, pursuant to Arkansas Code Annotated section 16-93-604, persons serving life sentences are not eligible for parole. This court affirmed the circuit court’s order denying relief without reaching the merits of Hale’s arguments on appeal. See Hale v. State, CR 97-1058, 1999 WL 172173 (Ark. Mar. 25, 1999) (unpublished per curiam).
On January 31, 2013, Hale, incarcerated by the Arkansas Department of Correction at the East Regional Unit in Lee County, Arkansas, filed a pro se petition for writ of habeas corpus in the Lee County Circuit Court. In support of issuance of the writ, Hale contended that the sentencing orders entered in his case were facially invalid, that his guilty plea was involuntary, that his trial attorney was ineffective, that the prosecution violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that his life sentences for both aggravated robbery and | ¡¡first-degree murder were unconstitutional because he was a juvenile when he received them. Appellee, the State, filed a memorandum in opposition to the petition. On May 1, 2013, the circuit court entered an order denying Hale’s petition.
Hale appeals, contending that the circuit court erred in denying his petition for writ of habeas corpus because (1) the sentencing orders are facially invalid in that the court was without authority to sentence him to life with the possibility of parole eligibility after one-third of the sentence was served; (2) his four sentences, as a juvenile, to life without the possibility of parole for nonhomicide offenses are in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment as articulated in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010); and (3) his sentence, as a juvenile, to life without the possibility of parole for a homicide offense is in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment as articulated in Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).
A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacks jurisdiction over the cause. E.g., Brown v. Hobbs, 2014 Ark. 267, at 2, 2014 WL 2566091. Hale first contends that the circuit court erred in denying his petition because the sentencing orders are facially invalid. Specifically, he asserts that the orders are facially invalid because in 1978, the circuit court lacked the authority to impose the sentence of life imprisonment with the possibility of parole.
In Arkansas, sentencing is entirely a matter of statute, and this court has consistently [¡held that sentencing shall not be other than in accordance with the statute in effect at the time of the commission of the crime. E.g., State v. Fountain, 350 Ark. 437, 440, 88 S.W.3d 411, 413 (2002). When the law does not authorize the particular sentence pronounced by a circuit court, that sentence is unauthorized and illegal, and the case must be reversed and remanded. E.g., Taylor v. State, 354 Ark. 450, 456, 125 S.W.3d 174, 178 (2003).
At the time Hale committed the offenses, aggravated robbery and murder in the first degree were both Class A felonies, see Ark. Stat. Ann. §§ 41-1502(3), 41-2102(2) (Repl.1977), and punishable by a term of imprisonment of not less than five years nor more than fifty years, or life, see id. § 41-901. The parole-eligibility statute then in effect stated that “[i]ndi-viduals sentenced to life imprisonment pri- or to March 1, 1968, and those sentenced to life imprisonment after the effective date [February 12, 1969] of this Act, shall not be eligible for release on parole unless such sentence is commuted to a term of years by executive clemency.” Id. § 43-2807(b)(1).
Recently, in Hobbs v. Turner, 2014 Ark. 19, at 7, 431 S.W.3d 283, 287, we explained that “[generally, in Arkansas, life means life,” and with few exceptions, “the legislature has not provided for a sentence of life with the possibility of parole in over forty years.” In each of the three sentencing orders at issue in this case, the Pulaski County Circuit Court sentenced Hale to life with the possibility of parole for Class A felonies. Pursuant to Arkansas Statutes Annotated section 41-901, for Class A felonies, the court was required to sentence Hale to terms of imprisonment of not less than five years, nor more than fifty years, or life. The court lacked the authority to sentence Hale to a term of life with the possibility of [ sparole. Therefore, the sentencing orders entered in this case are facially invalid. Because the Pulaski County Circuit Court exceeded its statutory authority by sentencing Hale to terms of imprisonment of life with the possibility of parole, we reverse the denial of the petition for writ of habeas corpus, issue the writ, and remand to the Lee County Circuit Court with instructions to transfer the case to the Pulaski County Circuit Court for resentencing.
Denial of petition for writ of habeas corpus reversed; writ of habeas corpus issued; remanded to the Lee County Circuit Court with instructions.
. Hale was born on March 6, 1961; thus, he was sixteen years old when he committed the crimes.
. Hale was convicted in three separate cases, CR 77-1933, CR 77-1934, and CR 77-1939, so three separate sentencing orders were entered.
. Although Hale raised several arguments in support of his petition, the circuit court addressed only his statutory right to parole eligibility and denied relief because, pursuant to Arkansas Code Annotated section 16-93-604, there was no eligibility for parole for persons serving life sentences. Hale appealed to this court and raised two arguments, neither of which challenged the circuit court’s findings regarding the application of section 16-93-604. Because Hale failed to obtain rulings from the circuit court on the issues he raised on appeal, we summarily affirmed the circuit court’s order.
.Although Ray Hobbs, Director, Arkansas Department of Correction, is the nominal party, we will identify appellee as the "State.” | [
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LARRY D. VAUGHT, Judge.
| t Seventeen-year-old R.W.G. . was charged in Garland County, Arkansas, as an accomplice to first-degree murder. R.W.G. filed a motion to transfer his case to the juvenile division of circuit court. After a juvenile-transfer hearing, the circuit court denied the motion. R.W.G. appeals, arguing that the circuit court erred in denying the motion to transfer his case to the juvenile division. We affirm.
A prosecuting attorney has the discretion to charge a juvenile sixteen years of age or older in the juvenile or criminal division of circuit court if the juvenile has allegedly engaged in conduct that, if committed by an adult, would be a felony. Ark.Code Ann. § 9-27-318(c)(l) (Repl.2009). On the motion of the court or any party, the court in which the criminal charges have been filed shall conduct a hearing to determine whether to transfer the case to another division of circuit court having jurisdiction. Ark.Code Ann. § 9-27-318(e). The court shall order the case transferred to another division of circuit court only upon a finding by clear and convincing evidence that the case should be transferred. Ark.Code Ann. § 9-27-318(h)(2). Clear and | ^convincing evidence is the degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. Lewis v. State, 2011 Ark. App. 691, at 2, 2011 WL 5562773. We will not reverse a circuit court’s determination of whether to transfer a case unless that decision is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Id.
Arkansas Code Annotated section 9-27-318(g) sets forth the factors the circuit court must consider and make written findings on at a transfer hearing. Those factors are (1) the seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court; (2) whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner; (3) whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted; (4) the culpability of the juvenile, including the level of planning and participation in the alleged offense; (5) the previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the juvenile as determined by consideration of the juvenile’s home, environment, emotional attitude, pattern of living, or desire to be treated as an adult; (7) whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile’s twenty-first birthday; |s(8) whether the juvenile acted alone or was part of a group in the commission of the alleged offense; (9) written reports and other materials relating to the juvenile’s mental, physical, educational, and social history; and (10) any other factors deemed relevant by the judge. Lewis, 2011 Ark. App. at 691, 2-3, 2011 WL 5562773. The circuit court does not have to give equal weight to each factor. Id. at 3.
At the motion-to-transfer hearing, the State presented evidence from Garland County Sheriff’s Department Investigator Michael Wright that Dan Roberson, who was seventy-one years old, was abducted, robbed, and murdered on or about July 9, 2013. The State also presented evidence that R.W.G., along with two other adults, Chestly Gaston and Ethan Sallee, were responsible for the crimes. Wright testified that he interviewed R.W.G., who said that he, Gaston, and Sallee had seen Roberson picking up aluminum cans on the side of the road, when Gaston said that Roberson had a lot of money. R.W.G. stated that the group followed Roberson back to his house, jumped him, strangled him, put him in the bed of his (Roberson’s) truck, drove him to a wooded area, stabbed him, and dumped his body. Wright further testified that R.W.G. provided a general description of where Roberson’s body could be found. While R.W.G. told Wright that he (R.W.G.) neither killed Roberson nor witnessed the killing, he said that Gaston killed Roberson and that he (Gaston) had a knife. R.W.G. admitted that he and Sallee burned Roberson’s vehicle. Wright testified that Roberson’s vehicle was one of three vehicles the trio stole during the weekend. Lastly, Wright did not recall R.W.G.’s having made statements that he was threatened or coerced into participating in the crimes against Roberson.
|4Sherry Chandler testified that she was the principal at the Jessieville/Fountain Lake Alternative Learning Center (ALC) when R.W.G. was a student there on three separate occasions, beginning in his fifth-grade year. She testified that he was transferred to ALC because of attention deficit hyperactivity disorder (ADHD) and reasoning and comprehension issues in reading and math. She said that he flourished in the program but was a follower who was influenced by his peers. According to Chandler, when R.W.G. returned to traditional school, he had problems with attendance and staying out of trouble; he used vulgar language, refused to follow directions, and bullied students. She said that she felt as though the ALC had exhausted its program options with regard to R.W.G. and that he needed another program. She added, however, that she believed R.W.G. could be rehabilitated in the juvenile court system.
R.W.G.’s probation officer, Brian Reynolds, testified that in December 2012, R.W.G. was arrested for harassing a fellow student and placed on juvenile probation. Within a six-month period, Reynolds filed two affidavits in support of petitions to revoke R.W.G.’s probation — one in March 2013 for testing positive for drugs and another in May 2013 for smoking on the school bus. Reynolds further testified that R.W.G. was on probation at the time the crimes were committed against Roberson. Reynolds stated that R.W.G. was a follower and lacked the maturity to make sound adult decisions. Reynolds opined that there were rehabilitation facilities that would benefit R.W.G.
The coordinator of the juvenile division of the Public Defender Commission, Scott Tanner, testified that there are residential psychiatric programs within the juvenile system available to R.W.G. beyond his eighteenth birthday. Tanner stated that R.W.G. was a candidate | sfor extended juvenile jurisdiction, which would allow the circuit court to impose a juvenile sentence that would be served within the Division of Youth Services. Upon R.W.G.’s twenty-first birthday, a hearing in the circuit court would be held to determine whether rehabilitative milestones had been met or whether an adult sentence in the Arkansas Department of Correction was appropriate.
R.W.G.’s father, Robert Glover, Sr., also testified. He said that R.W.G.’s mother had seen him only twice. Glover said that he was a single dad and was often gone due to work. He added that he had not been the best role model for his son, admitting that he lost custody of R.W.G. because he (Glover) tested positive for methamphetamines. Glover said that R.W.G. had the maturity of a thirteen year old.
The circuit court denied R.W.G.’s motion to transfer, entering written findings of fact that addressed each of the factors set forth in section 9-27-318(g). On appeal, R.W.G. challenges the findings the circuit court made with regard to each of the factors, and he contends that the court clearly erred in denying the motion. He argues that there is no evidence that he, in a premeditated manner, killed Roberson; at best he was the accomplice of two adults. He denies harming Roberson and points out that he cooperated with investigators in locating Roberson’s body. R.W.G. contends that he had only one prior offense of harassment, no antisocial behavior, and no prior violent offenses. He cites evidence that he was diagnosed with ADHD and lacked maturity. He also cites testimony that there were programs available within the juvenile system and that his ALC principal and probation officer opined that he could be rehabilitated within that system.
|fiIn denying the motion to transfer, the circuit court found that the crime committed against Roberson — first-degree murder — was extremely serious and that the protection of society would strongly favor, if not require, prosecution in the criminal division of circuit court. The circuit court found that the alleged offense was committed in an aggressive, premeditated, and willful manner by R.W.G., although the level of violence by him was in dispute. The circuit court noted that the crime was against a person and his property, and the culpability of R.W.G., including the level of planning and participation in the alleged offense, was substantial. The circuit court further found that R.W.G. had some history of aggressive behavior against others. The court noted that R.W.G. appeared to be on the lower end of the normal range of maturity for a person his age and that he had a history of antisocial behavior. The court found that it was undisputed that R.W.G. was part of a group that committed the murder. And while there was evidence of juvenile-system programs that might be available to R.W.G., the court found that there was no evidence as to the likelihood that these programs might prove effective for someone in his circumstances.
We hold that the circuit court properly considered all the factors in section 9-27-318(g) and that its decision to deny the motion to transfer is not clearly erroneous. The evidence demonstrated that R.W.G. willingly participated with Gaston and Sal-lee in the abduction, robbery, and murder of Roberson because he had “lots of money.” The seriousness of the murder, coupled with evidence about how the group treated Roberson and the medical examiner’s report confirming that Roberson was stabbed to death, demonstrate the aggressive, premeditated, and willful manner of the group’s actions. And while R.W.G. stated that he did |7not kill Roberson and did not witness the killing, he knew who did, he saw Gaston with a knife, and he was aware of where Roberson had been left to die. After Roberson was murdered, R.W.G. drove around in Roberson’s vehicle, and later R.W.G., along with Sallee, burned it. Finally, there was no evidence that R.W.G. was coerced or threatened to participate in the group’s activities.
Other evidence also supports the circuit court’s denial of the motion to transfer. R.W.G. was enrolled in the ALC on three occasions. While he did well in this program, as soon as he was released, he reverted to poor behavior. His principal testified that there was nothing further the program had to offer R.W.G. His poor behavior led him to being on juvenile probation. Evidence showed that R.W.G. was unable to follow the rules of this program, as demonstrated by the two petitions to revoke his probation that were filed against him. Further, R.W.G. was on probation at the time of Roberson’s murder. R.W.G.’s history of failing to rehabilitate supports the circuit court’s finding that, while there may have been some juvenile- system programs available to R.W.G., there was no evidence as to the likelihood that these programs might prove effective for him.
For these reasons, we hold that the circuit court’s findings support its decision, and the denial of R.W.G.’s motion to transfer to the juvenile division of circuit court was not clearly erroneous.
Affirmed.
GRUBER and WHITEAKER, JJ., agree. | [
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PHILLIP T. WHITEAKER, Judge.
11Appellant Brandy Jung appeals from a Carroll County Circuit Court order terminating her parental rights to her child, N.E. She challenges the court’s finding that termination was in the best interest of the child as well as its finding that there were statutory grounds present on which to base a termination. Because these findings were supported by clear and convincing evidence, we affirm.
I. Standard of Review
Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Jones-Lee v. Ark. Dep’t of Human Servs., 2009 Ark. App. 160, 316 523 S.W.3d 261. However, courts are not to enforce parental rights to the detriment or destruction of the health and well-being of a child. Id. An order terminating parental rights must be based on the court’s finding by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile -will be adopted if the termination petition is granted and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark.Code Ann. § 9-27-341 (b)(3)(A)(i) & (ii) (Supp.2013). Additionally, the trial court must also find by clear and convincing evidence that one or more statutory grounds for termination exists. Ark.Code Ann. § 9-27-341(b)(8)(B) (Supp.2013). We review termination-of-parental-rights cases de novo, but we do not reverse unless the circuit court’s clear-and-convincing evidence findings are clearly erroneous. Pratt v. Ark. Dep’t of Human Servs., 2012 Ark. App. 399, 413 S.W.3d 261
II. Procedural History
A de novo review of the record reveals that N.E. was born in January 2012. Four months later, in May 2012, he was taken into the custody of the Arkansas Department of Human Services (DHS). The police notified DHS that Jung had been arrested for commercial burglary, theft of property, and second-degree child endangerment after she was found at an abandoned hotel where alleged copper theft was occurring. The police needed DHS intervention because N.E. was in Jung’s care at the time of her arrest. Evans, the father, was also present; however, there was an active order of protection against him related to a domestic-violence incident involving Jung. When the caseworker took N.E. into custody, | sthe child’s clothing was dirty and the diaper bag reeked of cigarette smoke and contained no formula.
After the child was taken into custody, DHS discovered other factors that placed the child’s health and safety at risk. First, it was determined that, although N.E. was receiving WIC assistance, Jung had not been picking up the vouchers. Second, it was discovered that the child had attended only one well-baby check up at two weeks of age and had not received any of her shots. Finally, DHS ascertained that an investigation had previously been opened in March 2012 with regard to Jung’s smoking in the car with N.E. and using meth-amphetamines while caring for the child. DHS had been unable to complete the investigation because the family could not be located.
Based on these facts, DHS filed a petition for emergency custody, which was granted by the court. In June 2012, the court adjudicated dependency-neglect, set the goal of reunification, ordered reunification services, and ordered that Jung comply with the court’s directives. Specifically, Jung was ordered to (1) obtain and complete a drug and alcohol assessment and comply with all recommendations resulting therefrom; (2) refrain from the use and/or possession of any and all illegal substances and/or drug paraphernalia; (3) maintain safe, stable and appropriate housing; and (4) maintain stable employment.
Subsequently, the court held review hearings to monitor the case. The court’s orders from these hearings reflect that Jung was not compliant with the court’s orders pertaining to maintaining stable housing and employment and that Jung had failed drug screens. By the time the case reached a permanency-planning hearing in March 2013, Jung had not remained Ddrug-free as evidenced by positive drug screening, had not maintained stable housing or employment, had not paid child support, and had criminal charges pending.
On May 31, 2013, DHS filed a petition to terminate parental rights. The petition alleged that terminating Jung’s parental rights was in the child’s best interest and that four statutory grounds for termination existed under Arkansas Code Annotated section 9-27-341(b) (3)(B) (i) (a), (ii)(a), (vii)(a) & (ix) (a) (S) (A)-(B) (i) (Supp.2013). After a hearing on the merits, the trial court entered an order terminating Jung’s parental rights. In doing so, it found that termination was in the best interest of the child and that DHS had proved all four statutory grounds.
III. Points on Appeal
Jung initially challenges the trial court’s finding that termination was in the child’s best interest. She concedes that N.E. is adoptable, but contends there was insufficient evidence of potential harm in returning the child to her. In support of her argument, she notes that she never abused N.E. and there was no evidence that she posed a threat of harm to the child, either physically or emotionally. She further stresses the evidence of the services she completed prior to the termination hearing. While she admits that she tested positive for drugs in the beginning of the case, she contends she had been testing clean and had successfully completed rehabilitation by the end of the case. She states that the trial court and the caseworker erroneously relied on conjecture and innuendo to find that she had provided adulterated samples for her drug screens and that no evidence of such adulteration existed.
| ¡jin considering the potential harm caused by returning the child to a parent, the court is not required to find that actual harm would result or to affirmatively identify a potential harm. Welch v. Ark. Dep’t of Human Servs., 2010 Ark. App. 798, 378 S.W.3d 290. Potential harm must be viewed in a forward-looking manner and in broad terms. Collins v. Ark. Dep’t of Human Servs., 2013 Ark. App. 90, 2013 WL 546940. Additionally, the risk for potential harm is but a factor for the court to consider in its analysis. Carroll v. Ark. Dep’t of Human Servs., 85 Ark.App. 255, 148 S.W.3d 780 (2004).
Given this analysis, Jung’s arguments are not persuasive. Here, the trial court was presented with evidence that Jung had not maintained stable employment at any time during the case. While she was employed at the time of the termination hearing, she obtained that employment only three days prior to the hearing. The only other employment she had during the course of the case was a threermonth stint with Tyson. This lack of financial resources prevented her from obtaining stable housing or transportation and prevented her from keeping her child-support payments current.
The trial court was also presented with Jung’s continued drug use throughout the case. Jung admitted that she used drugs at the beginning of the case but notes that she had several negative drug screens in April and May 2012. The trial court found the validity of the negative drug screens to be suspect. Our review of the record supports this suspicion. Jung submitted urine samples that tested negative for drugs. DHS suspected an invalid test because the urine samples did not register a. proper temperature. The sample was then submitted to a pregnancy test to determine if the sample was in fact urine. The pregnancy test confirmed Rthat the samples were urine and were also negative for pregnancy. Yet, it appears from the record that Jung was pregnant at the time. This discrepancy calls the validity of those tests into question. Moreover, Jung had only recently been released from an inpatient drug-treatment center and had been on her own and sober for only three weeks prior to the hearing. Even after her release, there was evidence presented that Jung may have attempted to provide the caseworker with an adulterated urine sample. This evidence calls into question the strength of Jung’s new-found sobriety.
A parent’s lack of stable housing or employment can demonstrate potential harm to a child, as can a parent’s continued illegal-drug usage. See, e.g., Hall v. Ark. Dep’t of Human Servs., 2012 Ark. App. 245, 413 S.W.3d 542 and Campbell v. Ark. Dep’t of Human Servs., 2013 Ark. App. 84, 426 S.W.3d 501. While there was some evidence that Jung was recently employed and sober at the time of the hearing, there was insufficient proof that, given her history, she could maintain employment or sobriety. As a result, it was not clear error for the court to find that there was potential harm if the child was returned to Jung’s custody.
Jung next challenges the court’s determination that there were sufficient statutory grounds to support termination. In order to terminate, in addition to the best-interest finding, the court must find by clear and convincing evidence that one or more statutory grounds for termination exists. Drake v. Ark. Dep’t of Human Servs., 2013 Ark. App. 274, at 11, 427 S.W.3d 710, 716 (citing Ark.Code Ann. § 9-27-341(b)(3)(B) (Supp.2013)). However, proof 17of only one statutory ground is sufficient to terminate parental rights. Id. (citing Fenstermacher v. Ark. Dep’t of Human Servs., 2013 Ark. App. 88, 426 S.W.3d 483).
Here, the trial court found several grounds upon which to support termination — one being that the child had been adjudicated dependent-neglected, had been outside Jung’s care for over twelve months, and that Jung had failed to remedy the cause for removal, see Ark.Code Ann. § 9-27-341(b)(3)(B) (i)(a). There was sufficient evidence presented to support this ground. N.E. had been adjudicated dependent-neglected and was removed from Jung’s custody in May 2012. One of the causes of removal was Jung’s suspected drug usage. Jung continued to use drugs during the course of the proceedings and had only recently completed a drug-treatment program. Even after her completion of the program, there was evidence that she had attempted to falsify a random drug screen just two days prior to the termination hearing. This was sufficient to support the finding of a statutory ground for termination.
Affirmed.
GRUBER and VAUGHT, JJ., agree.
. The court also terminated the parental rights of the father, Rodney Evans. He appealed the termination order and the two appeals were consolidated. See CV-14-200. He subsequently moved to dismiss his appeal, and his motion was granted on July 10, 2014. As a result, he is no longer a party to this appeal.
. The evidence before the court at permanency planning indicated that Jung was pregnant again and that Evans was the father of the child. The urine samples in question were submitted after this hearing. | [
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PER CURIAM.
I,In 1984, appellant David Lee Lewis was convicted by a jury in the Desha County Circuit Court of first-degree battery and aggravated robbery, and he was sentenced to an aggregate term of 720 months’ imprisonment in the Arkansas Department of Correction (ADC). This court reversed appellant’s convictions and remanded for a new trial in Lewis v. State, 286 Ark. 872, 691 S.W.2d 864 (1985). In 1985, appellant was again convicted of the crimes charged, and he was sentenced as a habitual offender to consecutive sentences of 360 months’ imprisonment for the aggravated-robbery conviction and 288 months’ imprisonment for the first-degree-battery conviction. This court affirmed. Lewis v. State, 288 Ark. 595, 709 S.W.2d 56 (1986).
In 2012, appellant filed in the Jefferson County Circuit Court pro se petitions for declaratory judgment and for writ of mandamus in which he sought to challenge the calculation of his parole eligibility and application of meritorious good-time credit and also contended that Rhe had been eligible for release since 2005. The circuit court entered an order denying the relief sought, and appellant now appeals and raises the same claims that were raised below.
A petition for declaratory judgment ' and writ of mandamus is civil in nature. Wiggins v. State, 299 Ark. 180, 771 S.W.2d 759 (1989). We have held that there are four requisite conditions before declaratory relief may be granted: (1) there must exist a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (8) the party seeking relief must have a legal interest in the controversy; (4) the issue involved in the controversy must be ripe for judicial determination. Pitts v. Hobbs, 2013 Ark. 457, 2013 WL 5968940 (per curiam); see also Aguilar v. Lester, 2011 Ark. 329, 2011 WL 3930362 (per curiam) (citing Ark. Dep’t of Human Servs, v. Ross-Lawhon, 290 Ark. 578, 721 S.W.2d 658 (1986)). The declared legislative purpose is “to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” Ark.Code Ann. § 16-111-102(a) (Repl. 2006). Our declaratory-judgment act was not intended to allow any question to be presented by any person; the matters must first be justiciable.. Aguilar, 2011 Ark. 329, 2011 WL 3930362.
The purpose of a writ of mandamus is to enforce an established right or to enforce the performance of a duty. Pitts, 2013 Ark. 457, 2013 WL 5968940; Banks v. Hobbs, 2013 Ark. 377, 2013 WL 5519863 (per curiam) (citing Aguilar, 2011 Ark. 329, 2011 WL 3930362). A writ of mandamus is issued only to compel an official or a judge to take some action, and when requesting a writ, a petitioner must show a clear and certain right to the relief sought and the absence of any other remedy. Pitts, 2013 Ark. 457, 2013 WL 5968940. But, a writ of mandamus will not lie to control or review matters of discretion. Id.
The determination of parole eligibility is solely within the province of the ADC. Anderson v. Hobbs, 2013 Ark. 354, 2013 WL 5434693 (per curiam). The law is well settled that parole eligibility is determined by the law in effect at the time the crime is committed. Aguilar, 2011 Ark. 329, 2011 WL 3930362. In the instant case, appellant was sentenced to consecutive terms of imprisonment of 360 months for the charge of aggravated robbery and 288 months for the charge of first-degree battery. The trial record reflects that the State introduced evidence of appellant’s habitual-offender status — a plea of guilty in 1978 to breaking or entering, a Class D felony, and theft of property, a Class C felony, and a plea of guilty in 1979 to aggravated robbery, a Class A felony.
Arkansas Statutes Annotated section 43-2807.1 (Supp.1983), in effect at the time appellant committed the underlying charge of aggravated robbery, provided:
Any person who commits ... aggravated robbery subsequent to the effective date [March 24, 1983] of this Act, and who has previously pled guilty, nolo con-tendere or been found guilty of ... aggravated robbery, shall not be eligible for release on parole by the State Board of Pardons and Paroles.
Thus, pursuant to section 43-2807.1, appellant is not eligible for parole on the 360-month sentence imposed for the underlying aggravated-robbery charge because he has previously entered a plea of guilty to aggravated robbery.
| ¿Section 43-2830.3(B)(4) (Supp.1983), in effect at the time appellant committed the underlying charge of first-degree battery, provided that, as an inmate classified as a third offender, he would not be eligible for parole on the 288-month sentence until a minimum of three-fourths of the time has been served, with credit for good-time allowances.
Pursuant to Arkansas Statutes Annotated section 43-2830.3(E), “[f]or parole eligibility purposes, consecutive sentences ... for one or more counts, shall be considered as a single commitment reflecting the cumulative sentence to be served.” However, the aggregation of consecutive sentences may not result in an inmate being eligible for parole during a sentence for which parole is not authorized. See Woods v. Lockhart, 292 Ark. 37, 727 S.W.2d 849 (1987). Therefore, appellant is not eligible for parole until he has served the entirety of his 360-month sentence for which he is ineligible for parole and three-fourths of his 288-month sentence, with credit for good-time allowances.
As appellant has failed to show that the ADC is miscalculating his parole-eligibility date in a manner inconsistent with the law in effect at the time he committed the crimes charged, the circuit court did not err in denying his petition for declaratory judgment, and, without establishing a right to declaratory judgment, appellant provided no basis for a writ of mandamus to issue. See Crawford v. Cashion, 2010 Ark. 124, 361 S.W.3d 268 (per curiam).
Affirmed.
. Appellant's calculation of his release date appears to be premised on the following mistakes of law arid fact: (1) The court ordered his sentences to be served concurrently, and, thus, he is only required to serve an aggregate term of 360 months’ imprisonment; (2) The 360-month sentence imposed for the aggravated-robbery conviction, though ineligible for parole, is subject to reduction by the application of meritorious good-time credit, of which appellant contends he has earned ten years. The judgment-and-commitment order in appellant's case reflects that his sentences were ordered to be served consecutively, and Arkansas Statutes Annotated section 43-2807.1 (Supp.1983), in effect at the time appellant committed aggravated robbery, does not allow for good-time credit.
. The record reflects that the date of the offenses for which appellant was charged and convicted in the instant case is May 10, 1984.
. "Third offenders shall be inmates convicted of three or more felonies and who have been twice incarcerated in some correctional institution in the United States, whether local, state or federal, for a crime which was a felony under the laws of the jurisdiction in which the offender was incarcerated, prior to being sentenced to a correctional institution in this State for the offense or offenses for which they are being classified.” Ark. Stat. Ann. § 43-2830.2(3). | [
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LARRY D. VAUGHT, Judge.
| Appellant SMG 1054, Inc. (SMG), appeals the order of foreclosure entered by the Randolph County Circuit Court in favor of appellee James E. Thompson. On appeal, SMG contends that the trial court abused its discretion in denying its motion for continuance and in refusing to admit certain documentation into evidence. We reverse and remand, holding that the trial court abused its discretion in denying SMG’s motion for continuance. SMG’s second point on appeal is moot.
Thompson filed a complaint for foreclosure against SMG on January 10, 2013. The complaint alleged that on December 30, 2010,’Thompson loaned $47,500 to Cedar Break LLC, |2and in return he received a promissory note signed by T.V. Wallis’ (agent of Cedar Break — now deceased), who promised to repay the loan on or before March 31, 2011. The complaint also alleged that Wallis, on behalf of Cedar Break, signed a mortgage in favor of Thompson, securing the indebtedness of Cedar Break by conveying to him a lien that was first in priority on property located on Highway 62 in Randolph County, Arkansas (the property). The mortgage was filed December 30, 2010. The foreclosure complaint further alleged that Cedar Break failed and refused to make payments due under the note; therefore, Thompson was exercising his right to declare the entire debt due and payable. The complaint continued, alleging that on May 3, 2011, Cedar Break conveyed to SMG, by warranty deed, the property secured by the mortgage and that SMG had failed to make payments on the loan. Thompson prayed for judgment in rem against SMG in the amount of $47,500,-plus interest, attorney’s fees, and costs, and further prayed that should the judgment not be paid within a reasonable time the property be sold.
On February 14, 2013, Shirley Matthews, a nonlawyer, on behalf of SMG filed an “answer to summons,” disputing all claims made in the foreclosure complaint. Matthews further responded by stating that Cedar Break, along with Wallis, unlawfully obtained the deed to the property and made the agreement with Thompson without her permission.
A foreclosure hearing was held on April 8, 2013. Matthews appeared on behalf of SMG. The Honorable Philip G. Smith presided over the hearing. Upon learning that the foreclosure Rwas contested, the trial judge stated that he had a conflict with Thompson and refused to hear the case. The case was transferred to another judge.
Two weeks later, on April 22, 2013, a second foreclosure hearing was held. Again, Matthews appeared on behalf of SMG. At the onset of the hearing, she requested a continuance to retain an attorney. She stated that she initially believed that she was capable of representing SMG but ultimately concluded that there were matters involved that she did not know how to handle, e.g., SMG’s potential claims against Cedar Break and Wallis. She advised the court that she had talked to three different attorneys, but they had conflicts. Counsel for Thompson objected to the motion for continuance, contending that Matthews had had sufficient time to hire an attorney. The trial court denied the motion for continuance, focusing on the fact that this was the second time that the foreclosure hearing had been set.
The hearing proceeded, and both Thompson and Matthews testified. During Matthews’s testimony, she again requested additional time to hire an attorney. Once all of the evidence had been submitted, Matthews requested additional time “to get this sorted out.” The trial court denied these requests and found in favor of Thompson, ordering foreclosure if SMG failed to redeem the property in thirty days. The trial court’s order of foreclosure was entered on April 25, 2013.
SMG’s first point on appeal is that the trial court abused its discretion in denying its motion for continuance. It argues that the trial court (and opposing counsel) knew or should |4have known that SMG was a corporation, that a corporation must be represented by an attorney, and that Matthews was not an attorney. SMG also argues that the trial court abused its discretion when it denied the motion for continuance based on the finding that the matter had already been continued. It argues that the first setting was continued because the first trial judge recused.
A motion for continuance shall be granted only upon a showing of good cause. Hill v. Ark Dep’t of Human Servs., 2013 Ark. App. 760, at 3, 2013 WL 6685788. We will not reverse the denial of a motion for continuance absent an abuse of discretion amounting to a denial of justice. Id. A trial court abuses its discretion when it acts improvidently and without due consideration. Id. The appellant bears the burden of showing that the trial court’s denial of a continuance was an abuse of discretion, and, in order to show an abuse of discretion, the appellant must show that she was prejudiced by the denial. Id. at 3-4.
As stated in our prior opinion, Matthews, at the trial-court level, was a non-lawyer representing a corporation, which constituted the unauthorized practice of law. SMG, 2014 Ark.App. 149, at 7, 2014 WL 792035 (citing Ark. Bar Ass’n v. Union Nat’l Bank, 224 Ark. 48, 51, 273 S.W.2d 408, 410 (1954) (holding that a corporation may represent itself in connection with its own business or | ¿affairs provided it does so through a licensed attorney); Ark.Code Ann. § 16-22-206 (Repl.1999); Ark.Code Ann. § 16-22-211(a) (Repl. 1999)). There is no question that both Thompson’s counsel and the trial court were aware that SMG was a corporation and that Matthews was not an attorney. She made multiple pleas to the trial court throughout the second hearing stating that she did not understand the legal issues, and several times she requested that she be given a continuance to retain counsel for the corporate defendant. Nevertheless, at one point, the trial court advised Matthews, “ — my concern is ... to protect your rights, you have to go get an attorney or you can defend it yourself.” She cannot.
Our supreme court has been resolute in strictly enforcing the rule that a corporation through its nonlawyer officers cannot engage in the practice of law. Nisha, LLC v. Tribuilt Constr. Grp., LLC, 2012 Ark. 130, at 12, 388 S.W.3d 444, 451. Our court had stated that the unauthorized practice of law by a corporation is a serious matter that should not be countenanced. Roma Leathers, Inc. v. Ramey, 68 Ark.App. 1, 6, 2 S.W.3d 82, 85 (1999). An error of law in itself can constitute an abuse of discretion. See Ford Motor Co. v. Nuckolls, 320 Ark. 15, 894 S.W.2d 897 (1995); Crowder v. Flippo, 263 Ark. 433, 565 S.W.2d 138 (1978); Downum v. Downum, 101 Ark.App. 243, 274 S.W.3d 349 (2008). The trial court erred as a matter of law in advising Matthews that she could defend SMG and permitting her to do so under these circumstances. We hold that this error of law constitutes an abuse of discretion.
Moreover, the trial court stated that the primary reason it was denying the motion was because the case had been continued once before. The inference was that Matthews was responsible for the first continuance. However, the April 8 hearing was continued because the 1 fitrial court recused. Matthews never spoke at the first hearing. We also note that the first trial judge did not advise Matthews that, as a matter of law, she could not represent SMG.
For these reasons, we hold that the trial court abused its discretion in denying SMG’s motion for continuance, and we reverse and remand. SMG’s second point on appeal is moot.
Reversed and remanded.
GRUBER and WHITEAKER, JJ„ agree.
. This is SMG's second appeal. In the first, SMG failed to abstract the contents of a foreclosure hearing held on April 8, 2013, or include in the addendum a copy of the order disposing of the matters raised at that hearing. SMG 1054, Inc. v. Thompson, 2014 Ark. App. 149, at 5-6, 2014 WL 792035. There, we held that the facts and circumstances surrounding the April 8 hearing might have been relevant to our review of whether the trial court abused its discretion in denying SMG’s motion for continuance: therefore, we remanded the case to settle and supplement the record and ordered rebriefing. Id. at 7. SMG has corrected the deficiency in this second appeal.
. SMG’s warranty deed was filed May 4, 2011.
. For purposes of our review, a summary of their testimony is not relevant; therefore, those facts are not recited here.
. We acknowledge Thompson’s argument that Matthews did not make this specific argument below and cannot raise it for the first time on appeal. We disagree. As set forth above, Matthews made multiple requests for a continuance to hire an attorney on behalf of SMG, advising the court that she was not capable of representing the corporation. This was effective to alert the circuit court to this issue.
. SMG hired counsel to file its notice of appeal from the trial court’s order, and SMG is represented by that counsel on appeal. | [
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Sarah J. Heffley, Judge.
In this eminent-domain case, the Arkansas State Highway Commission (Commission) brings an appeal from the trial court’s order granting a new trial on the issue of just compensation to appellees, Wallace F. Wood and Evelyn F. Wood, trustees of the Wood Revocable Trust (Trust). For reversal, the Commission argues that the trial court erred in concluding that the jury’s verdict was clearly contrary to the preponderance of the evidence. We affirm the trial court’s decision.
The Trust owns land on either side of Highway 63 in Poinsett County. Specifically, it owns a triangular-shaped, 15.69-acre tract to the north and east of the highway, and an elongated, 528-acre tract directly across the road to the south and west. In 2004, the Commission made plans to convert Highway 63 into a non-access facility in connection with the Highway 118 Interchange project near Tyronza in preparation for Interstate 554. It then commenced proceedings to condemn the access rights of the 15.69-acre tract to Highway 63, but not the access rights lost by the 528-acre tract. In a separate action, the Trust obtained an injunction to prohibit the Commission from taking the access rights of the 528-acre tract to Highway 63 without bringing a condemnation action. By agreement, the two cases were consolidated, and the injunction was dissolved.
At trial, Donald Bearden, the Commission’s appraiser, testified that the project left the 15.69-acre tract landlocked and completely without access. His opinion was that the highest and best use of the property was commercial and that before the taking the land had a value of $3,200 an acre, and after the taking it had a value of $250 an acre. Accordingly, his estimate of just compensation in before-and-after value was $46,250.
Mr. Bearden stated that the highest and best use of the 528-acre tract was agricultural, and he assigned a value of $1,800 an acre for the tract. However, he maintained that the value of this parcel was not affected by the loss of access to Highway 63 because the property could be accessed at its south end by Highway 322. He did estimate $5,000 as a “cost to cure” for replacing a culvert for the access point at Highway 322.
Bearden further testified that regulations required the landowner to be given the opportunity to inspect the property with him, but no one representing the Trust was afforded that privilege when he inspected the 528-acre tract. Bearden said that when he inspected this property he only went a short distance into the field because he did not want to damage the wheat crop growing on the land. He had no knowledge of how the tract was farmed or how farming equipment entered and left the field during planting and harvesting seasons.
Lewis Wood farmed the land for the family trust for almost thirty years until 1998 when he retired after suffering a second heart attack. To summarize his testimony, the 528-acre tract was divided in two parts by a slough that held water and remained wet, especially in the spring and fall. Although Highway 322 provided easy access to the southern portion of the tract, that highway did not provide access to the northern 378 acres because of the slough, the distance (a mile and three quarters), and the lack of a road connecting the two parts. Because of these obstacles, Highway 63 had been depended upon to access the 378 acres to the north with heavy equipment and trucks that were necessary to service water wells and other farming vehicles.
Mr. Wood valued the 15.69-acre tract before the taking at $4,000 an acre and said that it was worth only $100 an acre after the taking because of the complete loss of access. Thus, he estimated the cost of just compensation to be roughly $61,200. He believed that the northern 378 acres of the larger tract had been damaged by the loss of access from Highway 63. He placed a value on the 378 acres at $2,750 before the taking and said that its value had been reduced to $1,500 an acre after the taking. He asked for just compensation in the amount of $472,500 for the loss of access to the larger tract.
The Trust’s appraisers offered no opinion on the before- and-after value of the 15.69-acre tract. They agreed with Mr. Wood that the northernmost 378 acres of the larger tract had been severely damaged by the loss of access from Highway 63, and they both agreed that the 378 acres was valued at $1,750 an acre before the taking, or $663,000, and that it had a value of $1,159 an acre after the taking, or $439,000. Thus, they stated that the 378 acres had been damaged in the amount of $224,000.
The jury returned a verdict of $51,250 for the loss of access to both tracts. The Trust filed a motion for a new trial, in which it argued that the assessment of damages by the jury was clearly the result of passion or prejudice because of inflammatory comments made by the Commission during closing arguments; that the jury’s assessment of the amount of recovery was erroneous because it was outside the range of the value testimony; and that the jury’s verdict was clearly contrary to a preponderance of the evidence. After conducting a hearing, the trial court concluded that the jury’s verdict was clearly against the preponderance of the evidence. The Commission has brought this appeal from the order granting a new trial.
Rule 59 of the Arkansas Rules of Civil Procedure governs motions for a new trial and provides in relevant part:
A new trial may be granted to all or any of the parties and on all or part of the claim on application of the party aggrieved, for any of the following grounds: ... (5) error in the assessment of the amount of recovery, whether too large or too small; (6) the verdict or decision is clearly contrary to a preponderance of the evidence ....
When determining whether a new trial is merited pursuant to the rule, the trial court has limited discretion because it may not substitute its view of the evidence for the jury’s except when the verdict is clearly against the preponderance of the evidence. Switzer v. Shelter Mutual Ins. Co., 362 Ark. 419, 208 S.W.3d 792 (2005). In reviewing the trial court’s granting of a motion for a new trial, the test is whether the trial court abused its discretion. Carlew v. Wright, 356 Ark. 208, 148 S.W.3d 237 (2004). We have noted that a showing of abuse of discretion is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Id.
The Commission contends that the trial court abused its discretion by granting the new-trial motion because it substituted its judgment for that of the jury. Appellant points out that the jury’s verdict was consistent with the testimony of Mr. Bearden and that the jury rejected the opposing evidence presented by the Trust.
The jury found that $51,250 would compensate the Trust for the loss of access to both tracts. We agree with the Commission’s assessment that the jury’s verdict comports with the testimony of its appraiser, Mr. Bearden. He testified that the before- and-after value of the smaller tract was $46,250 and that the larger tract suffered no loss of access and thus no diminution in value, except for $5,000 for the placement of a culvert at the access point. When those sums are added together, the basis of the jury’s verdict is clearly revealed. The Trust responds that the jury’s verdict is flawed because the testimony of $5,000 as a “cost to cure” is not an appropriate measure of damages. It is true that evidence of the cost of improvements for restoration purposes is proper, but such expenditures are not the measure of damages, and are only an aid in determining the difference in the before-and-after value of the property. Arkansas State Hwy. Comm’n v. Carpenter, 237 Ark. 46, 371 S.W.2d 535 (1963). However, we believe that the trial court’s decision must be affirmed because the record reflects that Mr. Bearden had no fair and reasonable basis for concluding that the value of the larger tract was not diminished by the loss of access to Highway 63.
When a witness gives his opinion as to damages, such testimony must be considered in connection with related facts upon which the opinion is based. Ark. Hwy. Comm’n v. Byars, 221 Ark. 845, 256 S.W.2d 738 (1953). Because a witness testifies as to a conclusion on his part does not necessarily mean that the evidence given by him is substantial, when he has not given a satisfactory explanation of how he arrived at the conclusion. Id. With these principles in mind, in Arkansas State Highway Commission v. Ptak, 236 Ark. 105, 365 S.W.2d 794 (1963), the supreme court ruled, as a matter of law, that the testimony of a witness as to value was not sufficient because the witness was not familiar with the physical facts concerning the property involved. The same conclusion was made in Arkansas Power & Light Co. v. Furlong, 250 Ark. 617, 466 S.W.2d 476 (1971), where the witness’s testimony was based on a cursory view of the property. Here, Bearden’s testimony shows that he was not familiar with the lay of the land. He tread only a short distance onto the property from the southern entrance and did not encounter the slough that physically split the property in two. It is clear to us that Bearden assumed that the entire 528-acre tract could be fully accessed from the south, and based on that faulty assumption, he reached the conclusion that the larger tract had not diminished in value by the loss of access to the north. Because the jury obviously relied on Bearden’s testimony, which is contrary to the physical facts, we find no abuse of discretion in the trial court’s decision to grant a new trial.
We are cognizant of the Trust’s argument that we should affirm the trial court’s decision on the ground that the Commission failed to bring up a record sufficient for us to review because the record does not include closing arguments. The Trust points out that it asserted in its motion for a new trial that the jury was improperly influenced by inappropriate comments made by the Commission’s attorney during closing argument, and it contends that the Commission’s failure to include closing arguments has prevented it from urging that issue as an alternative basis for upholding the trial court’s decision to grant a new trial.
In its notice of appeal, the' Commission designated the entire record to be brought up on appeal. However, the record does not include closing arguments, and an abstractor’s note in the Commission’s brief states, “[a]s the closing statements were purposely not ordered transcribed and there is no point in contention about closing statements, they are not abstracted.” In Jones v. Adcock, 233 Ark. 247, 343 S.W.2d 779 (1961), the appellant designated the entire record for appeal but later amended the notice of appeal to severely limit the record to be brought up on appeal. The appellee was not favored with notice of the amended designation, and the supreme court dismissed the appeal after finding that the appellee was prejudiced by the appellant’s action. Here, the Commission also made a unilateral decision to limit the record on appeal without notice, which was error. We perceive no prejudice to the Trust, however, because we have affirmed the trial court’s decision for the reasons stated above.
Affirmed.
Griffen and Glover, JJ., agree. | [
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Daven M. Glover, Judge.
Appellant, Kenneth Graves, hired appellees, Billy Paul Bullock, individually and d/b/a Bullock Flying Service, and David Paul Bullock, to distribute, by air, his wheat seed and fertilizer over ninety acres of his farmland. Appellant alleged, and the jury agreed, that appellees converted appellant’s seed for their own uses. The jury awarded appellant $5,715.80 in compensatory damages and $25,000 in punitive damages, for which judgment was entered on November 14, 2006. The Bullocks timely filed a motion for judgment notwithstanding the verdict, or in the alternative, for remittitur of the damages. The trial court denied the motion for JNOV, but granted the request for remittitur. The trial court reduced the amount of compensatory damages to $912. The trial court also reduced the amount of punitive damages to $4500, which approximated the ratio between the original compensatory- and punitive-damage awards. In this appeal from the grant of remittitur, appellant contends that the trial court erred in reducing the amounts of compensatory and punitive damages awarded by the jury. Appellees do not cross-appeal the trial court’s denial of their motion for JN O V. W e affirm the trial court’s reduction of both damage awards; however, in so doing, while we affirm the amount of compensatory damages calculated by the trial court, we increase the amount of punitive damages calculated by it from $4500 to $8000.
Only a brief recitation of the facts is necessary to understand the issues presented in this appeal. Appellant is a farmer in Arkansas County. In November 2002, he hired appellees to apply fertilizer and wheat seed by aerial application to a ninety-acre field. Over three-hundred bushels of wheat seed were delivered to appellees for this application. The wheat stand on this field turned out to be very thin, and a representative of the cooperative-extension service advised appellant to plow under the field to prepare for another crop.
Appellant requested a copy of the global positioning records from the airplane, which would show a color change in the flight path when the plane’s hopper was opened to distribute the seed. Those records revealed that appellee David Bullock, who piloted the plane, left the flight path over appellant’s field after the fifth pass and flew immediately to a field that Bullock used for hunting and opened the hopper-gate ten times over almost sixteen acres. Later that day, after a subsequent aerial application over some prison property, he immediately flew over some of appellees’ other personal hunting lands and opened the hopper several more times. Upon learning of these divergences, appellant filed his complaint against appellees alleging the tort of conversion.
Standard of Review
We review the issue of remittitur de novo. Routh Wrecker Serv., Inc. v. Washington, 335 Ark. 232, 980 S.W.2d 240 (1998); Smith v. Hansen, 323 Ark. 188, 914 S.W.2d 285 (1996); McNair v. McNair, 316 Ark. 299, 870 S.W.2d 756 (1994); Valdez v. Lippard, 73 Ark. App. 254, 39 S.W.3d 804 (2001). Remittitur can be applied to compensatory damages as well as to punitive damages. Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003).
Compensatory Damages
For his first point of appeal, appellant contends that the “trial court erred by granting the Bullocks’ motion for remittitur and reducing the compensatory damages awarded to Kenneth Graves by the jury because there was substantial evidence supporting the amount, which was not excessive.” He contends, that in granting appellees’ motion for remittitur, the trial court erred in concluding that there was not substantial evidence to support the jury’s award of compensatory damages because it was “in the jury’s province to determine whether or not so much of the wheat seed had been diverted from Mr. Graves’ field to the Bullocks’ hunting lands to result in a crop failure and to make the whole amount of the seed worthless.” Stating it another way, appellant argues, “In other words, the conversion of a portion of the seed was tantamount to stealing all of the seed because the whole lot was rendered worthless to Mr. Graves.” We find no error in the trial court’s reduction of the compensatory damages.
In arguing this point, appellant acknowledges that “the proper measure of damages for conversion of property is the market value of the property at the time and place of the conversion,” and that the trial court instructed the jury in this manner. Moreover, the instruction that was ultimately given to the jury merely provided:
If you find in favor the Plaintiff, Kenneth Graves, on the issue of the conversion of his wheat seed by the Defendants, or either of them, you are instructed that the measure of damages is the fair market value of the personal property which you find was converted by the Defendants at the time and place of the conversion.
The instruction makes no mention of the types of consequential damages that would be “tantamount to stealing all of the seed.” While appellant presented arguments to the trial court about pursuing such a theory of the case, this is not the theory that was presented to the jury in the above instruction. The case proceeded to the jury on the conversion claim alone, and the only measure of damages for which the jury was instructed is that set out above.
In reducing the amount of compensatory damages, the trial court explained:
The measure of damages for conversion is the market value of the property at the time and place of conversion and the jury was instructed accordingly. The undisputed proof showed that the wheat seed had a value of $11.40 per bushel. The plaintiff bought 333.67 bushels and hired the defendant to seed his land. Therefore, the total value of the seed was $3,803.80. The jury awarded the plaintiff compensatory damages of $5,715.80. From reviewing my trial notes, there was evidence that the cost of the aerial application was $1,912.81. Thus, the jury apparently awarded judgment to the plaintiff for the value of all the seed, plus all the application cost. My recollection is that the bill for the application cost was not admitted to be considered proof of damages, but only for the limited purpose ofshowing that the plaintiff paid for the application. Therefore, including application cost in the compensatory damages was not supported by the damage instruction which the jury was given.
I can see how the jury could have concluded based on the evidence that the defendant left the plaintiffs field after the last load with some wheat seed, although there was no substantial evidence of exactly how much. However, the proof was undisputed that the maximum capacity of the airplane’s hopper was 80 bushels. Thus, giving the plaintiff the benefit of all reasonable inferences, the absolute maximum amount of wheat seed in the plane when it last left the plaintiff’s field and went to the defendants’ land could not have been more than 80 bushels. At the market value of $11.40, this would amount to $912.
(Emphasis added.) Based upon the evidence that was presented at trial and the instruction that was given to the jury, we find no error in the trial court’s reduction of the compensatory damages to $912.
Punitive Damages
For his second point of appeal, appellant contends that “the trial court erred by granting the Bullocks’ motion for remittitur and reducing the punitive damages awarded to Kenneth Graves by the jury because there was substantial evidence supporting the amount, which was not excessive.” We agree with the trial court’s reduction of the punitive-damages amount awarded by the jury, but we have concluded that it was reduced too much. Consequently, for the reasons discussed below, we have increased the punitive-damage award from the $4500 calculated by the trial court to $8000.
In reducing the punitive-damages award, the trial court reasoned: “From the manner in which the jury apparently determined the compensatory damages, I believe that amount of the punitive damage award might have been affected. Based on the reduction of the compensatory damages, and approximating the ratio of punitive damages to compensatory damages as determined from the jury’s verdict, I conclude that the punitive damages should be reduced to $4,500.” (Emphasis added.) The ratio between compensatory and punitive in the original awards was 4.37 to 1. The ratio between the reduced awards was 4.93 to 1.
Under the facts of this case, appellant’s contention is that the trial court erred in reducing the $25,000 amount because it was not excessive, even considering the reduced compensatory-damages award. Appellant also contends that in comparing the compensatory-damages award to the punitive-damages award, the court is not bound to any particular ratio, and that the fact that the trial court reduced the compensatory award does not mean that the punitive award must also be reduced. He further contends that the ratio factor serves only as a guide in determining excessiveness and that the particular circumstances of each case still prevail. He argues that even if the trial court was correct in reducing the compensatory-damages amount, appellant still suffered greatly from the conversion and the Bullocks should be deterred from future comparable conduct.
The trial court was presented with arguments encompassing both a state-law and a due-process analysis. As our supreme court explained in Routh Wrecker Serv., Inc., supra, “State appellate courts that have considered the punitive-damages issue in light of Gore [BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996)], have adopted a two-step analysis. The first step is to determine whether the award of punitive damages is excessive under state law; the next is to consider the award in light of the due-process analysis in Goref 335 Ark. at 240, 980 S.W.3d at 244. Therefore, in our required de novo review of the remittitur, we first consider appellant’s challenge under state law.
a. State Law Analysis
When considering the issue of punitive damages under our state law, we consider the extent and enormity of the wrong, the intent of the party committing the wrong, all the circumstances, and the financial and social condition and standing of the erring party. Routh Wrecker Serv., Inc., supra. Punitive damages are a penalty for conduct that is malicious or perpetrated with the deliberate intent to injure another. Id. When punitive damages are alleged to be excessive, we review the proof and all reasonable inferences in the light most favorable to the appellees, and we determine whether the verdict is so great as to shock the conscience of this court or to demonstrate passion or prejudice on the part of the trier of fact. Id. It is important that the punitive damages be sufficient to deter others from comparable conduct in the future. Id.
Viewing the evidence that was presented to the jury in the light most favorable to Mr. Graves, it is clear that the jury concluded that appellees intentionally exercised dominion and control over Mr. Graves’s wheat seed, and that in doing so their hunting lands were thereby benefited. Thus, in considering the intent of the party committing the wrong, i.e., Mr. David Bullock, we conclude that this consideration weighs in favor of the punitive damages that were awarded by the jury. However, in considering the remaining factors, i.e., the extent and enormity of the wrong and the financial and social condition and standing of the erring party, even viewing the evidence in the light most favorable to Mr. Graves, we have concluded that the jury’s award of $25,000 was not supported by the evidence in that there was not sufficient proof to connect the conversion of one hopper containing eighty bushels of wheat seed to appellant’s failed crop. Moreover, we find no evidence of appellees’ financial and social condition and standing. Consequently, under our state-law analysis, we conclude that the award of $25,000 would shock this court’s conscience, and, therefore, we find no error in the trial court’s remittitur of the jury’s punitive-damages award.
b. Due-Process Analysis
In turning to our due-process analysis under Gore, supra, we examine the three designated guideposts for determining when an award would violate due process: (1) the degree of reprehensibility of the defendant’s conduct, (2) the award’s ratio to the actual harm inflicted on the plaintiff, (3) a comparison of the punitive damages to the civil or criminal penalties that could be imposed for comparable conduct. There is no mathematical bright line for determining gross excessiveness, and low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages. Routh Wrecker Serv., Inc., supra. In addressing a party’s challenge to an award of punitive damages, both the trial court and our court must give the punitive verdict the searching review required by our federal Constitution. Jim Ray, Inc. v. Williams, 99 Ark. App. 315, 260 S.W.3d 307 (2007). We must make a thorough and independent evaluation of the amount of punitive damages using all three constitutional guideposts. Id. Our analysis is fluid, rather than exact, and we are called to police a constitutionally acceptable range, not a fixed point. Id.
As in Jim Ray, Inc., supra, in considering the degree of reprehensibility of David Bullock’s conduct, we consider the following factors — the conversion of the wheat seed was purely economic conduct, not physical; it showed no indifference to Mr. Graves’s health or safety; there was no proof that Mr. Graves was vulnerable, financially or otherwise; and Bullock’s conduct did not involve a course of dealings over an extended period involving many bad acts. And, similar to the conduct in Jim Ray, Inc., supra, Bullock’s conduct was neither accidental nor malicious. On the reprehensibility scale, it falls somewhere in the middle.
As explained previously in this opinion, we found no basis for reversal of the trial court’s reduction of the jury’s compensatory-damages award to $912. Therefore, if the punitive-damages award were allowed to stand at $25,000, the ratio between the two would be approximately 27 to 1. As we noted in Jim Ray, Inc., supra, few awards exceeding a single-digit ratio will satisfy due process. The trial court reduced tbe jury’s punitive-damages award to $4,500 in order to approximate the ratio between the jury’s original compensatory- and punitive-damages awards. The resulting ratio is 4.93 to 1.
The third due-process factor involves assessing the punitive-damages award by comparing it to applicable statutory penalties and comparable cases, which represent the notice component of the analysis. Neither party presented us with applicable statutory penalties. In Hudson v. Cook, 82 Ark. App. 246, 105 S.W.3d 821 (2003), a case discussed by both parties, the ratio between compensatory and punitive damages was 7 to 1. Appellees distinguish Hudson by noting that it involved physical and verbal attacks and other conduct that was more reprehensible than mere conversion. In Jim Ray, Inc., supra, however, involving fraudulent behavior that was regarded as purely economic harm and not particularly reprehensible, a 7 to 1 ratio was justified in light of the modest compensatory damages awarded and the need to deter similar, future conduct.
Our de novo review of the punitive-damages issue in this case has brought us to the conclusion that the trial court was correct in concluding that the $25,000 awarded by the jury was excessive under both a state-law and a due-process analysis. However, we have further concluded that in reducing the award, the trial court limited itself to a mechanical retention of the original ratio between the reduced compensatory and punitive damages. In so doing, it did not engage in the required searching review of the issue. Following our de novo review, and applying a similar analysis to what we did in Jim Ray, Inc., supra, we conclude that while appellees’ conduct was not particularly reprehensible, a higher ratio than that calculated by the trial court is justified in light of the modest compensatory damages and the need to deter similar, future conduct.
For the reasons stated above, we affirm the trial court’s remittitur of compensatory damages to $912; we affirm, as modified to $8000, the trial court’s remittitur of punitive damages; and we remand with instructions to enter a judgment in accordance with this opinion, if appellant agrees. If appellant does not agree to this remittitur, we remand for a new trial. See Williams v. Charles Sloan, Inc., 17 Ark. App. 247, 706 S.W.2d 405 (1986).
Affirmed in part; affirmed in part, as modified; and remanded.
Robbins and Bird, JJ., agree.
Because this is an appeal from the trial court’s reduction of the damages that were awarded to the appellant by the jury, and because remittitur is a de novo review, we review the proof and all reasonable inferences in the light most favorable to the party to whom damages were awarded. In this case, that is the appellant. | [
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Sam Bird, Judge.
Appellant Patricia Brown, individually and as special administratrix of the estate of her husband, Michael Steven Brown, appeals from an order of the circuit court that granted appellees’ motions for summary judgment and dismissed her complaint as barred by the applicable statute of limitations. We reverse the court’s order of dismissal with respect to appellee National Healthcare of Pocahontas, Inc., d/b/a Randolph County Medical Center (hereinafter “Randolph County Medical Center” or “Randolph”). However, because no complaint was filed against appellees Tina Hall, Mary Craig, Rose Throesch, and Dr. Jeff Hall by a person vested with authority to act on behalf of the estate within the two-year statute-of-limitations period, we affirm with respect to these appellees.
Michael Steven Brown died on February 15, 2002, while a patient at Randolph County Medical Center. On April 11, 2003, appellant filed a petition for appointment as special administrator of Michael’s estate, which was granted, and an order appointing special administratrix was filed that same day. The order stated in pertinent part as follows:
Patricia Brown be and is hereby appointed special administratrix of the estate of Michael Steven Brown, deceased, for a period and term of six months during which time she is empowered to and shall perform the following specific duties and acts: Pursue potential medical negligence, tort and insurance claims arising out of the incident that Michael Steven Brown was involved in on February 15,2002; and upon termination of the duties set forth herein above or upon completion of the term of her appointment hereunder, whichever shall first occur, she shall immediately make a full and complete report of her actions and the condition and affairs of estate to this court. . . .
On June 10, 2003, appellant filed a complaint against Randolph County Medical Center, alleging a cause of action for medical malpractice relating to the care provided by Randolph to Michael Steven Brown. On February 12, 2004, appellant filed a second amended and supplemental complaint again naming Randolph as a defendant, and adding Tina Hall, Mary Craig, and Rose Throesch as additional defendants. On February 13, 2004, appellant filed a third amended and supplemental complaint adding Dr. Jeff Hall, John Doe #1, and John Doe #2 as additional defendants. On December 6, 2004, appellant obtained a voluntary nonsuit against all of the defendants.
Almost a year later, on November 17, 2005, appellant obtained an order extending the authority of her appointment as special administratrix “with the authority to pursue a wrongful death action, until such time as the civil suit is brought to a final conclusion.” Letters of administration were issued. That same day, appellant filed a complaint against the same defendants that she had named in her second and third amended and supplemental complaints.
All of the defendants moved for summary judgment claiming, first, that appellant did not have standing to file her complaint because she did not have executed letters of administration at the time the initial complaint was filed on June 10, 2003, and, second, that the statute of limitations ran before she refiled her complaint on November 17, 2005. In her response, appellant claimed that letters of administration were not required for her to file a complaint because the order of appointment had been entered when she filed her complaint. She also asserted that the statute of limitations did not bar her lawsuit because Ark. Code Ann. § 16-62-102(c)(2) allows a wrongful-death action to be brought within one year from the date of a nonsuit without regard to the date of death of the person alleged to have been wrongfully killed. On February 27, 2007, the circuit court granted all of the defendants’ motions for summary judgment and dismissed appellant’s complaint.
Appellant contends that the circuit court erred in granting summary judgment for two reasons. First, she asserts that she was not required to have executed letters of administration in order to file her complaint. Second, she contends that the complaint was not barred by the statute of limitations.
With regard to appellant’s first point, appellee Randolph County Medical Center concedes in its response that, in light of the supreme court’s decision in Steward v. Statler, 371 Ark. 351, 266 S.W.3d 710 (2007), appellant was not required to have executed letters of administration in order to file a complaint against Randolph on June 10, 2003, because the order appointing appellant administratrix was entered before the complaint was filed, was effective at the time the complaint was filed, and empowered her to act for the estate without the necessity of letters of administration. The 2007 General Assembly enacted Act 438, which amended the statutory provisions pertaining to the issuance of letters of administration. The amendment provides that the order appointing the administrator empowers the administrator to act and that letters of administration “are not necessary to empower the person appointed to act for the estate.” Ark. Code Ann. § 28-48-102(d) (Supp. 2007). In Steward, the supreme court held that Act 438 was procedural and was intended to be applied retroactively. See also Banks v. Wilkin, 101 Ark. App. 156, 272 S.W.3d 137 (2008).
Randolph also concedes that appellant’s complaint against it was not barred by the statute of limitations. The parties agree that the statute of limitations for appellant’s causes of action against the appellees was two years. See St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002) (holding that the two-year statute of limitations period for medical-malpractice actions set forth in Ark. Code Ann. § 16-114-203 applies to all causes of action for medical injury, including wrongful-death actions). Appellant’s initial complaint against Randolph was filed on June 10, 2003, well within the two-year statute of limitations. The complaint was nonsuited on December 6, 2004. Randolph concedes that, under the savings statute, Ark. Code Ann. § 16-62-102(c)(2), appellant had one year from the date of the nonsuit to refile her complaint against Randolph. Appellant did this by refiling her complaint on November 17, 2005. Accordingly, the circuit court erred in dismissing appellant’s complaint against it, and therefore we reverse and remand the circuit court’s order with respect to appellant’s claims against Randolph.
The remaining appellees — Tina Hall, Mary Craig, Rose Throesch, and Dr. Hall — contend that the circuit court’s order dismissing the complaint against them was correct because the statute of limitations ran as to the claims against them. They argue that, at the time of the filing of the amended complaints adding them as defendants on February 12 and 13, 2004, appellant had no authority to file suit on behalf of the estate.
The wrongful-death code does not create an individual right in a beneficiary to bring suit and, where no personal representative has been appointed, a wrongful-death suit must be filed with all of the heirs at law of the deceased joined as parties to the suit. Ark. Code Ann. § 16-62-102(b) (Supp. 2005); see also Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002). There is no argument here that all of the heirs at law were parties to this suit. Therefore, the question is whether appellant was the personal representative of her husband’s estate at the time she filed her complaints against the remaining appellees.
Pursuant to Ark. Code Ann. § 28-48-103, a court may appoint a special administrator “for a specified time, to perform duties respecting specific property or to perform particular acts, as stated in the order of appointment.” In this case, the order appointing appellant on April 11, 2003, as special administratrix specifically stated that the term was for six months; thus, her term expired on October 11, 2003, before she filed complaints against all of the appellees except for Randolph. The supreme court has made it clear that, unless a person is the personal representative or executor of the estate at the time of filing, he has no standing to file a complaint on behalf of the estate and any complaint filed is a nullity. See Johnson v. Greene Acres Nursing Home Ass’n, 364 Ark. 306, 219 S.W.3d 138 (2005). Because her complaint was a nullity, her nonsuit on December 6, 2004, did not dismiss these complaints; it dismissed only the properly filed complaint against Randolph.
Appellant filed a petition for extension of appointment, which was granted on November 17, 2005. That same day, appellant filed another complaint against all of the appellees. This complaint was filed more than two years after the death of Michael Steven Brown, which occurred on February 15, 2002. Because the first complaints filed against the remaining appellees (other than Randolph) were nullities, the November 17, 2005 complaint is the first complaint filed against them by a properly appointed personal representative. No savings statute applies. The two-year statute-of-limitations period expired on February 15, 2004. Thus, appellant’s complaint against the remaining appellees is barred by the statute of limitations. Accordingly, we affirm the circuit court’s order granting summary judgment and dismissing the complaints against these appellees.
Affirmed in part; reversed and remanded in part.
Glover and Miller, JJ., agree.
As mentioned above, Randolph concedes that, as to it, the complaint was timely because of the savings statute,Ark. Code Ann. § 16-62-102(c)(2). | [
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Karen R. Baker, Judge.
Appellant Sharon Bell challenges a jury verdict in favor of appellee James Misenheimer brought by Ms. Bell for damages from a car accident. She asserts that there was no evidence to support the circuit court’s instmction to the jury on comparative fault and that she is entitled to a new trial. Her argument has merit; accordingly, we reverse and remand for a new trial.
On December 12, 2005, Ms. Bell was driving down Powell Street in Taylor, Arkansas, with the purpose of attending her aunt’s funeral. Mr. Misenheimer was attending the same funeral. Both drivers were seeking places to park their vehicles when the accident occurred. Mr. Misenheimer testified that he had pulled into a driveway with the intention of backing out and going to a parking space that he had seen. He stated that he did not see Ms. Bell because her car was lower than the cars parked beside the highway, which blocked his vision of her car. He explained that he was easing very slowly back into the highway when the impact occurred. He confirmed that the impact was “pretty hard,” but that the only damage to his truck was the left rear corner of his bumper. Ms. Bell’s car suffered considerably more damage, including a broken axle.
In asserting that the comparative-fault instruction was proper, Mr. Misenheimer relies upon his testimony that Ms. Bell exited her vehicle after the accident and said that “she was looking to the left to find a parking place in front of the church and didn’t see [Mr. Misenheimer’s vehicle].” At trial, Ms. Bell disputed the assertion that she was looking to the left when the accident occurred. In her testimony, she also stated that she did not see Mr. Misenheimer because of the cars that were parked along the road that obscured her vision of him. Mr. Misenheimer relies upon Ms. Bell’s testimony that she “never saw Mr. Misenheimer,” and her statement that “I wasn’t looking directly beside me,” to support his argument that Ms. Bell failed to maintain a proper look out while Mr. Misenheimer was doing everything that a reasonably careful person would do under the circumstances. He further asserts that Ms. Bell admitted fault at the scene.
Instructions should be based on the evidence in the case, and instructions submitting matters on which there is no evidence or stating only abstract legal propositions should not be given. Davis v. Davis, 313 Ark. 549, 856 S.W.2d 284 (1993). On the other hand, it is error to exclude a requested instruction if there is evidence which supports its utilization. Parker v. Holder, 315 Ark. 307, 314, 867 S.W.2d 436, 439 (1993). For an instruction on comparative fault to be warranted, it is necessary for there to be evidence that the plaintiffs actions were aproximare cause of her damages. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 433, 855 S.W.2d 913, 915 (1993). When reasonable minds can only conclude that there was no evidence of proximate cause, the instruction is improper. Id. In cases where it is nearly impossible to prove prejudice, the giving of the improper instruction is sufficient to require a new trial. Id. at 435, 855 S.W.2d at 916.
Furthermore, the issue of duty is always one for the trial court and not the jury. Bader v. Lawson, 320 Ark. 561, 898 S.W.2d 40 (1995); Little Rock & Ft. S. Ry. Co. v. Henson, 39 Ark. 413 (1882) (holding that in every civil case, where negligence is the issue, it is the duty of the court, when the evidence is all in, to sift it and determine as a matter of law whether it involves negligence or not). If the court finds that no duty of care is owed, the negligence count is decided as a matter of law, and summary judgment or a directed verdict is appropriate. D.B. Griffin Warehouse, Inc. v. Sanders, 336 Ark. 456, 463-64, 986 S.W.2d 836, 840 (1999); Dunn v. Westbrook, 334 Ark. 83, 971 S.W.2d 252 (1998); Smith v. Hansen, 323 Ark. 188, 196, 914 S.W.2d 285, 289 (1996); see also First Commercial Trust Co. v. Lorcin Eng’g, Inc., 321 Ark. 210, 213, 900 S.W.2d 202, 203 (1995); Lawhon Farm Supply, Inc. v. Hayes, 316 Ark. 69, 71, 870 S.W.2d 729, 730 (1994); Keck v. Am. Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983).
To affirm this case would require us to find that, as a matter of law, Ms. Bell had a duty to anticipate that Mr. Misenheimer would fail to yield the right-of-way. A motorist traveling in the highway has no duty to assume that one entering the highway will fail to yield. Arkansas law requires the driver of a vehicle about to enter or cross a highway from a private road or driveway to yield the right-of-way to all vehicles approaching on the highway. Ark. Code Ann. § 27-51-603 (Repl. 1994). In describing this duty to yield placed upon the driver in the context of an approach to an intersection, our supreme court explained:
We have held that the statutory obligation to yield the right of way at a stop intersection, imposed upon the unfavored driver, is not discharged by a mere stop but extends to the entire passage across the favored highway, and that the favored driver using a through highway is not required to slow down at an intersection or bring his vehicle under such control as to be able to stop, upon the assumption that an unfavored driver will fail in his duty.
Shroeder v. Johnson, 234 Ark. 443, 447, 352 S.W.2d 570, 572 (1926) (quoting with approval Ness v. Males, 93 A.2d 541, 543 (Md. 1953)). Similarly, the driver to whom the one attempting to gain access from a driveway must yield, has no obligation to assume that the driver seeking access will not yield.
Under our comparative-fault statute, Ark. Code Ann. § 16-64-122 (Supp. 2003), the fault of a plaintiff in a personal-injury case is compared to the defendant’s fault. If the plaintiff s fault is less than the defendant’s, the plaintiff may recover damages from the defendant after the damages have been diminished in proportion to the plaintiff s own fault. If the plaintiffs fault is greater than or equal to the defendant’s, then the plaintiff is not entitled to recover damages. The “fault” to be compared under the statute must be a proximate cause of the plaintiffs damages. See generally Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997); Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993); Kubik v. Igleheart, 280 Ark. 310, 657 S.W.2d 545 (1983). Because comparative fault is an affirmative defense, the burden is on the defendant to prove that the plaintiff was at fault. See Rodgers v. CWR Constr., Inc., 343 Ark. 126, 33 S.W.3d 506 (2000); Young v. Johnson, 311 Ark. 551, 845 S.W.2d 510 (1993).
In arguing this case, Mr. Misenheimer relies on his testimony that Ms. Bell admitted fault at the scene immediately after the accident, an allegation that Ms. Bell denied at trial. The credibility issue regarding an admission of fault is irrelevant to the analysis because Ms. Bell had no duty to Mr. Misenheimer. Many years ago our supreme court explained the irrelevance of a party’s admission of fault:
Appellant next contends that the court below should have admitted the testimony of Jesse Smith. The appellant’s attorney asked Smith this question: “Jesse, who was at fault?” and it is argued that Smith would have answered that he was willing to say that he was at fault. This question was not proper, and the court did not err in excluding it.
While the evidence shows that Smith, as well as the driver of the other track, was at fault, yet this was the very question to be determined by the jury, and not by the witness. Witnesses testify as to facts, and whether any one is negligent, or in the exercise of care, is a question for the jury. The witness testifies as to facts, and the jury draws the conclusion.
Dermott Grocery & Comm’n Co. of Eudora v. Meyer, 193 Ark. 591, 595-96, 101 S.W.2d 443, 445-46 (1937). See generally C.J.S. Evidence § 514 (holding that a witness cannot be permitted to state his inference as to the assumption of risk, or as to the existence of contributory negligence, even though the witness is the actor himself (footnotes omitted)). Accordingly, Mr. Misenheimer’s reliance on his testimony is irrelevant to the determination of whether Ms. Bell had a duty that she failed to perform and that her failure was the proximate cause of her damages.
Because Ms. Bell had no duty to anticipate Mr. Misenheimer’s failure to yield, the trial court erred in giving the comparative-fault instruction. There is no substantial evidence that appellant failed to do something that a reasonably careful person would do or did something that a reasonably careful person would not do under the circumstances, which is the definition of negligence. See Marx v. Huron Little Rock, 88 Ark. App. 284, 291, 198 S.W.3d 127, 132 (2004); Ethyl Corp. v. Johnson, 345 Ark. 476, 49 S.W.3d 644 (2001). We cannot say that the court’s inclusion of a negligence comparison to the jury did not have a prejudicial impact on the outcome of the case. Cf. Little Rock Elec. Contrs., Inc. v. Okonite Co., 294 Ark. 399, 744 S.W.2d 381 (1988). With a general verdict returned by the jury, we cannot determine that the error in giving a comparative fault instruction was harmless. Young v. Johnson, 311 Ark. 551, 557-58, 845 S.W.2d 510, 514 (1993).
Accordingly, we reverse and remand for a new trial.
Bird, Glover, and Heffley, JJ., agree.
Gladwin and Griffen, JJ., dissent. | [
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Karen R. Baker, Judge.
Appellant Kanai Gikonyo was convicted in Saline County Circuit Court of internet stalking of a child pursuant to Ark. Code Ann. § 5-27-306 (Repl. 2006). He was sentenced to eight years’ imprisonment in the Arkansas Department of Correction, fined $7000, and required to register as a sex offender. Appellant contends that the trial court erred in three respects. First, appellant asserts that there was no substantial evidence to support his conviction for internet stalking. Second, appellant asserts that his statements while in custody should have been suppressed because he was not advised of his rights as a foreign national under the Vienna Convention on Consular Relations. Third, appellant asserts that the State failed to demonstrate that the expert witness called to examine the computer (allegedly belonging to him) had either the required level of expertise or utilized methods and procedures that were of a type and quality normally and reasonably relied upon by experts in the field of computer forensics. We affirm on all points.
I. Sufficiency of the Evidence
Appellant’s first assertion is that there was no substantial evidence to support his conviction for internet stalking: A motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Lamb v. State, 372 Ark. 277, 275 S.W.3d 144 (2008) (citing Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001)). The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Id. The credibility of witnesses is an issue for the fact finder and not for the appellate court. Meadows v. State, 360 Ark. 5, 199 S.W.3d 634 (2004). The fact finder may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State’s account of the facts rather than the defendant’s. Id.
At the time the offense was committed, a person committed the offense of internet stalking of a child if the person being twenty-one years of age or older knowingly used a computer online service, internet service, or local internet bulletin-board service to seduce, solicit, lure, or entice an individual that the person believes to be fifteen (15) years of age or younger in an effort to arrange a meeting with the individual for the purpose of engaging in sexual intercourse, sexually explicit conduct, or deviate sexual activity as defined in Ark. Code Ann. § 5-14-101. Ark. Code Ann. § 5-27-306(a)(2) (Repl. 2006). The crime was a Class C felony at the time in question. Ark. Code Ann. § 5-27-306(b)(2) (Repl. 2006).
The following evidence was presented at appellant’s trial. Deputy Charles Barker with the Saline County Sheriffs Department testified that he was assigned to internet crime investigations. He testified that he was trained in the investigation of internet stalking cases and assisted in writing the law-enforcement standards for child exploitation classes in Arkansas. On May 4, 2006, at 5:03 p.m., he was “trolling” chat rooms and was logged on a Yahoo chat room as a thirteen-year-old girl from Benton. His user name was “Kim Stahli.” While online as Kim Stahli, an individual attempted to contact him with the name LRKG99. Approximately sixteen lines into the conversation, he told LRKG99 that he was a thirteen-year-old girl. LRKG99 responded that he knew “Kim” was underage, that he was much older, and that he would go to jail if he met “Kim.” Barker testified that after “Kim” revealed her age, the conversation “turned sexual in nature.” LRKG99 called “Kim” “jail bait” and asked if she had “tits.” He also asked “Kim” if she had engaged in sexual intercourse. “Kim” responded that she had not. LRKG99 also said that “If we have sex, I’m so big you’d get hurt. Your organs aren’t fully grown, yet.” He also said that he could not get with “Kim,” and asked if she had older friends.
Deputy Barker testified that LRKG99 also suggested the possibility of meeting “Kim.” LRKG99 asked “Kim” what she wanted him to do. “Kim” responded that she wanted “to have fun.” LRKG99 responded, “How can I do that without sleeping with you? I don’t want to ruin your organs.” When “Kim” asked LRKG99 what he wanted to do, he responded, “No clue, whatever you want.”
Deputy Barker also testified that LRKG99 and “Kim” had other conversations. LRKG99 talked about how when they met, he would not be able to stay long. “Kim” told LRKG99 that she did “quickies.” LRKG99 also informed “Kim” that “[he] had no rubbers.” “Kim” asked if three would be enough, and LRKG99 responded “Yeah.” “Kim” asked, “Now that I have them will we, whenever?” LRKG99 responded, “We will agree when we meet, I’ll let you see if you can handle what I have.” Barker testified that he “concluded from the entire chat log that [LRKG99’s] intention was to have sex.”
Deputy Barker testified that ultimately, a meeting between LRKG99 and “Kim” was arranged. The meeting place was the BP Gas Station located at Exit 116 in Benton at 6:30 p.m. LRKG99 described himself to “Kim” as a black male named Ken and told her that he drove a white, 2-door Audi.
Deputy Barker testified that he had access to an apartment building across the street from the BP Station. From the window, he could monitor one side of the BP parking lot. He requested Detective Robertson’s help in monitoring the other side of the parking lot. Deputy Barker testified that appellant was arrested before Barker arrived at the apartment. Deputy Barker testified that appellant’s rights were read to him and that appellant understood those rights. Appellant was able to communicate with authorities fully and completely. Appellant did not appear to be under the influence of any substance. Appellant spoke freely and voluntarily with the officers.
Detective Gary Robertson testified that he was involved in the May 4, 2006 internet stalking investigation. After receiving the call from Deputy Barker, he arrived at the BP Station and waited for further instructions. Detective Robertson was instructed to look for a black male driving a small, white car, specifically a 2-door Audi. He was told the meeting would occur around 6:30 p.m. At approximately 6:35 to 6:40 p.m a man matching the description pulled up to the BP Station in a white 2-door BMW. Detective Robertson testified that the driver “appeared to be scanning the area.” Detective Robertson initiated contact, parked his police car in front of appellant’s car, and turned on his emergency lights.
Appellant told Robertson that his name was “Ken.” Detective Robertson read appellant his rights and transported appellant to the police station. An inventory search was conducted of appellant’s vehicle. The inventory search revealed several condoms in the trunk. The vehicle’s gas tank was almost full of gas. After the inventory search results, Detective Robertson returned to the police station to speak with appellant. Detective Robertson read appellant his rights again. Appellant did not have any questions about his rights. Detective Robertson testified that appellant “appeared to have command of the English language.” Appellant did not appear to be under the influence of drugs or alcohol. Detective Robertson testified that appellant was “cooperative.” Detective Robertson testified that appellant informed the officers that he was at the BP Station only to “help this girl.” Appellant admitted that he knew that the girl was underage, and if he had had the opportunity to have met her, he would have informed the girl to go home and stay off the internet. Appellant also admitted to Detective Robertson that he was “LRKG99.” Appellant told officers that his date ofbirth was January 21, 1976, and his driver’s license, which was introduced into evidence, confirmed that he was truthful about his date ofbirth. Appellant told the officers that he was originally from Kenya and had been in the United States for many years. Appellant received seven years of college education in the United States. Detective Robertson testified that upon finding out that appellant was originally from Kenya, Robertson did not contact the Kenyan Embassy because he was not aware of any obligation to do so.
A search of appellant’s residence was also conducted. Detective Robertson testified that appellant had two roommates. One of his roommates was Scottish and the other was Asian. There, authorities photographed the computer screen showing Yahoo messenger with LRKG99. Authorities seized two computer hard drives, a couple of plaques, and a laptop. The evidence was taken to the police station, packaged, sealed with tape, and initialed by Detective Robertson. The evidence was then stored in the crime lab.
Christopher Edquist, a digital evidence analyst with the State Crime Laboratory, testified that Detective Gary Robertson requested that he analyze a computer taken from appellant’s home. Edquist testified that in such situations, he removed the hard drive from the computer, connected it to a hardware rock blocker, and searched for the requested information. In this case, he was asked to review the hard-drive information for child-porn images and chats with young girls. The registered owner of the computer was “K. Gikonyo.” The profile name for the chats was LRKG99. Edquist found approximately 10,000 chats on the computer, and he was specifically asked to review the chats on the day of the incident. He testified, “there were several chats on that particular day.” On cross examination, Edquist acknowledged that he was unable to determine if a file had been altered in any way.
At the close of the State’s case, defense counsel made a motion for a directed verdict. The trial court denied the motion. Defense counsel renewed the motion at the close of all the evidence, and the motion was denied. This appeal followed.
A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003). Because intent cannot be proven by direct evidence, the fact finder is allowed to draw upon common knowledge and experience to infer it from the circumstances. Lafort v. State, 98 Ark. App. 202, 254 S.W.3d 27 (2007) (citing DeShazer v. State, 94 Ark. App. 363, 230 S.W.3d 285 (2006)). Because of the difficulty in ascertaining a defendant’s intent or state of mind, a presumption exists that a person intends the natural and probable consequences of his or her acts. Id. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004).
In the instant case, appellant admitted to officers that he had chatted with the girl on the internet. He told the officers that he was only there to help the girl. Appellant also told the officer that if he had met the girl at the BP Station, he would have instructed her to go home and get off the internet. He also admitted to Detective Robertson that he was “LRKG99.” Appellant told Detective Robertson that his date of birth was January 21, 1976, and his driver’s license confirmed that January 21, 1976, was the date of his birth. The computer recovered from appellant’s home was registered to “K. Gikonyo,” and Mr. Edquist found chats attributed to the screen name “LRKG99” on the computer.
Moreover, the testimony showed that “Kim” informed LRKG99 very early on that she was only thirteen. LRKG99, on the other hand, indicated that he was older and that he would go to jail if he met her. However, Deputy Barker testified that the conversation became sexual in nature from that point forward. After establishing that they would meet, LRKG99 told “Kim” that he would be in a white, two-door Audi. LRKG99 indicated that three condoms would suffice and indicated that they would decide after they met if “Kim” could “handle what [he] had.” Appellant did, in fact, arrive at the BP Station around 6:35 p.m. in a white two-door car. Deputy Barker concluded that based on his experience, LRKG99 was luring “Kim” to meet him at the BP Station to have sex. Based on the foregoing, we hold that substantial evidence supports appellant’s conviction for internet stalking of a child.
II. Motion to Suppress
Appellant asserts that his statements while in custody should have been suppressed because he was not advised of his rights as a foreign national under the Vienna Convention on Consular Relations. Specifically, he contends that he had the right to contact the Kenyan embassy before questioning because he was a “Kenyan national, originally raised speaking the Kikyuyu [sic] language,” and although he spoke “standard conversational English, he ha[d] no experience in the technical aspects oflegal and police jargon.” The trial court denied appellant’s motion to suppress. In so ruling, the trial court noted the fact that appellant had been in the United States for twelve years and had obtained a bachelor’s degree and graduate degree while here, which suggested that appellant spoke satisfactory English. Appellant cites the case of Mezquita v. State, 354 Ark. 433, 125 S.W.3d 161 (2003). In Mezquita, the appellant argued that the police failed to inform him of his rights under the VCCR. Mezquita, 354 Ark. at 446, 125 S.W.3d at 168-69. However, our supreme court held that Mezquita had waived the argument when he failed to obtain a ruling from the trial court as to whether he was in fact “detained.” Id. at 449, 125 S.W.3d at 170. Like the Mezquita case, there was no ruling here on whether appellant was “detained.”
Since Mezquita, the Supreme Court has decided the recent case of Medellin v. Texas, 128 S.Ct. 1346 (2008). In the Medellin case, Medellin filed a second Texas state-court habeas application challenging his state capital-murder conviction and death sentence on the ground that he had not been informed of his Vienna Convention rights. Medellin, 128 S.Ct. at 1348. In doing so, Medellin relied on the International Court of Justice decision in Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31) (where the ICJ held that the United States had violated Article 36(l)(b) of the VCCR by failing to inform fifty-one named Mexican nationals, including petitioner Medellin, of their Vienna Convention rights) and the President’s Memorandum (stating that the United States would “discharge its international obligations” under Avena “by having State courts give effect to the decision”). Id. The Texas Court of Criminal Appeals dismissed Medellin’s application as an abuse of the writ, concluding that neither Avena nor the President’s Memorandum was binding federal law that could displace the State’s limitations on filing successive habeas applications. Id. In Medellin, the Supreme Court concluded that, “In sum, while treaties ‘may comprise international commitments . . . they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.’ ” Medellin, 128 S.Ct. at 1356 (quoting Igartua-De La Rosa v. United States, 417 F.3d 145, 150 (1st Cir. 2005)). Pursuant to the Supreme Court’s decision in Medellin, we need not address whether appellant was “detained” at the time his statement was made because the VCCR is not domestically enforceable.
III. Admission of Expert Witness’s Testimony
Appellant’s final point on appeal concerns an evidentiary ruling. Appellant asserts that the State failed to demonstrate that the expert witness had either the required level of expertise or utilized methods and procedures that were of a type and quality normally and reasonably relied upon by experts in the field of computer forensics. Appellant contends that Mr. Edquist was testifying at trial for the first time; had not yet completed his certification; had reviewed fifty computers, none of which had been utilized as evidence in a criminal trial; and could not explain the Pirabi decoder software that he used. The circuit court has wide discretion in making evidentiary rulings, and we will not reverse its ruling on the admissibility of evidence absent an abuse of discretion. See Brunson v. State, 368 Ark. 313, 245 S.W.3d 132 (2006). If some reasonable basis exists demonstrating that a witness has knowledge of a subject beyond that of ordinary knowledge, the evidence is admissible as expert .testimony. Id. Under Arkansas Rule of Evidence 702, an expert’s testimony is admissible if his scientific, technical, or specialized knowledge will aid the trier of fact in understanding the evidence. Brown v. State, 60 Ark. App. 215, 991 S.W.2d 137 (1999). Once an expert is qualified, any lack of foundation for the expert’s opinion goes to the weight of the evidence, not its admissibility. See, e.g., Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000).
At trial, Mr. Edquist testified as to his investigation of the computer hard drive. He testified that he was instructed to search for child-porn images and chats with young girls on the computer’s hard drive. He testified that there were several chats from the day in question; that the computer was registered to “K. Ginkonyo,” and that the profile name for the chats was LRKG99. Mr. Edquist’s testimony was based on his own experience and observation. Because we find that Mr. Edquist’s testimony was helpful to the trier of fact, we find no error in the admission of Mr. Edquist’s testimony.
Accordingly, we affirm.
Griffen and Vaught, JJ., agree.
As a subpoint, appellant also contends that the statute is unconstitutional as applied to him. However, appellant did not make this argument below and raises it for the first time on appeal. We will not address arguments, even constitutional arguments, raised for the first time on appeal. Dowty v. State, 363 Ark. 1, 210 S.W.3d 850 (2005); Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004).
The Vienna Convention on Consular Relations (“VCCR”) is a multinational treaty signed by the United States. Mezquita v. State, 354 Ark. 433, 125 S.W.3d 161 (2003).
Also in appellant’s third point on appeal, he argues that the evidence upon which Mr. Edquist relied was not the kind normally utilized by experts in his field, citing Daubert v. Merrett-Dow Pharm. Inc., 509 U.S. 579 (1993). However, appellant failed to make any argument to the trial court pursuant to Daubert, thus, he has raised that argument for the first time on appeal. Our supreme court has stated that an argument raised for the first time on appeal will not be considered. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). | [
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Josephine Linker Hart, Judge.
The City of Alexander, hereinafter “the City,” appeals from an order of the Pulaski County Circuit Court awarding Royal Doss $6,180 for maintaining a ditch on a city right-of-way adjacent to Doss’s property. On appeal, the City argues: 1) the trial court erred in finding that the City was not entitled to immunity under Arkansas Code Annotated section 21-9-301 (Repl. 2004), where the cause of action was one for unjust enrichment; 2) the trial court erred in not finding that Doss was a “volunteer” when he built a retaining wall on his property; and 3) there is insufficient evidence to support the $6,180 judgment given to Doss. We reverse and dismiss.
Most of the legally significant facts in this case are not in dispute. Doss is the owner of a restaurant in Alexander that is bordered on two sides by storm-water drainage ditches. The City has used community-service and prisoner labor as well as private individuals under contract to maintain the ditches, but most of the time, Doss has mowed the ditches near his property. Doss sent the City bills for his mowing services, but the City refused to pay. Additionally, for several years, Doss attempted to have the City put culverts in the ditches by petitioning the town council, but to no avail. The City apparently proposed filling the ditches with rip rap. Doss, however, regarded this solution as unsatisfactory.
On May 16, 2006, Doss sued the City for $30,000. Doss claimed he was entitled to the money because he “exclusively” maintained the ditch for six years and told the City that he was going to “charge” it for his efforts and, alternatively, because the City was “unjustly enriched” by his services. At a hearing on his complaint, Doss testified that his damages fell into three broad categories. He attributed $6,180 to the construction of a retaining wall situated entirely on his property that he contended was necessary to stop the erosion of his land by the water flowing in the ditch. Doss asserted that approximately $19,500 was owed to him for “cleaning up junk piles in the alley” near his restaurant, and the remainder of the $30,000 was for reimbursement that he believed he was owed for mowing the ditch for six years. Relying on the City’s proffered authority, City of Crossett v. Rites, 261 Ark. 522, 549 S.W.2d 800 (1977), the trial court dismissed Doss’s claims for clean-up and mowing' on directed verdict. It did, however, award damages in the amount of $6,180 for construction of the retaining wall. The City timely filed a notice of appeal.
In bench trials, the standard of review on appeal is not whether there is substantial evidence to support the finding of the circuit court, but whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Omni Holding & Dev. Corp. v. C.A.G. Invs., Inc., 370 Ark. 220, 258 S.W.3d 374 (2007). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that an error has been committed. Id. Facts in dispute and determinations of credibility are within the province of the fact-finder. Id.
As we noted previously, the City raises three arguments on appeal. However, because they are so inextricably intertwined, we will summarize them and dispose of them together. The City first states that the trial court erred in finding that the City was not entitled to immunity under Arkansas Code Annotated section 21-9-301, where the cause of action was one for unjust enrichment. Citing First National Bank of DeWitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005), it asserts that “unjust enrichment” is not truly a cause of action, but rather an “equitable doctrine,” to wit:
[OJne person should not be permitted to unjustly enrich himself at the expense of another, but should be required to make restitution of or for benefits retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly.
The City further states that the purpose of unjust enrichment is to provide a method for obtaining restitution in order to make a party whole, whereas a tort is an act that injures someone in some way and for which the injured person may sue the wrongdoer for damages. Accordingly, it urges us to accept the reasoning stated by the California Court of Appeals in Janis v. California State Lottery Commission, 68 Cal. App. 4th 824, 80 Cal. Rptr. 2d 549 (1998), wherein the reviewing court examined the nature of the relief sought, not merely what the plaintiff called his cause of action, to determine whether tort immunity existed. If we do so, the City argues, we will deduce that Doss’s suit had to be based in tort, from which it would be immune from suit under Arkansas Code Annotated section 21-9-301. Furthermore, the City contends that unjust enrichment would not justify an award of damages in this case because for the doctrine to be implicated, the party from whom damages are sought must have received something of value to which it was not entitled. Here, Doss chose to build the retaining wall under circumstances that belie a reasonable expectation of reimbursement from the City because he “voluntarily” constructed the wall on his own property. Moreover, the City therefore did not receive anything of value because the wall was exclusively on Doss’s property and according to City of Crossett, supra, unjust enrichment could not arise from the fact Doss’s building of the retaining wall saved the expenditure of city funds because the City had no duty to maintain the ditch or indemnify adjoining landowners for problems arising from water being carried by the ditch. We find these arguments have merit.
We note that “unjust enrichment” has been described by our supreme court as an equitable doctrine or principle that “one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly.” R.K. Enters., LLC v. Pro-Comp Mgmt., Inc., 372 Ark. 199, 272 S.W.3d 85 (2008). To find unjust enrichment, a party must have received something of value, to which he or she is not entitled and which he or she must restore. El Paso Prod. Co. v. Blanchard, 371 Ark. 634, 269 S.W.3d 362. (2007). There must also be some operative act, intent, or situation to make the enrichment unjust and compensable. Id.
As we noted previously, Doss sought money for three undertakings: mowing the drainage ditches that bordered his property, picking up trash in an alley, and building a retaining wall on his own property. The mowing and cleaning up trash in the alley, actions for which the trial court denied recovery, were activities that sounded in quasi-contract. Building the retaining wall, for which the court did grant recovery, was a different “act” or “situation.” •
Doss justified his seeking compensation for building the retaining wall because the City had failed to properly maintain the drainage ditch that resulted in the alleged erosion of Doss’s property. Accordingly, liability for those damages would have to be based either on negligent maintenance of the ditch or trespass. See generally Mo. Pac. R.R. Co. v. Holman, 204 Ark. 11, 160 S.W.2d 499 (1942). Both of these causes of action sound in tort, and we hold that this bars Doss from recovering the money he expended to build the retaining wall. Negligence suits against a municipality for its maintenance of drainage ditches, absent an express agreement to undertake such maintenance, have been held to be untenable under City of Crossett, supra. Moreover, because it is a tort claim, recovery would be barred by section 21-9-301. Likewise, the tort of trespass would also be barred by section 21-9-301. Furthermore, construction of the retaining wall was solely for Doss’s own benefit, which necessarily means that the City was not unjustly enriched.
Finally, we agree with the City when it argues that, in any case, the trial court erred in finding unjust enrichment in this case. By unilaterally deciding to build the retaining wall, Doss could not have had a reasonable expectation that the City would reimburse him. City of Crossett, supra. Furthermore, it is black-letter law that recovery for performance of another person’s duty to the public is limited to those situations where the “the things or services supplied were immediately necessary to satisfy the requirements of public decency, health, or safety.” Restatement of Restitution § 115 (1936). The alleged erosion of Doss’s property was not the type of emergency that would justify unilateral action. Accordingly, we hold that the trial court erred in failing to dismiss Doss’s claim for reimbursement for the retaining wall. We therefore reverse the trial court’s award of damages to Doss and dismiss.
Reversed and dismissed.
Heffley and Vaught, JJ., agree. | [
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John B. Robbins, Judge.
Appellant Michael Anthony Benjamin was convicted in a jury trial of two counts of delivery of a controlled substance, methamphetamine. He was sentenced to two consecutive twenty-five year prison terms and fined $40,000. Mr. Benjamin now appeals, raising three arguments for reversal. First, he argues that there was insufficient evidence to support his convictions. Next, he contends that the trial court abused its discretion by refusing to give a jury instruction on probation. Finally, Mr. Benjamin argues that his sentences violated the Eighth Amendment of the United States Constitution as well as Article two, section nine of the Arkansas Constitution. We affirm.
Because of double-jeopardy concerns, we consider challenges to the sufficiency of the evidence before addressing other arguments. Saul v. State, 92 Ark. App. 49, 211 S.W.3d 1 (2005). When the sufficiency of the evidence is challenged, we consider only the evidence that supports the verdict, viewing the evidence in the light most favorable to the State. LeFever v. State, 91 Ark. App. 86, 208 S.W.3d 812 (2005). The test is whether there is substantial evidence to support the verdict, which is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Id. On review, this court neither weighs the evidence nor evaluates the credibility of witnesses. Cluck v. State, 91 Ark. App. 220, 209 S.W.3d 428 (2005).
Officer Kevin Roper of the Drug Task Force testified that he was working in Washington County on April 19, 2006, when a controlled methamphetamine buy occurred. The confidential informant was George Smith, who had arranged to buy methamphetamine from Mr. Benjamin. According to Officer Roper, Mr. Smith’s person and his vehicle were searched for narcotics, and he was given $100 in buy money. Mr. Smith was equipped with a wire transmitter, and the police followed him in an unmarked car to a gas station where the drug deal was to take place.
Officer Roper testified that he parked at the gas pumps and observed a transaction between appellant and Mr. Smith from a distance of about twenty feet. The two men met on a sidewalk and made an exchange, and then talked for eight or ten minutes before returning to their respective vehicles. The police listened to their conversation through the audio wire, and then followed the confidential informant to a predetermined location. The police again searched Mr. Smith, and the $100 in buy money was not found. Mr. Smith turned over a small bag containing a substance later determined by the crime lab to be 0.7912 grams of methamphetamine.
The second controlled buy occurred on April 25, 2006, and this time Mr. Smith arranged to meet appellant at a grocery store parking lot. Officer Justin Ingram gave assistance, and the police again followed Mr. Smith to the location of the transaction after conducting a search and supplying him with buy money. According to Officer Ingram, the two men conducted the deal in Mr. Benjamin’s car while Officer Ingram listened to their conversation through the wire transmitter and observed from a distance of about thirty feet. After the transaction, the police followed Mr. Smith to a predetermined location where he gave them a bag containing what was later determined by the crime lab to be 0.7716 grams of methamphetamine.
Mr. Smith’s testimony about the two transactions was consistent with the officers’ testimony. He stated that on the first occasion, he walked up and gave Mr. Benjamin $100 in exchange for a “gram of ice, which is the purest form of methamphetamine.” Mr. Smith indicated that he made the same purchase again while dealing with Mr. Benjamin inside his car during the subsequent transaction. Mr. Smith testified that he also purchased methamphetamine from appellant on a couple of occasions prior to the controlled buys.
Officer Josh McConnell testified that he gave assistance during both controlled buys. He stated that on each occasion he was able to hear slang talk evidencing a drug deal. On cross-examination, Officer McConnell acknowledged that in his first police report of the April 19, 2006, incident, he referred to the suspect as a “WM, which stands for white male,” when in fact Mr. Benjamin is black. He stated that he used the “WM” designation six times in the first report, and also six times in a second report. However, Officer McConnell explained that these were simply typographical errors because he deals with white suspects the majority of the time, and that he was used to typing “WM.” He noted that in his report he correctly spelled out “black male” when he was not abbreviating.
We first address Mr. Benjamin’s argument that there was insufficient evidence to support his two convictions for delivery of a controlled substance, methamphetamine. A “controlled substance” is defined as “a drug, substance, or immediate precursor in schedules I through VI.” Ark. Code Ann. § 5-64-101(5) (Repl. 2005). The Director of the State Health Department is given authority to designate controlled substances under Ark. Code Ann. § 5-64-201 (Repl. 2005). Mr. Benjamin’s conviction was pursuant to Ark. Code Ann. § 5-64-401(a)(1) (A) (i) (Repl. 2005), which provides that it is unlawful to deliver a “controlled substance classified in Schedule I or Schedule II that is a narcotic drug or methamphetamine[.]” Mr. Benjamin argues that, strictly construing the statutes, the State failed to present evidence that he delivered a substance that the Director has placed in either Schedule I or Schedule II.
We hold that this particular argument was not raised below and is thus not preserved for review. A directed verdict motion is treated as a challenge to the sufficiency of the evidence and requires the movant to inform the trial court of the specific basis on which the motion is made. Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002). Arguments not raised at trial will not be addressed for the first time on appeal, and 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. Id.
When Mr. Benjamin made his directed verdict motion, he argued only that there was insufficient evidence that he was the person who delivered the methamphetamine. He did not argue that there was a lack of proof that methamphetamine was a Schedule I or II controlled substance. Because Mr. Benjamin did not apprise the trial court of this specific argument, he is barred from raising it on appeal. See Abshure, supra. Had he properly raised this as an issue, the trial court could have taken judicial notice that methamphetamine is a Schedule II controlled substance under the State Health Department’s current regulations. See List of Controlled Substances for the State of Arkansas 007-07-001 Ark. Code R. art II (Weil 2006). Our law is well-established that courts may take judicial notice of agency regulations adopted pursuant to law, and that it is not necessary to formally introduce the regulations into evidence for the court to do so. Washington v. State, 319 Ark. 583, 892 S.W.2d 505 (1995). Arkansas courts have long taken judicial notice of the State Health Department’s regulations classifying controlled substances into particular schedules. Id.
Mr. Benjamin also argues that there was insufficient evidence of his identity as the person who sold the methamphetamine, and this challenge to the sufficiency of the evidence is preserved for review because it was raised below. In support of his argument, Mr. Benjamin notes that the police did not arrest him immediately after the alleged incidents, and that the State waited more than two months to file its criminal information. Mr. Benjamin further relies on Officer McConnell’s admission that he identified the suspect a total of twelve times as a white male in two different reports. Mr. Benjamin asserts that the government evidently conducted two separate controlled buys with a white man, and nonetheless chose to pursue its case against him. Accordingly, he contends that his convictions were based on insubstantial evidence.
Contrary to appellant’s argument, there was substantial evidence to support the jury’s finding that he twice delivered methamphetamine to the confidential informant. The informant identified Mr. Benjamin as the person who sold him methamphetamine, and three police officers identified Mr. Benjamin as the person involved in the controlled drug deals. While Officer McConnell did refer to appellant as a “WM” in his reports, he explained that this was simply a mistake. Viewing the evidence in the light most favorable to the State, considering only that evidence that supports the verdict, we hold that substantial evidence supports the convictions.
Mr. Benjamin next argues that the trial court erred in refusing to give his proffered jury instruction on the availability of probation as an alternative sentence. The proffered instruction provided in pertinent part:
[Defendant] may also contend that he should receive an alternative sentence. You may recommend an alternative sentence, but you are advised that your recommendation will not be binding on the court .... Even if you do recommend an alternative sentence, however, you must still complete the other verdict forms.
Mr. Benjamin correctly asserts that probation is an alternative sentence available for methamphetamine delivery offenses such as this under Ark. Code Ann. §§ 5-4-104(e)(l)(A), 5-64-401(a)(l)(A), and 5-4-301 (a)(1). See Buckley v. State, 341 Ark. 864, 20 S.W.3d 331 (2000).
Arkansas Code Annotated section 16-97-101(4) (Repl. 2006) authorizes a trial court to give a jury instruction regarding alternative sentencing, and provides:
The court, in its discretion, may also instruct the jury that counsel may argue as to alternative sentences for which the defendant may qualify. The jury, in its discretion, may make a recommendation as to an alternative sentence. However, this recommendation shall not be binding on the court[.]
The decision to allow alternative sentencing is reviewed for an abuse of discretion. Vanesch v. State, 343 Ark. 381, 37 S.W.3d 196 (2001).
In the present case, Mr. Benjamin argues that the trial court abused its discretion in failing to grant his proffered instruction, asserting that the trial court refused to consider the fact that probation was a valid alternative sentence. Mr. Benjamin contends that the trial court compounded its error by relying upon the jury’s recommendation of consecutive twenty-five year sentences, without first providing the jury with all of the viable sentencing options.
Abuse of discretion is a high threshold that does not simply require error in the trial court’s decision, but requires that the trial court act improvidently, thoughtlessly, or without due consideration. Grant v. State, 357 Ark. 91, 161 S.W.3d 785 (2004). Based on our review of the proceedings, we hold that the trial court exercised its discretion and that there was no abuse of that discretion in denying an instruction on probation. The trial court acknowledged in its comments from the bench that its decision in this regard was discretionary, and explained in writing on the proffered instruction, “Discretionary with court and court doesn’t feel it is appropriate under the facts of this case.” In subsequently following the jury’s recommendation to run the sentences consecutively, the trial court referenced aggravating circumstances presented by the State, including other drug sales and appellant’s possession of a weapon, and stated that “the jury’s recommendation, in my opinion, is not out of line with an appropriate sentence under the circumstances.” This also demonstrated the exercise of discretion. The trial court was not required to give an instruction permitting the jury to recommend alternative sentencing, and its refusal to do so was not an abuse of discretion under these facts.
Moreover, it is axiomatic that some prejudice must be shown in order to find grounds to reverse, Miller v. State, 97 Ark. App. 285, 248 S.W.3d 487 (2007), and Mr. Benjamin has failed to demonstrate prejudice. The minimum prison term for delivery of methamphetamine is ten years, and the jury recommended consecutive twenty-five year terms. Therefore, even if the jury had been presented with an alternative-punishment instruction, it is highly unlikely that the jury would have recommended probation. See id.
Mr. Benjamin’s remaining argument is that his fifty-year sentence was unconstitutionally excessive. The Eighth Amendment guarantees that, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” Article two, section nine of the Arkansas Constitution prohibits the infliction of “cruel or unusual punishment.” Mr. Benjamin contends that his punishment violates both the United States and Arkansas Constitutions.
Mr. Benjamin correctly asserts that the range of punishment for each delivery of less than twenty-eight grams of methamphetamine is ten to forty years or life, see Ark. Code Ann. § 5-64-401 (a)(1) (A) (i) (Repl. 2005), and that probation is also permissible. He notes that the substances he delivered weighed less than a gram and approximately three percent of the maximum amount prohibited by the statute, and that he was a first-time offender. Mr. Benjamin further submits that drug offenses have only the potential to disturb the public’s peace and dignity, as opposed to more immediate and offensive crimes such as murder or burglary. Here, there was no identifiable victim, and appellant notes that his sentencing range exceeded that available for a person convicted of second-degree murder. See Ark. Code Ann. §§ 5-10-103(a)(2)(b) and 5-4-401 (a) (2) (Repl. 2006). Mr. Benjamin also refers us to the laws of surrounding states where the minimum punishment for delivery of methamphetamine is significantly less than ten years’ imprisonment. He argues that his sentence was grossly disproportionate to the crimes, and was constitutionally impermissible.
In Ewing v. California, 538 U.S. 11 (2003), the United States Supreme Court held that the Eighth Amendment forbids only extreme sentences that are grossly disproportionate to the crime. In Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001), the Arkansas Supreme Court noted that it has interpreted the provisions in both the state and federal constitutions identically on the issue of the prohibition against cruel and unusual punishment. The supreme court in Bunch, supra, held that if the sentence fixed by the trial court is within legislative limits, the appellate court is not free to reduce it even though it might consider it to be unduly harsh. The supreme court identified the following “extremely narrow exceptions to this general statement of the law: (1) where the punishment resulted from passion or prejudice; (2) where it was a clear abuse of the jury’s discretion; or (3) where it was so wholly disproportionate to the nature of the offense as to shock the moral sense of the community.” Id. at 740, 43 S.W.3d at 138.
We cannot say that Mr. Benjamin’s sentence was grossly disproportionate to his crimes or that any of the narrow exceptions are applicable. The testimony during the guilt and sentencing phases of the trial showed that Mr. Benjamin had made multiple methamphetamine deliveries in public places and was later arrested possessing methamphetamine and a handgun. He was convicted for two separate offenses within a one-week period, for which he received mid-range sentences of twenty-five years each. We are not prepared to say that this is the “rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” See Harmelin v. Michigan, 501 U.S. 957, 1005 (1991). To the extent that Mr. Benjamin is arguing that the sentencing statute is itself unconstitutional, this specific argument was not raised below and is thus not preserved for review. See Ahshure, supra. We hold that the trial court committed no error in rejecting appellant’s argument that his fifty-year sentence violated either the United States or Arkansas Constitution.
Affirmed.
Gladwin and Baker, JJ., agree.
The appellant urges us to avoid relying on the standards announced in Bunch, supra, because these are the same standards the supreme court announced in Henderson v. State, 322 Ark. 402, 910 S.W.2d 656 (1995), a case in which the supreme court held that a life sentence for first-offense delivery of0.238 grams of cocaine did not violate the Eighth Amendment. In Henderson v. Norris, 258 F.3d 706 (8th Cir. 2001), the federal appeals court disagreed, finding that this did constitute an Eighth Amendment violation. However, our supreme court continues to cite Bunch, supra, and it has not been overruled. We are bound to follow the decisions of our supreme court. Durden v. State, 93 Ark.App. 1, 216 S.W.3d 145 (2005). | [
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Robert J. Gladwin, Judge.
Following the Faulkner udge. of his motion to suppress, appellant Thomas Waters entered what he intended to be a conditional plea of guilty and was sentenced to 150 months’ imprisonment in the Arkansas Department of Correction for possession of a controlled substance with intent to deliver, possession of controlled substances in a drug-free zone, and possession of drug paraphernalia. Appellant appeals, raising two points: 1) the trial court erred in finding probable cause to issue the search warrant; and 2) the trial court erred in finding that the good-faith exception applied. We hold that appellant failed to strictly comply with Ark. R. Crim. P. 24.3(b), thus depriving this court of jurisdiction, and we dismiss the appeal.
When a defendant pleads guilty to a charge, he or she waives the right to appeal that conviction. Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998). For relevant purposes before us, only a conditional plea pursuant to Rule 24.3(b) enables a defendant to retain the right to appeal an adverse suppression ruling. Ark. R. App. P.-Crim. 1(a) (2002); Barnett v. State, 336 Ark. 165, 984 S.W.2d 444 (1999).
Arkansas Rule of Criminal Procedure 24.3(b) states:
With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.
Our supreme court has interpreted Rule 24.3(b) to require strict compliance with the requirement that the right to appeal be reserved in writing. Barnett v. State, supra. This is so even when there has been an attempt to enter a conditional plea below. Ray v. State, 328 Ark. 176, 941 S.W.2d 427 (1997). In addition, the writing must be contemporaneous with the defendant reserving his or her right to appeal. Tabor v. State, 326 Ark. 51, 930 S.W.2d 319 (1996). We also look for an indication that the conditional plea was entered with the approval of the trial court and the consent of the prosecuting attorney. Noble v. State, 314 Ark. 240, 862 S.W.2d 234 (1993).
Jurisdiction
The State argues that this court lacks jurisdiction to hear this appeal because appellant failed to strictly comply with Rule 24.3(b). We agree. On February 27, 2007, appellant and his attorney signed a form guilty-plea statement on which the word “conditional” was written in several places, including on the title of the document. Appellant’s rights were listed under section five of the form, and included subsections (a) through (h). Subsection (5)(f) states, “I understand that I have the following rights: (f) The right of appeal with an attorney to represent me.” Section six states, “I understand that if I plead guilty I give up and waive all my rights, and if the [conditional] plea is accepted by the Court, it cannot be changed nor the punishment reduced.” Appellant wrote in the word “conditional” in section six as indicated. The State points out that the portion of the sentence in which appellant declared that he would waive all of his rights was not changed and contained nothing to reflect his assertion that he intended to retain his right to appeal the trial court’s denial of his suppression motion. Finally, section ten states, “I hereby plead guilty to having committed the above stated crime(s), and understand by doing so I give up all my rights.” Again, this section was not altered by appellant.
This court dismissed the appeal in Hill v. State, 81 Ark. App. 178, 100 S.W.3d 84 (2003), for this exact reason. There, this court determined that Hill, even though he had written in the word “conditional” at the top of the guilty-plea form and had marked out item (f) of the form to the point that it was illegible, did not preserve his right to appeal. This court held:
[W]e hold that appellant failed to strictly comply with Rule 24.3(b). The document does not specifically state that appellant reserves his right to appeal the outcome of the suppression hearing. Rather, the document contains language to the effect that if he pleads guilty, he gives up and waives all his rights. Moreover, the document fails to demonstrate that the trial court approved a conditional plea. Therefore, we lack jurisdiction and dismiss the appeal.
Id., 81 Ark. App. at 184, 100 S.W.3d at 88. Here, as in Hill, the form clearly states that appellant had waived all of his rights, without excluding his right to appeal from the list of waived rights. Because appellant did not comply with Rule 24.3(b), this court lacks jurisdiction to hear his appeal.
Dismissed.
Vaught, J., agrees.
Glover, J., concurs. | [
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Robert J. Gladwin, Judge.
Appellant Brian Claver appeals the two-year order of protection entered against him on April 26, 2007, which directed him to refrain from contact with appellee Misty Wilbur’s minor daughter, S.W., until April 27, 2009, or face a penalty of one-year imprisonment in the county jail or a fine of $1,000, or both. On appeal, he argues that the entry of the protective order was erroneous and unsupported by the evidence. We agree; accordingly, we reverse and dismiss.
On April 4, 2007, appellee filed a petition and accompanying affidavit on behalf of her then sixteen-year-old daughter, S.W., seeking an order of protection against appellant, who was then twenty years old. The petition alleged that, over the preceding six years, appellant had physically, emotionally, and sexually abused and manipulated S.W. Appellee asserted in the petition that appellant had picked S.W. up from school on two occasions without parental permission. She further alleged that appellant aided S.W. in obtaining an abortion and that, some forty-two days subsequent to the initial abortion, he purchased the morning-after pill and gave it to S.W. for the purpose of terminating a second pregnancy. Appellee detailed in her affidavit how appellant had called S.W. names including “slut,” “whore,” and “b***h” and encouraged S.W. to sneak out of the family’s house. Based upon the petition and affidavit, an ex parte order of protection was issued on April 4, 2007, and a hearing was scheduled for April 26, 2007.
At the hearing on the petition, the circuit judge asked each of the parties a brief series of questions from the bench. Appellee specifically testified that appellant was seeing S.W., her sixteen-year-old daughter, and encouraging S.W. to sneak out because appellee tried to stop contact between them. Appellee also testified that S.W. had become pregnant and that she believed appellant bought S.W. the morning-after pill.
The circuit judge then questioned appellant, who admitted that, even after appellee and her husband prohibited contact, he continued to see S.W. when she initiated the contact. He acknowledged that he was twenty years old and that S.W. was sixteen years old. Upon appellant’s admitting that he bought the morning-after pill for S.W., the circuit judge abruptly concluded the questioning, stating, “[a]ll right that’s enough for me.”
The circuit judge then allowed counsel for the parties to make closing statements. Appellee’s attorney declined, but appellant’s attorney argued that, as it related to the requested protection order, domestic abuse is defined as physical harm, bodily injury, or assault. He contended that the mere purchase of the morning-after pill failed to rise to that level of abuse, and requested that the circuit court refrain from issuing the order of protection.
The circuit court granted the request for the order of protection and asked appellee how long she wanted the order to be in effect. Appellee stated, “[t]wo years,” and the circuit court immediately issued the order for that length of time without further comment or discussion. The order was filed the same day, on April 26, 2007, and appellant filed a timely notice of appeal on May 21, 2007. This appeal followed.
Standard of Review
Our standard of review following a bench trial is whether the circuit court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Newton v. Tidd, 94 Ark. App. 368, 231 S.W.3d 84 (2006). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Simmons v. Dixon, 96 Ark. App. 260, 240 S.W.3d 608 (2006). Disputed facts and determinations of credibility of witnesses are both within the province of the fact finder. Pablo v. Crowder, 95 Ark. App. 268, 236 S.W.3d 559 (2006).
Additionally, this court reviews issues of statutory interpretation de novo, as it is for the appellate court to determine the meaning of a statute. See Miss. River Transmission Corp. v. Weiss, 347 Ark. 543, 65 S.W.3d 867 (2002). We are not bound by the circuit court’s interpretation, but in the absence of showing that the circuit court erred in its interpretation, that decision will be accepted as correct on appeal. Id. The first rule in considering the meaning and effect of a statute is to construe it as it reads, using the ordinary and usually accepted meaning in common language. Id. We need not resort to the rules of statutory construction when the language of a statute is plain and unambiguous. Id. However, when the meaning is not clear, we look to the language of the statute, the subject matter, the objective to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Id. The basic rule of statutory construction is to give effect to the intent of the legislature. Id.
Discussion
The purpose of the Domestic Abuse Act is specifically set out in Ark. Code Ann. § 9-15-101 (Repl. 2008), and states:
The purpose of this chapter is to provide an adequate mechanism whereby the State of Arkansas can protect the general health, welfare, and safety of its citizens by intervening when abuse of a member of a household by another member of a household occurs or is threatened to occur, thus preventing further violence. The General Assembly has assessed domestic abuse in Arkansas and believes that the relief contemplated under this chapter is injunctive and therefore equitable in nature. The General Assembly of the State of Arkansas hereby finds that this chapter is necessary to secure important governmental interests in the protection of victims of abuse and the prevention of further abuse through the removal of offenders from the household and other injunctive relief for which there is no adequate remedy in current law. The General Assembly hereby finds that this chapter shall meet a compelling societal need and is necessary to correct the acute and pervasive problem of violence and abuse within households in this state. The equitable nature of this remedy requires the legislature to place proceedings contemplated by this chapter under the jurisdiction of the circuit courts.
Domestic abuse, as covered in the act, is defined in Ark. Code Ann. § 9-15-103(3) (Repl. 2008), which states:
(3) “Domestic abuse” means:
(A) Physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury, or assault between family or household members; or
(B) Any sexual conduct between family or household members, whether minors or adults, which constitutes a crime under the laws of this state ....
Appellant and S.W. are considered family members under the act pursuant to subsections (3) and (4) which provide:
(3) “Family or household members” means spouses, former spouses, parents and children, persons related by blood within the fourth degree of consanguinity, any children residing in the household, persons who presently or in the past have resided or cohabited together, persons who have or have had a child in common, and persons who are presently or in the past have been in a dating relationship together; and
(4) (A) “Dating relationship” means a romantic or intimate social relationship between two (2) individuals which shall be determined by examining the following factors:
(i) The length of the relationship;
(ii) The type of the relationship; and
(iii) The frequency of interaction between the two (2) individuals involved in the relationship.
(B) “Dating relationship” shall not include a casual relationship or ordinary fraternization between two (2) individuals in a business or social context.
Based upon the brief testimony elicited at the hearing, the only allegations from the petition that were proven were that appellant had continued to see S.W. after her parents prohibited contact between them and that appellant had purchased the morning-after pill for S.W. That was the only information upon which the circuit court could have relied in issuing the order of protection based upon a finding that domestic abuse had occurred. Appellee offered no evidence in support of the other allegations in the petition. Appellant asserts that the issuance based upon those facts alone was an error of law.
Appellant contends, and we agree, that Ark. Code Ann. § 9-15-103(2)(B) is inapplicable because there was no finding of sexual conduct that constituted a crime. Regarding domestic abuse as it is covered in subsection (A) of the Domestic Abuse Act, no evidence was presented as to physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury, or assault to S.W. in this case. Under the ordinary and usually accepted meaning of the words found in the legislative definition of “domestic abuse,” simply maintaining contact with a boyfriend or girlfriend without parental consent does not rise to the level of domestic abuse. The mere fact that S.W.’s parents do not like appellant was not a proper ground upon which to issue an order of protection in the absence of evidence of actual physical harm or the fear of imminent physical harm.
Based upon our review, it appears that the circuit court focused primarily on appellant’s admission that he had purchased the morning-after pill for S.W., rather than merely the continuing contact between the two. It was immediately after that admission that further testimony was halted by the circuit judge, and a ruling was announced. Appellant maintains that the purchase of the morning-after pill for a minor also does not, in and of itself, rise to the level of domestic abuse. His handing over the pill to S.W. would not, in and of itself, have caused any harm to her, so the only argument to be made is that he inflicted the fear of imminent physical harm by doing so. There is no evidence before us that appellant urged S.W. to take the pill, that she intended to take it, or that she did actually take it.
Although we are convinced by a plain reading of the statute that no domestic abuse occurred, we obtain further clarification from our review of the subject matter of the statute, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. See Miss. River Transmission Corp. v. Weiss, supra. The previously set forth purpose of the Domestic Abuse Act supports appellant’s argument that this is not the action or consequence sought to be prevented.
Two Arkansas cases cited by appellant are instructive on the subject of actions found to constitute domestic abuse. In Pablo v. Crowder, supra, this court found that grabbing the victim, screaming obscenities at her, bursting a beer bottle behind her at a party, continuing contact against her will, and making a threatening phone call were sufficient acts to find that the victim feared for her safety and thus support a finding of domestic abuse and issuance of an order of protection. Likewise, in Simmons v. Dixon, supra, this court determined that there was an imminent threat of physical abuse when the appellant sent the victim a series of threatening text messages that caused her fear.
In the instant case, there was no showing by appellee that appellant had ever threatened S.W. either verbally or through his physical actions. There was no evidence that physical injury had been inflicted upon her. Here, appellee failed to provide evidence of actual fear that S.W. was in jeopardy of imminent bodily injury. S.W. certainly never provided such evidence on her own behalf, and although she was a minor at the time of the hearing, she was sixteen years old and could have provided insight as to what level, if any, of fear she had with respect to appellant. Appellant had subpoenaed S.W. for the hearing, but the circuit judge issued her ruling without the benefit of S.W.’s testimony on this issue.
Appellant analogizes this case more closely to Newton v. Tidd, supra, because it too involved a situation where the petition for an order of protection was brought by someone other than the actual party upon whom domestic abuse was alleged to have occurred. In Newton, the petitioner was the daughter of the alleged abuse victim, and it was the daughter who felt threatened by her mother’s association with the individual involved. There was evidence of bruising to her mother’s arm that might have resulted from the individual “escorting” her on an occasion, and testimony that the individual had been verbally controlling. The evidence of alleged abuse in Newton was significantly more substantial than that presented in the instant case; still and yet, this court held that the circuit court’s issuance of a protective order was clearly erroneous because the actions did not fall under the statutory definition of domestic abuse. Id.
Although appellee claims that she feared for the safety and welfare of her teenage daughter if contact were to continue between S.W. and appellant, she failed to provide evidence to support those allegations. She reiterates that appellant disregarded all her previous efforts to keep S.W. and him apart and that she felt her only recourse was through the courts. Appellee and her husband may have had alternative remedies available to them, possibly even within the criminal-justice system, related to their concerns about the continued relationship between S.W. and appellant. No criminal charges were ever sought against appellant, and S.W.’s family failed to seek the assistance of the juvenile-justice system or other family-services programs. Instead, appellee proceeded under the wrong statute and sought an inappropriate remedy. Accordingly, we hold that the circuit court’s findings are clearly erroneous and clearly against the preponderance of the evidence.
Reversed and dismissed.
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John B. Robbins, Judge.
Appellant Cindy Luu brought a medical malpractice action against appellee Dr. Eugene F. Still, II, and Crawford Memorial Hospital. She subsequently settled her claim against Crawford Memorial, and an order was entered dismissing appellant’s claim against Crawford Memorial with prejudice. Sometime later, Dr. Still filed a motion for summary judgment on the basis that the settlement agreement and release that released Crawford Memorial also discharged all hospital employees, which included him. After a hearing, the trial court granted Dr. Still’s motion for summary judgment. On appeal, Ms. Luu argues that the trial court erred in granting appellee’s summary-judgment motion. We agree, and we reverse and remand.
Ms. Luu filed her complaint against Dr. Still and Crawford Memorial on June 24, 2003. In the complaint, she asserted medical malpractice and resultant damages related to bilateral breast reduction surgery performed by Dr. Still at Crawford Memorial on June 29, 2001. Ms. Luu alleged that as a result of the defendants’ violation of the standard of care and negligence, she sustained a serious and permanent medical injury, resulting in medical expenses, lost wages, pain and suffering, and disfigurement. Dr. Still and Crawford Memorial filed timely answers to the complaint, denying liability and requesting that Ms. Luu’s complaint be dismissed.
On September 28, 2004, Ms. Luu and Crawford Memorial entered into their settlement agreement and release, which named the “defendant” as “Van Burén H.M.A., Inc., d/b/a Crawford Memorial Hospital, its agents, servants, employees, successors and assigns.” The agreement provided, in pertinent part:
Recitals
A. On or about June 29, 2001, Plaintiff was admitted to Crawford Memorial Hospital in Van Burén, Arkansas. It is alleged by Plaintiff that during this admission, certain negligent acts, includ ing acts of omission and commission, by Defendant, its agents, servants and employees, resulted in an injury to Plaintiff. These events, referred to herein as the “Occurrence,” have resulted in a lawsuit being filed by Plaintiff based on theories of medical negligence.
B. The Plaintiff desires to enter into this Settlement Agreement and Release upon the terms and conditions set forth herein in order to provide for certain payments in full settlement and discharge of all claims which have been or might be made by reason of the Occurrence described in Recital A above.
Agreement
The Parties agree as follows:
1.0 Release and Discharge
1.1 In consideration of the payments set forth in Section 2, Plaintiff does hereby completely release and forever discharge the Defendant, its agents, servants and employees, from any and all past, present or future claims, demands, obligations, actions, causes of action, wrongful death claims, rights, damages, costs, losses of services, expenses and compensation of any nature whatsoever, whether based on tort, contract or other theory of recovery, which the Plaintiff may now have, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow out of the occurrence described in Recital A above, including, without limitation, any and all known or unknown claims for bodily and personal injuries to Plaintiff, or any future wrongful death claim of Plaintiffs representatives or heirs, which have resulted or may result from the alleged acts or omissions of the Defendant.
1.2 This release and discharge shall also apply to the Defendant’s present and future officers, directors, stockholders, attorneys, agents, servants, representatives, employees, subsidiaries, affiliates, partners, predecessors and successors in interest, and assigns and all other persons, firms or corporations with whom any of the former have been, are now, or may hereafter be affiliated.
1.3 This release, on the part of the Plaintiff, shall be a fully binding and complete settlement between the Plaintiff and the Defendant and its agents, servants, employees, heirs, assigns and successors.
1.4 Plaintiff acknowledges and agrees that the release and discharge set forth above is a general release. Plaintiff expressly waives and assumes the risk of any and all claims for damages which exist as of this date, but of which the Plaintiff does not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect the decision to enter into this Settlement Agreement. Plaintiff further agrees to accept payment of the sums specified herein as a complete compromise of matters involving disputed issues of law and fact. Plaintiff assumes the risk that the facts or law may be other than Plaintiff believes. It is understood and agreed to by the Parties that this settlement is a compromise of a doubtful and disputed claim, and the payments are not to be construed as an admission of liability on the part of the Defendant by whom liability is expressly denied.
On October 8, 2004, the trial court entered an order of dismissal reciting that “the above matter is hereby dismissed with prejudice as against separate Defendant, Van Burén H.M.A., Inc., d/b/a Crawford Memorial Hospital.”
Ms. Luu obtained an order of dismissal without prejudice as to Dr. Still on February 22, 2005. On February 22, 2006, Ms. Luu refiled her complaint against Dr. Still, alleging the same acts of negligence as in her original complaint. Dr. Still filed a timely answer on June 22, 2006, denying liability and affirmatively pleading the settlement agreement as a bar to Ms. Luu’s claims. Dr. Still’s motion for summary judgment was filed on June 29, 2006, wherein he asserted that it was undisputed that at all relevant times he was an employee of Crawford Memorial, and that as such he was released by the settlement agreement. Ms. Luu filed a response resisting appellee’s summary-judgment motion on August 7, 2006. After a hearing on the motion, the trial court entered summary judgment in favor of Dr. Still on January 26, 2007, thereby dismissing the claims of Ms. Luu against Dr. Still with prejudice. Ms. Luu has timely appealed from that order.
Ms. Luu’s argument on appeal is that the trial court erred in ruling that the settlement agreement between appellant and Crawford Memorial was sufficient to discharge Dr. Still from liability. While the release provides that it applies to the hospital’s employees, Ms. Luu asserts that she did not allege in her complaint that Dr. Still was an employee, or that the hospital was vicariously liable for his acts of negligence. Ms. Luu notes that neither of the defendants’ initial answers identified Dr. Still as an employee, and maintains that she assumed he was an independent contractor. The settlement negotiations were strictly between Ms. Luu and Crawford Memorial, with no participation by Dr. Still, and the order of dismissal only identified “separate Defendant, Van Burén H.M.A., Inc., d/b/a Crawford Memorial Hospital.” Given these circumstances, Ms. Luu contends that there was never any intention on the part of appellant or the hospital to release Dr. Still from liability, and that Dr. Still was not released.
The applicable statute is Ark. Code Ann. § 16-61-204 (Repl. 2005), which provides:
A release by the injured person of one (1) joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides; but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid.
In her brief, Ms. Luu relies on Moore v. Missouri Pacific Railroad, 299 Ark. 232, 773 S.W.2d 78 (1989), where our supreme court stated that in enacting the statute it was the clear intention of the Arkansas Legislature to abrogate the common law rule that a release of one tortfeasor released all other tortfeasors jointly Hable for the occurrence, thereby retaining the Habihty ofjoint tortfeasors. The supreme court further concluded that in order to satisfy the language of the statute, a release must name or otherwise specifically identify the tortfeasors to be charged, and broad boilerplate language is not sufficient. The undisputed facts in Moore were that the passenger in an automobile was severely injured, and later died, as the result of a coHision with a train. The passenger’s representative executed a settlement with the automobile driver’s insurance company, which released “any and all persons, associations and corporations, whether herein named or referred to or not.” The surviving heirs subsequently sued the Missouri Pacific Railroad and the engineer of the train, but summary judgment was entered for the defendants on the ground that the release executed on behalf of the automobile driver inured to their benefit. The supreme court reversed, holding that the boilerplate language in the release did not specifically identify Missouri Pacific or the train engineer, and thus did not have the effect of releasing them.
In the present case, Ms. Luu argues that, similar to Moore, supra, the boilerplate language of the release failed to specifically identify the defendant relying on the release. Ms. Luu asserts that if Crawford Memorial had intended to have Dr. Still released, it most assuredly would have named him in the settlement agreement. Ms. Luu contends that simply releasing its “employees” was insufficient to specifically identify Dr. Still and inure to his benefit.
Normally, on a summary-judgment appeal, the evidence is viewed in the light most favorable to the party resisting the motion, and any doubts and inferences are resolved against the moving party. Clarendon Nat’l Ins. Co. v. Roberts, 82 Ark. App. 515, 120 S.W.3d 141 (2003). But in a case where the parties agree on the facts, we simply determine whether the appellee was entitled to judgment as a matter of law. Id. Such is the case here, and upon considering the undisputed facts, we hold that the trial court erred in ruling that Dr. Still was entitled to judgment as a matter of law based on his status as an employee and the release executed by Ms. Luu and Crawford Memorial.
Dr. Still was not specifically named in the release, and if this was intended it could have been easily accomplished given that Dr. Still was a named defendant along with Crawford Memorial in appellant’s medical malpractice complaint, and the hospital was aware of that fact. And under such circumstances, we hold that neither was he specifically identified. The settlement agreement contains broad language that purports to release the hospital’s “agents, servants and employees,” among numerous others, from any and all past, present, and future claims. Were it not for the fact that Dr. Still had already been sued and identified as an alleged tortfeasor, this language may well have protected Dr. Still as an employee of the hospital. However, where Dr. Still was already a party defendant to the pending litigation, the language in the agreement between Ms. Luu and the hospital was of insufficient specificity to identify Dr. Still as a tortfeasor who was being released from any liability in the matter. Therefore, the trial court erred in granting Dr. Still’s motion for summary judgment.
Reversed and remanded.
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D.P. Marshall Jr., Judge.
Claudia Prows has a long history of mental disease and has been diagnosed with bipolar disorder and paranoid schizophrenia. She appeals the termination of her parental rights to her young son, Z.C. Claudia raises several points on appeal, including that the circuit court erred as a matter of law by ruling that it could not consider her recent mental stability. We agree. Because we reverse and remand on this point, we do not address her other arguments.
Claudia’s mental instability has greatly affected her ability to care for her son since he was born in April 2005. DHS removed Z.C. from his parents’ custody about five months after his birth because Claudia’s “state of mind and her concerns that someone might be coming to get her child” made it unsafe for Z.C. to stay in his parents’ home. Claudia and her husband stipulated that Z.C. was dependent-neglected, and the circuit court so held in an October 2005 order. After that adjudication, Dr. Lloyd Spencer diagnosed Claudia with bipolar disorder. Dr. Spencer tried but failed to stabilize Claudia’s condition with medication. For the next year and a half, Claudia missed doctor’s appointments and did not take her medication consistently. Dr. Spencer concluded that the adverse effects from her medications caused her to stop taking them. During that time, Claudia had some excellent visits with her son, while others were failures. For example, DHS placed Z.C. in Claudia’s care for a thirty-day trial placement. But after a week, Claudia gave Z.C. back to DHS because she was unable to care for him. Shortly thereafter, the circuit court entered a permanency-planning order changing the goal of the case to termination and adoption.
In February 2007 —■ about four months after DHS filed its termination petition — Claudia told Dr. Spencer that she needed his help to prevent losing Z.C. permanently. She began following his recommendations and seeing him frequently. He corrected her medications and began regular therapy. During the next six months, Claudia’s mental state improved.
At the termination hearing in late August 2007, Dr. Spencer testified that, although Claudia was not ready to be a single parent that day, he has seen “a great deal” of improvement in her since February 2007. He concluded that she was capable of supervised visits with Z.C. immediately, and would probably be ready for unsupervised visits in three to six months. He could not give a date certain when Claudia could manage sole custody. Nor did he testify that she would never be capable of being Z.C.’s parent. Claudia did not argue that her mental problems were a disability that would implicate the Americans with Disabilities Act and allow for “reasonable accommodations” by .DHS. Ark. Code Ann. § 9-27-341 (b)(3)(B)(vii){b) (Repl. 2008).
The circuit court ruled from the bench that “this is probably one of the hardest cases I’ve had to decide ... so I went back and started reading the Code .. . once I read the law it’s actually crystal clear ... if [Z.C.] is not able to go home today, then I have to terminate . . ..” It then terminated Claudia’s parental rights on the grounds that Z.C. had been out of her custody for twelve months and, despite a meaningful effort to rehabilitate her and correct the conditions that caused Z.C.’s removal from the home, those conditions had not been remedied. Ark. Code Ann. § 9-27-341(b)(3)(B)(i).
In its termination order, the court also stated that “[t]he fact that Mother has had some recent stability cannot play a role according to ACA 9-27-341(b)(3)(B)(vii).” After our de novo review, Ivers v. Dep’t of Human Servs., 98 Ark. App. 57, 67, 250 S.W.3d 279, 285 (2007), we conclude that the court made an error of law requiring reversal. The cited statute contains no such evidentiary bar. Arkansas Code Annotated section 9-27-341(b) (3) (B)(vii)(ij) allows termination on the following ground: We give this unambiguous statute its plain meaning. Rylwell, L.L.C. v. Arkansas Development Finance Authority, 372 Ark. 32, 36, 269 S.W.3d 797, 800 (2007). And this statute does not prohibit the circuit court’s consideration of Claudia’s recent mental stability.
That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent return of the juvenile to the custody of the parent.
The circuit court terminated Claudia’s parental rights under subsection (i), not subsection (vii). That subsection likewise contains no prohibition on considering Claudia’s recent improvements. The termination statute, moreover, required that the court consider Claudia’s compliance during the entire dependency-neglect case and the evidence presented at the termination hearing in deciding whether termination was in Z.C.’s best interest. Ark. Code Ann. § 9-27-341 (a)(4)(B). Here the circuit court did not consider everything required by the statute.
We recognize that evidence of parental improvement as termination becomes imminent will not outweigh other evidence demonstrating a failure to remedy the situation that caused the child to be removed in the first place. Ark. Code Ann. § 9-27-341(a)(4)(A); Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 355, 201 S.W.3d 391, 401 (2005). But the circuit court should have considered and weighed the evidence about Claudia’s recent improvements. Its failure to do so was error. We therefore reverse and remand for consideration of Claudia’s recent mental stability.
This legal error was not, as the attorney ad litem contends, harmless in light of the evidence supporting termination under Ark. Code Ann. § 9-27-341(b)(3)(B)(i). The circuit court terminated Claudia’s parental rights because of her mental instability and failure to remedy that condition. And the court’s consideration of her recent stability may affect its conclusion. The circuit judge’s statement from the bench that she had to terminate Claudia’s parental rights if Z.C. was not able to go home with her immediately after the hearing was also incorrect. The statute does not impose this standard. The statute seeks stability for the child, while allowing a parent a reasonable time (all material things considered) to correct problems. Ark. Code Ann. § 9-27-341(a)(3). According to the Department of Children and Family Services supervisor in this case, Z.C. has been in at least two foster homes and “a couple of respites” since DHS removed him from Claudia’s care. Given the lack of stability thus far in Z.C.’s life, and the court’s incorrect statement of the law from the bench that it had to terminate if Z.C. could not go home on the day of the hearing, Claudia’s recent mental stability may well affect the court’s ultimate decision. We are therefore convinced that the court’s failure to consider her improvements was not a harmless error.
Reversed and remanded.
Pittman, C.J., and Robbins, J., agree.
The circuit court also terminated Z.C.’s father’s parental rights. But the father did not appeal the termination. | [
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Sam Bird, Judge.
McCourt Manufacturing Corporation (hereinafter the Corporation) brings this appeal from a judgment in favor of its former employee, appellee Dave Rycroft. The judgment awarded Rycroft $12,498.15 in unpaid commissions and a statutory penalty of $164.38 per day from the date of his termination until payment of the $12,498.15 to him. The Corporation raises two points pertaining to the imposition of the penalty under Ark. Code Ann. § 11-4-405 and a third point regarding the court’s refusal to give jury instructions on its affirmative defenses. The Corporation contends that the trial court erred (1) in submitting to the jury the issue of the application of penalty provisions; (2) in extending the accrual of the penalty beyond sixty days; and (3) in refusing to submit instructions to the jury on the issues of waiver and estoppel. We reverse on the first point and hold that the trial court erred in refusing to grant the Corporation’s motion for directed verdict on the issue relating to the penalty provision of Ark. Code Ann. § 11-4-405. Our reversal on the first point renders the second point moot. We affirm on the third point and hold that the trial court did not err in refusing to submit instructions to the jury on the Corporation’s affirmative defenses of estoppel and waiver.
Rycroft began working for the Corporation as supervisor of sales on March 21, 2005, for a salary of $60,000 annually. According to Rycroft, the Corporation’s president, Charles McCourt (hereinafter referred to as McCourt), agreed to also pay him a commission of 0.5% of all gross sales, payable quarterly. When, at the end of June 2005, Rycroft received nó commission, he asked McCourt about it, and McCourt denied having agreed to pay him any commission. Rycroft continued working for the Corporation for the annual salary until he was fired on January 16, 2006.
On January 23, 2006, Rycroft’s attorney sent a letter addressed to Charles McCourt at McCourt Manufacturing Corporation. The letter stated, “Please send Mr. Rycroft’s unpaid wages to him c/o C. Brian Meadors, 315 N. 7th, Fort Smith, AR, 72901. Mr. Rycroft’s unpaid wages include the commissions, i.e., 0.5% of gross sales of McCourt Manufacturing during Mr. Rycroft’s employment there.” The letter was hand-delivered by a “runner” from the attorney’s office to the offices of the Corporation, where the runner placed it in the hands of an unknown man. The Corporation did not respond to the letter and did not pay Rycroft any of the requested commission.
Rycroft sued the Corporation for a 0.5% commission on the company’s gross sales from March 21, 2005, through January 16, 2006, plus a penalty for nonpayment of wages as provided in Ark. Code Ann. § 11-4-405. Paragraph 8 of Rycroft’s complaint included the following: “On January 23, 2006, a written demand for unpaid wages was hand delivered to the Defendant [the Corporation], A copy of that letter is attached as Exhibit A. There has been no response from the Defendant.” In its initial and first amended answer, the Corporation admitted the allegations of paragraph 8; in a second amended answer, it denied the allegations of paragraph 8.
The case was tried to a jury. Yolanda Bell, who worked for Rycroft’s attorney’s law firm, testified that she was the “runner” who took a letter to the Corporation’s office on Monday morning, either the 23rd or the 24th of January 2006, and she delivered it to “a guy” she did not know, who came out into the hallway from one of the offices. She said that the person to whom she delivered the letter was neither McCourt nor Mark Price and that she did not know whether the man was an employee of the Corporation.
Charles McCourt testified that the Corporation admitted the allegation of paragraph 8 in its initial response to the complaint and in its first amended answer, and a year later the Corporation denied receiving the letter on January 23. He agreed that the Corporation had received the letter but said, “[W]e don’t know who received it or the time. It is possible it could have been received by someone at McCourt Manufacturing on January the twenty-third.” The Corporation’s initial response and first amended answer were introduced into evidence through Mc-Court’s testimony.
Rycroft testified that, before he accepted employment with the Corporation, McCourt agreed to pay him a commission of 0.5% of gross sales. He said that, at first, McCourt was his supervisor but, at some point, McCourt gave Mark Price more authority and Price became his supervisor. Rycroft stated that, at the end of the second quarter of 2005, he was disturbed when he did not receive a commission check and that he sought out Price, who told him that he needed to see McCourt about the problem. Rycroft stated that, when he asked McCourt about his commission check, McCourt denied having agreed to pay him a commission. Rycroft stated that, although he was unhappy about McCourt’s failure to do what he had agreed to do, he (Rycroft) did not leave the job at that time; he did, however, decide to start looking for other employment.
Judy Joyce, who was responsible for the Corporation’s payroll, testified that she heard Rycroft “constantly” complain about not being paid what he thought he should receive. Another employee, Tammy Helliker, testified that Rycroft also told her that he was entitled to a commission.
Mark Price testified that he did not receive the January 23 letter, which was delivered when McCourt was in Florida. Price said he was charged with receiving important correspondence, “such as lawyer letterhead documents,” and took all of the Corporation’s important legal correspondence to McCourt when he was away. Price testified that he or Joyce opened the mail when it came in, he looked at what he took to McCourt, and the January 23 letter was not included. He stated that McCourt returned during the third or fourth week of February and showed him the letter during the last week of February, which was the first time he saw it. He said that he saw the letter a week-and-a-half to a month before the lawsuit was served “[i]f service of the lawsuit was in April,” and he acknowledged his deposition statement that he saw the complaint within a day or two of McCourt being served. Finally, Price testified that he thought the lawsuit was served in April, and he denied being aware that the date of service was February 25, 2006.
The Corporation moved for a directed verdict on Rycroft’s claim for the imposition of a penalty under Ark. Code Ann. § 11-4-405, arguing that there was no evidence that the request for payment was delivered to either Rycroft’s foreman or the keeper of his time. The court denied the motion. The Corporation requested an instruction to the jury on its waiver and estoppel defenses, which the court refused. The jury returned a verdict for Rycroft on his breach-of-contract action and for his claim for the statutory penalty. The trial court entered a final judgment on the verdict, making the following findings and conclusions:
The parties had previously stipulated that if liability were found on Special Interrogatory No. 1, then the damages would be set at $12,498.15.
Under Ark. Code Ann. § 11-4-405, the statutory penalty accrues at the same rate as the discharged employee’s wages. This penalty accrues until the unpaid wages (i.e., the $12,498.15) are paid to the employee. See Ark. Code Ann. § 11-4-405(a) (2). It is un-controverted that Plaintiff Rycroft was discharged on January 16, 2006, and that at the time of his discharge his wages were $60,000 per year. Therefore, the penalty accrues at a rate of $60,000 divided by 365 days, or $164.38 per day, with the first such day beingjanuary 17, 2006, and continuing until the $12,498.15 is paid. Because Plaintiff Rycroft commenced this action within 60 days of his discharge, the penalty continues beyond the initial 60 days. See Ark. Code Ann. § 11-4-405(a)(2) (last sentence).
It is further ordered that, under Ark. Code Ann. § 11-4-405, Plaintiff Dave Rycroft is awarded a judgment against the Defendant in the amount of $164.38 per day, with the first such day being January 17, 2006, and continuing until the $12,498.15 is paid. Once the $12,498.15 has been paid by the Defendant to Mr. Rycroft, the $164.98 per day penalty shall no longer accrue and only past amounts will be due.
The court added that the penalty would no longer accrue if the Corporation should pay Rycroft the $12,498.15 prior to the filing of the notice of appeal. The Corporation then pursued this appeal.
Demand for Wages under Ark. Code Ann. § 11-4-405
Arkansas Code Annotated section 11-4-405 (Repl. 2002) provides:
(a)(1) Whenever any railroad company or corporation or any receiver operating any railroad engaged in the business of operating or constructing any railroad or railroad bridge shall discharge, with or without cause, or refuse to further employ any servant or employee thereof, the unpaid wages of the servant or employee then earned at the contract rate, without abatement or deduction, They shall be and become due and payable on the day of the discharge or refusal to longer employ.
(2) Any servant or employee may request of his foreman or the keeper of his or her time to have the money due him or her, or a valid check therefor, sent to any station where a regular agent is kept. If the money or a valid check therefor does not reach the station within seven (7) days from the date it is so requested, then, as a penalty for the nonpayment, the wages of the servant or employee shall continue from the date of the discharge or refusal to further employ at the same rate until paid. However, the wages shall not continue more than sixty (60) days unless an action therefor shall be commenced within that time.
(b) This section shall apply to all companies and corporations doing business in this state and to all servants and employees thereof. Any servants or employees who shall hereafter be discharged or refused further employment may request or demand the payment of any wages due and, if not paid within seven (7) days from discharge or refusal to longer employ, then the penalties provided in subdivision (a)(2) of this section for railway employees shall attach.
As its first point on appeal, the Corporation contends that Rycroft did not strictly comply with the statute because he neither demanded his unpaid wages at the time of discharge nor made demand upon his foreman, whether Mark Price or Charles Mc-Court, or upon the keeper of his time, Judy Joyce. The Corporation presented the following argument in its motion for a directed verdict on the statutory provision for penalty:
[T]hat provision is strictly interpreted by our Courts, all the decisions show it is strictly interpreted. Irrespective of the timing issue that is in great dispute before the Court, the statute does require that the notice be delivered to the timekeeper or the foreman. The foreman in this case would have been Mr. Price or Mr. McCourt. Ms. Bell testified she didn’t hand it to either of these two people as she looked at their photographs. The other possibility was to the timekeeper. Ms. Joyce was payroll clerk. She was here, she definitely was not the man Ms. Bell said she delivered it to. Furthermore, she said she never received the letter. Therefore, the Plaintiff has not complied with the strict interpretation of the statute and we ask for a directed verdict.
The question before us is whether substantial evidence supports the jury’s award of a statutory penalty. Rycroft asserts that he was required only to show that the letter was addressed to the foreman and was delivered to the Corporation’s offices. He points to evidence supporting these facts and to the Corporation’s judicial admissions, made in its initial response and first amended answer, that it received the letter on January 23.
Rycroft also asserts that the evidence supports a finding that the letter was personally delivered to the foreman or timekeeper. Regarding delivery to the foreman (Price or McCourt), Rycroft notes the following evidence: McCourt testified that someone at the Corporation could have received the letter on January 23; Price testified that he received and gathered incoming legal letters during the time at issue; the Corporation judicially admitted, twice, that the letter was hand-delivered to the Corporation on January 23; and Price admitted receiving the letter when McCourt showed it to him a week-and-a-half to a month before service of the complaint on February 25. As proof that the timekeeper (Joyce) personally received the letter, Rycroft notes Price’s testimony that he or Joyce received the mail, the Corporation judicially admitted receiving the letter on January 23, and Joyce neither denied nor admitted receiving the letter.
A directed-verdict motion is a challenge to the sufficiency of the evidence. King v. Powell, 85 Ark. App. 212, 148 S.W.3d 792 (2004). When reviewing the denial of a motion for a directed verdict, we determine whether the jury’s verdict is supported by substantial evidence. Id. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. Id. When determining the sufficiency of the evidence, we review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalfjudgment was entered. Id. It is not our province to try issues of fact; we simply examine the record to determine if there is substantial evidence to support the jury verdict. Id.
The statute for payment of wages to discharged employees is penal in nature, and the penalty will be imposed only in favor of one who comes strictly within its language. Howard v. Glenn Bros. Trucking, Inc., 271 Ark. 566, 609 S.W.2d 897 (1981). Our supreme court has long held, under previous versions of this statute, that recovery cannot be had unless the discharged employee shows that he has made a distinct demand in accordance with the statute’s terms. Bush v. Coleman, 131 Ark. 379, 199 S.W. 87 (1917); Hall v. Chicago, Rock Island & Pac. Ry. Co., 96 Ark. 634, 132 S.W. 911 (1910); Ry. Co. v. McClerkin, 88 Ark. 277, 114 S.W. 240 (1908); St. Louis, Iron Mountain & S. Ry. Co. v. Bailey, 87 Ark. 132, 112 S.W. 180 (1908). In McClerkin, supra, our supreme court clearly stated, “Nothing can be taken by intendment to show compliance with statutes of this kind.” McClerkin, 88 Ark. at 281, 114 S.W. at 242 (1908); see also Lusk v. Jones, 128 Ark. 312, 194 S.W. 250 (1917) (adhering to the court’s former construction that, in order for a railroad employee to avail himself of the penalty, he must comply strictly with the statute). In Bush v. Coleman, 131 Ark. 379, 199 S.W. 87 (1917), the statutory words “foreman or keeper of. . . time” were interpreted to mean the discharged employee’s immediate foreman or timekeeper, not merely any superior in the same department. The supreme court explained:
The purpose of the statute is that the demand shall be made either to the superior who has immediate supervision over the discharged employee, or the one who keeps his time. The master mechanic at Van Burén had general supervision over the employees in that department, but he was not the foreman or timekeeper within the meaning of the statute, and the demand on him for payment of the wages was not sufficient compliance with the terms of the statute to justify the imposition of the penalty ....
131 Ark. at 381, 199 S.W. at 88.
Viewing the evidence and all reasonable inferences arising therefrom in the light most favorable to Rycroft, we examine the evidence that supports the jury’s award of this statutory penalty. Charles McCourt testified that the Corporation admitted the allegation of paragraph 8 in its initial response to the complaint and in its first amended answer, and these two pleadings were admitted into evidence through his testimony. Yolanda Bell, the runner for Rycroft’s attorney, testified that she delivered the January 23, 2006 demand letter to an unidentified man at the Corporation’s business and explained to him who she was and who she was with. She testified that the man to whom she delivered the letter was neither Price nor McCourt. Judy Joyce testified that she was the keeper of the Corporation’s payroll.
In our view, this evidence falls far short of satisfying the statute’s requirement that the demand be made upon the claimant’s foreman or the keeper of his time. Our supreme court clearly stated in Bush that “demand shall be made either to the superior who has immediate supervision over the discharged employee, or the one who keeps his time.” 131 Ark. at 381, 199 S.W. at 88. The witnesses’ testimony in the present case and the Corporation’s judicial admissions, revealed in its initial answer and first amended answer, support only a finding that written demand for unpaid wages was hand delivered to an unidentified man at the defendant Corporation who was neither McCourt nor Price. Given the penal nature of this statute, we must adhere to its strict construction and cannot rely on inferences about how or when the letter ultimately reached McCourt, Price, or Joyce. We hold, therefore, that the trial court erred in submitting this issue to the jury because there was no evidence from which the jury could find that Rycroft had strictly complied with the provisions of the statute. Thus, we reverse the imposition of the statutory penalty.
Waiver and Estoppel Instructions
However, we do not agree with the Corporation that the court erred in refusing to instruct the jury on its affirmative defenses of waiver and estoppel. Before the case was submitted to the jury, Rycroft had agreed that, under City of Huntington v. Mickles, 96 Ark. App. 213, 240 S.W.3d 138 (2006), he was limited in his recovery of commissions to those accrued prior to the end of the second quarter of 2005. Under Mickles, Rycroft could not assert a valid claim for any commissions accruing after June 30, 2005, when he was informed by McCourt that there had been no agreement to pay him a commission. But Mickles does not preclude Rycroft from asserting a claim to commissions to which he claimed to have become entitled before McCourt disavowed the existence of an agreement for commissions. Rycroft’s continuing to work after June 30 could not have constituted a waiver by Rycroft of any commissions that he had already earned, and Rycroft could not be estopped to make claim for those commissions. Therefore, the court properly denied the Corporation’s request for a jury instruction on those affirmative defenses.
We affirm the award of $12,498.15 for commissions due Rycroft. However, we reverse the judgment as to the penalties awarded under Ark. Code Ann. § 11-4-405.
Affirmed in part; reversed in part.
Glover and Heffley, JJ., agree.
Prior to trial, Rycroft stipulated that, under City of Huntington v. Mickles,96 Ark.App. 213, 240 S.W.3d 138 (2006), his breach-of-contract damages were limited to the amount of commission that he earned before the end of the second quarter of 2005, and the parties stipulated that, if the jury determined that Rycroft was entided to the commission, the amount of Rycroft’s recovery for his commission would be $12,498.15.
Rycroft argues that the Corporation failed to preserve this argument because the motion was made at the conclusion of all the evidence rather than at the close of Rycroft’s case in chief. However, to preserve the sufficiency issue, an appellant is required to move for a directed verdict only at the close of all the evidence. See David Newbern & John J. Watkins, Arkansas Civil Practice and Procedure § 28:14, at 540 (4th ed. 2006). | [
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Larry D. Vaught, Judge.
Appellants Krystal Lee and Allied Lee appeal from an order of the Pulaski County Circuit Court terminating their parental rights to their thirteen-year-old daughter S.L. and to their fourteen-year-old son M.L. They argue that the circuit court erred in finding that there was sufficient evidence to support the termination of their parental rights, both as to grounds for the termination and that the termination is in the children’s best interests. We affirm.
On March 11, 2006, the Department of Human Services (DHS) investigated a report that Father was using various illegal drugs, including methamphetamine, marijuana, and cocaine. In addition, Father had forced Mother and the children out of the home by threatening her. Father was verbally abusive toward the children in the presence of the police and a DHS worker. Because both children were terrified of returning home and Mother continued to deny Father’s threat toward M.L., DHS placed a seventy-two-hour hold on both children. There was no prior history of involvement by DHS with this family.
On March 14, 2006, a petition for emergency custody was filed. That same date, an emergency order placed custody of the children with DHS. On April 13, 2006, a hearing was held where the circuit court found probable cause for entry of the emergency order.
After an adjudication hearing on April 25, 2006, the court found that both children were dependent-neglected. Specifically, the court found that the children had been subjected to aggravated circumstances because Father was a chronic drug user who battered Mother repeatedly in front of the children, pulled the children’s hair, and subjected them to emotional abuse. The court found that Mother failed to protect the children from Father’s abuse and that the children had been subjected to extreme or repeated cruelty. Even so, the goal of the case was reunification. The parents were ordered to submit to psychological evaluations and follow the therapist’s recommendations, attend parenting classes, submit to drug screens, and attend marital therapy. Father was ordered to submit to a drug-and-alcohol assessment, attend anger-management sessions, and refrain from possessing firearms; Mother was ordered to attend domestic-battery counseling. Supervised visitation was ordered for Mother only, but Father was not to have contact with the children except in the context of therapy.
On August 29, 2006, a review hearing was held. The court found that Mother did not start participating until a month earlier when Father went to jail on federal drug and firearm charges. The court authorized Mother’s visitation with the children to be increased as recommended by the children’s therapist. The goal continued to be reunification.
On January 23, 2007, a permanency-planning hearing was held. The court changed the goal to termination of parental rights. The court found that Father had made the decision not to comply with the court’s orders and that Mother had done little, if anything, to distance herself from Father. Additionally, the court found that Mother had been burdening the children with her own “emotional baggage” in that she attempted to present the children with t-shirts similar to one she wore to the hearing that had pictures of the children and a caption that read “Kidjacked by the Dept, of Hell and Human Suffering.” The court further found that, while Mother had substantially complied with the court’s orders, it was not sufficient to return the children. Mother was noted to have been diagnosed with dependent- personality disorder.
On April 24, 2007, a termination-of-parental-rights hearing that had been set for that date was postponed because Father was being held for an evaluation in the pending criminal case. Instead, a permanency-planning hearing was held. The court found that there had been little, if any, progress since the previous hearing.
On July 17, 2007, the termination-of-parental-rights hearing was again postponed because Father was unavailable for the hearing and because Mother’s attorney had been granted permission to withdraw from this case over an irrevocable breach of the attorney-client relationship.
On August 24, 2007, the termination-of-parental-rights hearing took place. Dr. Paul Deyoub, a forensic psychologist, testified that he conducted a psychological evaluation of Mother, with a diagnosis of dependent personality disorder. He also noted that Mother had a borderline IQ. According to Dr. Deyoub, this causes Mother to be unable to recognize the dysfunctional aspect of her relationship with Father and to expose the children to that dysfunction by not getting out of the relationship. He asserted that Mother’s denials of abuse were not credible. This was a result of her failure, because of her personality disorder, to recognize the abuse. Dr. Deyoub recommended that Mother be required to end the marriage before the court considered returning the children to her. He added that the addicted husband that Mother described had no hope of being brought into compliance, especially in the short term.
Dr. Deyoub said that Mother, because she minimized Father’s behavior, believed that the children were removed without justification. He also said that Mother somewhat blamed the children and other members of the family for the chaos in their lives, adding that Mother believed that the children were saying things to DHS that were not true. On examination by the court, Dr. Deyoub described Mother as still being dependent upon Father despite his incarceration because she was being loyal to him and not moving forward. He opined that Mother feared separation from Father and that Father’s mental abuse went hand-in-hand with her personality disorder.
The court asked what inferences could be drawn from Mother’s wearing the t-shirt to the hearing. Dr. Deyoub replied that such action was self-defeating and diminished the likelihood that Mother would be able to correct her deficiencies. He added that it undermined the children and showed that Mother was not responding to treatment. Dr. Deyoub stated that Mother’s continued telephone contact with Father indicated that she was not appreciating the issue or interested in complying with the case.
Larry Starr, the therapist for both children before S.L. was assigned to a female therapist, testified that both children had adjustment issues with M.L. also having anger issues. He said that the children were emotionally healthy, considering what they had been through, and that this was a reflection of the maternal grandparents with whom they had been living since their removal from their parents. He added that there were also boundary issues to be addressed because Mother’s conversations with the children had been inappropriate at times. He gave as an example that Mother told M.L. that the grandparents were serving as foster parents for the children only because DHS was paying them. Starr said that Mother’s attitude in making the statement was a barrier to reunification. He agreed with Dr. Deyoub that Mother was incapable of putting her children first by terminating her marriage. Starr said he believed that Mother wanted to reconnect with Father at some point in the future. He related that, when asked about choosing between her children and Father, she said it would depend upon whether Father had changed.
Starr indicated that there were considerations of terminating Mother’s visitation because of the boundary issues. He reported that the children had expressed that they wanted to live with their grandparents while somehow maintaining a relationship with their mother. Starr said that, in order for this to happen, Mother would have to respect certain boundaries and have age-appropriate discussions with the children.
On examination by the court, Starr noted his disagreement with Dr. Deyoub by stating his belief that Mother had been physically abused. He noted that, if Mother would not separate herself from that abuse, it would be up to the court to protect the children. Starr also indicated that the inappropriate discussions harmed the children. He also worried that, if Mother did not divorce Father and she were allowed to have some type of relationship with the children, she would somehow interject Father into the children’s lives.
Rosemary Dobbs, the caseworker formerly assigned to the case, testified that DHS was recommending that parental rights be terminated as to both parents. She said that Father had not complied at all with the case plan or court orders and that Mother, after some initial hesitation before Father was incarcerated, had complied by completing parenting classes, submitting to a psychological evaluation, and completing therapy. Dobbs said that Mother had been discharged by her therapist because she had achieved the maximum benefit from therapy. She noted that Mother had obtained and maintained stable housing and employment. She noted that there were persistent environmental issues in Mother’s home that still needed to be addressed. On cross-examination, Dobbs stated that Mother was in the process of rectifying the problems with her home. She was unaware that Father had taken some parenting classes and acknowledged that no services had been provided to Father since his incarceration.
Wendy Childs, the adoption specialist, opined that, although she did not run a data search, the children were quite adoptable. She indicated that the foster parents were very interested in adopting the children.
Mother testified that, although Father had pulled her hair and had been verbally abusive, he had not been physically abusive to her. She admitted that she did not protect the children from Father’s abuse but added that she did not believe that she had done anything to warrant having her children removed by DHS. On cross-examination, she stated that she did not want her rights terminated because she had complied with the court’s orders. On examination by the court, Mother admitted that she was still married to Father, with no plans to divorce him. She also acknowledged seeing Father once or twice while he has been incarcerated.
Father testified that he was currently incarcerated in the Pulaski County jail on pending federal drug and firearms charges. Although he admitted that he had pulled Mother’s hair and called her names, he denied hitting her. He said that he had been angry at times but denied needing help. He also denied hitting his children. He testified that he had been abused as a child but never sought help for it. Father said that he “possibly” had been emotionally abusive to Mother. He stated that he did not want his parental rights terminated and that it was “exaggerated” and “made up” that his children were afraid of him. On cross-examination, Father asserted that he had complied with the court’s orders by taking and passing one drug screen, by completing one parenting class, and by “lining up” a job once he is released.
The circuit court ruled from the bench and terminated the parental rights of both parents. The court found that both parents lacked credibility regarding the minimizing of the abuse, as well as on Mother’s testimony on the amount of contact she has had with Father. The court noted that Mother was failing to take responsibility for the abusive situation, as well as the environmental issues, and was blaming others such as DHS for those circumstances and that this was manifested by her wearing the shirt. The court asked rhetorically how a person could begin to resolve their problems if they did not acknowledge that there were problems. The court found that Mother’s failure to take responsibility indicates that she has not benefitted from the services provided by DHS. DHS was found to have provided clear and convincing evidence that it was in the children’s best interest to terminate parental rights and that the children are adoptable. The court also found that DHS had provided clear and convincing evidence that both children had been adjudicated dependent-neglected and had continued out of the custody of the appellants for over twelve months and the conditions that caused the removal had not been remedied by the parents despite meaningful efforts by DHS; and that the parents had subjected the children to aggravated circumstances in that there was little likelihood that successful reunification would take place in a reasonable time. The court found that Mother still had not resolved the environmental-neglect issues. The court’s order terminating appellant’s parental rights was entered on September 20, 2007. On September 26, 2007, both appellants filed notices of appeal.
We review termination of parental rights cases de novo. Yarborough v. Arkansas Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006). The grounds for termination of parental rights must be proven by clear and convincing evidence. Id. When the burden of proving a disputed fact is by clear and convincing evidence, the question on appeal is whether the circuit court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous, giving due regard to the opportunity of the circuit court to judge the credibility of the witnesses. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Kight v. Arkansas Dep’t of Human Servs., 94 Ark. App. 400, 231 S.W.3d 103 (2006).
The parents first argue that the circuit court erred in finding that it was in the children’s best interests for parental rights to be terminated. Specifically, they argue that DHS failed to show potential harm to the children if they were returned to their parents’ home. According to Ark. Code Ann. § 9-27-341 (Repl. 2008), the circuit court was only required to consider the potential harm to the health and safety of a child that might result from continued contact with the parent. The court was not required to find that actual harm would result or to affirmatively identify a potential harm. Furthermore, the supreme court has directed that the harm analysis be conducted in broad terms, including the harm the child suffers from the lack of stability in a permanent home. See Bearden v. Arkansas Dep’t of Human Servs., 344 Ark. 317, 42 S.W.3d 397 (2001). Finally, the court’s potential-harm inquiry is but one of many factors that a circuit court must consider in a best-interest analysis. Id.
In their second point, Mother and Father argue that DHS had failed to prove grounds for termination. It is undisputed that the children had been removed from their parents in March 2006 and had not returned at the time of the termination hearing in August 2007, a period in excess of twelve months. It is also undisputed that DHS provided services to the parties and that the conditions leading to the removal had not been corrected. Arkansas Code Annotated section 9-27-341 (b) (3)(B)(i) (a) provides that this is a ground for termination of parental rights. In its order, the circuit court found that this ground, as well as another ground, had been proven. Only one ground is necessary to terminate parental rights. Albright v. Arkansas Dep’t of Human Servs., 97 Ark. App. 277, 248 S.W.3d 498 (2007).
The parents argue that they had complied with the case plan and the court’s orders. However, even full completion of a case plan is not determinative of the outcome of a petition to terminate parental rights. Wright v. Arkansas Dep’t of Human Servs., 83 Ark. App. 1, 115 S.W.3d 332 (2003). What matters is whether completion of the case plan achieved the intended result of making the parent capable of caring for the child. Id. Here, Mother was not capable of caring for the children because she had not addressed the environmental issues. She also had undermined some of the progress with her inappropriate discussion of the case with the children. Further, she has not accepted responsibility for the removal of the children or for failing to protect the children from Father. She also indicated that she would consider reconnecting with Father when he was released. Likewise, Father was not capable of caring for the children because of his abusive behavior and unwillingness to admit fault. Although he was incarcerated at the time of the hearing, it was uncertain how long his incarceration would last. He estimated that it would be no more than two years. As noted above, he had also failed to address the anger issues.
Mother also asks that she be given additional time to maintain and improve on the progress that she has made. The circuit court recognized that Mother had been cooperative and made progress but found that mere compliance with the directives of the court and DHS was not sufficient if the root cause of the problem was not dealt with. Evidence that a parent begins to make improvement as termination becomes more imminent will not outweigh other evidence demonstrating a failure to comply and to remedy the situation that caused the children to be removed in the first place. Camarillo-Cox v. Arkansas Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). We cannot say that the circuit court was clearly erroneous in finding that grounds were proved and that the best interest of the children justified termination as to both parents.
Affirmed.
Pittman, C.J., Robbins, and Marshall, JJ., agree.
Hart and Heffley, JJ., dissent. | [
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Sarah J. Heffley, Judge.
Appellant Cassie Atchley brings this appeal from an order granting visitation rights with her daughter KP to her parents, appellees Iris and Keith Dean. For reversal, appellant argues that the grandparent visitation statute, Ark. Code Ann. § 9-13-103 (Repl. 2008), is unconstitutional, both facially and as applied, and she also contends that the trial court erred in finding that appellees had rebutted the statutory presumption that her decision to restrict visitation was in the child’s best interest. We affirm.
Years ago, appellees were foster parents, and they adopted appellant and her two brothers when appellant was nine years old. The children were available for adoption after their biological parents were convicted of charges connected with the murder of a police informant.
In May 1999, appellant married Marc Peterson, and KP was born of that union in April 2002. Marc was in the National Guard, and his unit was activated and sent to Arizona shortly after KP’s birth. Prior to Marc’s departure, appellees had contact with KP on a weekly basis, usually on weekends. Visits became more frequent after Marc left and as appellant moved closer to appellees’ home in Paris, Arkansas. Appellees saw KP almost every day, and the child often stayed overnight with them, especially on Saturdays so that they could attend church the next morning. According to appel-lees, overnight visits increased to several times a week when appellant began dating other men, namely Lennie Bailey and Jimmy Atchley.
Appellant and Marc divorced in June of 2003, and appellant was granted custody of KP. Appellant married Jimmy Atchley the following October. In August 2004, appellant and Jimmy had twins, a boy and a girl, who were born prematurely and hospitalized in Little Rock for seven weeks. During this time, either appellees or Jimmy’s mother kept KP. Another child, a son, was born in December 2005. With the births of these children, appellees continued to see KP regularly but not quite as much as before.
In the fall of 2005, relations between appellant and appellees deteriorated. Keith and Jimmy ran against each other for justice of the peace. Also, KP had been acting out sexually, and she began exhibiting aggressive behaviors as well. Anonymous calls were made to the child-abuse hotline accusing either Jimmy or Iris, and later Keith, of harming KP. During this time, Iris and Keith secretly taped some of their conversations with appellant out of fear that they were being “set up.” The allegations of abuse were investigated, but none of them were substantiated. Even so, the conflicts arising from these circumstances prompted appellant to limit the time appellees spent with KP.
Appellees then filed a petition to establish visitation rights in March 2006. After hearing testimony from numerous witnesses over the course of three days, the court took the case under advisement and later issued a letter opinion explaining its decision to grant appellees visitation with KP on either a Saturday or Sunday every other month from 8:00 a.m. to 5:00 p.m. Appellees were also allowed phone contact with KP once a week and on holidays and KP’s birthday. Appellant appeals from the order formalizing the trial court’s decision.
Appellant presents two arguments challenging the constitutionality of our grandparent-visitation statute. Appellant maintains that she challenged the statute on constitutional grounds in her pleadings, but we discern no claim that the statute was unconstitutional. Although appellant asserted that she had a fundamental right under the Constitution to make decisions about the custody, care, and control of her child, simply stating that she has such a right does not constitute an argument that the statute impermissibly infringed on the exercise of that right. Indeed, appellant invoked the protections of the statute by asserting that it confers a rebuttable presumption that her decision to limit visitation was in her child’s best interest. Because appellant failed to make these arguments below, she waived them for purposes of appeal. See Brandt v. Willhite, 98 Ark. App. 350, 255 S.W.3d 491 (2007) (holding that the failure to challenge the constitutionality of the grandparent-visitation statute at the hearing represented a waiver of the issue on appeal). It is settled law that we will not address arguments, even those of constitutional dimension, for the first time on appeal. Smith v. Thomas, 100 Ark. App. 195, 266 S.W.3d 226 (2007).
The remaining issue is whether the trial court’s findings made pursuant to the statute are supported by the evidence. Arkansas Code Annotated section 9-13-103(b)(l) permits a grandparent to petition a circuit court for reasonable visitation rights with respect to a grandchild when, among other things, the marital relationship between the parents of the child has been severed by death, divorce, or legal separation. The statute gives the custodial parent’s decision to limit or deny visitation presumptive or special weight by giving the parent the benefit of a rebuttable presumption that the custodian’s decision is in the best interest of the child. See Oldham v. Morgan, 372 Ark. 159, 271 S.W.3d 507 (2007). To rebut this presumption, the grandparent must prove by a preponderance of the evidence that the grandparent has established a significant and viable relationship with the child and that visitation with the grandparent is in the child’s best interest. Ark. Code Ann. § 9-13-103(c)(2)(A) & (B). The statute also sets out how these matters are to be proven. It provides:
(d) To establish a significant and viable relationship with the child, the petitioner must prove by a preponderance of the evidence the following:
(1)(A) The child resided with the petitioner for a least six (6) consecutive months with or without the current custodian present;
(B) The petitioner was the caregiver to the child on a regular basis for at least six (6) consecutive months.
(C) The petitioner had frequent or regular contact with the child for at least twelve (12) consecutive months; or
(2) Any other facts that establish that the loss of the relationship between the petitioner and the child is likely to harm the child.
(e) To establish that visitation with the petitioner is in the best interest of the child, the petitioner must prove by a preponderance of the evidence the following:
(1) The petitioner has the capacity to give the child love, affection and guidance;
(2) The loss of the relationship between the petitioner and the child is likely to harm the child; and
(3) The petitioner is willing to cooperate with the custodian if visitation with the child is allowed.
Appellant concedes that KP had spent a considerable amount of time with appellees since her birth, and thus she does not challenge the trial court’s finding that appellees had established a significant and viable relationship with KP by having frequent and regular contact with her for at least a year. Instead, appellant contests the trial court’s finding that visitation was in KP’s best interest. Appellant contends that the evidence fails to demonstrate that appellees have the capacity to give KP love, affection and guidance; that there is insufficient evidence that the loss of the relationship with appellees is likely to harm KP; and that the evidence shows that appellees were not willing to cooperate with her.
We review chancery cases de novo on the record, but we do not reverse a finding of fact by the chancery court unless it is clearly erroneous. Medlin v. Weiss, 356 Ark. 588, 158 S.W.3d 140 (2004). A finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. In reviewing the trial court’s decision, we defer to that court’s superior position for measuring the witnesses’ credibility and evaluating what was in the child’s best interest. Brandt v. Willhite, 98 Ark. App. 350, 255 S.W.3d 491 (2007).
We find it unnecessary to recite in detail the accusations the parties levied against one another. It would also serve no useful purpose to recount the disturbing behaviors the child was exhibiting. It is enough to say that first Iris was accused of sexually abusing KP, and then later Keith was accused of abusing the child. Appellant also presented testimony that Keith had attempted to sexually assault her when she was a child and that he had behaved inappropriately toward her when she was separated from Marc. There was also testimony that Iris was demanding and controlling, and that both Iris and Keith had used extreme disciplinary measures when appellant and her brothers were young. Appellant also accused Iris and Keith of reporting to DHS that Jimmy was sexually assaulting KP.
On the other hand, Iris and Keith denied that they had harmed the child in any way. They presented evidence that the charge against Keith was made after they filed the petition seeking visitation and when he had not seen the child for several months, and that neither charge was substantiated. They placed blame for the abuse on Jimmy and recounted incidents that portrayed Jimmy in a poor light. There was also evidence that Jimmy had physically abused appellant on at least one occasion. The testimony also showed that appellant had reestablished a relationship with her biological mother.
The trial court sifted through the voluminous record and made the following findings in its letter opinion concerning the best interest of KP:
The first [requirement under the statute] is that the petitioners have the capacity to give the child love, affection, and guidance. There is no doubt in my mind that the petitioners have overwhelmingly established this statutory requirement. The third requirement is that it must be shown that the petitioners are willing to cooperate with the custodian if visitation with the child is allowed. Again, I find that the petitioners have met their burden of proof in regard to this requirement.
The second requirement is that it must be shown that the loss of the relationship between the petitioner and the child is likely to harm the child. This, I believe is the point over which the testimony is in the greatest dispute and upon which this case turns.
It is obvious to me that Cassie Atchley is being greatly pressured by three different and competing interests. First, there is no question but that Marc Peterson, the father of [KP], continues to try to maintain a close relationship with his child. . . . The second party asserting pressure on Ms. Atchley is her current husband Jimmy Atchley. I believe that he and Ms. Atchley have had some marital difficulties and that he is resentful of the involvement Mr. and Mrs. Dean have shown in supporting their daughter. Finally, there are the pressures being asserted by Mr. and Mrs. Dean on Ms. Atchley to continue what had been a close relationship with their granddaughter until the fall of 2005.
It is also obvious to me that the relationship between Mr. and Mrs. Atchley and Mr. and Mrs. Dean and between Mr. Petersen and Mr. and Mrs. Dean has become at best acrimonious. It is also obvious to me that [KP] has become the focus of this animosity and is being used to try to win this battle of wills. While all parties profess to only have the best interest of [KP] at heart, the testimony demonstrates otherwise. Reports to DHS, secret tapings of conversations, termination of communication, and allegations of unfitness against each other abound at this point resulting, in my opinion, to the detriment of the person over whom the parties profess the greatest concern — [KP],
In assessing the cause of the problems that [KP] has begun exhibiting and the cause of those problems one thing is clear, Cassie Atchley’s credibility is seriously lacking. Ms. Atchley accused three independent agencies, Jumpstart, Western Arkansas Guidance and Counseling, and Arkansas Children’s Hospital of altering their records when those records and her trial testimony were not consistent. I do not believe that these agencies altered their records and that Ms. Atchley’s accusations of Mr. and/or Mrs. Dean of having enough “influence” to have these records altered to be baseless. Likewise, I find the remainder of Ms. Atchley’s testimony and its credibility to be lacking.
I specifically find that the problems that [KP] began experiencing began when the relationship with the petitioners was essentially terminated by Cassie Atchley. Ms. Atchley has made a number of serious accusations subsequent to that date all of which have been unfounded and in my opinion have harmed the child and are likely to subject her to further harm if not stopped. I find that the loss of the relationship between the petitioners and [KP] continues to be likely to harm the child and that it would clearly be in her best interest for that relationship to be re-established.
Our review of the record reveals evidence that Iris and Keith shared a close and bonded relationship with KP. Thus, we are not left with a definite and firm conviction that the trial court was wrong to find that Iris and Keith had the capacity to give love, affection and guidance to the child. The trial court accepted Iris and Keith at their word when they testified that they would cooperate with appellant if visitation were allowed. Given that credibility determination, we are also unwilling to say that the trial court’s finding on this issue is clearly against the preponderance o£ the evidence.
With respect to the likelihood of harm should visitation not be allowed, the trial court made two critical findings. First, the trial court found that appellant’s credibility was lacking, meaning that the trial court did not believe the accusations and complaints appellant lodged against Iris and Keith. Secondly, the trial court found that the child’s behavioral problems did not arise until after appellant began limiting visitation, meaning that the child was being harmed because visits with Iris and Keith had been restricted. There is support in the record for this finding, and we are not able to say that the finding of likely harm is clearly erroneous.
Almost as an aside, appellant makes the argument that the trial court erred by allowing Iris, a long-time teacher, and Tammy Rose, the assistant principal, special education supervisor and mental health coordinator in the Waldron School District, to testify about the detrimental affect that limiting or terminating visitation might have on KP. Appellant contends that these wit nesses were not mental health professionals and thus were not qualified to offer an opinion on this matter. The only authority appellant cites is Rule 701 of the Arkansas Rules of Evidence, which allows lay persons to offer opinion testimony if the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of her testimony or the determination of a fact in issue. Appellant has cited no further authority and has otherwise not developed an argument that the testimony complained of was or was not admissible under the rule. The admission of evidence is reviewed under an abuse-of-discretion standard. Crowell v. Baker, 369 Ark. 428, 255 S.W.3d 858 (2007). We perceive none here.
In her reply brief, appellant raises the contention that Iris and Keith’s petition was premature, citing the supreme court’s decision in Oldham v. Morgan, 372 Ark. 159, 271 S.W.3d 507 (2008). We decline to consider this point because we do not address arguments made for the first time in a reply brief. Bilo v. El Dorado Broadcasting Co., 101 Ark. App. 267, 275 S.W.3d 660 (2008).
Affirmed.
Hart and Vaught, JJ., agree.
Appellant has filed a motion to supplement the record to include a February 15, 2008, letter from the attorney general’s office stating that it had recently received notice that appellant was challenging the constitutionality of the statute and declining to intervene. We consider the motion to supplement the record as moot because the constitutional issues are not preserved for appeal. We also remind counsel that we do not consider matters that are outside the record to determine issues on appeal. In re Adoption of H.L.M., 99 Ark.App. 115, 257 S.W.3d 597 (2007). | [
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D.P. Marshall Jr., Judge.
A jury convicted Emmanuel Lee of fraudulently using a credit card belonging to Border Express, a company that had hired Lee to drive a truck. Lee attacks his conviction with three arguments. He challenges the sufficiency of the evidence. He argues that the circuit court should have suppressed certain evidence. And he contends that the circuit court violated the Confrontation Clause by allowing the investigating police officer to testify about what the deceased owner of Border Express told the officer on the night of Lee’s arrest.
I.
To avoid any double-jeopardy issue, we take the sufficiency argument first. Standridge v. State, 357 Ark. 105, 112, 161 S.W.3d 815, 818 (2004). We consider the entire record (including the evidence that Lee challenges on appeal) in the light most favorable to the jury’s verdict. Cook v. State, 77 Ark. App. 20, 31, 73 S.W.3d 1, 7 (2002). Lee fraudulently used the Border Express credit card if, with the purpose to defraud, he used the card without the company’s authorization. Ark. Code Ann. § 5-37-207 (Repl. 2006).
Border Express hired Lee to drive a rented Penske truck loaded with wine racks from Fort Smith to Wisconsin and back. Border Express gave Lee a credit card to use for gasoline. Lee arrived back in Fort Smith late (due to mechanical problems), dropped off the rented truck, and went home. Then he and his neighbor, Robert Peterson, drove to a convenience store in Lee’s pick-up truck. Lee told Peterson that he needed to fill up his truck, and a fifty-five gallon drum, with gasoline — because he needed to go get a Border Express truck that had run out of gas on the side of the road. Then Lee pumped $150.00 worth of gasoline and tried to pay with Border Express’s credit card. When the card was declined, the clerk called the store owner, who then called the police.
Officer Mark McGraw came to the store. He questioned the clerk, Lee, and Peterson. According to McGraw, Lee told him what he had told Peterson: Lee had permission to use the card to buy gasoline for a stranded Border Express truck. At trial, Lee denied making this statement. Lee testified that he told Peterson and Officer McGraw that Border Express was paying him for the recent trip by letting him use the card to fill up his truck and buy a barrel-full of gasoline for his girlfriend to use while he was out of town. Officer McGraw also called Don Jordan, the owner of Border Express. Among other things, Jordan told the officer that he had deactivated the credit card and that Lee did not have permission to use the card. Officer McGraw then arrested Lee.
At trial, and over Lee’s objection, Jordan’s statements came in through Officer McGraw’s testimony. Jordan’s daughter, who had taken over Border Express after her father’s death, testified that she had found no record of a personal-use arrangement with Lee involving the credit card. She said that the company’s books showed that Lee later received a check for his work. She knew of no instance in which her father had paid a driver with gasoline through a company card.
Having heard all this evidence, the jury was justified in finding Lee guilty. Jordan’s testimony — through Officer McGraw — established that Lee used the card for himself without authorization. Jordan’s daughter’s testimony was evidence that Lee did not have permission to use the card. And Lee’s inconsistent statements about why he was buying gasoline were circumstantial evidence of guilt. Bennett v. State, 297 Ark. 115, 119-22, 759 S.W.2d 799, 801-03 (1988). Contrary to Lee’s contention, the fact that Peterson eventually paid for all the gasoline that night did not erase Lee’s failed effort to use the company’s card. The jury was entitled to convict based on the substantial evidence of Lee’s guilt. Cook, supra.
II.
Lee’s suppression argument also fails. The State is correct that Lee’s failure to follow Rule of Criminal Procedure 16.2(b) by filing a pretrial motion to suppress would have justified the circuit court’s outright denial of his at-trial motion. Holt v. State, 15 Ark. App. 269, 271, 692 S.W.2d 265, 267 (1985). The circuit court, however, exercised its discretion, as the Rule allows, and decided Lee’s motion on the merits. We will therefore consider the merits too. Lee contends that Officer McGraw should have given him a Miranda warning before questioning him at the convenience store. McGraw having failed to do so, Lee continues, all his statements to McGraw at the store should have been suppressed.
Lee is mistaken. Rule of Criminal Procedure 3.1 allows police officers to detain persons for as long as fifteen minutes to investigate crimes. Lee made no showing that Officer McGraw detained him longer than this period while the officer asked questions about what happened. Lee was not in custody until McGraw arrested him and refused to let him drive his pick-up truck home. State v. Spencer, 319 Ark. 454, 457, 892 S.W.2d 484, 485-86 (1995). Having considered the totality of the circumstances on de novo review, we affirm the circuit court’s denial of Lee’s motion to suppress. Summers v. State, 90 Ark. App. 25, 31, 203 S.W.3d 638, 641 (2005).
III.
We hold, however, that Lee is entitled to a new trial. The circuit court’s decision to allow Officer McGraw to testify repeatedly about everything that Jordan told him violated the Confrontation Clause of the Sixth Amendment to U.S. Constitution. Despite several objections from Lee at trial, the circuit court allowed Officer McGraw to give the following testimony on direct examination in response to the deputy prosecutor’s questions.
Q. All right. So, when you talked with Mr.Jordan about this card that was in the defendant’s possession, what did — what did you ask Mr. Jordan about this fuel card, and what did he tell you?
A. He said he had just spoken with Mr. Lee on the phone. Er, he said that Mr. Lee didn’t have permission to use the vehi — er —
Q. He didn’t have permission to use the card?
A. No, Sir. He didn’t have permission to use it.
Q. Okay.
A. The, er, the card, he was very adamant that Mr. Lee had worked for him only one time, maybe, a week earlier, and was late in returning the vehicle, and he was very upset about that.
Q. So, Mr. Jordan was adamant that he was not allowed to use this card?
A. Yes, he was.
Q. When the vehicle, that he’d used that one time, that he was employed for Mr. Jordan, when the vehicle was returned, did Mr. Jordan tell you whether or not this defendant had given him the card back?
A. No, he — he did not receive the card or the manifest for the, er, loadings driving report.
Q. And did Mr. Jordan tell you why he, er, I guess, deactivated — for lack of a better term, deactivated that fuel card?
A. Er, he specifically said he feared that Lee would try to use that fuel card.
Q. He specifically said he feared that the defendant would try to use the fuel card?
A. Yes, Sir.
Q. And that’s why he deactivated it?
A. Yes.
Then, after cross-examination, the prosecutor covered one area on redirect. He asked Officer McGraw: “|J]ust for the jury, again, er, what did Mr. Jordan say about his Wright Express fuel card and whether or not this defendant could use it.” The last words that the jury heard from the police officer were Jordan’s statements that Lee should have returned the card but he didn’t, he (Jordan) feared Lee would try to use the card, and he canceled it.
The Confrontation Clause mandates that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U.S. 36, 42-69 (2004), the Supreme Court examined the history behind the Clause and overruled its then-leading decision on point. The Court held that confrontation — the opportunity for cross-examination — is what the Constitution requires to test the reliability of testimonial statements offered at trial to prove the truth of the matter asserted. 541 U.S. at 63-69. Where testimonial evidence is offered, “the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross examination.” 541 U.S. at 68. Arkansas has recognized and applied Crawford several times. E.g., Dednam v. State, 360 Ark. 240, 200 S.W.3d 875 (2005).
Here, Jordan’s death made him unavailable. So that aspect of the inquiry is easy. Cf. Seaton v. State, 101 Ark. App. 201, 205, 272 S.W.3d 854, 857 (2008). Were Jordan’s statements testimonial? The circuit court ruled that they were not because Jordan was dead and he had made them during a police investigation where no one would expect an opportunity for cross-examination. This was error.
In Davis v. Washington, 547 U.S. 813 (2006), the Court answered a question left open in Crawford, and defined testimonial and nontestimonial statements.
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
547 U.S. at 822.
Jordan’s responses to Officer McGraw’s questions were testimonial. There was no ongoing emergency at the convenience store. All the circumstances objectively indicated this fact and that the primary purpose of Officer McGraw’s questioning of Jordan was to establish past events potentially relevant to prosecuting Lee. Ibid. Thus the very reason relied on by the circuit court for admitting this evidence over Lee’s objection is the reason that the Confrontation Clause applies to it.
Crawford also recognized, however, that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” 541 U.S. at 59 n.6 (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)). Our courts have noted and applied this exception. E.g., Brunson v. State, 368 Ark. 313, 322, 245 S.W.3d 132, 140 (2006); Dednam, 360 Ark. at 246-49, 200 S.W.3d at 879-81; Wooten v. State, 93 Ark. App. 178, 181-83, 217 S.W.3d 124, 126-27 (2005).
As Dednam carefully articulates, the key is the purpose for which the State offers the out-of-court statement. 360 Ark. at 246-48, 200 S.W.3d at 879-81. The State argues, citing some of these precedents, that no confrontation problem exists in this case. According to the State, the “officer’s testimony about Jordan’s statements was to explain why he took the step of arresting [Lee], and was not presented for the truth of what Jordan had told either the officer or [Lee].”
We disagree. The record shows no such limited intention or effort by the State at trial. The argument made below by the State, and accepted by the circuit court, was that Crawford simply did not apply at all because this case involved a dead witness and no formal interrogation. Unlike in Dednam, for example, the prosecutor did not offer testimonial statements to show the reason for an action taken by police. Dednam, 360 Ark. at 246-47, 200 S.W.3d at 879-80. Unlike in Street, testimonial statements were not offered in rebuttal to the defendant’s testimony to dispute his claim that his confession was the coerced and parroted version of a co-defendant’s confession. Street, 471 U.S. at 413-14. Unlike in Wooten, Jordan’s statements went to the core of the crime being tried, they were not offered on a side issue (a prior battery report) in the face of a video-taped confession to the alleged murder. Wooten, 93 Ark. App. at 181-83, 217 S.W.3d at 126-28. And unlike in Brunson, Jordan’s testimony was not admitted for the limited purpose of corroborating other witnesses’ testimony that an event had occurred (a protective order was issued during a volatile relationship). Brunson, 368 Ark. at 322, 245 S.W.3d at 140. In each of these precedents, the State sought to admit testimonial evidence for a limited, non-hearsay purpose on a marginal issue. Here, Jordan’s testimony was about the core of the State’s case on the crime charged.
The transcript demonstrates why the State offered this testimony from the first witness in its case in chief: for the truth of Don Jordan’s statements that Lee used the card without authorization. The prosecutor hammered the key points on direct and redirect —Jordan was “adamant” that Lee did not have permission to use the card, and Jordan canceled the card because he “feared” exactly what the State had to prove actually happened. The circuit court erred as a matter of law by holding that Jordan’s death and the circumstances of his statements made Jordan’s words to Officer McGraw nontestimonial.
The Confrontation Clause error, however, is not the end of our analysis. We must also consider the Jordan/McGraw testimony solely as an evidentiary matter. If the testimony given was admissible for any purpose, then we must affirm unless Lee sought and was denied a proper limiting instruction which would have cured any prejudice. Ark. R. Evid. 105; Chisum v. State, 273 Ark. 1, 6-9, 616 S.W.2d 728, 730-32 (1981). We thus come back to the State’s contention that the Jordan/McGraw conversation was admissible to show the basis for action — the officer’s arrest of Lee. Dednam, 360 Ark. at 246-48, 200 S.W.3d at 879-81. Lee did not request a limiting instruction. The circuit court offered to give one; Lee thanked the court for doing so, but maintained that any such instruction would be ineffective to remedy the lack of cross-examination.
Before Officer McGraw testified about Jordan’s statements to him, the court told the jury that it could “put whatever reliability [ ] or credibility that you wish to make as far as the statements offered here, today, by this officer of someone who’s deceased.” Lee did not object to this defective instruction, did not abstract it, and does not seek reversal based on it. Cf. Lamb v. State, 372 Ark. 277, 285, 275 S.W.3d 144, 151 (2008) (failure to object to limiting instruction waives any alleged error about its efficacy). We therefore do not evaluate the limiting instruction in deciding this case. Instead, we quote it to show the contours of the alleged error that we do confront.
We hold that the Jordan/McGraw testimony as given was not admissible for any purpose. As Lee argued below, we agree that no limiting instruction would have tempered these repeated and strident words, untested by cross-examination, which the jury heard from Jordan through Officer McGraw about the central disputed issue in this case: Lee’s authority to use the credit card. Of course Officer McGraw should have been allowed to testify that he had called Jordan that night. And we do not hold that, with a proper limiting instruction, the circuit court would have abused its discretion by allowing the policeman to take the next step and testify simply that Jordan did not confirm Lee’s version of events. This is not the question presented. Unlike in Dednam, in this case we face no such limited testimony. Instead, the Jordan/McGraw testimony as given presents one of those instances where, in light of issues being tried, these untested statements from a central hut absent witness were so explosive that an admonition or other limiting instruction could never cabin their effect. Cf. Green v. State, 365 Ark. 478, 496, 231 S.W.3d 638, 652 (2006); Grummer v. Cummings, 336 Ark. 447, 450, 986 S.W.2d 91, 93 (1999).
Finally, the State suggests that any error here was harmless because the proof of Lee’s guilt was overwhelming. We are not persuaded. Absent Jordan’s testimony, the case against Lee is decidedly weaker. We cannot say with conviction that the Confrontation Clause error was harmless beyond a reasonable doubt. Sparkman v. State, 91 Ark. App. 138, 142, 208 S.W.3d 822, 825 (2005).
Reversed and remanded.
Hart and Bird, JJ., agree. | [
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Josephine Linker Hart, Judge.
This appeal is before us for udge. Michelle Clemmerson’s counsel attempted to submit a brief that did not comport with Arkansas Supreme Court and Court of Appeals Rule 4-2, and it was rejected by the clerk of this court. Clemmerson’s counsel then filed a motion requesting that we accept the brief with its deficiencies, which we denied. A brief was subsequently submitted in the no-merit format that was promulgated in Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Ark. Sup. Ct. R. 4-3(j)(l). That brief purported to identify and explain why all the adverse rulings made against Clemmerson would not support a non-frivolous appeal. However, in an unpublished opinion handed down on September 20, 2006, we ordered rebriefing because Clem-merson’s attorney failed to identify and discuss all the adverse rulings. We also strongly recommended that Clemmerson’s appellate counsel consider, as the basis for a merit brief, the issue of Clemmerson’s mental competence to assist her trial counsel.
Clemmerson’s counsel declined to follow our recommendation and again filed a no-merit appeal. In an unpublished opinion handed down on June 13, 2007, we again held that the brief submitted by Clemmerson’s counsel failed to comport with the dictates of Linker-Flores. Among other deficiencies, we found inadequate the discussion of the denial of a motion for a continuance for the purpose of allowing Clemmerson to undergo a psychological evaluation to ascertain her competence to assist her trial counsel. We ordered this latter point to be briefed in merit format. After substitution of appellate counsel, this issue has now been raised in merit format. On appeal, Clemmerson argues that the trial court erred in terminating her parental rights because denying her request for a psychological evaluation denied her right to due process. We affirm.
On April 7, 2007, ADHS first took Clemmerson’s newborn son, A.C., into custody pursuant to an allegation of inadequate supervision due to her marriage to Douglas Clemmerson, a convicted sex offender who was forbidden to be around children. After a probable-cause hearing held a week later, in which Clem-merson testified that, upon learning of his conviction, she removed her husband from the home, A.C. was returned to her custody. However, Clemmerson, who is legally blind, subsequently left A.C. in the care of a friend while she went to Oklahoma to be with her husband. ADHS again took the child into custody. In the probable-cause order, the trial court appointed an attorney ad litem for Clemmerson, “based on information presented at this hearing about the mother’s behavior and past history.” Subsequently, ADHS secured a dependency-neglect finding.
Clemmerson’s case moved on to termination of her parental rights (TPR). At the TPR hearing, Clemmerson’s court-appointed attorney ad litem and trial counsel moved for a continuance for the purpose of providing her with a psychological evaluation. Her guardian ad litem noted that he had made a similar request twice before. Without taking any evidence, the trial judge denied the request, declaring Clemmerson competent. The trial court subsequently terminated her parental rights to A.C.
On appeal, Clemmerson argues that denying her motion for a mental evaluation violated her right to due process. She analyzes the error in terms of it being a deprivation of procedural due process, substantive due process, and her competency to stand trial. We believe that only the latter, her competency to stand trial, was sufficiently preserved below.
As Clemmerson notes, our supreme court has extended to proceedings involving the termination of parental rights many of the same Fourteenth Amendment due-process safeguards as have been found to be constitutionally mandated in criminal trials. Jones v. Ark. Dep’t of Human Servs., 361 Ark. 164, 205 S.W.3d 778 (2005) (recognizing the right to effective assistance of counsel and adopting the same criminal-law standards for evaluating counsel’s performance as promulgated in Strickland v. Washington, 466 U.S. 668 (1984)); Linker-Flores, supra (holding that trial counsel file a no-merit brief comparable to that required by Anders v. California, 386 U.S. 738 (1967), for criminal cases); Baker v. Ark. Dep’t of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000) (holding that the principles that require payment of attorney’s fees for representing an indigent criminal defendant apply to TPR cases as well).
In criminal law, a trial court is required by statute to ensure a defendant’s mental competency. Ark. Code Ann. § 5-2-305 (Repl. 2006). Arkansas Code Annotated section 5-2-305(a)(1) states that the trial court shall immediately suspend proceedings if the defendant files notice that he will put his fitness to proceed in issue or if there is otherwise reason to doubt the defendant’s fitness to proceed. In Ball v. State, 278 Ark. 423, 646 S.W.2d 693 (1983), our supreme court noted that the purpose of the statute was to “prevent the trial of any person while incompetent to understand the nature of the procedures involved and to assist in the defense thereof.” The United States Supreme Court held that this basic tenet of due process is firmly rooted in our common law, tracing its origins back to Blackstone’s Commentaries. Drope v. Missouri, 420 U.S. 162 (1975). Accordingly, given our supreme court’s steadfast defense of a parent’s right in TPR cases to the same due-process protections afforded criminal defendants, logic demands that we accept the establishment of Clemmerson’s competence as a fundamental aspect of due process.
We are mindful from our review of the record that Clemmerson’s trial counsel never uttered the phrase “due process.” Nonetheless, Clemmerson’s “competence” has been an issue throughout this case. Indeed, as noted previously, the trial court found Clemmerson’s behavior to be so extreme as to warrant the highly unusual step of appointing for her an attorney ad litem as well as trial counsel. Accordingly, given that establishing the competence of a criminal defendant is so firmly rooted in his or her right to due process, we believe that it would be exalting form over substance to not find that this aspect of Clemmerson’s due process argument is preserved.
Nonetheless, we must affirm the trial court’s decision. While we believe that due process requires that a defendant in a TPR hearing must be “competent,” as a criminal defendant must be, our legislature has not specified the procedure that must be followed in protecting this right. While we noted previously that Arkansas Code Annotated section 5-2-305 applies to criminal trials, there is no equivalent statutory provision relating to TPR proceedings. Accordingly, we conclude that the statutory requirement that the trial judge immediately stop the proceeding and seek a competency determination is only procedure, and not a substantive right. While we believe that a defendant in a TPR hearing has the same due-process rights as a criminal defendant, the TPR defendant must bear the responsibility to ensure that the issue of his or her competency is timely raised to the trial court. Given that regular review hearings are scheduled in dependency/neglect cases, we do not think that this obligation is too onerous. In the instant case, as Clemmerson’s attorney ad litem argued to the trial court, Clemmerson’s “competence” was at issue from the very beginning. Yet, her attorney ad litem did not attempt to have her evaluated by a mental health professional. Moreover, her attorney ad litem failed to object when the trial judge made her competency finding without taking evidence. Accordingly, we must affirm.
Affirmed.
Miller, J., agrees.
Heffley, J., concurs.
We attempted to certify this case to the supreme court, however certification was denied.
Although Douglas Clemmerson was, at the time, A.C.’s legal father, Ronnie Godwin entered the case as A.C.’s putative father. Godwin was dismissed from the termination-of-parental-rights case and is not involved in this appeal.
In our previous opinions in this case, we determined that the issue of whether the trial court erred in refusing to order a psychological evaluation to assess Clemmerson’s “competence” was not wholly frivolous. These holdings necessarily presuppose that the issue was preserved. Because the preservation issue is law of the case, we need not address the issue further.
We note that Clemmerson’s counsel did not assert that she was unable to pay for a mental evaluation. Also, there is no indication that she was incarcerated or otherwise not at liberty to secure an evaluation. | [
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Karen R. Baker, Judge.
Appellant, Earnest Tate, appeals from a decision by the Pulaski County Circuit Court that granted appellee’s motion to dismiss because appellant’s complaint was filed outside the statute of limitations. On appeal, he argues that the trial court erred in applying the “occurrence rule” rather than the “discovery rule” and dismissing the case based upon the running of the statute oflimitations. We affirm.
The facts of this case are undisputed. On May 20, 1990, M.C. was born to Sandra Y. Carter. Because there was a question as to paternity, appellant gave a blood sample on May 28, 1991, in order to determine whether he was the biological father of M.C. The test results, dated June 26, 1991, showed that there was a 99.32% probability that appellant was the father of the child. The Pulaski County Circuit Court entered judgment on July 20, 1992, setting appellant’s child-support obligation at $65 per week and ordering him to pay the child’s medical insurance. Between 1992 and 2003, appellant paid approximately $46,000 in child support for M.C. However, in October 2003, the issue of paternity arose again. On October 17, 2003, appellant underwent a DNA test, which ultimately concluded the probability to be 0% that appellant was the father of the child.
On March 7, 2006, appellant filed a complaint against appellee (formerly known as Roche Biomedical Laboratories) alleging breach of contract and negligence. On April 11, 2006, appellee filed an answer, raising several affirmative defenses, including the affirmative defense of the statute of limitations. In addition, on April 11, 2006, appellee filed a Notice of Removal to the United States District Court, Eastern District of Arkansas. Appellee also filed a motion to dismiss in federal district court, and appellant filed a response to the motion. Because there was no subject-matter jurisdiction, as the amount in controversy requirement for diversity jurisdiction had not been satisfied, the case was remanded back to state court.
On July 26, 2007, a hearing was held in Pulaski County Circuit Court and arguments were presented by counsel. With both parties agreeing that there was a three-year statute of limitations pursuant to Ark. Code Ann. § 16-56-105, the single issue addressed by the attorneys was at what point the statute of limitations began to run. The trial court concluded that appellant’s claims were barred by the applicable statute of limitations and granted appellee’s motion to dismiss. Appellant filed a timely notice of appeal.
Our appellate courts review a trial court’s decision on a motion to dismiss by treating the facts alleged in the complaint as true and by viewing them in the light most favorable to the plaintiff. Branscumb v. Freeman, 360 Ark. 171, 200 S.W.3d 411 (2004). In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be liberally construed. See Preston v. Univ. of Ark. for Med. Sciences, 354 Ark. 666, 128 S.W.3d 430 (2003). Further, if there is any reasonable doubt as to the application of the statute of limitations, this court will resolve the question in favor of the complaint standing and against the challenge. Hackelton v. Malloy, 364 Ark. 469, 221 S.W.3d 353 (2006).
Arkansas Code Annotated section 16-56-105 provides that “[a]ll actions founded upon any contract, obligation, or liability not under seal and not in writing” must be commenced within three years “after the cause of action accrues.” The parties in this case agree that the three-year statute of limitations found in Ark. Code Ann. § 16-56-105 controls both appellant’s breach-of-contract and negligence claims. The sole issue below and on appeal is whether the statute oflimitations began to run in 1991 when the first paternity test was performed or in 2003 when the second paternity test revealed that appellant was not M.C.’s biological father.
Appellant acknowledges that Arkansas courts have generally applied the “occurrence rule.” The “occurrence rule” provides that an action accrues when the last element essential to the cause of action occurs, unless the wrongdoing is actively concealed. Morrow Cash Heating & Air, Inc. v. Jackson, 96 Ark. App. 105, 239 S.W.3d 8 (2006) (citing Ragar v. Brown, 332 Ark. 214, 964 S.W.2d 372 (1998)). However, appellant urges this court to follow the analysis in State v. Diamond Lakes Oil Co., 347 Ark. 618, 66 S.W.3d 613 (2002), where our supreme court applied the “discovery rule” in a case that did not involve professional malpractice. In Diamond Lakes, the court noted the unique facts and applied the discovery rule even though there was no active concealment of the injury, partly on the ground that the plaintiff could not have known either the cause or source of his injury until less than three years before the suit was filed. Appellant asserts that in the present case, there is no dispute that appellant did not discover the error in the paternity test until October 2003 when the second paternity test was performed. Therefore, it was not until October 2003 that appellant discovered that there was any wrongful conduct on the part of appellee.
Appellee asserts that this case is analogous to the professional malpractice cases, citing many of the cases that demonstrate that the court has adhered to the traditional “occurrence rule.” See Moix-McNutt v. Brown, 348 Ark. 518, 74 S.W.3d 612 (2002) (stating that for over one hundred years, Arkansas has followed the “occurrence rule” with respect to the commencement of the statute oflimitations in legal malpractice cases); Ragar v. Brown, 332 Ark. 214, 964 S.W.2d 372 (1998) (stating that Arkansas adheres to the “occurrence rule” in professional malpractice cases, which provides that a cause of action accrues when the last element essential to the cause of action occurs, unless the professional actively conceals the wrongdoing); Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991) (stating that in ordinary tort and contract actions, the statute of limitations begins to run upon the occurrence of the last element essential to the cause of action); Morrow Cash Heating & Air, Inc. v. Jackson, 96 Ark. App. 105, 239 S.W.3d 8 (2006) (stating that the occurrence rule applies in professional malpractice cases, providing that a cause of action accrues when the last element essential to the cause of action occurs, unless the professional actively conceals the wrongdoing). Appellee contends that the court’s reasoning behind adhering to the “occurrence rule” in previous cases is applicable to the case at hand. In the professional malpractice cases, the court considers the fact that if the court were to adopt the “discovery rule” in these cases, professionals would find themselves subject to claims arising from services performed many years ago. Moreover, in reliance on the court’s prior holding that the “occurrence rule” applies, many professionals retain records for only three years. In the case at hand, it appears that appellee only kept records for seven years. Therefore, there would be no records and possibly no witnesses upon which to defend a claim from a paternity test conducted in 1991.
As stated in Moix-McNutt, supra, “Arkansas has utilized the ‘occurrence rule’ since 1877, and ‘[t]his court has expressly declined to retroactively change the legal malpractice occurrence rule to any of the other approaches. The General Assembly’s silence for over 100 years indicates tacit approval of this court’s statutory interpretation.’ ” (quoting Ragar, 332 Ark. at 223, 964 S.W.2d at 377).
At the hearing, appellant abandoned any claim of fraudulent concealment. Without any fraudulent-concealment claim, there can be no claim outside the three-year statute of limitations. We affirm the trial court’s decision to grant appellee’s motion to dismiss.
Affirmed.
Robbins and Glover, JJ., agree. | [
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KAREN R. BAKER, Associate Justice
b The Arkansas Constitution provides that “[t]he Supreme Court shall be composed of seven Justices.” However, in Smith v. Wright, Case No. CV-14-427, in violation of our constitution, there are eight justices poised to decide that appeal. Consequently, the question presented in this case is: In accordance with the Arkansas Constitution and our law, which justices properly constitute the Arkansas Supreme Court to decide the case of Smith v. Wright, Case No. CV-14-427? Specifically, the question is whether Justice Rhonda K. Wood or Special Justice Robert W. McCorkindale is one of the seven justices required by the Arkansas Constitution, amendment 80, to constitute the Arkansas Supreme Court in Case No. CV-14-427? The question before us is neither trifling nor insignificant. Instead, it is a question of major constitutional significance; therefore, it became necessary- to take the issue as a case so that it may be properly decided. After a careful examination of our constitution, |2our statutes, and our case law, we conclude that the answer to this question is clearly and unambiguously that Justice Rhonda K. Wood, having been duly elected by the people of this state and having begun her eight-year term as a justice on the Arkansas Supreme Court on January 1, 2015, is the qualified justice invested with the judicial power to participate in Case No. CV-14-427 and that Special Justice Robert W. McCorkindale’s constitutional authority to participate in Case No. CV-14-427 expired December 31, 2014.
Factual and Procedural Background
The history of the matter before us begins with the companion case of Smith v. Wright, Case No. CV-14-427, wherein the appellant, Smith (hereinafter “the State”) appealed the Pulaski County Circuit Court’s order in favor of the appellee, Wright, declaring amendment 83 of the Arkansas Constitution and related statutes unconstitutional. Several county clerks are also appellants in this case. Here, appellants, White, Lonoke, Conway, Saline, Faulkner, and Washington County Clerks (hereinafter ‘White County”), filed responses regarding the instant case, which will be considered accordingly. The merits of Smith v. Wright, Case No. CV-14-427 are not at issue in the matter before us in this opinion.
On May 15, 2014, an appeal was lodged in Smith v. Wright, Case No. CV-14-427. |oOn September 10, 2014, Justice Cliff Hoofman recused from the matter. On October 2, 2014, then Governor Mike Beebe appointed Robert W. McCorkindale to serve as special justice in place of justice Hoofinan. On October 13, 2014, we granted Wright’s request for oral argument. On October 23, 2014, a majority of this court, with Special Justice McCorkin- dale joining the majority, granted Wright’s motion to expedite the appeal, with Justice Hart dissenting and Justice Hoofman not participating. On October 28, 2014, oral argument was scheduled by the Supreme Court Clerk at the direction of Chief Justice Jim Hannah, to be held on November 20, 2014. Thereafter, the parties timely filed their briefs. Additionally, eight ami-cus briefs were filed. Further, prior to the November 20, 2014 oral argument, pursuant to Rule 5-l(j) of the Arkansas Supreme Court Rules, the parties filed multiple notices of additional authority that they intended to rely on during oral argument for a combined total of approximately fifteen additional cases.
On November 20, 2014, the court held oral argument. In accordance with the supreme court’s previously adopted and published calendar, the 2014 term concluded on December 18, 2014 without an opinion in Smith v. Wright, Case No. CV-14-427 having been issued. On December 31, 2014, Justice Donald Corbin and Justice Cliff Hoofman completed their terms on the Arkansas Supreme Court. Prior to the end of their terms, Chief Justice Hannah, approved a statement for release to the press by Stephanie Harris, Supreme Court Communications Counsel, that it was this court’s custom and practice that a special justice who is appointed to replace a justice who had recused and whose term had ended, would continue to participate in the case. We note that although this statement was released to the press, after a diligent and exhaustive search of this court’s case law and docket, we have been Dutiable to find a single case in which a special justice continued to serve on a case when an opinion had not been delivered by the end of the term of the disqualified justice who had been replaced by a newly elected, qualified justice. Accordingly, this court does not have a settled custom or practice to apply in this situation.
On January 1, 2015, Justices Rhonda K. Wood and Robin F. Wynne, having been duly elected to the Arkansas Supreme Court, began their eight-year terms on the court. Justice Wood replaced Justice Hoofman, and Justice Wynne replaced Justice Corbin. The 2015 Supreme Court first convened on January 6, 2015, for the investiture of Justice Wood, Justice Wynne, and Justice Karen R. Baker, whose previous term had expired but who had been elected to a subsequent eight-year term. The first conference of the newly constituted court was held on Janu ary 7, 2015. At that time, there were a total of four eases, which had been previously submitted to the court in 2014 but were removed from submission when the | sterm ended without a mandate having been issued in those cases. In two of those cases, a special justice had been appointed due to the disqualification of Justice Hoofman.
At the January 7, 2015 conference, Justice Wood expressed her belief that it was her constitutional duty to participate in any matter before the court, unless she had a reason to recuse. Arkansas Code of Judicial Conduct, Rule 2.7, “Responsibility to Decide,” provides: “A judge shall hear and decide matters assigned to the judge, except when disqualification is required by Rule 2.11 or other law.” The comment to the rule provides:
Judges must be available to decide the matters that come before the court. Although there are times when disqualification is necessary to protect the rights of litigants and preserve public confidence in the independence, integrity, and impartiality of the judiciary, judges must be available to decide matters that come before the courts. Unwarranted disqualification may bring public disfavor to the court and to the judge personally. The dignity of the court, the judge’s respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed upon the judge’s colleagues require that a judge not use disqualification to avoid cases that present difficult, controversial, or unpopular issues.
See also Rule 2.11, “Disqualification.”
Justice Wood did not recuse from either of the cases in which a special justice had been previously appointed due to Justice Hoofman’s recusal. See infra n.8. Special Justice McCorkindale participated by phone and maintained that his appointment as a special justice in Case No. CV-14-427 continued. Id. After researching the issue, the court unanimously resolved to notify the parties in Case No. CV-14-427 by letter from Chief Justice Hannah .on behalf of the court that Justice Wood and Special Justice McCorkindale both asserted that they should participate in the case when it is submitted to the court. Id. Despite this initial unanimous agreement, no letter was sent, and the matter languished until January 28, 2015. Id.
|fiOn January 28, 2015, the State filed a motion for a second oral argument. In the motion, the State requested that the court schedule a second oral argument and asserted that three justices had not been able to attend the first oral argument on November 20, 2014. The State further contended that “Former Justice Cliff Hoofman recused from this case and was replaced by Special Justice Robert W. McCorkindale.... Justice Hoofman’s term has ended, and ... Justice Rhonda K. Wood replaced Justice Hoofman on the Court. Justice Wood was not present at the oral argument on November 20, 2014.” On January 27, 2015, Wright filed her response to the motion for a second oral argument and urged this court to deny the motion as unnecessary. Wright asserted that “Special Justice McCorkindale was specifically appointed by the Governor as a Special Justice to hear ‘this specific case.’ ... Special Justice McCorkindale was present and participated in the oral argument held on November 20, 2014. Special Justice McCorkindale was appointed specifically to preside over this case.”
On February 5, 2015, because the parties had taken competing positions regarding the justices who would serve on Case No. CV-14-427, citing to Hill v. State, 362 Ark. 659, 210 S.W.3d 123 (2005), a per curiam was issued ordering the parties to provide any authority to support their respective positions regarding the justices who should preside over the appeal. Smith v. Wright, 2015 Ark. 38, 2015 WL 1655476. Additionally, we note that Smith, 2015 Ark. 38, 2015 WL 1655476, was issued unanimously |7by this court, including Chief Justice Hannah and Justice Paul Danielson, who have both now recused from this matter. On March 18, 2015, after the parties had filed timely responses to the per curiam, with neither Justice Wood nor Special Justice McCor-kindale participating, the court unanimously decided to take up the matter as a separate case. Despite this unanimous decision, no per curiam order was issued by the clerk at that time. See infra n.8. Thereafter, on April 2, 2015, the court decided to take the responses to Smith, 2015 Ark. 38, 2015 WL 1655476 as a separate case with only Justice Danielson dissenting and neither Special Justice McCor-kindale nor Justice Wood participating. Id. The order stated in pertinent part:
THE ARKANSAS SUPREME COURT ISSUED THE FOLLOWING ORDER TODAY IN THE ABOVE STYLED CASE:
RESPONSES TO THE COURT’S PER CURIAM ORDER OF FEBRUARY 5, 2015, ARE TAKEN AS A NEW CASE. SIMULTANEOUS BRIEFING DUE IN TEN DAYS. DANIELSON, J., DISSENTS. NEW CASE NO. IS CV-15-227.
One week later, on April 8, 2015, Chief Justice Hannah and Justice Danielson ^simultaneously recused from this case. Chief Justice Hannah’s recusal letter stated in its entirety:
' After careful consideration and with much regret, I must recuse from Smith v. Wright, No. CV-15-227. I believe that a majority of this court has created out of whole cloth an issue to delay the disposition in Smith v. Wright, No. CV-14-427.
Following Justice Cliff Hoofman’s disqualification in Smith v. Wright, No. CV14-427, Governor Mike Beebe appointed the Honorable Robert W. McCorkindale “as Special Associate Justice of the Arkansas Supreme Court to participate in this specific case.” The governor’s appointment power conferred by the Arkansas Constitution is a matter protected from judicial interference by the separation-of-powers doctrine. This court cannot by judicial fiat usurp the power of the executive branch.
When I took the oath of the office, I swore to uphold the Constitutions of the United States and the State of Arkansas. Further, I am obligated to follow the Arkansas Code of Judicial Conduct. Canon 1 mandates that a judge shall uphold and promote the independence, integrity, and impartiality of the judiciary. The oath of office and my duties pursuant to the Code of Judicial Conduct require that I recuse in Smith v. Wright, No. CV-15-227. To be clear, I do not recuse from the appeal in Smith v. Wright, No. CV-14-427.
| ^Although Chief Justice Hannah re-cused and asserted that “a majority of this court has created out of whole cloth an issue to delay the disposition in Smith v. Wright, No. CV-14-427,” the docket unambiguously reflects that Chief Justice Hannah joined in the decision to take the matter as a case on April 2, 2015, and then recused one week after joining that decision. Moreover, it is patently clear that the appeal in Case No. CV-14-427 cannot move forward without first deciding which justices will hear the appeal, and no other action is possible until the issue is settled. Therefore, the purpose of the present action is to resolve this issue so that the underlying case can be determined and not for the purpose of delay. See supra n.8.
On April 8, 2015, Wright filed a motion to withdraw her response to our February 5, 2015 per curiam, and on April 13, 2015, she filed an amended motion to withdraw her response to our per curiam. In the amended motion, she requested that this court find the issue moot and dismiss this case. On April 13, 2015, the State and White County timely filed their respective briefs, and the issue is now properly before this court.
Law and Analysis
hnWe now consider the merits of this case. The narrow issue presented is to determine which justices will serve on Smith v. Wright, Case No. CV-14-427.
First, we turn to Amendment 80 to the Arkansas Constitution, which governs the judicial branch and provides in pertinent part:
§ 1. Judicial Power
The judicial power is vested in the Judicial Department of state government, consisting of a Supreme Court and other courts established by this Constitution.
§ 2. Supreme Court
(A) The Supreme Court shall be composed of seven Justices, one of whom shall serve as Chief Justice. The Justices of the Supreme Court shall be selected from the State at large.
§ 12. Temporary Disqualification of Justices or Judges
No Justice or Judge shall preside or participate in any case in which he or she might be interested in the outcome, in which any party is related to him or her by consanguinity or affinity within such degree as prescribed by law, or in which he or she may have been counsel or have presided in any inferior court. § 13. Assignment of Special and Retired Judges
(A) If a Supreme Court Justice is disqualified or temporarily unable to serve, the Chief Justice shall certify the fact to the Governor, who within thirty (30) days thereafter shall commission a Special Justice, unless the time is extended by the Chief Justice upon a showing by the Governor that, in spite of the exercise of diligence, additional time is needed.
§ 16. Qualifications and Terms of Justices and Judges
(A) Justices of the Supreme Court and Judges of the Court of Appeals shall have been |nIicensed attorneys of this state for at least eight years immediately preceding the date of assuming office. They shall serve eight-year terms.
(Emphasis added.)
Also relevant to this case is Ark.Code Ann. § 21-1-102(a)(1) (Repl. 2004) “Terms; certain officers” which provides, “The terms of office of the Justices of the Supreme Court ... shall begin on January 1 following their election.”
With these constitutional and statutory provisions in mind, we turn to the issue before us and recount the parties’ positions. Relying on amendment 80, §§ 1, 2, 13, 16, and 19, the State asserts that the case should be decided by the seven justices who are currently serving terms on the court, because only the justices currently serving terms on the court possess the constitutional authority to decide cases in 2015. The State contends that pursuant to amendment 80, the appointment of a special justice is “temporary” and the special justice serves for only so long as that sitting justice is disqualified. Here, the State asserts that the disqualification, Justice Hoofman’s recusal, ended when Justice Hoofman was replaced by a newly elected justice. In sum, the State contends that pursuant to amendment 80, there is no longer a disqualification, and that it is Justice Wood, not Special Justice McCorkindale, who should participate in the court’s disposition of Smith v. Wright, Case No. CV-14-427.
The State further contends that it has not identified a rule or statute that governs this |1zmatter. Although Rule 1-7 of the Arkansas Supreme Court Rules calls for this court to render decisions in accordance with “existing practice,” the State is unaware of any existing practice regarding the issue presented. Finally, citing to Cates v. Wunderlich, 210 Ark. 724, 197 S.W.2d 482 (1946), the State contends that the date of the opinion controls, and the justices who participate in the opinion must be sitting justices of the court on the date the opinion is rendered.
White County likewise contends that amendment 80 controls and asserts that §§ 13 and 16 answer the issue presented. White County contends that, pursuant to amendment 80, § 13, the constitution’s preference is for cases to be decided by the elected justice and allows for assignment of a special justice for the recusing justice but that the appointment does not continue when there is a sitting justice who has not been disqualified. Stated differently, White County contends that Special Justice McCorkindale’s appointment expired when Justice Hoofman’s term ended, and that Justice Wood, as the sitting elected justice, should serve on the case. Further, White County contends that amendment 80, § 16 is a “mandatory constitutional provision that effectuates the will of the People of Arkansas by allowing Justices they elect to serve definite terms,” and must be followed.
Finally, in her amended motion to withdraw her response, Wright does “not wish to take a position upon which Justices should decide this case.... [Wright] specifically waives any objection to whatever determination this Court might make itself as to the appropriate justices to decide the matter.”
Turning to our review of the law, when interpreting a statute, “we construe it just as 11 ait reads, giving the words their ordinary and usually accepted meaning in common language. We construe the statute so that no word is left void, superfluous, or insignificant, and we give meaning and effect to every word in the statute, if possible.” DaimlerChrysler Corp. v. Smelser, 375 Ark. 216, 222, 289 S.W.3d 466, 472 (2008). When interpreting the constitution, “our task is to read the laws as they are written, and interpret them in accordance with established principles of constitutional construction.... Language of a constitutional provision that is plain and unambiguous must be given its obvious and common meaning.” Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 720, 120 S.W.3d 525, 537 (2003) (internal citations omitted). Additionally, we have interpreted, the word “shall,” to mean mandatory and require mandatory compliance. See, e.g., Campbell v. State, 311 Ark. 641, 846 S.W.2d 639 (1993); Loyd v. Knight, 288 Ark. 474, 706 S.W.2d 393 (1986).
With these standards in mind, we review the applicable laws. First, Ark.Code Ann. § 21-1-102(a)(1) provides in plain and unambiguous language that the terms of office of the Justices of -the' Supreme Court shall begin on January 1 following their election. Accordingly, here, January 1, 2015. Second, the plain language of amendment 80, § 16, provides that Justices of the Supreme Court shall serve eight-year terms. Here, January 1, 2015-December 31, 2022. Third, amendment 80, § 13(A), in plain and unambiguous language provides that if a Supreme Court Justice is disqualified or temporarily unable to serve the Chief Justice shall certify the fact to the Governor for commission of a Special Justice. However, because Justice Wood is not disqualified or temporarily unable to serve, this provision is inapplicable to the facts before us.
| uHere, based on the plain and unambiguous language of the statute at issue and the constitutional provisions, the mandatory terms of Ark.Code Ann. § 21-1-102(a)(1) and the constitution unequivocally dictate that the justices currently sitting on the court shall serve on Wright v. Smith, Case No. CV-14-427. Although Wright withdrew her response, she had previously taken the position that Special Justice MeCorkindale should remain on the case. However, such a position would stand in violation of the Arkansas Constitution. Our constitution provides for the elected justices of this court to determine pending appeals. Special justices are temporary and their appointments cannot be used to thwart the clear language and intent of our constitution.
Further, in support of our interpretation is this court’s holding in Caldwell’s Adm’r v. Bell & Graham, 6 Ark. 227 (1845). In Caldwell, the issue presented was the same as in the current case: whether a special judge, commissioned by the governor, retains constitutional authority when the reason for the appointment expires. In Caldwell, we held that the special judge’s commission expired and explained,
The ... 6th article' of the Constitution provides for the appointment of special judges for the trial of such causes as the regular judges are disqualified from trying by reason of any of the disabilities therein enumerated. That provision is designed to prevent a failure or delay of justice for want of officers, competent and qualified, to sit for the trial and determination of such causes, without partiality or prejudice.
Caldwell, 6 Ark. at 233.
This court in Caldwell then questioned, given the purpose of the provision in the constitution, whether such appointments should continue until the final determination of the causes, even if the need for a special judge had ceased. The court specifically posed and Unanswered the same question presented in this case:
Was it intended that a special judge should finally dispose of the causes which he might be appointed to try, although the regular judge who was incompetent to sit in the cases should go out of office, and a successor be appointed, and who should in every respect be qualified to try the causes which the special judge might be appointed to try? The obvious reasons for making the provision for such special appointment induce us to answer in the negative.
Id. at 234.
The Caldwell court went on to explain its reasoning as follows:
[T]he provision for the appointment of special judges, only in cases where the regular judges should be disqualified for trial thereof under the Constitution, clearly prove that all matters in controversy were intended to be determined by the regular judges when no disability or disqualification rested upon them; and that, therefore, the conclusion legitimately follows, that where the disability upon the part of the regular judge should be removed by a change of the incumbent upon the bench, or otherwise, the reasons for the special appointment having ceased, it was intended that the appointment itself should cease. The special judge is only appointed to perform duties which the regular judge is the proper officer to perform, but who, for good and sufficient reasons, is deemed by the Constitution an improper person to perform them. We are, therefore, clearly of opinion, that the commission of the special judge expires with the reasons which caused it to be issued, whether by the resignation, expiration of the tern of service of the judge in whose place he was appointed to act, or otherwise. The commission of the special judge is but the incident to that of the regular officer and must follow and expire with its principal[.]
It never was intended that there should be two judges, in every respect competent and qualified, under the constitution, to preside in the same court, for the trial and determination of the same cause at the same time.
Id. at 234-35 (emphasis added).
Caldwell supports our interpreta tion of amendment 80. Further, decisions | ^interpreting a provision of an earlier constitution must be deemed to have been adopted when the same provision is incorporated into a later constitution. Mo. Pac. Transp. Co. v. George, 198 Ark. 1110, 133 S.W.2d 37 (1939). Amendment 80 and the language of the 1836 Constitution are in substance the same; therefore, Caldwell is directly on point.
|17Finally, Rule 1-7, “Practice Absent a Specific Rule,” of the Rules of the Arkansas Supreme Court, provides in its entirety: “In cases where no provision is made by statute or other rule, proceedings in the Court shall be in accordance with existing practice.” As previously stated, no such custom or procedure exists. And even if it did exist, any such practice must comport with our law and our constitution.
We also take this opportunity to address the court’s per curiam opinion in Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995). Although not on point, because the decision was based on waiver and no constitutional question was raised or discussed, we address Neal because it contains a clear misstatement of the law. In Neal, in a Phillips County disbarment proceeding, James A. Neal, Executive Director of the Supreme Court Committee on Professional Conduct, brought suit against Wilson. At the outset of the proceedings, the two circuit court judges in the district both recused from the proceeding. Pursuant to Act 496 of 1965, on February 18, 1992, the Chief Justice assigned Circuit Judge Lance Hanshaw to the matter. On March 3, 1993, Judge Hanshaw entered an order dismissing the action and |1son April 18, 1994, we reversed. On remand, on April 20, 1994, Hanshaw requested another judge to be assigned to hear the case. On May 3, 1994, the Chief Justice appointed Circuit Judge John Line-berger to the matter and notified the parties, the circuit judges in that district, and the Phillips County Circuit Clerk of the appointment. However, the order was not filed until September 14, 1994. In December 1994, Wilson moved for Lineberger’s disqualification, asserting that a new circuit judge had taken office who had not recused in the case and that the proceeding automatically reverted to the new circuit judge. On January 5, 1995, Judge Lineberger denied Wilson’s motion and ultimately set a trial date for June 13, 1995.
In May 1995, Wilson notified Mr. Neal that the new 1st Judicial Circuit Judge, Judge haOIly Neal, had two dates to try Mr. Neal’s case. Judge Neal set a hearing; Mr. Neal appeared and challenged Judge Neal’s jurisdiction, asserting that Judge Lineberger retained jurisdiction. Judge Neal ruled that he had jurisdiction and decided the case on the merits.
Mr. Neal filed a petition for writ of certiorari with this court alleging that all orders by Judge Oily Neal were void because Judge Lineberger, the appointed judge, maintained jurisdiction. This court agreed with Mr. Neal and granted the writ of certiorari. In a per curiam opinion, with two justices dissenting, the court explained its holding:
Why respondent failed to question Judge Lineberger’s assignment earlier is unclear. Regardless, we emphasize the fact that the record before this court at the time of Judge Lineberger’s assignment reflects that the circuit judges in the 1st Judicial District had recused from this case, and no party had offered any motion, objection or information to the contrary. It is the parties’ or trial court’s responsibility to apprise this court as' to whether an assignment is necessary under Act ⅛96. Once that assignment is made, that responsibility continues. Clearly, it is not this court’s task, on its own volition, to discover or monitor whether the circumstances have changed to warrant the termination of an assignment or reassignment. The mere fact that a new circuit judge had been elected in the 1st Judicial Circuit after Judge Hanshaw’s and before Judge Lineberger’s assignments did not, in itself, suggest the new circuit judge had not recused from trying this case.
Neal, 321 Ark., at 74-75, 900 S.W.2d at 179-80 (1995) (emphasis in original).
Without citation to any authority, the court granted the writ. The Neal opinion stands in violation of the constitution and our interpretation of amendment 80. Elected judges and justices serve unless they are disqualified. See amendment judge had been elected, who had not re-cused, the assignment of a special judge would have terminated, or the assignment of a different special judge would not have been made. While this supports our conclusion that a special judge’s appointment ends when the reason for the disqualification is removed 12nby the expiration of the term of the recusing judge, we cannot agree that disqualification of the elected judge is presumed. Rather, a duly elected judge serves unless that judge recuses or is disqualified. Thus, to the extent Neal holds otherwise, we overrule it. 80, § 13(A)-(C). Neal seems to indicate that had the court been advised that a new
Finally, here, the governor exercised his authority to appoint Special Justice McCorkindale to replace Justice Hoofman, who had recused. Yet, at the end of his term, Justice Hoofman was replaced by an elected justice, and Special Justice McCor-kindale’s appointment expired. There is no separation-of-powers issue. We also note that despite Chief Justice Hannah’s assertion in his recusal letter that addressing the issue in this case is an attempt to “by judicial fiat usurp the power of the executive branch,” the parties themselves 121 do not argue a separation-of-powers issue.
In sum, the decision to take the question of which justices constitute the court in Smith v. Wright, Case No. CV-14-427 as a separate case was made because that appeal cannot move forward until this fundamental question has been resolved. Had this court not taken action to resolve this fundamental question, the delay in deciding the appeal in Smith v. Wright, Case No. CV-14-427, would have been interminable. As is plain from this opinion, the answer to the question of which justices are to decide the primary appeal in Smith v. Wright is compelled by our constitution and our case law.
Last, we must note that our decision in this opinion supports the will of the people of the State of Arkansas. In November 2000, the electors in Arkansas approved amendment 80 by a vote of 431, 137 to 323, 647. See amendment 80, Publisher’s Notes. Further, in May 2014, the electors of Arkansas elected Justice Rhonda K. Wood to serve an eight-year term on the Arkansas Supreme Court, commencing on January 1, 2015. Thus, the people of Arkansas are empowered by our constitution to elect the justices of this court. Those justices are obligated to hear and decide all cases in which they have no disqualification.
Question answered; Wright’s motion to withdraw response is moot; Wright’s amended motion to withdraw response is granted; Wright’s motion to dismiss is denied.
Special Justices Betty C. Dickey and Shawn A. Womack join.
Special Justice Brett D. Watson concurs.
Hannah, C.J., and Danielson and Wood, JJ., not participating.
. Although a portion of the "Factual and Procedural Background” predates the appointments of Special Justices Dickey and Womack to serve on this case and is outside their personal knowledge, they agree that this section of the opinion is necessary to establish the court’s jurisdiction in this matter.
. In an effort to be abundantly clear to the reader, this opinion has no bearing on the merits of Case No. CV-14-427, and this court will not render any opinion on that case in this opinion.
. In Unborn Child Amendment Comm. v. Ward, a special justice remained on the case after a two-and-one-half year delay that resulted when this court, after oral argument, stayed the appeal pending resolution on appeal of a federal court’s order ruling that the constitutional amendment under consideration in Ward was unconstitutional. See Unborn Child Amendment Comm. v. Ward, 328 Ark. 454, 943 S.W.2d 591 (1997); Unborn Child Amendment Comm. v. Ward, 318 Ark. 165, 883 S.W.2d 817 (1994). In that case, the justice who had recused was still on the court when the case was submitted following the stay. Also, in Lake View School District No. 25 of Phillips County v. Huckabee, Case No. 01-836, a special justice continued to serve after the justice who had disqualified was reelected to a subsequent eight-year term; but in that case the elected justice remained disqualified from serving. Such is not the case here in Case No. CV-14-427. Finally, we note that in isolated incidents, special justices have participated in the consideration of a petition for rehearing, after the disqualified justice was replaced by a newly elected justice. However, in those limited cases, after an opinion was delivered, the elected official assented to the special justice’s continuing service' through the petition for rehearing, and no constitutional challenge was presented. See, e.g., Kimbrell v. McCleskey, Case No. 11-1289. However, despite the timing of the appeal or the elected justice's agreement to the special justice’s continued service, based on our decision here, that practice shall no longer continue because it violates our constitution.
. Chief Justice Hannah did not attend the oral argument because he was attending an out-of-state court conference, but counsel was informed that he would participate and would have access to the oral-argument video. Justices Wynne and Wood were not on the court at that time.
.We note that Justice Danielson stated in his recusal letter:
I believe that a majority of this court has manufactured a case where no case or controversy exists. There has been no motion by any party challenging the qualification of Justice Robert McCorkindale to continue to decide the appeal in Smith v. Wright, No. CV-14-427.
However, the record clearly demonstrates that the parties took competing positions on which justices were to serve on this case and the court, including Justice Danielson, unanimously ordered formal responses to the issue presented.
. We note that a record of the court's decision on March 18, 2015, is contained in the case record pursuant to Administrative Order No. 19 and maintained by the office of the Supreme Court Clerk.
. The docket reflects that recusal letters were filed at 3:03 p.m. and 3:04 p.m.
. The procedural background provided in this case is in part a response to Chief Justice Hannah's and Justice Danielson's April 8, 2015 recusal letters accusing the majority of this court of delaying disposition in Case No. CV-14 — 427. Pursuant to Rule 2.10(E) of the Code of Judicial Conduct, a judge is permitted to respond to allegations regarding his or her conduct in a matter. Rule 2.10 of the Code of Judicial Conduct, “Judicial Statements on Pending and Impending Cases,” provides in pertinent part:
(A) A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing.
(E) Subject to the requirements of paragraph (A), a judge may respond directly or through a third party to allegations ‘in the media or elsewhere concerning the judge’s conduct in a matter.
(Emphasis added.) See Recusals Letters from Chief Justice Hannah and Justice Danielson, supra, at 7 n.5 & 8.
. However, despite Wright’s position, any action by a special justice once his or her power has terminated would be void. See Hyllis v. State, 45 Ark. 478 (1885) ("[C]onsent, either expressly or tacitly given, cannot impart judicial power.”).
. We also note that pursuant to Ark.Code Ann. § 16-11-101 (Repl. 2010) “The Supreme Court of Arkansas shall begin its annual term on the second Monday of September in each year and may recess and adjourn from time to time as the court orders.”
. Our opinion in Caldwell is consistent with case law from other jurisdictions. See also Coles v. Thompson, 7 Tex.Civ.App. 666, 27 S.W. 46 (1894) (holding that the powers of the special judge terminate when the disqualified judge had been regularly succeeded in office by another judge because the occasion for the special judge’s existence had ceased); see also State ex rel. Johnson v. Judges of Circuit Court of Appeals for Fourth Circuit, 21 So. 520 (La.1897) (holding that under a provision of the Constitution, a member of the bar had been selected to sit in a cause in which the judges of the Court of Appeals were disqualified cannot act after one of the disqualified judges has retired, and his successor has entered on the duties of the office.)
. The 1836 Constitution provided:
No judge shall preside on the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by affinity or consanguinity within such degrees as may be prescribed by law, or in which he may have been of counsel or have presided in an inferior court, except by consent of all the parties. In case all or any of the judges of the Supreme Court shall be thus disqualified from presiding on any cause or causes, the court or judges thereof shall certify the same to the Governor of the State, and he shall immediately commission specially the requisite number of men of law knowledge for the trial and determination thereof. The same course shall be pursued in the Circuit and other inferior courts as prescribed in this section for cases in the Supreme Court. Ark. Const,. of 1836, art. VI, § 12.
Amendment 80, §§ 12-13 provides:
No Justice or Judge shall preside or participate in any case in which he or she might be interested in the outcome, in which any party is related to him or her by consanguinity or affinity within such degree as prescribed by law, or in which he or she may have been counsel or have presided in any inferior court. Ark. Const. amend. 80, § 12.
If a Supreme Court Justice is disqualified or temporarily unable to serve, the Chief Justice shall certify the fact to the Governor, who within thirty (30) days thereafter shall commission a Special Justice, unless the time is extended by the Chief Justice upon a showing by the Governor that, in spite of the exercise of diligence, additional time is needed. Ark. Const. amend. 80, § 13(A).
.Act 496 of 1965 § 1 provided in pertinent part: "The Chief Justice of the Arkansas Supreme Court of Arkansas ... may assign, reassign and modify assignments of judges of the circuit court ... upon a temporary basis.” Act 496 is now codified at Ark.Code Ann. § 16—10—101(b)(1) and was in effect when Neal was decided:
(b)(1) Under rules prescribed by the Supreme Court, the Chief Justice may require reports from all courts of the state and may issue such orders and regulations as may be necessary for the efficient operation of those courts to ensure the prompt and proper administration of justice and may assign, reassign, and modify assignments of circuit and district judges of the circuit court, the chancery court, and the probate court to hold, upon a temporary basis, regular or special sessions for the transaction of civil or criminal business within any other such court.
See Act 760 § 1, 1989.
In 2003, Ark.Code Ann. § 16—10—101(b)(1) was modified by Act 1185 to remove chancery and probate courts from the subsection and a portion of the subsection was struck as follows:
(b)(1) Under rules prescribed by the Supreme Court, the Chief Justice may require reports from all courts of the state and may issue such orders and regulations as may be necessary for the efficient operation of those courts to ensure the prompt and proper administration of justice and may assign, reassign, and modify assignments of circuit and district judges of the circuit court, the chancery-cour-fr-and-the probate court to hold, upon a temporary basis, regular or special sessions for the transaction of civil or criminal business within any other such court.
. Although the concurring opinion would not overrule Neal, because “Neal had nothing to do with special justices under Amendment 80 or its predecessor or the length of special justices' terms,” that position is fatally flawed. Regardless of whether the Neal opinion predates the passage of amendment 80 in 2000 or the reliance on Ark.Code Ann. § 16 — 10— 101(b)(1), Neal is inconsistent with the constitution that was in effect at the time of that decision in 1995 and is a misstatement of our law. At the time Neal was rendered, our constitution, article 7, § 20, "Disqualification-of judges — Grounds” provided:
No judge or justice shall preside in the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by consanguinity or affinity, within such degrees as may be prescribed by law; or in which he may have been of counsel or have presided in an inferior court.
In Neal, the circuit judge was not disqualified as required by art. 7, section 22, for an appointment of a special judge. Therefore, no appointment was necessary, this court did not have jurisdiction or authority to appoint Judge Lineberger and likewise this court did not have jurisdiction to void the actions of an elected circuit court judge, Judge Neal. Accordingly, we must overrule Neal.
. Indeed, then Governor Mike Beebe's official appointment states that Special Justice McCorkindale was appointed to replace Justice Hoofman on Case No. CV-14-427. This court’s decision in no way usurps the authority exercised by then Governor Beebe in appointing Special Justice McCorkindale. | [
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PER CURIAM
bin 1989, petitioner Dennis J. Ventress was found guilty by a jury of capital felony murder and sentenced to life imprisonment without the possibility of parole. We affirmed. Ventress v. State, 303 Ark. 194, 794 S.W.2d 619 (1990). Petitioner subsequently proceeded in the trial court with a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 36.4 (1989). The petition was denied, and this court affirmed the order. Ventress v. State, CR-97-870, 1998 WL 741038 (Ark. Oct. 22, 1998) (unpublished per curiam).
On February 19, 2015, petitioner filed in this court the pro se petition that is now before us seeking leave to proceed in the trial court with a petition for writ of error coram nobis. After a judgment has been affirmed on appeal, a petition filed in this court for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram | ¿nobis only after we grant permission. Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001) (per curiam).
A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Cromeans v. State, 2013 Ark. 273, 2013 WL 3179379 (per curiam). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. McDaniels v. State, 2012 Ark. 465, 2012 WL 6218480 (per curiam). We have held that a writ of error coram nobis is available to address certain errors that are found in one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. Charland v. State, 2013 Ark. 452, 2013 WL 5968924 (per curiam) (citing Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per curiam)). The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the circuit court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. Chestang v. State, 2014 Ark. 477, 2014 WL 6065634 (per curiam); McFerrin v. State, 2012 Ark. 305, 2012 WL 3366058 (per curiam). The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Wright v. State, 2014 Ark. 25, 2014 WL 260993 (per curiam). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
.In his petition, petitioner contends that the prosecution at his trial withheld exculpatory evidence from the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Brady claim pertains to statements alleged to have been given to authorities by Ronnie Goolsby and the | .-¡information that Goolsby was offered a “sweetheart deal” in exchange for testifying against petitioner.
Petitioner and Ronnie Goolsby were jointly charged with the capital murder of a man in Jefferson County. Goolsby’s case was severed, and he entered a plea of guilty to the lesser-included offense of first-degree murder. At petitioner’s subsequent trial, there was no dispute that the victim had been murdered; the only issue was the manner and extent of petitioner’s involvement. The testimony given to the jury set out two versions of petitioner’s part in the offense.
The first version was contained in petitioner’s confession in which petitioner stated that he and Goolsby planned to rob the victim and Goolsby said, “I don’t leave no witnesses.” Petitioner and Goolsby went to the victim’s home where Goolsby went inside while petitioner watched from outside. Goolsby beat the victim to death and then let petitioner in the house where petitioner took the victim’s wallet and money.
The second version was given by petitioner in his testimony at trial. He testified that he gave his initial confession only because he wanted to give the police a “lead” on Goolsby and, “I didn’t know I was jeopardizing myself that much.” He further testified that the correct story was that he knew that the victim was a homosexual who would pay to have sexual activity with Goolsby. He took Goolsby to the victim’s house so Goolsby could prostitute himself. He waited at another location until they had time to complete their liaison and then went back to the victim’s house. He heard screaming, went in, and found that Goolsby had killed the victim. Petitioner took the victim’s wallet from a closet and handed it to Goolsby.
|4In his testimony at petitioner’s trial, Goolsby agreed with the petitioner’s testimony, with minor differences. Goolsby further said on the stand that, although he had been physically impaired by injuries in an automobile accident before the murder, he alone had grabbed the able-bodied victim, beat him, and strangled him to death. He conceded that he had said in his pretrial confession that petitioner murdered the victim but declared that he was mistaken in his confession and had nothing to lose by “taking the rap” at petitioner’s trial because he was already serving a thirty-five-year sentence for the murder and could not be resentenced.
A Brady violation is established when evidence favorable to the defense is wrongfully withheld by the State. Such a violation is cause to grant the writ. Pitts, 336 Ark. 580, 986 S.W.2d 407. In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court revisited Brady and declared that, when the petitioner contends that material evidence was not disclosed to the defense, the petitioner must show that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” 527 U.S. at 280, 119 S.Ct. 1936 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). In Strickler, the Court also set out the three elements of a true Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286; Buchanan v. State, 2010 Ark. 285, 2010 WL 2210923 (per curiam).
Petitioner here has not established a Brady violation. As Goolsby had entered his plea and been convicted before petitioner’s trial, it is clear that petitioner’s defense was aware, or could have been aware, of the plea at the time of trial. The defense was also aware of the pretrial |Bstatements made by petitioner and Gools-by. While petitioner alleges in his petition that he has come into possession since the trial of several statements given by Gools-by that were false and self-serving and that could have served to exculpate petitioner and for impeachment purposes, petitioner does not specify what Goolsby said in the statements or how the statements could have been used for exculpatory or impeachment purposes at his trial. He also offers nothing to establish that the statements in fact exist or that they were somehow concealed from the defense.
This court is not required to take claims of a Brady violation in a co-ram-nobis petition at face value without substantiation. Mackey v. State, 2014 Ark. 491, 2014 WL 6602313 (per curiam). The application for coram-nobis relief must make a full disclosure of specific facts relied upon. Maxwell v. State, 2009 Ark. 309 (citing Cloird v. State, 357 Ark. 446, 182 S.W.3d 477 (2004)). Petitioner’s mere claim that Goolsby made other statements does not establish that there was withheld evidence that meets the threshold requirements of a Brady violation that was both material and prejudicial such as to have prevented rendition of the judgment had it been known at the time of trial. It is petitioner’s burden to demonstrate that there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the information been disclosed at trial. Wilson v. State, 2014 Ark. 273, 2014 WL 2566110 (per curiam).
Petitioner also contends at length in his petition that Goolsby should have been considered an accomplice to the murder and that the prosecution made an unfair deal to allow Goolsby to plead guilty in return for his testimony against petitioner. He appears to argue that the State wrongfully allowed an accomplice to give uncorroborated testimony against him by entering into the plea bargain. Even if Goolsby had not given testimony that was favorable to | (¡petitioner by admitting that he committed the murder, the claim would not be grounds for a writ of error coram nobis. Whether Goolsby was an accomplice as a matter of law was a question to be settled at trial. On direct appeal, we noted that the jury was instructed on accomplice and joint responsibility and that the defense requested an additional instruction on criminal liability when two or more persons are involved in the commission of a crime. The issue of whether Goolsby was an accomplice was thus addressed at trial. Coram-nobis proceedings do not provide a petitioner with a forum to relitigate claims of trial or appeal issues. See Watts v. State, 2013 Ark. 485, 2013 WL 6157325 (per curiam) (This court does not consider in a coram-nobis action allegations that are an attempt to reargue issues addressed on appeal.). Assertions of trial error are outside the purview of a coram-nobis proceeding. Lukach v. State, 2014 Ark. 451, 2014 WL 5493961 (per curiam).
To the extent that the assertions advanced by petitioner in his petition could be considered a claim that the evidence was insufficient to sustain the judgment, issues concerning the sufficiency of the evidence or the credibility of witnesses are also not cognizable in coram-nobis proceedings. Philyaw v. State, 2014 Ark. 130, 2014 WL 1096201 (per curiam). Those issues too are to be settled at trial. Id,.; Sims v. State, 2012 Ark. 458, 2012 WL 6061927 (per curiam).
Petition denied.
. When a judgment has been affirmed, a petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis is docketed in this court under the docket number for the direct appeal. | [
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DAVID M. GLOVER, Judge
|!John H. Jones died in hospice care at the age of sixty-six on July 17, 2011. Two days before his death, he executed a power of attorney and last will and testament. The will bequeathed John’s personal and household effects to his half-sister, appellant Marcia Jane “Janey” Shepherd; $5,000 each to siblings James Taylor Jones (appellee), Elizabeth Allison, and Virginia Crawford; $15,000 each to siblings Eugene Jones and James E. Jones, Jr.; $5,000 to St. Luke’s Methodist Church; and left the remainder of his estate to Janey and to Madge Helm, a friend, in equal shares. The value of John’s estate totaled over $415,000, including more than $118,000 in savings bonds and over $114,000 from two joint accounts he had held with his aunt, Eula Ruth Harrison, who predeceased him by four days.
On July 21, 2011, Arvest Trust Company (Arvest) petitioned to probate John’s will and for appointment to administer John’s estate. An order admitting the will to probate and | ¡.appointing Arvest as personal representative of the estate was filed on July 22, 2011. A notice of contest of John’s will was filed by James Taylor Jones on October 28, 2011. After a hearing on the matter, the Pulaski County Circuit Court found that John’s will should be denied admission to probate. The trial court set aside and vacated that part of the July 22, 2011 order admitting the will to probate, finding that the will was not properly executed by John, that John lacked testamentary capacity at the time his will was executed, and that the will was procured by undue influence by Madge Helm and Janey Shepherd. The trial court further found that a confidential relationship existed between John, Madge, and Janey. Janey now appeals, arguing that the trial court erred in finding that the will was not properly executed, that John did not have the testamentary capacity to execute , the will, and that the will was procured by undue influence by Madge and Janey. We affirm.
The Hearing
At the hearing to contest the will’s admission to probate, the following facts were established by testimony. John had three siblings from his father’s second marriage — James Taylor Jones, Eugene Jones, and Virginia Crawford — and three half-siblings from his father’s third marriage — Janey, Elizabeth Allison, and James E. Jones, Jr. John also had an aunt, Eula Ruth Harrison (Aunt Sissy), with whom he had lived since he was nineteen.
In 2009, Becky Parcher, a trust administrator for Arvest, met with Eula Ruth for the purpose of estate planning; when John expressed an interest in estate planning during that meeting, Eula Ruth put off that discussion, and no estate planning was done on behalf of John at that time. However, Eula Ruth, using attorney Lori Holz-warth, drafted a trust for some |sof her assets, which provided that, upon her death, eighty-two percent of the trust assets would be placed in another trust for John’s benefit during his lifetime. Eula Ruth predeceased John, passing away on July 13, 2011. Parcher notified Holzwarth of Eula Ruth’s death on July 14, 2011; during that conversation, Parcher mentioned to Holzwarth that John had been interested in having some estate planning done in 2009 but that he was currently in hospice care. Before being placed in hospice care on July 8, 2011, John had been in St. Vincent’s Hospital in June 2011 with diagnoses of atrial fibrillation, pulmonary embolism, pulmonary fibrosis, aortic aneurysm, pneumonia, and depression; he was discharged from the hospital and briefly stayed with Janey at her home before being readmitted to St. Vincent’s. John was never told that he was in hospice or that Eula Ruth had died. Holzwarth met with John at hospice on July 14, 2011; Janey and Madge were present at that meeting. Holzwarth returned to hospice on July 15, 2011, with a will for John to sign and a durable power of attorney in favor of both Janey and Madge. Both documents were signed that day. John died on July 17, 2011.
Various people testified at the hearing as follows. Larry Jones, John’s nephew, testified that family meant a lot to John, but he had different relationships with his siblings and with Eula Ruth; John had lived with Eula Ruth since he was nineteen; John was smart but had some quirks and was a little slow; Eula Ruth took care of John and was like a second mother to him; and the two were inseparable. Larry stated that Eula Ruth needed some help with things such as shopping and going to appointments, but that while John was appreciative of Eula Ruth’s friend, Madge, for helping Eula Ruth when she needed it, he did not like how [ involved Madge was in his and Eula Ruth’s “personal life and business,” specifically their finances.
Larry further testified that he visited John in hospice care on July 15, 2011, and there was a sign on John’s door instructing visitors not to tell John that he was in hospice. Larry, who had been a combat medic in the military for twenty years and had served three combat tours, said that he was shocked when he saw John because he looked bad. Larry stated that John was not aware of what was going on around him, his eyes were closed and his mouth was open, he had very labored breathing and would stop breathing for up to fifteen seconds at a time, he was not conscious, and he was not aware that he (Larry) was in the room with him. Larry stated that he knew John was “at the end.”
Larry testified he was present when Holzwarth arrived at John’s room on July 15, 2011; when she arrived, John was on his back with his eyes closed and his mouth open. He said Holzwarth introduced herself to him as John’s attorney and stated she had a power of attorney and a will for John to sign; she made everyone leave the room except Larry and two other people; and she began explaining the documents to John and telling him that he needed to sign them. Larry said that he asked what medications John was taking, and the nurse told him morphine and an anti-anxiety medication. Larry testified he took John’s hand and asked him if he wanted to sign, but that John’s hand was limp and John did not say anything to him. Larry stated that when he got no response from John, he placed his hand on top of John’s hand and wrote John’s name on both the power of attorney and the will. According to Larry, John was unable to sign his name, John did not request that Larry sign for him, and he (Larry) |fialso had to sign the documents himself as a witness to John’s mark, stating that he helped John sign because John was unable to do so himself. Larry said that he signed because he thought he was helping John. Larry further testified that John did not know that Eula Ruth had died at the time the will was executed.
Holzwarth testified that when Becky Parcher called to let her know that Eula Ruth had died, she told Parcher that John had never called for an appointment, so a will had never been prepared for him; she told Parcher she would call hospice and see if John wanted her to come see him. Holzwarth said she initially was told that John was not able to talk to her, but an hour later she received a call that John wanted to talk to her. Holzwarth said that when she arrived at hospice on July 14, 2011, Janey and Madge were in John’s room, and that Janey specifically asked her not to tell John that Eula Ruth was deceased. Holzwarth said that she introduced herself to John as Eula Ruth’s attorney and told him that Parcher had told her that he wanted to discuss a will. Holz-warth testified that she asked Madge and Janey to leave the room so she could talk to John, but John was unable to give her more than one- or two-word answers, and when she asked about what he wanted to do in his will, he told her that Madge knew what he wanted. Holzwarth said she asked John if he wanted Madge to come in and tell her how he wanted his estate handled, and he told her yes. Holzwarth testified that, from the beginning, John stated that Eula Ruth was to get everything. She asked John that, if Eula Ruth passed away first, what did he want done then, and it was at that time that Madge recited the specific bequests to his siblings and to the church; then Madge said John wanted her to have half of what was left. Holzwarth said John confirmed the statement. She testified [fithat as far as she knew, John did not know that Eula Ruth had died. Holzwarth further stated that John never mentioned to her the amount of property he had, and she had to prompt him regarding his assets.
Holzwarth stated that she returned with the documents on July 15, 2011, but John was asleep when she arrived; she returned an hour later, but it was her opinion that he was still not awake enough to sign the documents. Holzwarth stated she returned for a third time later that afternoon, at which time the documents were signed. Holzwarth said she prepared the will as if John was going to sign by mark, and she asked Larry Jones if he would help John sign a mark, to which Larry agreed without objection. Holzwarth testified that she told John this was his last will and testament; she read off his siblings’ names; and she went through the disposition of the will, including that the remainder of his estate, after bequests and debts, would be split equally by Janey and Madge. She testified that John told her that he wanted the witnesses to witness his signature and that it looked to her as if he signed his own name. She also stated that at the time John signed his will, he thought Eula Ruth was alive, so he would not know that he owned the joint accounts outright.
Parcher testified that the only action she took was to call Holzwarth to notify her that Eula Ruth had passed away, and when Holzwarth mentioned that they had never done any estate planning for John, she let Holzwarth know that John was in hospice. Parcher said part of John’s estate was in Series EE savings bonds; Eula Ruth had asked that the bonds be removed from the house; and Madge had brought the bonds to her in a paper bag. Parcher stated she had never talked to John about any disposition he desired in his will.
|7Madge testified she and Eula Ruth had been friends for twenty-five or thirty years; John told people that she was the big sister he never had and always wanted; John had a lot of confidence in her; John wanted her to tell Holzwarth what he wanted in his will because they had discussed it prior to John entering hospice; they had never discussed the property John owned and she had no idea what John owned when he died; she and Janey were there when Holzwarth came to see John on July 14; to her knowledge, John did not know that Eula Ruth had died at that time and she had not told him; when Holzwarth was told what John wanted in his will only she, Holzwarth, and John were in the room; she was not in the room when the will was executed; she signed documents for John when he went into hospice and at St. Vincent’s, even though she did not have a healthcare power of attorney; she also signed a Do Not Resuscitate order at St. Vincent’s on John’s behalf; and the institutions allowed her to sign because John did not want to do so. Madge said she cooked and went grocery shopping for John and did whatever else John wanted her to do. She disputed the testimony that John did not trust her.
James Jones, Jr., testified that John appreciated the relationship Madge had with Eula Ruth because Madge helped them out; but John had also remarked that Madge spent a lot of time at their house and was always on the computer in Eula Ruth’s room, and she would not buy the groceries he liked, which made him mad. It was James’s opinion that the will did not seem like his brother’s wishes because John thought highly of his brothers and sisters; James was surprised that Madge was getting almost half of John’s estate.
IsJames Taylor Jones testified that he and John wére not close but that he was able to visit John on the last day of his life when he came home for Eula Ruth’s funeral. James stated it alarmed him that John had not been told that he was in hospice or that Eula Ruth had- died. James stated that if John’s will had been written when John believed Eula Ruth was alive, all of his estate would have gone to her.
Janey testified she signed documents both at St. Vincent’s and at hospice because John had asked her to sign whatever needed to be signed. She stated it was her opinion the will represented John’s wishes, and Madge relayed what John wanted in his will because he was unable to talk in his condition. Janey said Madge and John were friends, and John told many people how thankful he was to have Madge to help with errands. Janey said her relationship with John was closer than with her other siblings; the way John’s will was “laid out” was not surprising to anyone in her family, although they said it was; she did not know how much property John had when he died; and she did not know if John knew how much he had at the time of his death.
Jennifer Hein, a social worker for hospice home care, testified she witnessed John execute his will. Reading from her notes from July 14, 2011, Hein stated that John shook his head that he wanted his will to be witnessed and he appeared to be understanding what the attorney was saying to him. Hein stated she had no recollection of the signing of the will or Larry helping John to sign other than what was in her notes. Hein stated she would not have witnessed it if she believed John had no understanding of what was happening. | aHowever, Hein stated she did not look at the entire will, she did not recall the content of the will, she did not know if the entire will was read, and she did not read the entire will herself.
Dr. Henry Simmons testified that he reviewed the medical records and concluded that the amount of morphine and Ati-van John was receiving were therapeutic amounts, and John’s heart and respiratory rates were good on July 15, as were his blood pressure and oxygen saturation. He stated John was anxious but in no apparent distress. Dr. Simmons stated John was not continuously depressed or sluggish due to a buildup of drugs in his system. It was Dr. Simmons’s opinion that from a medical standpoint, John was alert and awake and well oxygenated on both July 14 and 15. He stated it was not uncommon for a patient with end-stage lung disease to answer questions with single words. Dr. Simmons said it was clear from the medical records that John was quite a bit sicker by July 16, the day before he died.
Standard of Review
We review probate matters de novo but will not reverse the probate court’s findings of fact unless they are clearly erroneous. In the Matter of the Estate of Kemp v. First Nat’l Bank & Trust, 2014 Ark. App. 160, 433 S.W.3d 911. A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left on the entire evidence with the firm conviction that a mistake has been committed. Id. We must also defer to the superior position of the lower court sitting in a probate matter to weigh the credibility of the witnesses. Id.
Testamentary Capacity & Undue Influence
11()Janey contends that the trial court erred in finding that John did not have the testamentary capacity to execute his will and in finding that the will was a product of undue influence. The questions of mental competency and undue influence are so closely related and interwoven that we consider them together. Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963). In a case where the mind of the testator is strong and alert, the facts constituting undue influence would be required to be far stronger than a case in which the mind of the testator was impaired, such as by disease or advancing age. Short v. Stephenson, 238 Ark. 1048, 386 S.W.2d 501 (1965). Testamentary capacity means that the testator must be able to retain in his mind, without prompting, the extent and condition of his property, to comprehend to whom he is giving it, and relations of those entitled to his bounty. Id. The relevant inquiry is not the mental capacity of the testator before or after a challenged will is signed, but rather the level of capacity at the time the will was signed. Pyle v. Sayers, 344 Ark. 354, 39 S.W.3d 774 (2001). Undue influence is defined as “not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property.” Short, 238 Ark. at 1049, 386 S.W.2d at 501 (citing McCulloch v. Campbell, 49 Ark. 367, 5 S.W. 590 (1887)). Undue influence may be inferred from the facts and circumstances of a case, and cases involving questions of undue influence will frequently depend on a determination of witness credibility. Simpson v. Simpson, 2014 Ark. App. 80, 432 S.W.3d 66.
In With regard to testamentary capacity and undue influence, the trial court found as follows:
30. The information regarding the distributions that were set forth in Decedent’s will was provided to Lori Holzwarth by Madge Helm. Further, a confidential relationship existed between Madge Helm, Marcia Jane Shepherd, and Decedent as evidenced by the fact that Helm and Shepherd signed documents on behalf of Decedent at the time of his admission to Hospice Home Care and, later, acquired power of attorney over Decedent simultaneously to the execution of Decedent’s will. The Court therefore finds that the proffered will was procured by Madge Helm and Marcia Jane Shepherd.
31. Decedent, at the time of the making and execution of the proffered will, lacked the requisite testamentary capacity to make and execute a valid will. Decedent was in hospice care, severely ill, and regularly medicated on morphine when attorney Holzwarth contacted him, unsolicited, regarding making a will. Madge Helm described to attorney Holzwarth how Decedent’s property should be devised in the will, and attorney Holzwarth followed those instructions. Helm, attorney Holzwarth, and Marcia Jane Shepherd did not tell Decedent that Eula Ruth Harrison had already died, even though all three were aware at the time the proffered will was executed that Harrison was dead. None of these individuals, and notably Holz-warth — the attorney who was drafting the will and who owed a fiduciary duty to Decedent — told Decedent about the effect Harrison’s death would have on his own estate. The three individuals did not simply fail to tell Decedent he was in hospice care or that his aunt had already died. They all made conscious decisions to withhold this information from him. Decedent was unable to speak and could barely communicate with those around him, if at all. He was wholly unable to sign his own name without substantial assistance. Attorney Holzwarth had to prompt from Decedent information regarding his property. It is clear that Decedent lacked the ability, at the time of the making and execution of the proffered will, to retain in his memory, without prompting, the nature and extent of his property or to comprehend how he was disposing of his property.
A party challenging the validity of a will must usually prove by a preponderance of the evidence that the testator lacked the requisite mental capacity or that the testator was the victim of undue influence when the will was executed; however, there are certain circumstances that will cause the burden to shift to the proponent of the will to disprove undue influence. Simpson, supra. One of those circumstances is when a beneficiary pro-curesJjjthe will. Id. Procurement of a will requires the actual drafting of the will for the testator or planning the testator’s will and causing him to execute it. Id. Procurement shifts the burden to the proponent of the will to show beyond a reasonable doubt that the will was not the result of undue influence and that the testator had the mental capacity to make the will. Id. Whether a will was procured by undue influence is a question of fact for the trier of fact. Medlock v. Mitchell, 95 Ark. App. 132, 234 S.W.3d 901 (2006). The existence of a confidential relationship between a primary beneficiary and a testator also gives rise to a rebuttable presumption of undue influence. Simpson, supra. Whether two individuals have a confidential relationship is a question of fact. Medlock, supra. A confidential relationship arises between a person who holds power of attorney and the grantor of that power. Id.
With respect to John’s testamentary capacity, Janey’s argument attacks the credibility determinations made by the trial court. Janey argues that James Taylor Jones offered “no credible evaluation” of John at the time, of the execution of the will and “therefore failed to meet his burden on this issue.” However, this ignores Larry Jones’s testimony that John was not conscious and was unaware of what was happening at the time of the execution of the will; that John did not respond to attorney Holzwarth when she asked if he wanted to sign his will; that John did not say anything to Larry when Larry asked if he wanted to sign the will; and that John could not take an active part in signing his name to the will. According to Larry, John was unable to retain in his mind, without prompting, the extent and condition of his property or to comprehend to whom he was giving it. Furthermore, John was never told that Eula Ruth had passed away and that the joint accounts he held with her now | ^belonged solely to him and would be part of his estate, nor was there any evidence that John had any idea of the value of his savings bonds; in fact, Janey’s own testimony indicated that she did not know if John even knew the extent of his property, thus bolstering the fact that John was unaware of the extent of his estate. On this evidence, we cannot say that the trial court’s finding that John did not have the testamentary capacity to execute his will is clearly erroneous.
Janey does not specifically contest the trial court’s findings that she and Madge procured the will and that both she and Madge were in confidential relationships with John. Rather, she argues that there was no testimony that Madge used coercion, fear, or any other abuse to elicit the terms of John’s will and circumvent John’s free will to dispose of his property as he desired. We cannot agree. John was in hospice care, a fact of which he was unaware per Janey and Madge’s instructions; he was medicated on morphine; he was not told that Eula Ruth had passed away, again per Janey and Madge’s instructions; Madge signed a Do Not Resuscitate order while John was a patient at St. Vincent’s Hospital in June 2011, despite the fact that she did not have power of attorney and was not authorized to do so; Janey and Madge signed documents for John on July 8, 2011, when he entered hospice, despite the fact that neither had power of attorney; and Madge was present during the discussion of John’s will and in fact was the person who instructed attorney Holzwarth as to the terms of the will that Madge said John desired. Given this evidence, we cannot say that the trial court’s finding of a presumption of undue influence, and the failure to rebut such a presumption, is clearly erroneous.
| uBecause we affirm the trial court’s findings that John did not have the testamentary capacity to execute his will and that the will was a product of undue influence, it is unnecessary to address Janey’s argument that the will was not properly executed.
Affirmed.
Kinard and Hixson, JJ., agree. | [
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JIM HANNAH, Chief Justice.
11 This is an appeal from orders granting a stay of a pending personal-injury case pursuant to the Servieemembers Civil Relief Act, 50 App. U.S.C. §§ 501 to -515, 516 to -597(b) (“SCRA”). Following a motor-vehicle accident, appellant, Jose Eduardo Ballesteros, filed a negligence suit against appellee, Tyler Roney. On September 17, 2013, Roney filed an “Application for Stay of Proceedings,” pursuant to section 522(b) of the SCRA. In his application, Roney stated that he was currently serving on active duty, assigned to Marine Corps Base Camp Lejeune, near Jacksonville, North Carolina, and that because of his active-duty status, “his ability to prepare a defense and to appear for depositions and in court is materially affected.” Roney requested a stay of the proceedings for the entire period of his military service or, alternatively, for a period of time not less than the statutory minimum of ninety days. In support of his application, Roney submitted an “Affidavit of Servicemem-ber,” in which he explained why he believed he was entitled to a stay, and “Original Orders,” ^signed by his commanding officer. The circuit court granted Roney’s application in two orders entered on September 19, 2013: one stating that the matter was “closed until the Defendant’s active duty military service is completed and a Motion to Reopen is filed by either party,” and the other stating that the matter was “stayed in all respects, including discovery, for the length of time equal to Defendant’s military service.”
On September 23, 2013, Ballesteros filed a “Motion and Brief to Extend Time for Service of Process, Response to Defendant’s Application for Stay of the Proceedings, and Motion for Reconsideration of Order,” in which he requested an order to extend time to complete service of process; contended that Roney had not complied with the SCRA and, therefore, his application for stay should be denied; and asserted that, because the relief granted by the circuit court was not in compliance with the SCRA, the circuit court should reconsider and withdraw its orders granting the stay. On October 14, 2013, Ballesteros filed a notice of appeal of the stay orders entered on September 19, 2013, and he filed an amended notice of appeal on October 24, 2013, to include all orders, if any, made within thirty days of his “Motion and Brief to Extend Time for Service of Process” filed on September 23, 2013. Bal-lesteros originally appealed to the Arkansas Court of Appeals, which recommended certification to this court because the case involved a significant issue needing clarification or development of the law. This court accepted certification, and our jurisdiction is proper pursuant to Arkansas Supreme Court Rule l-2(b)(5) (2014).
For reversal, Ballesteros contends that the circuit court abused its discretion in granting | sthe application for stay because Roney failed to meet the requirements for a stay under the SCRA. Roney responds that this appeal must be dismissed because an order granting or denying a stay pursuant to the SCRA is not a final order from which an appeal can be taken. Based on this court’s precedent, we agree.
In Piercy v. Baldwin, 205 Ark. 413, 168 S.W.2d 1110 (1948), the trial court granted a stay of the proceedings, pursuant to the Soldiers’ and Sailors’ Civil Relief Act, to a servicemember and his wife who were defendants in a civil action and denied the plaintiffs request to proceed to trial against other defendants in the action. On appeal, the plaintiff-appellant contended that the trial court abused its discretion in granting the motion for stay and in refusing to allow him to move to trial against the other defendants-appellees. We dismissed the appeal, explaining,
We can not decide these questions for the reason that the appeal has been prematurely brought and we are without jurisdiction. The order from which this appeal comes is in no sense a final order, from which an appeal may be prosecuted. In effect, the order continues the cause during the military service of ap-pellee, Luther Baldwin, and for three months thereafter. The cause has not been tried on its merits but is still pending. In Harlow v. Mason, 117 Ark. 360, 174 S.W. 1163 [ (1915) ], this court quoting from an earlier case, said: “A judgment, to be final, must dismiss the parties from the court, discharge them from the action or conclude their rights to the subject-matter in controversy. Bank of the State v. Bates, 10 Ark. 631 [ (1850) ]; Campbell v. Sneed, 5 Ark. [398,] 399 [(1850)].”
Piercy, 205 Ark. at 415, 168 S.W.2d at 1111.
|4Here, Ballesteros’s appeal, like the appeal in Piercy, is premature. The orders granting a stay are not final orders from which an appeal may be taken; therefore, we must dismiss the appeal. Because we dismiss the appeal, we do not consider Ballesteros’s argument that the circuit court erred in granting the application for stay without first allowing him time to respond to the application, nor do we con sider his argument that the circuit court “erred in not extending” time for him to effect service. Appeal dismissed.
. The circuit court did not rule on the motion.
. The Soldiers' and Sailors’ Civil Relief Act is the predecessor act to the SCRA.
. Ballesteros does not acknowledge this court’s decision in Piercy, much less make any attempt to distinguish his case from Piercy or present any argument that Piercy should be overruled. Rather, he cites Glick Cleaning & Laundry Co. v. Wade, 206 Ark. 8, 172 S.W.2d 929 (1943), to support his proposition that this court has "entertained” an appeal of an order granting or denying a stay. In Glick, however, this court reviewed the order denying a stay after the chancery court had tried the case on its merits and had entered a final decree. The appeal of that final decree permitted our review of the intermediate order denying the motion for stay. In other words, the order denying the motion for stay was not independently appealable in Glick, but was reviewable on appeal from the final decree. See also Potts v. Rader, 215 Ark. 160, 219 S.W.2d 769 (1949) (denial of stay under Soldiers’ and Sailors’ Civil Relief Act reviewed on appeal of final decree and later order refusing to vacate that decree); Martin v. Rolfe, 207 Ark. 1072, 184 S.W.2d 70 (1944) (denial of stay under Soldiers' and Sailors' Civil Relief Act reviewed on appeal of final decree); Reynolds v. Haulcroft, 205 Ark. 760, 170 S.W.2d 678 (1943) (denial of stay under Soldiers’ and Sailors' Civil Relief Act reviewed on appeal of final decree).
.We note that our decisions in Piercy and the instant case are consistent with Rule 2 of the Arkansas Rules of Appellate Procedure-Civil (2014), which lists the orders from which appeals may be taken. Rule 2 does not authorize an independent appeal of an order granting or denying a stay under the SCRA. | [
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WAYMOND M. BROWN, Judge.
hOn October 5, 2012, at around 4:20 p.m., Little Rock firemen were dispatched to 3 Althea Circle, the address of a house owned by Jacqueline Booth-Clark, appellant’s wife. When the firemen arrived at the house, light smoke was coming from a bedroom on the right side of the residence. The house’s doors were locked and the windows were closed. The firemen entered the house by breaking down the ■front door, and extinguished a fire they found inside a bedroom. The door to this bedroom had been shut.
A jury trial was held on July 9-10, 2013. At trial, appellant moved for a directed verdict at the close of the State’s case alleging that the State failed to present sufficient evidence that he set a fire at his wife’s home. His motion was denied. At the close of all |2the evidence, appellant renewed his motion. The court again denied his motion. The jury found appellant guilty of Class A felony arson. In the sentencing phase, the jury could not reach a sentencing verdict. In lieu of the jury sentencing appellant, the circuit court judge sentenced him, as a habitual offender, to serve twelve years’ imprisonment. A sentencing order reflecting the same was entered on July 24, 2013. It is from this order that appellant timely appeals.
Appellant argues that the circuit court erred by not directing a verdict in his favor on the arson charge. The State argues that the circuit court correctly denied the appellant’s directed-verdict motion because there was sufficient evidence to convict him of arson.
A motion for directed verdict is a challenge to the sufficiency of the evi dence. In a challenge to the sufficiency of the evidence, this court views the evidence in the light most favorable to the State and considers only the evidence that supports the conviction. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Evidence is substantial if it is of sufficient force and character to ' compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. We affirm a conviction if | ^substantial evidence exists to support it. The trier of fact resolves the questions of conflicting testimony, inconsistent evidence, and credibility. We will disturb the jury’s determination only if the evidence did not meet the required standards, thereby leaving the jury to speculation and conjecture in reaching its verdict.
For circumstantial evidence to be relied on, it must exclude every other reasonable hypothesis other than the guilt of the accused, or it does not amount to substantial evidence. The question of whether circumstantial evidence excludes every other reasonable hypothesis consistent with innocence is for the fact-finder to decide. On review, this court must determine whether the fact-finder resorted to speculation and conjecture in reaching the verdict.
Appellant was charged with arson. A person commits arson if he or she starts a fire with the purpose of destroying or otherwise damaging an occupiable structure that is the property of another person. Appellant contends that the circuit court erred in denying |4his motion for directed verdict. He argues that while the State proved that appellant had opportunity and motive, it failed to provide additional evidence that would allow the jury to reasonably infer that appellant set the fire.
At trial, Captain Nairn Salaam of the Little Rock Fire Department (LRFD) testified that he and his crew were the first to arrive on the scene of the fire. He saw light smoke coming from one of the bedroom windows. The home was secured; the front and back doors were locked. While he did not participate in extinguishing the fire, he did enter the home thereafter. While inside, he saw “a lot of damage in the kitchen[,]” including broken glass that appeared to be from a dining room table. A bunch of clothing on the floor was “definitely where the fire started[,]” but he was unable to ascertain an ignition source — something electrical or flammable in nature — for the fire. Because, he testified, a fire like the one in this case could smolder for a period of time before smoke would be visible, he estimated that the fire may have been burning for “probably up to an hour or so” before smoke was visible. There was not a lot of actual burning damage because there was not enough oxygen in the room for the fire to grow due to the door and window to the room being closed. He noted that there were “a lot” of household items on the floor of other rooms, yet none of those rooms had a fire going.
Captain Kevin Murphy of the LRFD and a member of the crew that entered the home and extinguished the fire, also testified. He corroborated Salaam’s testimony that the door to the room containing the smoldering fire was closed. He also testified that the house looked like it had been “ransacked.” He had not moved anything in the home, beyond opening the back sliding glass door for ventilation purposes.
|sFire Marshall Ryan Baker, also with the LRFD, testified. His job was to determine the origin and cause of a fire. The doorknob to the front door was locked, but not the deadbolt. He testified that the interior of the home was “in disarray” with things, such as chairs and tables, “thrown around[,]” and a trash can in the dining room, which was uncommon. He found a garden tool in the home and later found a television with gouges in it that appeared to be consistent with use of the previously-found garden tool.
Fire Marshall Baker testified that the fire was an incendiary fire — “a human act set fire” that would not have occurred but for human involvement, “period.” “[N]o ignitable liquids” were detected as having been used to start the fire; however, accel-erants were not necessary to have an incendiary fire. Paper had been used to start this fire. He ruled out all other potential causes for the fire. He estimated damage to the structure at about $15,000.00. After determining that the fire was incendiary, he spoke with Jacqueline, who showed him a number of negative and threatening text messages she had received from appellant between 1:28 p.m. and 2:45 p.m. These text messages helped Baker identify appellant as a suspect for setting the fire.
Jacqueline Booth-Clark testified that she was living with her mother on the date of the fire, as she had moved out of her home on October 2, 2012. While her niece had lived at her house “off and on” in September 2012, she was not living there in October. Only appellant was living in the house between October 3 and October 5, 2012. Only | Jacqueline, appellant, and her niece had keys to the home. She testified that when she arrived at her home a with police escort to obtain some things from her home on the day prior to the day of the fire, the house was not in disarray as it was after the fire; there had been no damage to the home. Specifically, among other things, the trash can containing pieces of her glass dining room table had not been in the dining room area where it was after the fire, but in the driveway; and the garden tool had not been in the home.
There was testimony from appellant’s mother, Geraldine McCarther, that on the day of the fire, appellant was with her all day up until 2:40 p.m. She stated that she returned to pick him up at 8:00 p.m.; however, appellant testified that he was at the home all day by himself.
Appellant testified that he sent “a lot of angry text messages,” but denied that he set the fire at the home. He asserted that his anger was with the “nasty” way Jacqueline kept the house as he was very neat; however, he admitted to being responsible for at least one section in the home that was “very messy,” including empty beer cans and dirty dishes with food still on them. He stated that the door to the “storage” room where the fire began was closed while he was in the home. He admitted to a criminal conviction history including terroristic threatening and multiple counts of battery.
A great deal of this case hinges on testimony, whether that of Fire Marshall Baker, appellant, or any of the other witnesses. While appellant’s testimony contradicts that of other witnesses, the jury is free to believe all or part of any witness’s testimony and |7resolves questions of conflicting testimony and inconsistent evidence. Reconciling conflicts in the testimony and weighing the evidence are matters within the exclusive province of the jury. In assessing the weight of the evidence, a jury may consider and give weight to any false and improbable statements made by an accused in explaining suspicious circumstances. We hold that there was substantial evidence to overcome a motion for directed verdict because there was evidence that appellant had opportunity and motive; had displayed anger towards Jacqueline via text messages; and had acted on that anger by destroying items in the home that were owned by Jacqueline.
Affirmed.
WHITEAKER and HIXSON, JJ., agree.
. While appellant and his wife, who was the owner of the home, were married, they were separated at the time of the fire. At the time of the fire, appellant’s wife was living with her mother and appellant was living in the home.
. Washington v. State, 2010 Ark. App. 596, at 6, 377 S.W.3d 518, 522 (citing Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007)).
. King v. State, 2014 Ark. App. 81, at 2, 432 S.W.3d 127, 129 (citing Daniels v. State, 2012 Ark. App. 9, at 1-2, 2012 WL 11276).
. Laswell v. State, 2012 Ark. 201, at 4, 404 S.W.3d 818, 823 (citing Smoak v. State, 2011 Ark. 529, 385 S.W.3d 257.).
. King, supra (citing Heydenrich v. State, 2010 Ark.App. 615, 379 S.W.3d 507).
. Harris v. State, 2014 Ark. App. 448, at 2, 439 S.W.3d 715, 716-17 (citing Ali v. State, 2011 Ark. App. 758, 2011 WL 6064865).
. King, supra (citing Daniels, 2012 Ark. App. 9, 2012 WL 11276).
. Laswell, supra, 2012 Ark. 201, at 4, 404 S.W.3d at 822 (citing Ellis v. State, 2012 Ark. 65, 386 S.W.3d 485).
. Brawner v. State, 2013 Ark. App. 413, at 6, 428 S.W.3d 600, 605 (citing Lowry v. State, 364 Ark. 6, 216 S.W.3d 101 (2005)).
. Id.
. Id.
. Ark.Code Ann. § 5-38-301(a)(l)(A) (Supp. 2013).
. Firefighters had kicked in the door to gain access to the fire.
. None of the messages had threats that appellant would bum her house down.
. He had been in jail directly prior to these dates.
. Woodson v. State, 2009 Ark. App. 602, at 8, 374 S.W.3d 1, 5 (citing Gikonyo v. State, 102 Ark.App. 223, 283 S.W.3d 631 (2008)).
. Id. (citing Mitchem v. State, 96 Ark.App. 78, 238 S.W.3d 623 (2006)).
.Laswell v. State, 2012 Ark. 201, at 5, 404 S.W.3d at 822 (citing Sullivan v. State, 2012 Ark. 74, 386 S.W.3d 507). | [
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BRANDON J. HARRISON, Judge.
1, Jayme Adams appeals the decision of the Arkansas Workers’ Compensation Commission (the Commission) that found that she did not prove entitlement to temporary-total disability (TTD) after 3 April 2013. On appeal, she argues that she is still in her healing period and is entitled to TTD benefits offset by unemployment benefits. We affirm the Commission.
Adams, an employee of Georgia Pacific, LLC, injured her left shoulder while lifting wet wood on 22 April 2011. Georgia Pacific disputed her workers’ compensation claim, arguing that Adams’s claim related to a preexisting condition and that Adams had not aggravated that preexisting condition. The Commission ultimately found that (1) Adams had proved by a preponderance of the evidence that she suffered a temporary aggravation |2of a preexisting shoulder condition that constituted a com-pensable shoulder injury, and (2) Adams had proved her entitlement to reasonably necessary medical treatment and TTD benefits, beginning 11 May 2011 and continuing until a date yet to be determined. Georgia Pacific did not appeal that decision.
Another hearing was held before the ALJ in July 2013 to revisit the issues of entitlement to additional medical treatment and TTD benefits. Georgia Pacific claimed that there had been a change of circumstances because (1) Adams had applied for unemployment benefits in September 2012 and April 2013 and begun taking classes at Delta Community College in January 2013, and (2) Adams’s medical treatment had been expanded to treat her neck, left elbow, and carpal tunnel syndrome, which related back to Adams’s preexisting condition and not her compen-sable shoulder injury.
Regarding additional medical treatment, the ALJ found that the issue of causation was previously litigated and that Georgia Pacific was barred by the doctrine of res judicata from raising the issue again. The ALJ also found that “[t]he fact that claim ant has represented that she is able to work in order to obtain unemployment benefits or has gone back to further her education is not a valid basis for the termination of her temporary total disability benefits which were ordered to be paid since she remains within her healing period.” Georgia Pacific appealed to the Commission, which reversed the ALJ’s finding , on TTD benefits. The Commission explained:
As we have noted, the claimant filed a claim for unemployment benefits beginning October 28, 2011. Beginning November 1, 2011, the claimant signed several Applications for Unemployment Insurance Benefits indicating that there were no “disabilities” which limited the claimant from performing her “normal work duties.” The claimant also consistently reported beginning November 1, 2011 that she could immediately begin Isfull-time work. Dr. Tucker noted in October 2012, “We are going to continue her off of work ... I expect MMI in a minimum of 12-14 weeks.” The claimant subsequently informed the Department of Workforce Services on January 14, 2013 that she had enrolled in Delta' Community College in Monroe, Louisiana. The claimant also stated, “I can work every day, any time of day. I want to work. • I’m not working right now, but I’m looking for work and would go to work as soon as someone calls me. Eventually, I want a job in the medical field, but right now, I would take just about anything.”
The respondents continued to pay temporary total disability benefits until April 3, 2013. The claimant contends on appeal that she is entitled to continued temporary total disability benefits until she completes physical therapy, and until Dr. Tucker finds that the claimant has reached maximum medical improvement. Nevertheless, whether or not the claimant continues within a healing period for her April 22, 2011 compensable injury, the Full Commission finds that the claimant has not proven that she was totally incapacitated from earning wages after April 3, 2013, the date the respondents stopped paying temporary total disability benefits.
The Commission also noted Adams’s admission that she could drive, perform household chores, participate in vacations out of state, and attend activities such as dance recitals and athletic events. In support, the Commission cited Allen Canning Co. v. Woodruff, 92 Ark.App. 237, 212 S.W.3d 25 (2005), a case in which this court affirmed the Commission’s denial of continued TTD benefits based in part on an employee’s filing for unemployment compensation benefits. Adams has now timely appealed the Commission’s decision.
To receive temporary total-disability benefits, a claimant has the burden of proof to demonstrate by a preponderance of the evidence (1) that she was within a healing period and (2) that she was totally incapacitated from earning wages. Hickman v. Kellogg, Brown & Root, 372 Ark. 501, 277 S.W.3d 591 (2008). Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission’s decision displays a substantial |4basis for the denial of relief. Neal v. Sparks Reg’l Med. Ctr., 104 Ark.App. 97, 289 S.W.3d 163 (2008).
Adams argues that she is still -within her healing period, and until she receives all medical treatment deemed reasonable and necessary by her physician, she is entitled to receive unemployment benefits and TTD. She cites King v. Peopleworks, 97 Ark.App. 105, 244 S.W.3d 729 (2006), in which this court reversed the Commission’s finding that King was not entitled to TTD compensation once he began receiving unemployment benefits. We disagreed that King was not entitled to TTD “merely” because he began receiving unemployment benefits and remanded for factual determinations of whether King remained within his healing period and suffered a total incapacity to earn wages after his receipt of unemployment compensation began.
While Adams argues on appeal that she is still within her healing period, she fails to challenge the Commission’s finding that she was not totally incapacitated from earning wages after 3 April 2013. The case relied upon by Adams, King, is distinguishable. There, the Commission made no findings on the claimant’s healing period or total incapacity to earn wages; but here, the Commission made a specific finding that Adams “has not proven that she was totally incapacitated from earning wages after April 3, 2013.” We hold that this case is akin to Allen Canning and that substantial evidence supports the Commission’s finding that Adams was no longer entitled to TTD benefits.
Affirmed.
WALMSLEY and GRUBER, JJ., agree. | [
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