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DONALD L. CORBIN, Justice.
| TAppellants, Mark Martin, in his official capacity as Secretary of State for the State of Arkansas and his official capacity as Chairman of the Arkansas State Board of Election Commissioners (“Martin”), and Rhonda Cole; C.S. Walker; James Harmon Smith III; Stuart Soffer; Barbara McBryde; and Chad Pekron (“Appellants”), in their official capacities as Commissioners of the Arkansas State Board of Election Commissioners, appeal an order of |j>the Pulaski County Circuit Court declaring Act 595 of 2013 (“Act 595”) unconstitutional, enjoining and restraining from enforcing the proof-of-identity provisions of Act 595 and the rules promulgated as a result of Act 595, and granting a preliminary injunction against Appellants from enforcing Act 595’s proof-of-identity requirements in favor of Appellees Freedom Kohls, Toylanda Smith, Joe Flakes, and Barry Haas, who are registered voters in Pulaski County. For reversal, Martin makes five allegations of error, including three arguments that the circuit court abused its discretion in granting the preliminary injunction. Appellants also assert that the circuit court’s issuance of the preliminary injunction was an abuse of discretion. Pursuant to Arkansas Supreme Court Rule l-2(a)(J) (2014), we have jurisdiction of this appeal, as it involves the interpretation and construction of the Arkansas Constitution. We affirm the circuit court’s ruling that Act 595 is unconstitutional on its face.
I. Facts
On March 19, 2018, both houses of the Arkansas General Assembly passed Act 595, which required Arkansas residents to provide “proof of identity” when voting at the polls. Act 595 is entitled, “AN ACT TO REQUIRE THAT A VOTER PROVIDE PROOF OF IDENTITY WHEN VOTING; TO PROVIDE FOR THE ISSUANCE OF A VOTER IDENTIFICATION CARD; AND FOR OTHER PURPOSES.” Specifically, section 1 of Act 595 requires proof of identity in the form of a voter-identification card or a document or identification card showing the voter’s name and photo issued by the United States, the State of Arkansas, or an accredited postsecondary educational institution in Arkansas with an expiration date. Section 1 of Act 595 provides a list of such acceptable documentation.
IsGovernor Beebe, in a letter dated March 25, 2013, questioned the constitutionality of the Act and informed the Arkansas Senate that he had vetoed Act 595 because it was “an expensive solution in search of a problem” and was “an unnecessary measure that would negatively impact one of our most precious rights as citizens.” On March 27, 2013, the Arkansas Senate overrode the governor’s veto. The Arkansas House of Representatives later overrode the veto on April 1, 2013.
On April 16, 2014, Appellees filed a complaint for injunctive and declaratory relief pursuant to the Arkansas Declaratory Judgment Act, specifically Arkansas Code Annotated sections 16-111-102 to -104 (Repl.2006), challenging sections of Act 595 passed by the Arkansas General Assembly that allegedly placed an additional qualification and impairment on Arkansas residents before they could exercise their state constitutional right to vote. In the complaint, Appellees alleged that “unwarranted and unconstitutional provisions of Act 595 violate Article 3, Section 1, and Article 3, Section 2, of the Arkansas Constitution.” Specifically, Appellees claimed that Act 595 (1) added a new and unconstitutional qualification to the right to vote in violation of article 3, section 1, of the Arkansas Constitution and (2) impaired the right to vote in violation of article 3, section 2, of the Arkansas Constitution. In their prayer for relief, Appellees sought a declaration that Act 595’s proof-of-identity requirement was unconstitutional and invalid under the Arkansas Constitution; that the circuit court award Appellees all relief allowed by law and equity, including but not limited to declaratory, preliminary, and permanent injunctive relief; that the circuit court award attorneys’ fees and costs; and any other relief.
|4On April 22, 2014, Appellees filed a motion for preliminary injunction requesting the court to enjoin Appellants from enforcing Act 595’s proof-of-identity requirements in the May 2014 primary election. In response to Appellees’ motion for preliminary injunction, Martin argued that Appellees had not demonstrated standing to bring a facial challenge to Act 595; that Appellees failed to cite a statutory basis for injunctive relief; that, to the extent that Appellees sought relief other than declaratory judgment, the suit was barred by sovereign immunity; that Appellees could not prove that failure to issue a preliminary injunction would result in irreparable harm; and that Appellees were unlikely to succeed on the merits of the complaint. Appellants responded, claiming that Appellees did not meet the requirements for a preliminary injunction and that they had sovereign immunity to Appellees’ requests for any relief other than a declaratory judgment.
The circuit court held a hearing on Ap-pellees’ motion for preliminary injunction on May 2, 2014. There, the parties limited their presentation solely to a facial challenge of the proof-of-identity provisions of Act 595. On May 28, 2014, the circuit court entered its order finding that Appel-lees were registered voters in Pulaski County who had standing to make the facial challenge. The circuit court overruled and denied Martin’s objections that sovereign immunity precluded entry of a preliminary injunction and that necessary parties were missing from the lawsuit on the pleadings. The circuit court specifically ruled on the constitutional arguments as follows:
The “proof of identity” documentation required to be provided by each voter under Act 595 constitutes an additional qualification necessary to vote, in violation of Article 8, Section 1 of the Arkansas Constitution, and [Appellants] are hereby enjoined and | ¡¡restrained from enforcing the “proof of identity” provisions contained in Act 595 for its facial unconstitutionality on that basis. [Appellants] are enjoined from enforcing their rules promulgated as a result of Act 595 that specifically require election officials to require voters to produce “proof of identity” prior to casting a ballot either during early voting or on election day.
The circuit court concluded that Appel-lees had made a requisite showing of irreparable harm and a likelihood of success on the merits “given the facial unconstitutionality of the ‘proof of identity’ provisions contained in Act 595” and granted preliminary injunctive relief pursuant to Arkansas Rule of Civil Procedure 65. The circuit court temporarily enjoined and restrained Appellants from enforcing any proof-of-identity provisions of Act 595 and from enforcing their rules promulgated as a result of Act 595 either during early voting or on election day in May 2014. Further, the circuit court on its own motion stayed the preliminary injunction pending an action by this court in Arkansas State Board of Election Commissioners v. Pulaski County Election Commission, 2014 Ark. 236, 437 S.W.3d 80 (subsequently vacating the circuit court’s grant of summary judgment because Act 595’s constitutionality was neither raised nor developed by the parties at the circuit-court level and dissolving the temporary stay). Appellants timely filed a notice of appeal of the circuit court’s order granting a preliminary injunction.
II. Points on Appeal
On appeal, Martin argues that Appellees lacked standing to bring a facial challenge to the constitutionality of Act 595; that the circuit court lacked jurisdiction to enter a preliminary injunction, which was barred by sovereign immunity; that the circuit court abused its discretion in granting the preliminary injunction; that the circuit court’s order [¿violates Arkansas Rule of Civil Procedure 65 (2014); and that Appel-lees failed to join necessary parties. Appellants assert that the circuit court abused its discretion in issuing the preliminary injunction because Appellees did not demonstrate that they were likely to succeed on the merits.
At the outset, we emphasize a procedural anomaly in this case. From the bench and in its order, the circuit court granted Appellees’ motion for preliminary injunction after analyzing the two factors of irreparable harm and a likelihood of success on the merits, but then proceeded to grant declaratory and injunctive relief based on the facial challenge to Act 595, which Ap-pellees presented in count one of their complaint. In doing so, the circuit |7court ruled that Act 595 was unconstitutional on its face because it placed additional qualifications on Arkansas voters by requiring that they provide a proof of identity before exercising their right to vote, in violation of article 3, section 1, of the Arkansas Constitution. On appeal, however, the parties’ arguments focus entirely on the circuit court’s granting the preliminary injunction and do not address the circuit court’s ruling on the merits that Act 595 is facially invalid with its added proof-of-identity voting requirement. Thus, to the extent that the parties present their arguments in terms of the likelihood of success on the merits, we treat those arguments as addressing the merits of the facial challenge to Act 595.
18A. Standing
First, we address Martin’s argument that the circuit court did not have subject-matter jurisdiction because Appel-lees lacked standing to challenge the constitutionality of Act 595. Specifically, Martin asserts that Appellees have offered' no proof that they suffered an injury or harm as a result of the proof-of-identity provisions of Act 595. In response, Appel-lees contend that they only had to prove that they were registered voters to which Appellants stipulated at the hearing and that the stipulation established standing.
The general rule is that one must have suffered injury or belong to that class that is prejudiced in order to have standing to challenge the constitutional validity of a law. Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981). Stated differently, plaintiffs must show that the questioned act has a prejudicial impact on them. Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996); Garrigus v. State, 321 Ark. 222, 901 S.W.2d 12 (1995).
In the instant case, Appellees needed only to prove that their rights were affected by Act 595 in a declaratory-judgment action challenging the validity of Act 595. As registered voters, Appellees were only required to demonstrate that they were among the class of persons affected by the legislation. See Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002). Here, we agree with the circuit court’s ruling that Appel-^ees ^ad standing, as the parties stipulated an<^ c^rcu^ court found, that Ap-pellees were registered voters in Pulaski County subject to the proof-of-identity requirement in Act 595. Thus, we hold that, because of their status as registered voters in Arkansas, Appellees have established standing in the instant case.
B. Necessary Parties
Martin also argues that Appellees, by failing to name the county clerks and county election commissioners, failed to name all the necessary parties, for the circuit court to grant declaratory relief. Martin contends that, pursuant to the declaratory-judgment statute found at Arkansas Code Annotated section 16-111-106 (Repl.2006), all persons who have or claim an interest must be made parties, and that Appellees did not join the necessary parties. In response, Appellees assert that their complaint sufficiently identifies the State’s chief election official, Secretary of State Mark Martin, and the Arkansas State Board of Election Commissioners.
Pursuant to Arkansas Code Annotated section 7-4-101(f)(2) (Supp.2013), the State Board of Election Commissioners has the authority to “[c]onduct statewide training for election officers and county election commissioners.” In this instance, Appel-lees properly named the necessary parties, Secretary of State Mark Martin and the individual Arkansas State Board of Election Commissioners, who, in their positions of authority, train and direct the county clerks and the county election commissioners across this state. Accordingly, we hold that the circuit court properly denied Martin’s objections that necessary parties are missing from the lawsuit on the pleadings.
|1flC. Facial Challenge to Act 595
We now consider the parties’ facial-challenge arguments presented to this court. On appeal, Martin argues that Act 595 is presumed to be constitutional. Relying on Crawford v. Marion County Election Board, 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008), Martin asserts that checking a photo-identification card is not a new qualification to vote, but a method of “identifying eligible voters at the polls.” Crawford, 558 U.S. at 197, 128 S.Ct. 1610. Appellants assert that the circuit court erred because Appellees did not demonstrate that the proof-of-identity requirements add an additional qualification for becoming a registered voter. Appellants maintain that the proof-of-identity requirement is not a qualification but rather a procedural requirement that ensures that people who cast their votes are qualified to do so. Appellants claim that this requirement assures the public that the person is “[l]awfully registered to vote in the election.” Ark. Const, art. 3, § 1(4) (Supp. 2013).
Appellees respond that the circuit court properly determined that Act 595 was unconstitutional, as this court’s case law is clear that the Arkansas Constitution “fiercely protects against the [Arkansas] General Assembly’s interference with Article 3 of the Arkansas Constitution.” Ap-pellees further emphasize that a proof of identity is required in an Arkansas resident’s voter-registration process, which is governed by Amendment 51 of the Arkansas Constitution, and is not required for an individual’s vote in an Arkansas election. Four amicus briefs support Appellees’ argument.
Our standard of review of a circuit court’s ruling on the constitutionality of an act is clear. This court reviews a circuit court’s interpretation of the constitution de novo because B fit is for this court to determine what a constitutional provision means. Chandler v. Martin ex rel. State, 2014 Ark. 219, 433 S.W.3d 884. Although this court is not bound by the circuit court’s decision, its interpretation will be accepted as correct on appeal in the absence of a showing that the circuit court erred. Miller v. Ark. Dep’t of Finance & Admin., 2012 Ark. 165, 401 S.W.3d 466.
Appellees challenged Act 595 as unconstitutional on its face, not as-applied to a specific party or circumstance. Acts of the legislature are presumed constitutional and the party challenging the statute has the burden to prove otherwise. Archer v. Sigma Tau Gamma Alpha Epsilon, Inc., 2010 Ark. 8, 362 S.W.3d 303. An act will be struck down only when there is a clear incompatibility between the act and the constitution. Tsann Kuen Enters. Co. v. Campbell, 355 Ark. 110, 129 S.W.3d 822 (2003). A facial invalidation of a statute is appropriate if it can be shown that “under no circumstances can the [Act] be constitutionally applied.” Linder v. Linder, 348 Ark. 322, 349, 72 S.W.3d 841, 856 (2002) (emphasis in original). Under this constitutional standard applicable to facial challenges, the proponent must establish that “no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Nevertheless, despite this heavy burden, the United States Supreme Court continues to recognize the validity of facial challenges under the appropriate circumstances. See Davis v. Fed. Election Comm’n, 554 U.S. 724, 128 S.Ct. 2759, 171 L.Ed.2d 787 (2008).
The key issue is whether Act 595 imposes upon an Arkansas voter an additional qualification beyond those voter qualifications set forth in the Arkansas Constitution. Section 1 of article 3 of the Arkansas Constitution provides as follows:
| ^Except as otherwise provided by this Constitution, any person may vote in an election in this state who is:
(1) A citizen of the United States;
(2) A resident of the State of Arkansas;
(3) At least eighteen (18) years of age; and
(4) Lawfully registered to vote in the election. [As amended by Const. Amend. 85.]
Ark. Const, art. 3, § 1 (Supp.2013).
Act 595, as enacted, states that “any person desiring to vote in this state shall ... [p]resent proof of identity to the election official when appearing to vote in person either early or at the polls on election day.” Ark.Code Ann. § 7-5-201(d)(l)(A) (Supp.2013). Specifically, section 1 of Act 595 provides the definition of “proof of identity” as follows:
(i) A voter identification card under § 7-5-322; or
(11) A document or identification card that:
(a) Shows the name of the person to whom the document was issued;
(b) Shows a photograph of the person to whom the document was issued;
(c) Is issued by the United States, the State of Arkansas, or an accredited post-secondary educational institution in the State of Arkansas; and
(d) If displaying an expiration date:
(1) Is not expired; or
(2) Expired no more than four (4) years before the date of the election in which the person seeks to vote.
| ^Further, section 1 lists acceptable documentation, which includes, inter alia, such items as a driver’s license, photo-identification card, and a United States passport, that satisfy the proof-of-identity requirement.
For approximately 150 years, this court has remained steadfast in its adherence to the strict interpretation of the requisite voter qualifications articulated in the Arkansas Constitution. In Rison v. Farr, 24 Ark. 161 (1865), Farr’s ballot was refused when he declined to subscribe to a statutory oath that he would support the Constitution of the United States and the Constitution of Arkansas; that he had not voluntarily borne arms against the United States or Arkansas; and that he had not aided, directly or indirectly, the Confederate authorities since April 18, 1864. We rejected this requirement, holding that, as a prerequisite to voting, the statutory oath prescribed by the Arkansas General Assembly was in direct conflict with the Arkansas Constitution. We stated as follows:
[Although this part of the law is professedly enacted, “TO PROVIDE THE MANNER OF HOLDING ELECTIONS,” it is, in effect, nothing but a prohibition upon the right to vote as secured by the constitution; and is of the same import as an affirmative provision that no person who has voluntarily borne arms against the United States, or this state, or aided the so-called confederate authorities, since the 18th day of April, 1864, shall be allowed to vote at any election in the state of Arkansas. And to admit that the legislature may do this, would be to declare that part of the constitution which defines the qualifications of a voter, absolutely nugatory, and would turn section 2 of article IV [a precursor to voter qualifications], of our constitution into the merest nonsense. And clearly, if the legislature cannot, by direct legislation, prohibit those who possess the constitutional qualification to vote, from exercising the elective franchise, that end cannot be accomplished by indirect legislation. The legislature cannot, under color of regulating the manner of holding elections, which to some extent that body has a right to do, impose such restrictions as will have the effect to take away the right to vote as secured by the constitution.
Rison, 24 Ark. at 172.
1 uThis proposition was reaffirmed years later in Faubus v. Miles, 237 Ark. 957, 377 S.W.2d 601 (1964). In Faubus, the Arkansas General Assembly passed legislation to establish a system of voter registration “purporting] to substitute a ‘free’ poll tax (for registration purposes) in lieu of a poll tax for which the voter has paid $1.00.” Id. at 963, 377 S.W.2d at 604. A citizen and taxpayer filed suit challenging the constitutionality of the act, and the chancellor declared the act unconstitutional. On appeal, this court held as follows:
It is our conclusion that the legislature has no power, in state elections ... to substitute said “free” poll tax for the poll tax required by Amendment 8 which provides that the voters “shall exhibit a poll tax receipt or other evidence that they have paid their poll tax....” (Emphasis added.) To hold otherwise would be to approve a subterfuge for evading the letter and the spirit of a plain constitutional provision.
Id. at 963, 377 S.W.2d at 604.
Applying our well-established precedent to the present case, Act 595 cannot survive a constitutional facial challenge. Here, the Arkansas General Assembly’s passage of Act 595 requires an Arkansas voter to provide a “voter identification card,” pursuant to Arkansas Code Annotated section 7-5-322, or “[a] document or identification card.” However, Act 595’s added requirement of providing a proof of identity as a prerequisite to voting runs afoul of article 3, section 1, of the Arkansas Constitution. Section 1 of article 3 plainly states that any person may vote in an election who is (1) a U.S. citizen, (2) an Arkansas resident, (3) eighteen years of age, and (4) lawfully registered to vote in the election before voting in an Arkansas election. Ark. Const, art. 3, § 1. These four qualifications set forth in our state’s constitution simply do not include any proof-of-identity requirement. Further, with the legislature’s passage of Act 595 requiring this additional qualification, we cannot determine any “set of 11ficircumstances exists under which [Act 595] would be valid.” Edwards, 946 F.Supp.2d at 848. In Bailey, Lieutenant-Governor v. Abington, 201 Ark. 1072, 148 S.W.2d 176 (1941), we declared that
[t]he fundamental purpose in construing a constitutional provision is to ascertain and give effect to the intent of the framers and of the people who adopted it. The court, therefore, should constantly keep in mind the object sought to be accomplished by its adoption.
Id. at 1078, 148 S.W.2d at 180. Given this “fundamental purpose,” id., we adhere to the framers’ intent conferred in article 3, section 1, of the Arkansas Constitution to require the foregoing four qualifications of voters in an Arkansas election and nothing more. To hold otherwise would disenfranchise Arkansas voters and would negate “the object sought to be accomplished” by the framers of the Arkansas Constitution. Id. Therefore, we hold that Act 595 requiring proof of identity is unconstitutional on its face and imposes a requirement that falls outside the ambit of article 3, section 1, of the Arkansas Constitution.
We do not interpret Act 595’s proof-of-identity requirement as a procedural means of determining whether an Arkansas voter can “lawfully register[ ] to vote in the election.” Ark. Const, art. 3, § 1(4). Under those circumstances, Act 595 would erroneously necessitate every lawfully registered voter in Arkansas to requalify themselves in each election. See generally Ark. Const, amend. 51 (proposed by initiative petition, approved at the general election in 1964, and providing for an extensive voter-registration process whereby proof of identity is required). On this issue, Appellants cite numerous cases from other jurisdictions declaring a voter’s proof of identity simply as much-needed regulations to verify voter | ^registration. See Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) (plurality opinion); League of Women Voters of Indiana, Inc. v. Rokita, 929 N.E.2d 758 (Ind.2010); Democratic Party of Ga., Inc. v. Perdue, 288 Ga. 720, 707 S.E.2d 67 (2011); and City of Memphis v. Hargett, 414 S.W.3d 88 (Tenn.2013). However, these cases are inappo-site to the present case because those courts interpreted the United States Constitution or their respective states’ constitutions, and here, we address the present issue solely under the Arkansas Constitution.
Because we affirm the circuit court’s ruling on Appellees’ facial challenge, we decline to address Appellants’ remaining arguments on the circuit court’s grant of Appellees’ motion for preliminary injunction, pursuant to Arkansas Rule of Civil Procedure 65 (2014), and the circuit court’s denial of Martin’s objections that sovereign immunity precludes an entry of a preliminary injunction. Further, the circuit court did not rule on the impairment allegation in Appellees’ complaint, and as a result, we do not reach any as-applied constitutional arguments raised by the parties.
Mandate to issue immediately.
Affirmed.
BAKER, GOODSON, and HART, JJ., concur.
. The circuit court’s written order incorporates by reference its bench ruling that "the information required under Act 595 constitutes an additional qualification” and that "595 is unconstitutional in that it adds that qualification.” Afterward, separate Appellants’ counsel asked the circuit court for clarification as follows:
[Attorney General]: I'm trying to figure out the Court’s ruling within the procedural framework — ■
The Court: It’s unconstitutional, but I’m staying it so that—
[Attorney General]: Yeah. I understand—
The Court: Okay.
[Attorney General]: I understand that. I just — I guess in my mind we’re .here for a preliminary injunction proceeding. But you’ve made, as a matter of law, that’s the decision.
The COURT: I’m granting the injunctive relief.
[Attorney General]: Right.
The Court: I’m declaring [Act 595] to be unconstitutional and granting the injunctive relief that it’s not be enforced, but I'm staying my decision. Will that do it?
[Attorney General]: But you have not— this was not á trial on the merits: this was only strictly a preliminary injunction hearing, correct?
The Court: It was a challenge to the — a facial challenge.
Following a conference off-record, Appellants’ counsel did not make any objection to the circuit court’s ruling that Act 595 was facially invalid.
. We conclude that any arguments concerning Appellees’ motion for preliminary injunction are now moot for two distinct reasons. First, the preliminary injunction is rendered moot because of the circuit court’s final resolution of the constitutional question. See, e.g., S. Coll. of Naturopathy v. State ex rel. Beebe, 360 Ark. 543, 203 S.W.3d 111 (2005); Galloway v. Ark. State Hwy. & Transp. Dep't, 318 Ark. 303, 885 S.W.2d 17 (1994). Second, in their motion for preliminary injunction, Ap-pellees stated as follows:
Pursuant to Rule 65 of the Arkansas Rules of Civil Procedure, [Appellees] seek a preliminary injunction against the [Appellants] from enforcing the new "proof of identity” requirements contained in Act 595 in order that the [Appellees], and all other similarly situated qualified Arkansas residents may cast valid ballots at the upcoming May election.
(Emphasis added.) Here, Appellees' motion for preliminary injunction concerned only •the May 2014- election and did not include the upcoming November 2014 election. Because Arkansas's 2014 May primary election is long past, we conclude that any preliminary injunctive relief is moot. See, e.g., Judd v. Martin, 2013 Ark. 136, 2013 WL 1279080. Further, we conclude that the mootness exceptions do not apply in this instance, as we now reach the merits of the parties’ arguments regarding the constitutionality of Act 595. | [
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BILL H. WALMSLEY, Judge.
|!Appellant Paul Sims appeals from the Board of Review’s decision on July 26, 2013, affirming and adopting the Appeal Tribunal’s determination that Sims was discharged from his job at Bismarck Public Schools for misconduct connected with the work. Sims argues that the Board’s decision is not supported by substantial evidence. We reverse and remand for an award of benefits.
Sims was hired as the high school counselor in August 1995 and discharged on June 30, 2009. Sims had only one evaluation in his fourteen years with Bismarck Public Schools. The evaluation dated February 27, 2009, shortly before his termination, indicates that Sims was “proficient,” and even “distinguished,” in all areas of his job with the exception that he had received a score of “basic” with respect to the accuracy of his records.
In February 2008, the Department of Education conducted a standards review at | ¡¿Bismarck Public Schools, and the review revealed that one student was permitted to graduate in 2007 without the proper credits. Specifically, the student had 2.5 math credits when the State required three. Sims was advised in a letter from the principal, Jarrod Bray, dated May 27, 2008, of “a transcript issue.” Bray informed Sims that, as the high school counselor, it was his job to ensure that all students had the appropriate number and type of credits required by the district and the State. Bray directed Sims to develop “a check system” and to review and update the students’ transcripts before the start of school in August to avoid “further issues of this nature.”
At the school district’s request, there was an audit of the students’ transcripts in December 2008. The audit indicated that twenty-one out of fifty-six seniors were not scheduled to take a fourth math credit, which was a new requirement by the State for seniors graduating in 2009.
On April 15, 2009, Superintendent David Hopkins informed Sims that he would recommend that his contract not be renewed, citing the standards review in February 2008 and the audit in December 2008. Hopkins made his recommendation to the school board, which voted unanimously to terminate Sims’s contract.
In the employer’s statement with the Department of Workforce Services, Sims’s duties are described as “duties assigned to a high school counselor.” The form indicates that Sims violated “company & State” policy in that, “Seniors must have by State standards a certain number of [credits] in math to be able to graduate. A large number of our Seniors did not have them.” The form also states that Sims was made aware of the policy through the |,^“employer’s handbook” and “verbally” and that he was advised of the policy in that he “was notified of these requirements a year prior to this incident.”
In a hearing before the Appeal Tribunal, Hopkins testified that it was the counsel- or’s responsibility to ensure that students had the proper number of credits to graduate. Hopkins testified that he expected the counselor to look for changes in the standards but that he looked for such changes as well. He stated that they were supposed to work together as a team but that Sims was not a team player. When asked whether Sims had received notice of the change in requirements, Hopkins stated that Sims had “every opportunity” to get that information. Hopkins also stated that, had Sims attended the in-service workshops for counselors, he would have stayed up-to-date on the State’s standards. Hopkins further testified that the change from requiring three math credits to four was “broadcast across the state” and that “[everybody knew about it but Mr. Sims, for whatever reason.”
Hopkins admitted, however, that the school’s 2008-2009 student handbook was incorrect in requiring students to have only three math credits. According to Hopkins, a committee created and reviewed the school’s handbook every year and he himself had reviewed it but did not catch the error. Hopkins stated that he did not know whether Sims was on the committee but that, nevertheless, it was Sims’s job to make sure the handbook was correct. Hopkins described the student handbook as the final authority on the number of credits required to graduate.
Regarding Sims’s failure to ensure that students had the proper credits, Hopkins testified, “And that situation arose not only once, but twice. There was an opportunity given |4to make a correction; that correction was not made.” Hopkins conceded that, while Sims was negligent, he did not think that Sims’s failure to perform his job duties was intentional or deliberate.
Sims testified that since he was hired at Bismarck Public Schools in 1995, students were required to have three math credits. Sims complained about the school’s outdated computers and stated that, according to his own records on which he relied, the one student referred to in the standards review in early 2008 had the required three math credits to graduate. Sims testified that before he was discharged, he did not receive notice that the number of math credits required by the State had increased to four. Rather, he consulted the school’s 2008-2009 handbook in determining the number of required credits. Sims testified that the year he was discharged, as well as the previous year, he was told that he did not need to go to the in-service workshops.
The Appeal Tribunal found that Hopkins credibly testified that the guidance counselor was responsible for ensuring compliance with the State’s graduation requirements. The Tribunal found that Sims failed to adequately perform at least a portion of his job duties and concluded that Sims’s negligence was of such degree to constitute misconduct.
The Board adopted the Tribunal’s decision and made additional findings in affirming the denial of benefits. The Board pointed out that Sims offered no information to show that he attempted “to check the state standards as he had been directed to do” by Bray in the letter dated May 27, 2008. The Board concluded that Sims offered “no credible explanation” as to why he failed to perform his job duties and that such failure was negligence of such degree |sor recurrence as to manifest wrongful intent or evil design.
We review the Board’s findings in the light most favorable to the prevailing party and affirm the Board’s decision if it is supported by substantial evidence. Price v. Dir., Dep’t of Workforce Servs., 2013 Ark. App. 205, 2018 WL 1232108. Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion. Id. Even when there is evidence on which the Board might have reached a different decision, the scope of our review is limited to a determination of whether the Board reasonably could have reached the decision it did based on the evidence presented. Id.
If so found by the Director of Workforce Services, an individual shall be disqualified for benefits if he is discharged from his last work for misconduct in connection with the work. Ark.Code Ann. § ll-10-514(a)(l) (Supp.2009). The employer has the burden of proving by a preponderance of the evidence that an employee engaged in misconduct. Price, supra. Misconduct in connection with the work includes the violation of any behavioral policies of the employer as distinguished from deficiencies in meeting production standards or accomplishing job duties. Ark.Code Ann. § 11 — 10— 514(a)(3)(A). Misconduct in connection with the work shall not be found for instances of poor performance unless the employer can prove that the poor performance was intentional. Ark.Code Ann. § ll-10-514(a)(4)(A). An individual’s repeated act of commission, omission, or negligence despite progressive discipline constitutes sufficient proof of intentional poor performance. Ark.Code Ann. § 11-10-514(a)(4)(B).
This court has held that misconduct includes (1) disregard of the employer’s interest,_j^(2) violation of the employer’s rules, (3) disregard of the standards of behavior which the employer has a right to expect of his employees, and (4) disregard of the employee’s duties and obligations to his employer. Nibco, Inc. v. Metcalf, 1 Ark.App. 114, 613 S.W.2d 612 (1981). The act of misconduct requires “more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good faith error in judgment or discretion.” Id. at 118, 613 S.W.2d at 614. There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design. Id.
Sims argues that neither he, nor the principal, nor the superintendent, nor the handbook committee was aware that the State had changed its standards to require four math credits. Sims further argues that the two mistakes he made were entirely different. He contends that, at most, his failure to learn of the new requirements was negligence but not misconduct.
We agree. The situation in early 2008 involved a mistake with respect to one student’s transcript, while the audit in late 2008 revealed that many students did not have the required credits to graduate — not due to errors in the transcripts — but because the State’s standards had changed. It was undisputed that Sims was unaware that the State had changed the graduation requirements and that the school’s 2008-2009 student handbook did not reflect that change. While the letter from the principal broadly advised Sims to ensure that students had the proper credits to graduate, Sims was not directed to check the State’s standards, as found by 17the Board. It was the employer’s burden to show that Sims’s negligence constituted misconduct. We cannot say that reasonable minds could conclude that Sims’s apparent error in his records and his failure to stay current on graduation requirements amount to misconduct sufficient to deny him unemployment benefits. We hold that there was no substantial evidence to support the Board’s determination that Sims’s negligence was of such degree or recurrence as to manifest wrongful intent or evil design.
Reversed and remanded.
PITTMAN and HIXSON, JJ„ agree.
. This case has an extensive procedural history; however, it is not relevant to this appeal. Sims v. Dir., Dep’t of Workforce Servs., 2013 Ark. App. 241, 2013 WL 1682562. | [
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RITA W. GRUBER, Judge.
|,Appellant, Crystal Schaible, appeals from an order of the Benton County Circuit Court- terminating her parental rights to her son, Z.B., born June 2, 2012. She contends on appeal that the evidence was insufficient to support the circuit court’s decision and that the court abused its discretion in allowing DHS to recall a witness. We find no error and affirm the circuit court’s order.
Before this case began, appellant was involved with DHS from 2009 through 2012 regarding two older children. DHS’s involvement began when it was discovered that both children had prenatal exposure to marijuana, and DHS involvement continued with investigations into inadequate supervision, food, and clothing; continued drug use by appellant; and homelessness. Appellant’s parental rights were voluntarily terminated to those two children on February 7, 2012. The case before us began on June 4, 2012, when DHS initiated a 72-hour hold on Z.B. due to his testing positive for illegal substances at the time [aof his birth on June 2, 2012. Z.B. was placed in foster care with the family that had adopted his two half-sisters, and DHS immediately filed a petition to terminate appellant’s parental rights.
The first termination hearing was held in September 2012, after which the court denied the petition, finding that appellant had, since Z.B.’s birth three months earlier, remained drug-free, attended NA/AA, maintained employment, maintained a stable relationship, and visited Z.B. on a regular basis. The court granted appellant the opportunity to complete the case plan and stated in its order that it expected her to obtain a GED, obtain a driver’s license, attend counseling, attend NA/AA meetings regularly, and submit to regular and random drug tests with negative results. The final termination hearing was held a year later in October 2018, and the court entered its order terminating appellant’s parental rights on January 7, 2014.
The course of events that led to the termination suggests that appellant did achieve compliance with many of the court’s requirements. Immediately after Z.B.’s birth, appellant appeared to be in a stable relationship with a woman with whom she was living, Dani. The court gradually allowed unsupervised visits and, eventually, a trial home placement of Z.B. with appellant and Dani in April 2013, which ended after six weeks, following a break-up between Dani and appellant.
They had left Z.B. with a caregiver while they went on a float trip over Memorial |sDay weekend. Appellant testified that she had consumed a few beers and Dani had consumed more than a few beers. The two argued regarding Dani’s attempt to drive while intoxicated. Dani got upset and left and was later arrested for public intoxication and disorderly conduct. Appellant ended the relationship and moved in with a friend, Gina, for several months thereafter. She and Gina then moved to another place that they shared with Mr. Beltran, appellant’s deceased mother’s long-time boyfriend, considered by appellant to be a father figure. At the time of the termination hearing, she and Mr. Bel-tran had signed a one-year lease on another apartment they planned to share without Gina. Appellant testified that she had been working at Bradford House Nursing Center for three months at the time of the hearing and had taken classes to become a CNA but had not taken the CNA state exam nor obtained her GED.
Although the reports and testimony indicated that Z.B. suffered from developmental delays, for which he attended occupational therapy several times per week, appellant testified when called by DHS that she had no idea why Z.B. needed therapy, that she did not take him to therapy when he was in her care, and that she did not plan on taking him to therapy if custody were returned to her. Appellant was later recalled when presenting her own case, after Z.B.’s therapist testified, and appeared to have experienced a change of heart regarding Z.B.’s therapy. She told the court that she would provide therapy if he needed it. Z.B. also suffers from asthma, and, although appellant is a smoker, she insisted that she did not smoke around him. Appellant also testified that before Z.B. was born, she had a “serious drug problem” and she admitted that she never completed a drug-treatment program. She said that 14she had attended NA/AA meetings for several months after Z.B. was born but that she had not attended since that time. She also testified that she did get urges to use drugs and had dreams about it but that work kept her mind off of it. Finally, appellant testified that she might be pregnant. The court was concerned about this and requested confirmation before it made its decision. The hearing was continued, and at a hearing several days later, appellant’s counsel notified the court that appellant was in fact pregnant.
Z.B.’s foster mother testified that when Z.B. returned from visits with appellant, he was either hungry, tired, dirty, sick, or smelled of smoke. It was also clear from the evidence before the court that the foster mother very much wanted to adopt Z.B.
Melinda Lunn, Z.B.’s occupational therapist, gave a detailed explanation of Z.B.’s delays and of the progress he had made in therapy. She testified that therapy was very important to his development and that failure to acquire the skills he needed could have lifelong consequences. At the conclusion of Ms. Lunn’s testimony, the court took a five-minute recess. After the recess, DHS asked to recall Ms. Lunn, which the court allowed over appellant’s objection. In this additional testimony, Ms. Lunn described Z.B.’s condition after having come from appellant’s care to therapy on the day before the hearing. She said his clothing smelled musty and dirty and that his diaper was very full. She described him as being “sticky” and his hair as “greasy” in back and “crunchy” on top.
Brandon Robinson, one of the DHS caseworkers assigned to this case, testified that appellant’s support system, instability, and dependence upon others for housing were concerning. He said that he thought there was a high potential for harm if Z.B. were ^returned to appellant because she never completed a drug-treatment program despite trying, had multiple partners during the course of the case, and demonstrated poor judgment. He testified that DHS’s recommendation was termination. Another DHS employee, Michelle Cutrer-Boggess, was involved with appellant in the previous cases and in this case. She was concerned about appellant’s history of making questionable decisions and the consistent instability in her life. She was particularly concerned that appellant, given her history of addiction, admitted to drinking beers on her weekend float trip in May 2013. Finally, Z.B.’s caseworker, Shannon Saindon, testified that she was concerned, given appellant’s history with drugs and failure to treat her addiction through rehabilitation, that appellant might relapse. It also concerned Ms. Saindon that appellant had not changed her circle of friends.
The CASA volunteer recommended adoption, stating that it was in Z.B.’s best interest to be with his biological sisters in the home he had lived since birth. She also testified that she was concerned about appellant’s failure to attend NA/AA meetings.
The dissent quotes from the attorney ad litem’s closing argument in which the ad litem states that she is unsure whether there is clear and convincing evidence to support termination. This quote represents a small excerpt from the ad litem’s statement to the circuit court. In her argument, the ad litem recognized that this was a close case and recommended that the court give appellant additional time. Her main concern appeared to be that we might reverse a termination, causing even more trauma to Z.B. And while her argument may have been helpful to the circuit court, it was not evidence and the court was not bound by the ad litem’s recommendation any more than it was bound by DHS’s.
|fiAt the conclusion of the hearing, the court stated that it was granting the petition for termination. The court expressed alarm that appellant was pregnant again. Although the court did credit appellant with staying clean, it was concerned that she continued to fight the urges of addiction every day without the benefit of a support group or training from a drug-treatment program to strengthen her. The court thought that this prevented her from having long-term stability, particularly given the new stress of having another child. Basically, the court was concerned with appellant’s pattern of behavior.
In its order, the court found clear and convincing evidence of two grounds: (1) adjudicated dependent-neglected and out of the custody of appellant for twelve months, and despite a meaningful effort by DHS to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied; and (2) other factors or issues arose subsequent to the filing of the original petition that demonstrate that return of Z.B. to appellant’s custody is contrary to his health, safety, or welfare and that, despite the offer of appropriate family services, appellant has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the circumstances that prevent return of Z.B. to her custody. Ark.Code Ann. § 9-27-341(b)(3)(B) (Supp.2013). The court specifically found credible the foster mother’s testimony about the condition and care of Z.B. during visits with appellant. The court found by clear and convincing evidence that it was in Z.B.’s best interest to terminate appellant’s parental rights. The court found that Z.B. would be at risk of potential harm based on environmental neglect, specifically the cleanliness of the child and the smell of cigarette smoke after visits with appellant. The court also noted inadequate |7supervision. Finally, the circuit court listed eighteen additional findings, including appellant’s voluntary termination of rights to two other children as a result of her inability to resolve her substance-abuse issues; her admission that she continued to fight the urges of addiction; her lack of an adequate support network to help her address the stresses of parenting and drug addiction; her failure to complete any drug-treatment program or obtain a GED; her lack of follow-through with Z.B.’s therapy when he was in her care; her consumption of alcohol during the trial home placement; her pregnancy by a different father; and a repeated pattern of behavior convincing the court that appellant had not resolved her substance-abuse issues because, while “not testing positively for drugs, she has not stopped thinking and behaving in a manner consistent with a person addicted to substances.” The court found that appellant lacked the tools necessary to remain clean and believed that the added stress, financial and parenting, of having another child would cause the cycle of addiction to continue and that relapse was likely. Finally, the court found that, “[c]ombined with the lack of follow through by the mother on her drug treatment, her use of alcohol during trial home placement, the state of the child in her care, and the higher stress that will be present with another child on the way, ... Z.B.’s health and safety will be endangered if returned to the parent.”
We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist, in addition to a finding that it is in the child’s best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark.Code Ann. § 9-27-341 (Supp.2013). In making a “best interest” determination, the trial court is required to consider two factors: |R(1) the likelihood that the child will be adopted, and (2) the potential of harm to the child if custody is returned to a parent. Smith v. Ark. Dep’t of Human Servs., 2013 Ark. App. 753, at 4, 431 S.W.3d 364, 367. The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 248, 947 S.W.2d 761, 763 (1997). Credibility determinations are left to the fact-finder, here the trial court. Henson v. Ark. Dep’t of Human Servs., 2014 Ark. App. 225, at 6, 434 S.W.3d 371, 375.
The intent behind the termination-of-parental-rights statute is to provide permanency in a child’s life when it is not possible to return the child to the family home because it is contrary to the child’s health, safety, or welfare, and a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child’s perspective. Ark.Code Ann. § 9-27-341(a)(3) (Supp. 2013). Even full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able to care for his or her child. Ford v. Ark. Dep’t of Human Servs., 2014 Ark. App. 226, at 3, 434 S.W.3d 378, 381. Moreover, a child’s need for permanency and stability may override a parent’s request for additional time to improve the parent’s circumstances. Dozier v. Ark. Dep’t of Human Servs., 2010 Ark. App. 17, at 9, 372 S.W.3d 849, 854. Finally, a parent’s past behavior is often a good indicator of future behavior. Stephens v. Ark. Dep’t of Human Servs., 2013 Ark. App. 249, at 8, 427 S.W.3d 160, 164.
For her first point on appeal, appellant argues that the evidence was insufficient to support the court’s order. A circuit court may terminate parental rights if it finds by clear and | convincing evidence that it is in the best interest of the child, considering the likelihood that the child will be adopted and the potential harm the child would suffer if returned to the parent’s custody, and that at least one statutory ground for, termination exists. Ark. Code Ann. § 9-27-341 (Supp.2013). Specifically, appellant appears to challenge the court’s potential-harm determination, arguing that the testimony did not establish that she smoked around Z.B. because no witnesses actually saw her do so and she testified that she did not. She also chai- lenges the foster mother’s testimony about Z.B. smelling of smoke and being dirty when he returned from visits with appellant, claiming that the foster mother was clearly biased because she wanted to adopt Z.B. Second, she argues that the evidence is not sufficient to support grounds because she remedied the substance abuse. She states that, in review orders entered in October 2012 and January 2013, she was found to have been in compliance with the case plan and was allowed unsupervised weekend visitation after her trial placement ended. She argues that she never failed a drug screen throughout the seventeen-month case.
We turn first to appellant’s argument concerning potential harm. Potential harm to the child is a factor to be considered, but a specific potential harm does not have to be identified or proved by clear and convincing evidence. 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. It is the “best interest” finding that must be supported by clear and convincing evidence. Id. Moreover, credibility determinations are for the circuit court to make, not this court. Smith, 2013 Ark. App. 753, at 4, 431 S.W.3d at 367. The circuit court 11flspecifically found the foster mother to be credible; she testified that Z.B. always returned from visits with appellant either hungry, tired, dirty, sick, or smelling of smoke. Finally, the circuit court’s determination of potential harm involved much more than its concern with the smell of smoke or the fact that Z.B. returned from appellant’s visits dirty. The court specifically found that the combination of the lack of follow-through by the mother on her drug treatment, her use of alcohol during trial home placement, the state of the child in her care, and the higher stress that will be present with another child on the way would endanger Z.B.’s health and safety in appellant’s care. The court appeared to have at least as much concern with appellant’s lack of judgment — demonstrated by her failure to complete a drug-treatment program, attend NA/AA meetings, or maintain any other support group; her inability to recognize Z.B.’s developmental — therapy needs; and her pattern of pregnancy and dependence on others for housing (instability)-as with her environmental neglect.
Appellant also challenges support for the court’s grounds for termination, contending that she was found to be in compliance with the case plan and that she remained “clean” for the entire seventeen-month period. While the court did find appellant to be in substantial compliance and commended her for remaining drug free, it did not find that she was in full compliance with the case plan. In fact, it had great concern that she was not attending NA/AA meetings, as it had required, and that she had not completed a drug-treatment program. It was particularly concerned with these lapses given her admission that she struggled with urges caused by her addiction and the added stress caused by another child to be born.
|nAppellant does not specifically explain why the other-factors ground was not met, but the circuit court made numerous findings regarding events that occurred after Z.B. had been taken into custody that caused it concern. A significant finding was that appellant did not take Z.B. to occupational therapy when he was in her custody. She testified at the hearing that she did not believe he needed therapy and she did not intend to take him if he were returned to her. While appellant appeared to change her mind about the importance of this therapy during the course of the termination hearing, her inaction while she had Z.B. in her care was noted by the court in its order. In fact, almost all of the court’s findings related to occurrences after Z.B. was removed from appellant’s custody. The court properly considered the potential harm to Z.B. if it returned him to appellant. And its finding that other factors or issues arose subsequent to the filing of the original petition that demonstrated that return of Z.B. to appellant’s custody was contrary to his health, safety, or welfare was not clearly erroneous.
For her second point on appeal, appellant argues that the court erred when it denied her objection to allowing DHS to recall Z.B.’s occupational therapist, Melinda Lunn. On recall, Ms. Lunn testified about Z.B.’s having come to therapy after a visit with appellant in which Z.B. appeared unclean and had a musty smell. We note first that appellant has cited no authority for her argument, and we will not research or develop an argument that has no citation to authority or convincing legal argument. Henson v. Ark. Dep’t of Human Servs., 2009 Ark. App. 697, at 6, 2009 WL 3881815. Moreover, it is the circuit court’s duty to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence, Ark. |12R. Evid. 611(a), and we will not reverse a circuit court’s ruling on the admissibility of evidence absent a manifest abuse of discretion. Hopkins v. Ark. Dep’t of Human Servs., 79 Ark.App. 1, 7, 83 S.W.3d 418, 423 (2002). Ms. Lunn’s testimony regarding Z.B.’s unclean appearance had already come in through Z.B.’s foster mother. We hold that the court did not abuse its discretion.
Although this is a unique case because the court terminated appellant’s rights in spite of her ability to remain drug-free throughout the case, we are not left with a distinct and firm impression that a mistake was made. Even full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able to care for his or her child. Ford, 2014 Ark. App. 226, at 3, 434 S.W.3d at 381. In this case, appellant did not fully comply with the case plan. Her addiction caused each of her three children to be taken into DHS custody, and she admitted that she had never completed a drug-treatment program, that she had attended NA/AA meetings for only a few months after Z.B. was born, and that she was pregnant with another child at the time of the hearing. She also admitted to continuing to have urges to use drugs. The circuit court openly struggled with its decision and credited many of appellant’s positive actions, but it was convinced that it was in Z.B.’s best interest to terminate her parental rights. It made very detailed findings supporting this decision in its order, and we hold that its findings were not clearly erroneous. Accordingly, we affirm its decision.
Affirmed.
PITTMAN, WALMSLEY, and WHITEAKER, JJ., agree.
VAUGHT and HIXSON, JJ., dissent.
. Appellant continued, however, to have regular unsupervised weekend visits with Z.B. until the termination hearing in October 2013. | [
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COURTNEY HUDSON GOODSON, Justice.
|,A jury empaneled in the Crawford County Circuit Court found appellant Earl Delmar Pigg guilty of eleven counts of rape and one charge of interference with custody. The jury fixed Pigg’s sentence at a term of life in prison for each rape conviction and imposed a ten-year sentence for the offense of interference with custody. As recommended by the jury, the circuit court ordered all sentences to be served consecutively. For reversal, Pigg challenges two evidentiary rulings made by the circuit court. He contends that the circuit court erred (1) by denying his request to question one of the victims concerning her belief that Pigg was responsible for the arrest of another person, and (2) by sustaining the State’s objection to testimony that the other victim attempted to coach another child to make false accusations against Pigg’s daughter. We affirm Pigg’s convictions and sentences.
Our review discloses that the prosecuting attorney in Crawford County charged Pigg with multiple counts of rape in violation of Arkansas Code Annotated section 5-14j¿03(a)(3)(A) (Repl.2013). Under this section of the code, a person commits the offense of rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. According to the evidence presented at trial, A.S., a female minor, was the victim of ten counts of rape, while W.S., her younger sister, was the victim of a single count of rape. Both girls were friends of Pigg’s daughter. At trial, the testimony revealed that Pigg engaged in a five- or six-year sexual relationship with A.S. and that he digitally penetrated W.S. on several occasions.
The prosecuting attorney also charged Pigg with interference with custody, a violation of Arkansas Code Annotated section 5-26-503 (Repl.2013). As to this charge, the State presented evidence that Pigg took A.S. and W.S. on an overnight trip to Fayetteville without the permission or knowledge of their grandmother, who had custody of them.
As his first point on appeal, Pigg contends that the circuit court erred by denying his motion to admit testimony under the rape-shield statute. He contends that the proposed testimony was relevant and admissible under the statute because it would have exposed a motive for A.S. to accuse him of raping her.
Pigg advanced this issue in a pretrial motion. At the hearing, Pigg’s counsel advised the circuit court that the proposed testimony concerned A.S.’s youth minister who had been convicted and sentenced to a six-year term of imprisonment for sexually abusing her. Defense counsel explained that Pigg believed that A.S. thought that Pigg and his girlfriend had reported the minister’s actions to the police and that A.S. was accusing Pigg of raping her in retaliation for making the report. Counsel proposed to not mention the sexual component |sof the minister’s offense and to ask A.S. simply whether the minister had been convicted of a crime and whether she believed that Pigg and his girlfriend had been the ones who had reported the minister to the police. The circuit court denied the motion, ruling that Bigg’s motive in pursuing this line of questioning was solely to unveil a sexual relationship, between A.S. and the minister.
The rape-shield statute provides that evidence of specific instances of the victim’s prior sexual conduct with any person is not admissible by the defendant, either through direct examination of any witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim or for any other purpose. Ark.Code Ann. § 16-42-101(b) (Repl.1999). An exception is granted where the circuit court, at an in camera hearing, makes a written determination that such evidence is relevant to a fact in issue and that its probative value outweighs its inflammatory or prejudicial nature. Stewart v. State, 2012 Ark. 349, 428 S.W.3d 69. The statute’s purpose is to shield victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the pending charges, paraded before the jury and the public when such conduct is irrelevant to the defendant’s guilt. McCoy v. State, 2010 Ark. 373, 370 S.W.3d 241. We have held that evidence intended to impeach a victim’s credibility is improper under the rape-shield statute, especially in cases where the defendant is accused of raping someone under the age of fourteen, because “[w]hen consent is not an issue, whether the victim had sexual relations with another person is ‘entirely collateral.’” Vance v. State, 2011 Ark. 392, at 7, 384 S.W.3d 515, 519-20 (quoting M.M. v. State, 350 Ark. 328, 333, 88 S.W.3d 406, 409 (2002)). The circuit court is vested with a great |4deal of discretion in determining whether the evidence is relevant, and we will not overturn the circuit court’s decision unless it constituted clear error or a manifest abuse of discretion. Woodall v. State, 2011 Ark. 22, 376 S.W.3d 408.
In support of his argument on appeal, Pigg relies on this court’s decision in State v. Rapp, 368 Ark. 387, 246 S.W.3d 858 (2007). There, the State had brought an interlocutory appeal to challenge the circuit court’s decision to allow cross-examination of the minor victim regarding her father’s convictions for sex offenses. The circuit court considered the testimony relevant to the issue of the child’s credibility and trustworthiness as a witness, but under the circuit court’s ruling, defense counsel was not permitted to mention the fact that the child had been the victim of her father’s abuse. We dismissed the appeal because, pursuant to Arkansas Rule of Appellate Procedure-3(a)(3), the State may only appeal a circuit court’s decision that grants a defendant’s motion under the rape-shield statute and when the circuit court allows the defendant to delve into evidence of the victim’s prior sexual conduct. Because the circuit court actually disallowed evidence of the victim’s previous sexual conduct, we considered the appeal improper.
Based on Rapp, Pigg contends that the circuit court erred by not allowing him to ask AS. whether she believed that Pigg had reported the youth minister to the police because Pigg did not intend to disclose that the minister’s -conviction concerned a sexual offense involving A.S. We need not decide whether the circuit court erred because any error in the exclusion of the testimony was harmless, given the overwhelming evidence of guilt. A.S.’s testimony, in detail, revealed that Pigg had sexual relations with her for five to six years | ¿beginning when she was eleven years old. Bigg’s daughter and W.S. witnessed some of the sexual activity, which they described in their testimony. In addition, expert testimony disclosed that A.S. had a deep notch in her hymen, which was suggestive of sexual abuse or penetrating trauma. Moreover, the jury heard the testimony of Pigg’s niece who said that Pigg had molested her when she was eight years old. Even when a circuit court errs in making an evidentiary decision, we may declare the error harmless and affirm if the evidence of guilt is overwhelming and the error is slight. See Johnston v. State, 2014 Ark. 110, 431 S.W.3d 895. We conclude that the evidence of guilt in this case is so overwhelming that any error in the exclusion of the proposed testimony is harmless.
Next, Pigg asserts that the circuit court erred by sustaining the State’s hearsay objection to Pigg’s testimony concerning a conversation that he overheard between W.S. and another child. Pigg contends that the testimony was not hearsay because it was not offered for the truth of the matter asserted. He also points out that he relayed his account of the conversation to the police when he gave his statement, which had already been introduced into evidence. In response, the State contends that Pigg’s arguments are not preserved for appeal.
The record reflects that the following transpired during Pigg’s direct testimony:
Pigg: The time, [W.S.] was kicked out was the latter part of '09. She — They were swimming during the summer months, I believe it was around August/September of '09. We had a pool out back, and it was getting about time to feed these girls and the kids and— and what not. I went insi[de] — [A.]—is her niece; she was five years old at the time. [W.S.] had taken [A.] in, to use the bathroom. I had stepped across the hallway, past the bathroom, to the closet, to get everybody’s towels. As I walked past the closet, I heard [A.]
PROSECUTOR: I’ll object to hearsay, Your Honor.
| rThe Court: Be sustained. You can’t testify about what somebody else said. Pick it up Mr. Griggs.
Pigg: Okay.
The CouRT: Pick it up, Mr. Griggs
Defense Counsel: Okay.... Did she try to get someone to make accusations against [H.P.]?
Pigg: Yes, she did. She tried to get ...
ProsecutoR: Objection, Your Honor. That’s hearsay.
Defense Counsel: Okay, all right.
As is shown by the record, the State is correct that Pigg did not assert the arguments that he now raises on appeal. Clearly, Pigg did not contend that the testimony was not hearsay, nor did he offer any reason why the testimony was not objectionable. We have prohibited appellants from raising arguments on appeal that were not first brought to the attention of the circuit court. Tavron v. State, 372 Ark. 229, 273 S.W.3d 501 (2008). Also, an appellant is limited by the scope and the nature of the arguments and objections presented at trial. Allen v. State, 374 Ark. 309, 287 S.W.3d 579 (2008). We hold that Pigg’s argument is not preserved for appeal. Therefore, we need not decide whether the circuit court’s ruling was in error.
In compliance with Arkansas Supreme Court Rule 4-3(i), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant. From this review, no prejudicial error has been found.
Affirmed. | [
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JOSEPHINE LINKER HART, Associate Justice.
IjA Jefferson County jury convicted Kevin McMiller of capital murder, aggravated residential burglary, kidnapping, and rape. He was sentenced by the jury to life without parole for capital murder and life sentences for the other offenses, all to be served consecutively in the Arkansas Department of Correction. His sole argument on appeal is that the circuit court erred in denying his objection to the State’s use of peremptory challenges in violation of the law promulgated in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(a)(2) (2013). We affirm.
It was established at trial through the testimony of D.O., the seventeen-year-old victim of the kidnapping and rape, and through McMiller’s confession that on March 22, 2012, McMiller perpetrated the above-referenced crimes. Because McMil-ler does not challenge the sufficiency of the evidence, only a brief recitation of the facts is necessary. After D.O., McMiller’s girlfriend, acceded to her mother’s entreaty to break up with him, McMiller tried repeatedly, but unsuccessfully, to contact D.O. by phone. He then took one |2of his mother’s kitchen knives and went to the residence that D.O. shared with her mother, Shirley Owney. When McMiller overheard Shirley Owney disparage him, McMiller leaped through a bedroom window into the residence. He caught Owney in the kitchen and repeatedly stabbed her, causing her death. McMiller then put the knife to D.O.’s throat and forced her to accompany him to a deserted house where he raped her.
In his only argument on appeal, McMil-ler asserts that the circuit court erred in denying his Batson challenge. He contends that there was purposeful discrimination in that “of the eight strikes used by the State, six [sic] were strikes of black potential jurors,” which resulted in him, an African American, being tried by an all-white jury.
During voir dire, of the eight peremptory challenges made by the State, five of the jurors struck were African Americans. McMiller asserted, at trial and on appeal, that this demonstrated a pattern of systematic discrimination. While the circuit court made no finding of systematic discrimination, upon McMiller’s assertion of a Batson violation, the State volunteered race-neutral explanations for its challenges. The State noted that during questioning, Venoit Morgan and Lois Reed expressed doubt about their ability to sit in judgment over someone, and following a denial of its motion to strike them for cause, it used peremptory challenges to remove them from the jury. Further the State claimed that it struck Theresa Helms because she would “not interact” and was young and unemployed. The State explained that it struck Catha Hicks because she had deadlines on her job and her mind was “not in the courtroom.” The State further asserted that Hicks said she could not judge and that her husband and her son had previously been charged with felony offenses. |sThe State stated that Sterling Linton II was struck because he did not respond or have any interaction during questioning. One other African American juror was drawn from the veni-re, but she was struck by the defense. The circuit court noted that it was not asked to rule whether the use of peremptory strikes established a systematic effort to exclude African Americans from the panel. Nonetheless, the circuit court did find that the State gave a reasonable race-neutral explanation for its strikes and denied McMiller’s Batson challenge.
Batson v. Kentucky held that the State in a criminal case may not use its peremptory strikes to exclude jurors solely on the basis of race. Jackson v. State, 375 Ark. 321, 290 S.W.3d 574 (2009). At trial, a three-step process is required to effectuate the dictates of Batson and its progeny. Id. First, the opponent of the peremptory strikes must present facts to make a prima facie case of purposeful discrimination. Id. Second, upon a showing of a prima facie case of systematic discrimination, the State is required to give a race-neutral explanation for the strikes. Id. Third, the circuit court must decide whether the opponent of the strike has proved purposeful discrimination. Id. On appeal, we will not reverse a circuit court’s findings on a Bat-son objection unless the decision is clearly against the preponderance of the evidence. Id. Some deference is accorded the circuit court in making this decision because it has the opportunity to observe the parties and determine their credibility. London v. State, 854 Ark. 313, 125 S.W.3d 813 (2003).
At trial, McMiller essentially conceded that two of the strikes, Venoit Morgan and |4Lois Reed, were valid because they followed unsuccessful challenges for cause after both potential jurors expressed doubt about their ability to sit in judgment over someone. Likewise, McMiller does not challenged the validity of the State’s rationale for their challenge on appeal. However, McMiller does argue that the reasons the State offered for challenging Helms, Hicks, and Litton, were not valid.
McMiller asserts that it was improper for the State to strike Helms because she was young and unemployed and did not respond to questioning. However, we note that the State further justified its strike by asserting that it also struck Nicholas Prater, a white man, who, like Helms, was also young and unemployed. Given that similarly situated venire persons of different races were treated the same, we cannot say that the circuit court’s decision that this explanation was race-neutral was clearly against the preponderance of the evidence. Jackson v. State, supra.
Regarding the State’s use of a peremptory challenge to remove Hicks from the jury, at trial, the State claimed that its decision to strike Hicks was because she had deadlines on her job and “her mind just was not in the courtroom.” Additionally, the State noted and her husband and son had previously been charged with felony offenses. McMiller neither refutes these reasons nor argues that the reasons given by the State are not race-neutral explanations. Accordingly, we cannot say that the circuit court clearly erred in finding that the State’s explanation for striking Hicks was race-neutral.
Finally, we cannot say that the circuit court clearly erred in failing to find that the strike of Sterling Linton II, violated Batson. As noted, the State’s race-neutral reason for the ^strike was that Linton did not respond or have any interaction during questioning, and he was just “staring off into space.” On this issue, we defer to the circuit court as the arbiter of credibility as it was in a superior position to observe both Linton’s interaction and the prosecutor’s demeanor in asserting its race-neutral reason. We hold that the circuit court did not clearly err in denying McMiller’s Batson challenge.
Pursuant to Arkansas Supreme Court Rule 4 — 3(i) (2013), the record has been reviewed for all objections, motions, and requests that were decided adversely to McMiller and no prejudicial error has been found.
Affirmed.
. When the State offered a race-neutral explanation for its strikes, it rendered moot the circuit court’s failure to make an initial determination whether defendant had made a pri-ma facie showing of discriminatory intent. London v. State, 354 Ark. 313, 125 S.W.3d 813 (2003). | [
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ROBERT J. GLADWIN, Chief Judge.
| tThe Sebastian County Circuit Court granted judgment on September 25, 2013, to appellee Karla Butler in the amount of $52,471.99 for arrearages in alimony, insurance payments, and child support; denied appellant’s request for a reduction in alimony and claim for offset; and found appellant in contempt, ordering him to comply within six months or be incarcerated. On appeal, appellant argues that the trial court erred (1) by finding him in contempt, (2) in its analysis of a material change in circumstances, (3) in its analysis of appellant’s claim for offset, and (4) in applying unclean hands to the offset analysis. We affirm.
I. Procedural History
Appellant filed for divorce on October 10, 2007, and appellee counterclaimed, asking for custody of their two children and for appellant to be responsible for all marital debt. By temporary order of July 14, 2008, appellant was ordered to pay $2500 in alimony and child 12support, as well as certain bills, including the mortgage, homeowner’s insurance, and medical insurance for the children.
Appellant filed a motion for reconsideration on July 23, 2008, claiming that he had presented testimony that he makes no income; however, if the circuit court had used the 2007 income in setting support, then the amount ordered was above the amount listed in Administrative Order No. 10.
An amended temporary order was filed on September 15, 2008, ordering appellant to pay $2500 in temporary alimony and child support effective July 1, 2008, with $1666.67 designated as child support and $833.33 as alimony. He was further ordered to continue paying the bills. The circuit court noted that, regardless of appellant’s testimony, he had continued to pay alimony and the bills as ordered.
On September 19, 2008, the Child Support Enforcement Unit (CSEU) intervened and filed a motion for contempt against appellant claiming that he was in arrears in child support in the amount of $5000.01. On September 29, 2008, CSEU filed a motion to modify, claiming that appellant had been ordered to pay $2500 per month in child support, and asked for a wage-assignment order. This motion was modi fied on October 6, 2008, to reflect the designated child-support obligation of $1667.67.
On December 29, 2008, the circuit court ordered that the payments continue as ordered, plus an additional $500 for “any” arrearage. The court found that appellant was | (¡current on child support through November 80, 2008. Further, the court ordered that the payments to appellee be made directly to her by wire transfer. The court also ordered that any “payor” deduct child-support payments from appellant’s pay.
On June 11, 2009, CSEU filed a motion for citation for a child-support arrearage of $7500 since December 20, 2008. A hearing was set for September 22, 2009, and on that day, a decree was filed granting the parties a divorce and awarding custody to appellee. A support and property-settlement agreement was attached. The parties agreed that appellant would pay $1282 per month child support beginning July 2009. The child-support amount was to decrease to $894 monthly on August 16, 2009, when the oldest child turned eighteen. Alimony was set at $1000 per month beginning July 2009 through May 2028. They agreed that any modification would be based on a substantial change in appellant’s income before June 30, 2012. Appellant was also to reimburse appellee $250 per month for medical insurance.
On January 15, 2010, appellant’s lawyer filed a motion to withdraw because his client had not paid his fees or those of the ad litem, who had been appointed on January 8, 2009. An order was entered allowing withdrawal on January 20, 2010.
On January 28, 2010, appellee filed a motion for contempt for appellant’s failure to pay bills in violation of the September 15, 2008 amended temporary order. Included were the internet bill, real-estate taxes for 2008, medical insurance, and alimony for April, May, and June 2009. Further, appellee alleged that she was forced to pay car and mortgage payments and insurance on both. She also claimed that appellant had failed to pay the child support, |4medical insurance, and alimony payments as called for in the property settlement and decree. On February 18, 2010, the attorney ad litem filed a contempt motion against appellant for nonpayment of fees in the amount of $1239.58.
On April 22, 2010, appellant filed a coun-termotion for abatement of alimony, reduction in child support, and for contempt, claiming a substantial change in his income. He alleged that appellee contacted a third party to complain online about his company. Also, he alleged that she had thwarted visitation and communication with his child.
An agreed order was filed September 23, 2010, wherein appellant was to make an immediate payment of $15,648 to CSEU for child support and insurance from July 2009 through July 2010. He was also to pay $3000 in outstanding attorney’s fees and $1240 to the attorney ad litem. In exchange, he was not to begin alimony payments until May 2011, when he would then owe for twenty-two months of alimony. The agreement was for him to pay an extra $1000 per month at that time, making his payments $2000 per month from May 2011 through February 2013. In March 2013, he would go back to paying $1000 per month through May 2023. All previous orders not conflicting with the new agreement stayed in effect. Appellee preserved her argument regarding alimony for April-June 2009.
On May 22, 2012, appellee filed a contempt petition alleging that appellant was behind $4300 in child support, $3000 in insurance, and $44,000 in alimony. On August 27, 2012, appellant filed a counterclaim alleging that he was entitled to a modification in alimony and asked for a decrease in child support as well. He also asked for a set-off against moneys owed him for repairs he had made to the marital home.
| ¡After a hearing on July 9, 2013, an order was filed September 25, 2013, denying appellant’s motion for reduction in alimony and disallowing any offset. Judgment was awarded to appellee in the amount of $52,471.99. The circuit court noted that appellant had unclean hands for not paying alimony and child support during the time appellee occupied the home. The circuit court found as follows:
The Plaintiff is ordered and directed to comply with all Orders in the future and that if the judgment is not satisfied within a reasonable period of time not to exceed six (6) months from the date this Order is entered, a Body Attachment shall issue and the Plaintiff shall be incarcerated in the Sebastian County Detention Center until such time as he brings current all of his obligations under the previous Order and current Orders of this Court.
This appeal timely followed.
II. Contempt
Civil contempt protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. Ward v. Ward, 2014 Ark. App. 261, 434 S.W.3d 923. Because appellant was held in civil contempt, we apply our standard of review for civil contempt, which is whether the finding of the circuit court is clearly against the preponderance of the evidence. Id.
Appellee claims that because appellant has not been imprisoned as yet for his failure to comply, the order is not final and appealable. Appellant replies that Ark. R.App. P.-Civ. 2(a)(13) (2014) addresses this issue and that the order is appealable. Rule 2(a)(13) allows that an appeal may be taken from a circuit court to the Arkansas Supreme Court from a civil-contempt order, which imposes a sanction and constitutes the final disposition of the contempt matter.
Ifiln Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992), our supreme court stated that suspension of a sentence for contempt is in effect a complete remission of the contempt. However, the court noted that when part of the sentence is suspended, the portion that was suspended is remitted, but the remaining portion of the contempt still exists. Henry, 309 Ark. at 342, 832 S.W.2d at 470. The supreme court held that a partial suspension of a contempt sentence did not render the appeal moot. Id. The supreme court noted that a conditional suspension was a “mere postponement of the contempt rather than a remission.” Id. Here, because the circuit court issued the judgment and found appellant in contempt, sentencing him to jail time if he did not satisfy the judgment within six months from the date of the order, we hold that there was a postponement rather than a remission of the contempt and a final, appealable order resulted.
Appellant argues that his inability to pay is a defense to contempt for his failure to pay alimony. Griffith v. Griffith, 225 Ark. 487, 283 S.W.2d 340 (1955) (In a contempt proceeding to coerce the payment of money, inability to pay is a complete defense against enforcing payment by imprisonment.). Appellant points to his testimony that he was working twelve-hour days and did not have the money to pay it. He contends that the circuit court made no findings on this issue. He claims that the undisputed evidence was that he could not comply with the terms of the decree and settlement agreement. He argues that his obligations were $27,000 more than his income as reflected in tax years 2009-2011. He admits that he agreed to the first two settlement orders “for reasons that are highly unclear from the record,” but |7claims that there is “no evidence that he has ever had even the prospective capacity to pay for either of them.”
He argues that if the contempt order is carried out, it would ensure that he would never be able to pay his alimony because he owns his own company and generates the income that he does have. If he were jailed, therefore, he contends that he would be financially wiped out.
Appellee contends that the circuit court could see that appellant stopped paying child support when the younger reached eighteen, but did not pay anything toward his other obligations thereafter, even though his child-support obligation had abated completely. She reasons that appellant knew that failure to pay child support is a criminal matter, but failure to pay alimony is not. We hold that the circuit court’s contempt finding was not clearly against the preponderance of the evidence given appellant’s willingness to enter into agreed orders, his failure to pay, and the circuit court’s superior position to determine the credibility of witnesses and the weight to be given their testimony. Brave v. Brave, 2014 Ark. 175, 433 S.W.3d 227.
III. Change in Circumstances
Modification of an award of alimony must be based on a change of circumstances of the parties. Herman v. Herman, 335 Ark. 36, 977 S.W.2d 209 (1998). The burden of showing a change of circumstances is always on the party seeking the change in the amount of alimony. Hass v. Hass, 80 ArkApp. 408, 97 S.W.3d 424 (2003).
|sThe primary factors to be considered in changing an award of alimony are the needs of one party and the ability of the other party to pay. Parker v. Parker, 97 Ark.App. 298, 248 S.W.3d 523 (2007). Secondary factors that may also be considered include (1) the financial circumstances of both parties; (2) the couple’s past standard of living; (3) the value of jointly owned property; (4) the amount and nature of the income, both current and anticipated, of both parties; (5) the extent and nature of the resources and assets of each of the parties; (6) the amount of each party’s discretionary income; (7) earning ability and capacity of both parties; (8) the property awarded to each party; (9) the disposition of the homestead or jointly owned property; (10) the condition of health and medical needs of the parties; (11) the duration of the marriage. Delacey v. Delacey, 85 ArkApp. 419, 155 S.W.3d 701 (2004). Each case is to be judged upon its own facts. Id. Discretion is vested in the circuit court, and we will not reverse absent an abuse of discretion. Id.
Appellant argues that the circuit court failed to consider the parties’ material change of circumstances. He contends that the circuit court made no findings and took no notice of his inability to pay. The court determined that his income had not changed between entry of the 2010 settlement agreement and the hearing on his motion for reduction. He agrees that in that time period, his income did not change. However, he argues that other circumstances did: (1) He took on additional debt to comply with part of prior orders. He borrowed money against his car and from family, and incurred a debt of $98,000 against unpaid portions of the mortgage on the house, and the failure of a prior business that he owes $2000 per month on; (2) Appellee was able to put ten percent down on a new house and has |9had a $6,000 annual-pay increase; (3) The parties contemplated an increase in his income when the 2010 settlement was entered, or they would not have agreed to make him pay more than his available income. He offers to pay $250 per month in alimony.
Appellee argues that the alimony order of 2010 is not modifiable. First, appellant filed his motion after the June 20, 2012 deadline; second, he had an opportunity in 2010 to modify his obligations and did not do so; and third, his income has not decreased since the last order filed in September 2010.
She argues that it was appellant’s duty to make clear the reasons for the first two settlement orders. She argues that he cannot vaguely allude to possible improvidence and demand that she surrender what she contracted to receive. Appellant contracted to pay the alimony, and it is not modifiable outside the parameters of the contract. The contract allowed modification based on his income. However, appellant admitted that his income had not changed. We hold that there was no abuse of discretion in finding that appellant failed to meet his burden of proof and denying appellant’s request for a modification in alimony.
IV. Offset
In Duncan v. Duncan, 2011 Ark. 348, at 8, 383 S.W.3d 833, 838, our supreme court held as follows:
Although equity cases are reviewed de novo, and the whole case is open for review, the findings of fact by the circuit judge in equity cases are not to be set aside unless clearly erroneous. Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009); see also Ark. R. Civ. P. 52(a) (2011). In determining whether the circuit judge clearly erred with regard to a factual finding, the appellate court may look to the whole record to reach that decision. Stehle, 375 Ark. at 455, 291 S.W.3d at 580. A finding of fact is clearly erroneous when the reviewing court, based on the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. Therefore, “a Incomplete review of the evidence and record may take place as part of the appellate review to determine whether the trial court clearly erred in either making a finding of fact or in failing to do so.” Id. at 456, 291 S.W.3d at 580.
Appellant contends that the original divorce-settlement agreement provided that he was to make payments to his stepmother for the continued use of the residence at 6512 Park Avenue. However, appellee lived there and was to maintain the residence in good condition and repair. He argues that she did not keep up her end of the contract and that some issues regarding the condition of the house came up in the divorce, and the contract resolved them, making her responsible for some unrepaired items in the house. These items included gutters, roof and skylight, fence,, and damage to the wall. He complains about the pool repairs that appellee had made that left damage in the amount of $10,000; that she left with fixtures to the house, including the dishwasher, light fixtures, and ceiling fans; that he would have to fix the furnace because appellee did not maintain it; and that he had to have trash bins brought in to clean up trash that appellee left.
He argues that even if the circuit court found appellee’s version of events more credible, the decree provided that she would keep things in good condition and repair, and this was not done. He argues, therefore, that credibility is not at issue. He claims that, had she received her alimony and been able to pay for it, she would have been responsible for it then, so she should be responsible for it now.
Appellee claims that appellant’s plea for set-off fails for lack of sufficient evidence. The circuit court wrote:
10. With respect to the plaintiff’s request for repairs made and repairs to be made, the court notes that a number of these items include airline tickets, hotel expenses, rental In car expenses, which are clearly not repairs to the Arkansas home and furthermore, the evidence is conflicting as to the condition of the real estate and home at the time the parties separated and there was no independent witness or photograph introduced into evidence depicting the conditions at separation or the time of the divorce. As mentioned above, under the Agreement that the Plaintiff made with his stepmother, he was to be solely responsible for any repairs, upkeep and maintenance on the home; therefore, he would have been responsible for any of the upkeep, care and maintenance up until the time of separation. Again, there is no evidence of the condition of the real estate and home at the time of separation. The evidence is clear that the carpet was original, the fence was ill constructed from the onset, there was no irrigation system to ensure the life of the existing original landscaping and the heat and air-conditioning was in ill repair while the Plaintiff resided in the home. Therefore, based on all of the above, the Court denies the Plaintiff’s claim for offset against the alimony for the mortgage payments, repairs paid and repairs required for lack of proof and lack of evidence.
Appellee argues that the evidence was that the swimming pool needed repair before the divorce, but that appellant had let the insurance lapse and that the necessary repairs were not made. Appellant cannot now seek an offset for those repairs. Ap-pellee refers to other testimony regarding the harsh summer and the conditions of the original carpet and gutters.
In reviewing equity cases, appellate courts conduct a de novo review of the record and do not reverse a finding by the circuit court unless it is clearly erroneous or clearly against the preponderance of the evidence. Chastain v. Chastain, 2012 Ark. App. 73, 388 S.W.3d 495. We also give due deference to the circuit court in judging the credibility of the witnesses. Id. Given our standard of review and the circuit court’s evident evaluation of the witness’s credibility, we hold that there was no clear error in the circuit court’s order denying an offset.
|12V. Unclean Hands
The clean-hands doctrine bars relief to those who are guilty of improper conduct in the matter in which they seek relief. Nationsbanc Mtg. Corp. v. Hopkins, 87 Ark.App. 297, 190 S.W.3d 299 (2004).
Appellant contends that this doctrine does not apply to him because he was unable to pay his alimony and because his actions were not driven by disobedience. Appellee argues that appellant came to court with unclean hands, and he should have shown compliance with the court’s orders or at least that he tried to pay something. She claims that his debts in business and to his mother should not be above the debt that he owes her. She points out that appellant did not even pay the $250 he now offers as a show of good faith. Again, giving due deference to the circuit court’s judgment of the credibility of the witnesses, we hold that there was no clear error in the circuit court’s order.
Affirmed.
WALMSLEY, GLOVER, WHITEAKER and VAUGHT, JJ., agree.
PITTMAN J., dissents.
. We recognize the one-dollar difference in the amount as set forth in the September 15, 2008 order and the October 6, 2008 motion. | [
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Sarah J. Heffley, Judge.
Larry Roberts appeals the decision of the Arkansas Workers’ Compensation Commission finding that his cervical injury was not causally connected to his work-related accident. By this two-to-one decision, the Commission reversed the opinion of the administrative law judge, who had found the claim compensable. Appellant contends on appeal that substantial evidence does not support the Commission’s decision. We reverse and remand for proceedings consistent with this opinion.
Appellant began working for Whirpool in 1970. On September 10, 2004, when he was fifty-four years old, appellant was moving 1,900 pounds of batteries in a cart, and one of the cart’s wheels became stuck in a hole. As he was pulling and jerking on the cart to dislodge it from the hole, appellant felt pain in his left shoulder that shot down his arm. He did not report the incident immediately because it was a Friday and there were only ten minutes left on his shift. However, the pain in his shoulder and arm worsened and spread into his hand, so he went to the emergency room later that evening.
At the emergency room, appellant reported that he had injured himself at work while moving batteries, and he complained of pain to his left shoulder blade that radiated down his arm, and numbness and tingling in the fingers of his left hand. He was given pain medication and muscle relaxers with the recommendation that he have a CT or MRI to rule out the presence of a herniated disc with radiculopathy. Appellant reported the injury to appellee the following Monday, and he was sent to the company doctor, Dr. Thomas Cheyne, still complaining of left shoulder pain and numbness in his left hand. Dr. Cheyne ordered an open-air MRI of the cervical spine as an evaluation for cervical radiculopa-thy. The MRI was done on September 16, 2004, which showed cervical spinal spondylosis with canal stenosis most pronounced at the C7-T1 level and bilateral degenerative facet joint disease with neuroforaminal narrowing. Small focal disc protrusions were suspected at multiple levels, and the radiologist suggested a spinal myelogram to assess the canal stenosis and to differentiate between disc protrusions and osteophytes. Appellant returned to Dr. Cheyne on September 22, and while Dr. Cheyne placed appellant on a ten-pound weight restriction with no reaching, pulling, pushing or lifting above shoulder level, he ordered no further testing as had been recommended by the radiologist.
Appellant testified that the problems with numbness and tingling in his hands never resolved, and he later developed problems with his back. He had been working with the aid of a helper, but the helper was taken away in December 2004. On his own, appellant made an appointment with his personal physician, Dr. Jeffrey Medlock, on January 26, 2005. While his chief complaint related to his back, appellant also reported pain that radiated down his left arm with numbness and tingling in his left hand. On physical examination, Dr. Medlock noted that there was atrophy in the hypothenar space on the left hand. An MRI of the lumbar spine was taken on that date, but it detected in the cervical area at the C7-T1 level canal stenosis, anterolisthesis, facet hytrophy, ligamentum flavum hypertrophy, and canal narrowing, as well as spondylosis. Hydromelia was also suspected and further imaging of the cervical spine was recommended. At this visit, appellant attributed his problems to the accident at work on September 10, 2004.
Appellant returned to Dr. Medlock on February 7, 2005, and again complained of numbness in his fingers on the left hand and diminished strength and dexterity. Dr. Medlock made an assessment of radiculopathy in the left upper extremity. In early March, appellant was referred to Dr. Arthur Johnson, a neurosurgeon, for an evaluation related to his back condition. In an office note, Dr. Johnson noted that appellant’s lumbar and cervical spine problems were unrelated or “two separate issues.” Dr. Johnson took appellant off work for three months because of his back and sent him for a course of physical therapy. At the first therapy session, appellant complained of neck pain and the lack of control of his left hand, and he mentioned that the muscles in that hand had wasted away and that he was unable to button his clothing or use his left arm.
On May 13, 2005, appellant was sent to the emergency room by Dr. Medlock because of complaints of pain in his neck and left arm, which appellant related to the September 2004 work-related accident. Appellant’s physical examination revealed wasting to his left hand with diminished grip strength. The MRI taken of his cervical spine was described as “grossly abnormal.” It revealed a facet subluxation secondary to degenerative disc disease at the C7-T1 area with a large disc herniation, resulting in spinal cord compression with evidence of cord edema. When the study was read, appellant had already been sent home, but he was contacted and told to return to the hospital for admittance. There, he again came under the care of Dr. Arthur Johnson.
On May 17, Dr. Johnson performed an anterior cervical discetomy and fusion at C6-T1 and C7-T1. After the surgery, appellant participated in rehabilitation where it was noted that the grip strength in his left hand was improving.
On December 28, 2005, Dr. Johnson authored a letter to appellant’s attorney. He wrote:
I have reviewed the patient’s emergency room report dated 09/10/04 and the patient did present with pain in the left shoulder and left arm and also pain going to the fingers as well. The occupational report prepared on 09/11/04 also confirmed the same history with pain in the left arm and numbness. These findings in the left arm are problems that can definitely be linked to cervical disc herniation, as the patient’s pain appears to be radiating from the shoulder all the way down into the arms and fingers. If this was an isolated shoulder problem, usually the pain would be more isolated to the shoulders and would not have any radiation into a radicular pattern in the extremity. It is therefore my opinion that the patient’s problems are related to the accident and that the cervical disc problems that occurred were a result. Also, the history of the battery charger dropping into a hole in the concrete floor and being difficult to get out and the patient could not remove this is an acceptable mechanism of injury as well.
Dr. Johnson was also deposed on June 29, 2006. In his deposition, he reiterated his position that the cervical disc herniation, which produced spinal cord damage, was causally related to appellant’s accident at work. He noted that the MRI of September 2004 revealed the herniation and that from the outset, as shown by the emergency room records, appellant presented with pain flowing down his left arm and into his hand with associated numbness and tingling. He stated that these symptoms showed a radicular pattern consistent with nerve-root compression resulting from the herniation. Dr. Johnson also compared the September 2004 and May 2005 MRIs. The latter one showed that the herniation had become more prominent and also revealed the presence of edema, which he said was indicative of spinal cord injury. Dr. Johnson explained that edema can occur with the initial injury or progressively over time as the herniation causes more irritation and damage to the cord. Dr. Johnson also explained that atrophy, or the muscle wasting in appellant’s left hand, was a by-product of the edema, which causes the loss of innervation to the anterior horn cells of the spinal cord, which then causes the nerve fibers and eventually the muscle fibers to die.
Appellee retained the services of Dr. Johnny K. Smelz, a physiatrist. Dr. Smelz did not see appellant, but she reviewed his medical records and offered written “comments” and a “commentary” on the testimony of Dr. Johnson. Dr. Smelz was of the opinion that the injury appellant sustained in the accident was compatible with myofascial muscle pain, and not radicular pain stemming from a herniation. Further, she opined that appellant’s more recent difficulties resulted from his pre-existing degenerative disc disease that had merely worsened over time. She also questioned the opinion of Dr. Johnson, who had performed the surgery, that appellant had a spinal cord injury, because she said there was no objective evidence to support that conclusion.
In finding that appellant’s cervical injury was not related to the accident at work, the Commission dismissed entirely the opinion of Dr. Johnson because it was “based on the claimant’s history” and because “he did not review the claimant’s medical records.” The Commission then relied on the comments of Dr. Smelz and denied appellant’s claim because “he was not diagnosed with a herniated disc in his cervical spine until 8 months after his injury”; because appellant “never complained of neck pain”; and because appellant had “significant degenerative changes in his spine.”
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. Liaromatis v. Baxter County Regional Hospital, 95 Ark. App. 296, 236 S.W.3d 524 (2006). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Jones v. Wal-Mart Stores, Inc., 100 Ark. App. 17, 262 S.W.3d 630 (2007). When the Commission denies benefits upon a finding that the claimant failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission’s decision displays a substantial basis for the denial of relief. Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5 (2000).
Appellant contends that the Commission’s decision is not supported by substantial evidence because its reasons for rejecting Dr. Johnson’s opinion were specious. We agree.
The first reason the Commission gave for discounting Dr. Johnson’s opinion was because he relied on the history relayed to him by the appellant. The history appellant gave was that he was asymptomatic before the accident and that afterwards he experienced pain, and numbness and tingling in his left arm and hand that did not resolve with time. We can conceive of circumstances in which the Commission might fairly reject a doctor’s opinion that is based on the history provided by a claimant, such as when the Commission finds that the claimant’s account is not worthy of belief. Where, as here, however, there is no evidence in the record suggesting that the history was inaccurate, and the Commission makes no finding that the history given is not credible, there is no just basis for dismissing a doctor’s opinion simply because it was based in part on the history provided by the claimant. It is within the province of the Commission to weigh conflicting medical evidence; however, the Commission may not arbitrarily disregard medical evidence or the testimony of any witness. Fayetteville School District v. Kunzelman, 93 Ark. App. 160, 217 S.W.3d 149 (2005). We hold that the Commission’s rationale for rejecting Dr. Johnson’s opinion is fundamentally flawed.
The second ground upon which the Commission discredited Dr. Johnson’s opinion was that he had not reviewed appellant’s medical records. This finding is not supported by substantial evidence. On March 8, 2005, which was the appellant’s first appointment with him, Dr. Johnson made a notation that he did not have access to appellant’s medical records. However, Dr. Johnson’s deposition testimony reveals that he was by that time fully conversant with appellant’s medical records.
This court does not review decisions of the Commission de novo on the record. S&S Construction, Inc. v. Coplin, 65 Ark. App. 251, 986 S.W.2d 132 (1999). The Commission’s erroneous findings require us to reverse its decision and remand for it to fully examine the relevant evidence presented. Tucker v. Roberts-McNutt, Inc., 342 Ark. 511, 29 S.W.3d 706 (2000); Vaughan v. APS Services, LLC, 99 Ark. App. 267, 259 S.W.3d 470 (2007).
Reversed and remanded.
Griffen and Glover, JJ., agree.
Appellant’s back problems were considered only degenerative in origin, and he withdrew his claim that his back condition was related to the accident at work. | [
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John Mauzy Pittman, Chief Judge.
The Arkansas Board J of Review denied unemployment benefits to appellant on the ground that she failed to make a good-faith effort to prevent mistreatment from recurring and, therefore, did not leave her job for good cause connected with the work. On appeal, appellant argues that the Board erred in so concluding. We agree, and we reverse and remand.
A person is disqualified from receiving unemployment benefits if she left her last work voluntarily and without good cause connected with the work. Ark. Code Ann. § ll-10-513(a)(l) (Repl. 2002). Good cause is that which would reasonably impel the average able-bodied, qualified worker to give up her employment. Teel v. Daniels, 270 Ark. 766, 606 S.W.2d 151 (Ark. Ct. App. 1980). It depends on the good faith of the employee, including a genuine desire to work and to be self-supporting, and also on the reaction of the average employee under the circumstances. Id. A determination of good cause is usually a fact question within the province of the Board of Review. Harris v. Daniels, 263 Ark. 897, 567 S.W.2d 954 (1978). On appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. Terravista Landscape v. Williams, 88 Ark. App. 57, 194 S.W.3d 800 (2004). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.
The Board made the following findings of fact:
[T]he claimant presented that she quit her work for the employer as a quality assurance (QA) auditor because of a night or second-shift supervisor’s chronic harassment, lack of cooperation, and foul and abusive language. The claimant described that she protested about the second-shift supervisor’s behavior to her immediate supervisor, the QA manager, several times. In particular, after an intense incident in November 2006, the QA manager told the claimant, in effect, that management would stop the second shift supervisor’s offensive behavior. Then, when there was a recurrence in January or February 2007, the claimant met with the QA manager and the plant manager concerning the second shift supervisor’s offensive behavior. Again, the claimant received assurances that the management would remedy the problem. However, on April 4, 2007, there was another recurrence of unruly behavior of the second-shift manager in response to which the claimant quit by walking off the job in mid-shift.
The nature of this last instance of abuse was more fully described in the findings of the Appeal Tribunal, which were adopted by the Board of Review as its own:
[The second-shift supervisor] confronted the claimant because he felt that she was not performing her job correcdy and because he felt that claimant had reported him for something he had done. [The second-shift supervisor] told the claimant, “You think that you’ve been f*cked, but I have been fucked worse than you.” The claimant was later speaking to a USDA inspector. [The second-shift supervisor] called her and told her to come to the office. He confronted her about his belief that she was going to speak to [the QA manager] about him the following day. The claimant felt that [the second-shift supervisor] was intentionally trying to provoke her. She quit.
On the basis of these findings, the Board concluded that appellant failed to prove that she left her job for reasons that would impel the average able-bodied, qualified worker to give up her employment. In so concluding, it reasoned that, because the second-shift supervisor’s abuse abated for some time after appellant reported it, it would not have been “futile” for appellant to continue to endure and report the abuse to management in the hope that a “more permanent” remedy might be obtained. We hold that this reasoning is fundamentally flawed and resulted in an erroneous conclusion.
The law does not require a worker to exhaust every possibility in an effort to rectify mistreatment and abuse, but instead requires only that which would be reasonable for an average employee under the circumstances. The Board found as a fact that appellant made multiple attempts to preserve her job by reporting her supervisor’s harassment and verbal abuse, that the abuse nevertheless recurred, and that appellant quit after the supervisor abused her for the third time and confronted her regarding her intention of continuing to report his actions to management. We do not think that reasonable minds could conclude, on the basis of the facts actually found by the Board, that an employee lacks good cause connected with the work for terminating her employment unless she continues to endure abuse, later including abuse for “whistle blowing,” after she has made two fruitless efforts to rectify the problem with management.
Under normal circumstances, reversal of the Board on a fact-intensive issue would be accompanied by a remand with directions to conduct further proceedings consistent with the law as expressed in our opinion. Here, however, we are presented with the exceedingly rare circumstance where the Board has made all the relevant findings of fact but has simply reached the wrong legal conclusion based on the facts as found. It is appropriate under such singular circumstances for us to remand with directions to enter an award of benefits, and we do so in this case.
Reversed and remanded.
Robbins and Marshall, JJ., agree. | [
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PER CURIAM.
|TIn 2011, a judgment-and-commitment order was entered in the Little River County Circuit Court reflecting that appellant Larry Hugh Tyson had been convicted of manufacture of a controlled substance— marijuana, simultaneous possession of drugs and firearms, possession of a controlled substance with intent to deliver— methamphetamine, and possession of drug paraphernalia. He was sentenced to an aggregate term of 192 months’ imprisonment. No appeal was taken from the judgment.
In 2013, appellant filed in the Hot Spring County Circuit Court, the county in which he was incarcerated, a pro se petition for writ of habeas corpus pursuant to Arkansas Code Annotated sections 16-112-101 to -123 (Repl.2006). On motion of the State, the circuit court dismissed the petition on the ground that appellant failed to state any claim cognizable in a habeas proceeding. Appellant now brings this appeal.
We dismiss the appeal because the Hot Spring County Circuit Court can no longer grant the relief requested by appellant. An appeal from an order that denied a petition for | ¡.postconviction relief, including a petition for writ of habeas corpus, will not be permitted to go forward where it is clear that the appellant could not prevail. Wilencewicz v. Hobbs, 2012 Ark. 230, 2012 WL 1877415 (per curiam); Fudge v. Hobbs, 2012 Ark. 80, 2012 WL 579483 (per curiam),
Any petition for writ of habeas corpus is properly addressed to the circuit court in the county in which the petitioner is held in custody, unless the petition is filed pursuant to Act 1780 of 2001, in which case the petition is properly filed in the court in which the conviction was entered. Wilencewicz, 2012 Ark. 230. Arkansas Code Annotated section 16-112-105 requires that certain procedural requirements be met by a petitioner asking a court to issue a writ of habeas corpus. The writ must be directed to the person in whose custody the prisoner is detained. Ark.Code Ann. § 16 — 112—105(b)(1). Additionally, the writ should be issued by a court that has personal jurisdiction over the defendant. Borum v. State, 2011 Ark. 415, 2011 WL 4685043 (per curiam).
In the present matter, while appellant may have been incarcerated at a facility in Hot Spring County when he filed the petition, public records of the Arkansas Department of Correction confirm that appellant is no longer incarcerated at a facility within that county. 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. Chestang v. Hobbs, 2011 Ark. 404, 2011 WL 4490847 (per curiam); Buckhanna v. Hobbs, 2011 Ark. 119, 2011 WL 913201 (per curiam). • When a prisoner who seeks habeas relief is transferred to a facility in a different county, the circuit court in the county where the prisoner was previously incarcerated no longer has jurisdiction to issue and make a returnable writ. Wilencewicz, 2012 Ark. 230. Although the Hot Spring County Circuit Court may have retained subject-matter jurisdiction, it does not retain personal jurisdiction over the person in whose custody the ^prisoner is detained, and an order by that court will not act to effect his release. Id. This court will dismiss an appeal of the denial of a petition for writ of habeas corpus where the appellant is no longer incarcerated in the county where his petition was filed because the court can no longer grant the relief sought. Id.
Appeal dismissed. | [
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Sarah Heffley, Judge.
Appellant appeals his conviction for second-degree murder in the death of Darryl Miller. Appellant contends that (1) the trial court erred in denying his motion for directed verdict, and (2) the trial court erred in failing to adopt his proposed jury instruction regarding justification. We find no error and affirm.
On June 15, 2006, Amanda Miller, the victim’s wife, visited appellant at his home and decided to spend the night. Amanda and appellant had known each other for approximately one year and had previously engaged in a sexual relationship during her marriage to the victim. In the early morning hours of June 16, Darryl Miller went to appellant’s home and demanded to see his wife. Darryl and Amanda argued in appellant’s bedroom, and Darryl forcibly removed Amanda’s wedding ring from her hand. Appellant asked Darryl to leave, and when he did not do so, appellant turned off the lights in the bedroom and used his nine-millimeter pistol to fire five shots at Darryl. Darryl died at the scene.
On July 6, 2006, an information was filed charging appellant with first-degree murder. A jury trial was held on May 16-18, 2007. At trial, Amanda admitted that she had an extra-marital affair with appellant on two occasions prior to the murder. Amanda testified that on the night in question, she was awakened by the phone ringing, and then she heard a knock at the door. She testified that her husband came into the bedroom and ripped the covers off of her. He then took her wedding ring off of her finger and pushed the left side of her face with his hand. She testified that appellant told her husband to leave, but she and her husband continued to argue. Amanda testified that the lights went out and she saw the flashes of the gun and heard the shots. She stated that her husband did not make any movement toward appellant before the shooting; that her husband had not threatened appellant; and that she saw no weapon in her husband’s possession, although he did carry a pocketknife. She acknowledged that her husband had been physically abusive to her in the past and that appellant was aware of the abuse. She also noted that Darryl did not appear to be intoxicated at the time.
The State also presented the testimony of Ryan Ciampoli, the 911 operator who received a call from appellant after the shooting. Ciampoli testified that appellant stated, “I have just shot a man trying to break into my house.” Dustin Bradshaw, an officer with the Ozark Police Department, testified that when he arrived on the scene, appellant told him, “I shot Darryl Miller because I was fearing for my life.” Investigator David Warren testified that there were no guns, knives, or anything that could have been used as a weapon found around the victim or on his person. Finally, Dr. Charles Kokes testified that there was no alcohol found in the victim’s system, but test results did show the presence of methamphetamine.
At the close of the State’s case, appellant made a motion for directed verdict, arguing that the State had not met its burden of proof with respect to the elements of first-degree murder and that there had been nothing to indicate that the shooting was anything other than self-defense. The motion was denied.
Appellant testified that on the night in question, Darryl shoved his way into appellant’s home, went to the back bedroom, and began slapping Amanda. Appellant stated that he thought Darryl was drunk and smelled alcohol on him. Appellant testified that he repeatedly told Darryl to leave, and when he did not do so, appellant turned off the bedroom light in an attempt to get Darryl to follow him to the front of the house. He testified that he picked up the gun after turning on the light and drew the gun on Darryl, thinking that he would leave then. Appellant testified that Darryl put his hand behind his back and moved slightly toward appellant, and at that point, appellant shot him. According to appellant, Darryl always carried a large hunting knife with him, and appellant feared for his safety and Amanda’s safety. Appellant admitted he did not see the knife that night, but stated he thought Darryl’s untucked shirt could have hidden it.
At the close of the evidence, appellant renewed his motion for directed verdict, which was denied. Appellant also proffered a variation of AMI Crim. 2d 705, in which he inserted a justification defense based on Ark. Code Ann. § 5-2-607 (Repl. 2006). The jury found appellant guilty of second-degree murder, and he was sentenced to eighteen years’ imprisonment. Appellant then filed a timely notice of appeal to this court.
Although appellant placed his argument regarding the denial of his motion for directed verdict second in his brief, double jeopardy considerations require this court to review his directed-verdict argument first. Lamb v. State, 372 Ark. 277, 275 S.W.3d 144 (2008). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Tomboli v. State, 100 Ark. App. 355, 268 S.W.3d 918 (2007). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State, considering only the evidence that supports the verdict, and we will affirm a conviction if substantial evidence exists to support it. Thompson v. State, 99 Ark. App. 422, 262 S.W.3d 193 (2007). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Eaton v. State, 98 Ark. App. 39, 249 S.W.3d 812 (2007).
A person commits second-degree murder if the person knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-10-103(a)(l) (Repl. 2006). A person acts knowingly with respect to his conduct or the attendant circumstances when he “is aware that his. . . conduct is of that nature or that the attendant circumstances exist,” and he acts knowingly with respect to the result of his conduct when “he ... is aware that it is practically certain that his . . . conduct will cause the result.” Ark. Code Ann. § 5-2-202(2) (A) & (B) (Repl. 2006). Our supreme court has defined “extreme indifference” as deliberate conduct that culminates in the death of another person. Wyles v. State, 368 Ark. 646, 249 S.W.3d 782 (2007).
Appellant argues that the State failed to provide sufficient evidence of second-degree murder because he was justified in defending himself and the State failed to negate this defense. In response, the State argues that appellant’s sufficiency argument is not preserved because his directed verdict motion was based on first-degree murder, not second-degree murder, and therefore any argument as to the sufficiency of the evidence on the lesser-included offense has been waived. This court has held that, in order to preserve challenges to the sufficiency of the evidence supporting convictions for lesser-included offenses, defendants must address the lesser-included offenses either by name or by apprising the trial court of the elements of the lesser-included offenses questioned by their motions for directed verdict. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). Appellant’s directed verdict motion did not include the lesser-included offense of second-degree murder, either in name or in elements;'accordingly, we find that appellant’s argument is not preserved for appellate review.
For his second point on appeal, appellant argues that the trial court erred in failing to instruct the jury using his modified version of AMI Crim. 2d 705. Appellant’s proffered instruction would have allowed the jury to consider justification as a defense if he “reasonably believed that Darryl Miller was imminently endangering Amanda Miller’s life from the continuation of a pattern of domestic abuse.” A trial court’s ruling on whether to submit jury instructions will not be reversed absent an abuse of discretion. Davis v. State, 97 Ark. App. 6, 242 S.W.3d 630 (2006).
Our supreme court has held that a trial court should not use a non-model instruction unless there is a finding that the model instruction does not accurately reflect the law. Ross v. State, 96 Ark. App. 385, 242 S.W.3d 298 (2006). Moreover, the proffered instruction in this case is an incorrect statement of law. Appellant’s proffered instruction inserts the language of Ark. Code Ann. § 5-2-607 into the model jury instruction regarding justification, but section 5-2-607 applies only to self-defense, not the protection of third parties, in the face of domestic abuse. Because the proffered instruction is an incorrect statement of the law, the trial court’s refusal to give the instruction was not an abuse of discretion.
Affirmed.
Hart and Vaught, JJ., agree.
Arkansas Code Annotated section 5-2-607 provides: “A person is justified in using deadly physical force upon another person if the person reasonably believes that the other person is... imminendy endangering the person’s life or imminendy about to victimize the person ... from the continuation of a pattern of domestic abuse.” Arkansas Code Annotated section 9-15-103 defines domestic abuse as “physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury, or assault between family or household members.” | [
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D.P. Marshall Jr., Judge.
Christopher Roberts appeals the circuit court’s decree divorcing him from Robin Yanyan Yang. Roberts argues two points. He first asks us to reverse the decree because Yang failed to prove that one of the parties resided in Arkansas for the three months right before the circuit court entered the decree. He also contends that the court violated the controlling statute by ordering a private sale of the marital home. Yang did not file an opposing brief. Instead, she filed a letter stating that she “does not contest either of the appellant’s two points on appeal, and she anticipates a reversal and remand of the case to the circuit court for further proceedings.”
Yang’s confession of error makes the case seem straightforward. We have an independent obligation, however, to evaluate Roberts’s arguments for reversal on the record presented and the governing law. “The proper administration of the law cannot be left merely to the stipulation of the parties.” Burrell v. State, 65 Ark. App. 272, 276, 986 S.W.2d 141, 143 (1999). We must pass judgment on whether reversible error occurred.
We first hold that no error occurred on the residence issue. As Roberts contends, adequate proof of the statute’s residence requirements is a necessary part of the circuit court’s subject matter jurisdiction over a divorce complaint. Rogers v. Rogers, 90 Ark. App. 321, 326, 205 S.W.3d 856, 860-61 (2005). We quote the governing statute in full in the margin. The dispositive provision for this case is (a)(1)(A). Roberts argues that this provision requires corroborated proof that either he or Yang resided in Arkansas for the three months immediately preceding the decree.
Here are the material facts distilled from the court filings, Yang’s testimony, and her corroborating witness’s testimony. Yang and Roberts resided in Arkansas (except for one briefperiod) as husband and wife from sometime in 1999 (or before) through November 2005. Within the next few weeks, Yang filed for divorce and served Roberts. She moved into an apartment in Little Rock soon thereafter. She continued to reside in Arkansas until November 2006, when she moved to New York. The circuit court entered the divorce decree in July 2007. All the facts about Roberts’s residence are not abstracted or in the addendum. The record indicates that he was probably an Arkansas resident throughout the case. But we focus on Yang’s residence because the facts about Roberts’s residence are thin and because Roberts argues his appeal by focusing on Yang’s residence.
We hold that the undisputed facts about Yang’s residence, and the filing dates of her complaint and the court’s decree, satisfy the statute. She resided in Arkansas for the “sixty (60) days next before the commencement of the action” in November 2005. She had resided in Arkansas for several years before commencing her divorce case, which satisfied the second condition of (a)(1)(A): “residence in the state for three (3) full months before the final judgment granting the decree of divorce.” And she remained an Arkansas resident for almost a year after filing her case. There is no contention made that the statute’s thirty-day cooling-off period between commencement and decree, Ark. Code Ann. § 9-12-307(a)(1)(B), was not satisfied. The record leaves no doubt that it was.
We reject Roberts’s argument that the statute requires three-months’ residence immediately before entry of the decree. The plain meaning of the provision does not establish this requirement. Farrell v. Farrell, 365 Ark. 465, 470, 231 S.W.3d 619, 623 (2006). Moreover, Roberts’s authority for this proposition, Troillet v. Troillet, 227 Ark. 624, 300 S.W.2d 273 (1957), did not construe the current version of our statute.
The statute once stated: “[t]he plaintiff, to obtain a divorce, must prove, but need not allege, in addition to a legal cause of divorce: First, a residence in the State for three (3) months next before the final judgment granting a divorce in the action and a residence for two (2) months next before the commencement of the action.” Troillet, 227 Ark. at 625, 300 S.W.2d at 274 (quoting Ark. Stat. § 34-1208, the ancestor of Ark. Code Ann. § 9-12-307). Act 36 of 1957 amended this provision. Among other things, the 1957 Act eliminated the word “next” as the qualifying adjective describing the requirement of three months’ residence before the decree. If there is an ambiguity in the current provision, this amendment dispels it. Because “the legislators specifically deleted the word]] [next], we find it impossible to believe that they really meant for that deletion to be meaningless.” Frolic Footwear, Inc. v. State, 284 Ark. 487, 489, 683 S.W.2d 611, 612 (1985). The 1957 amendment undermines Roberts’s reading of the current version of Ark. Code Ann. § 9-12-307(a)(l)(A).
The statute indicates its purpose. In Ark. Code Ann. § 9-12-307(b), the statute defines residence as “actual presence,” equates adequate proof of presence with domicile, and states that these criteria embody our state’s public policy. Wheat v. Wheat, 229 Ark. 842, 843-50, 318 S.W.2d 793, 794-97 (1958). The residence requirements not only secure subject matter jurisdiction, they likewise confirm Arkansas’s interest in the dispute and prevent nonresidents from litigating their divorces here. We see no warrant in this statute for requiring Arkansas residents who seek a divorce, and who have satisfied the statutory residence conditions, to either remain in Arkansas until the circuit court enters a decree or, if they have moved after filing, return for a few months before the decree is entered. The statute’s words do not require that reading, and the increasingly mobile nature of society counsels against it.
“Jurisdiction of the court to dissolve a marriage is in rem with the marriage being the res[.]” 2 David Newbern & John J. Watkins, Arkansas Practice Series, Civil Practice and Procedure § 38:2 at 702 (4th ed. 2006). Once the circuit court acquires jurisdiction by the parties’ satisfaction of all the residence conditions, the court does not then lose jurisdiction simply because the parties later happen to relocate out of state. “[Wjhere a court once rightfully acquires jurisdiction of a cause, it has the right to retain and decide. ... It is quite clear that the jurisdiction of the court depends upon the state of things at the time of the action brought, and, after vesting, it can not be ousted by subsequent events.” Estes v. Martin, 34 Ark. 410, 419, 1879 WL 1317 (1879); see also Wasson v. Dodge, 192 Ark. 728, 730-31, 94 S.W.2d 720, 721 (1936). Here, because of Yang’s extended Arkansas residence, the circuit court’s jurisdiction vested — subject to later corroborated proof of the jurisdictional facts — when she commenced the case. Yang’s later relocation did not oust the court from having the power to decide her complaint.
Roberts’s second point has merit, but he waived it in the circuit court. When marital property must be sold to be divided, the controlling statute requires a public sale. Ark. Code Ann. § 9-12-315 (a)(3)(B) (Repl. 2008). Here the circuit court ordered a private sale. Roberts did not object to this sale procedure when the circuit court made its bench ruling or when the court entered its decree.
Roberts now points out the circuit court’s error under the statute. His objection comes too late. This issue is not a sufficiency-of-the-evidence question, which we may address on appeal after a bench trial even if no objection was made in the circuit court. Ark. R. Civ. P. 52(b)(2). Nor is this issue like residence and grounds, statutory prerequisites for divorce which are open to challenge on appeal notwithstanding a waiver below. Araneda v. Araneda, 48 Ark. App. 236, 237, 894 S.W.2d 146, 147 (1995) (residence); Dee v. Dee, 99 Ark. App. 159, 161-62, 258 S.W.3d 405, 406 (2007) (grounds). Having not called the defect in the sale procedure to the circuit court’s attention and given that court an opportunity to correct it, Roberts cannot challenge this point now. Myrick v. Myrick, 339 Ark. 1, 6, 2 S.W.3d 60, 63 (1999).
Affirmed.
Hart and Gladwin, JJ., agree.
(a) To obtain a divorce, the plaintiff must prove, but need not allege, in addition to a legal cause of divorce:
(1)(A) A residence in the state by either the plaintiff or defendant for sixty (60) days next before the commencement of the action and a residence in the state for three (3) full months before the final judgment granting the decree of divorce.
(B) No decree of divorce, however, shall be granted until at least thirty (30) days have elapsed from the date of the filing of the complaint.
(C) When personal service cannot be had upon the defendant or when the defendant fails to enter his or her appearance in the action, no decree of divorce shall be granted the plaintiff until the plaintiff has maintained an actual residence in the State of Arkansas for a period of not less than three (3) full months;
(2) That the cause of action and cause of divorce occurred or existed in this state or, if out of the state, that it was a legal cause of divorce in this state, the laws of this state to govern exclusively and independendy of the laws of any other state as to the cause of divorce; and
(3) That the cause of divorce occurred or existed within five (5) years next before the commencement of the suit.
(b) “Residence” as used in subsection (a) of this section is defined to mean actual presence, and upon proof of that the part alleging and offering the proof shall be considered domiciled in the state, and this is declared to be the legislative intent and public policy of the State of Arkansas.
Ark. Code Ann. § 9-12-307 (Repl. 2008). | [
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Josephine Linker Hart, Judge.
Ward Wilhelms argues that the Johnson County Circuit Court incorrectly applied the doctrines of equitable estoppel and laches in ruling that his ex-wife, Lori Wilhelms Sexton, was absolved of responsibility for more than $20,000 in child-support arrearages. Wilhelms also attempts to challenge a subsequent contempt finding that was entered after he had filed his notice of appeal from the above-referenced decree. We affirm the trial court’s decision regarding Sexton’s child-support arrearages and dismiss Wilhelms’s challenge of the contempt citation due to his failure to file a notice of appeal from that ruling.
This action began when Lori Sexton filed a petition to change custody. Wilhelms answered and counter-petitioned to have Sexton found in contempt for her failure to pay child support. Sexton pleaded equitable estoppel as an affirmative defense. Eventually, Sexton was granted custody and relieved of her past-due child-support obligation.
Certain facts are not in dispute. On May 18, 2000, the parties were divorced, and Wilhelms was awarded custody of the parties’ two children. Sexton was ordered to pay $68 per week in support, but she never directly paid any money to Wilhelms. Over the years, this support obligation amounted to approximately $22,000. Prior to the filing of the instant action, Wilhelms had previously, on August 30, 2000, petitioned to enforce Sexton’s child-support obligation. He, however, abandoned the claim for child support sought by that petition.
It is also undisputed that Sexton had a long history of illegal drug use and, to the extent she has been gainfully employed, had only entry-level job experience. Her parents have continually stepped in to assist her financially, except for brief periods when she was engaged in relationships with partners of whom her parents did not approve. Currently, Sexton lives in her parents’ house. There is no dispute that Wilhelms was aware that Sexton was unlikely to meet her child-support obligations on a consistent basis, and that Wilhelms accepted a great deal of financial assistance from the children’s maternal grandparents. This support included clothing for the children, day-care tuition, and food, as well as reduced rent on the home that Wilhelms occupied with his children for nearly five years. The conditions under which Wil-helms accepted this largess, however, are disputed.
Lori Sexton’s mother, Mary Ann Sexton, testified that, beginning with a conversation she had with Wilhelms, literally on the steps of the courthouse just after the divorce was granted, Wilhelms consistently disclaimed her daughter’s child-support obligation, asserting, “I could never ask for child support. You all do far more than support would do.” According to Mrs. Sexton, she took Wilhelms’s comment at face value and, in the ensuing eight years, provided $27,694.91 in miscellaneous support, which she itemized by date, description, and amount for the trial court. Mrs. Sexton also asserted that she and her husband allowed Wilhelms to occupy a nearly new rent house that they had recently constructed pursuant to an express agreement that they would accept reduced rent in remission of their daughter’s child-support obligation. She claimed that the house could command $500 per month in rent, but Wilhelms and the children were allowed to stay there for less — $200 per month the first year while the youngest child was in daycare, and an undetermined discount after that was a product of Wilhelms’s fluctuating finances. According to Mrs. Sexton, this rental arrangement and its delinquency gave Wilhelms an additional $11,500 credit against Sexton’s child-support obligation.
Lori Sexton confirmed the existence of her parents’ financial arrangement with Wilhelms and that he eschewed receiving support from her in favor of accepting what her parents provided. She also claimed that Wilhelms told her if she would “act right,” she would not have to pay support. Sexton asserted that Wilhelms’s failure to prosecute his August 30, 2000 contempt petition after he filed it was directly attributable to his recognition of the support that her parents provided for the children. Furthermore, she claimed that she gave the children spending money and bought clothing for her children in addition to paying her parents $200 per month to reimburse them for some of the support that they provided for her children. The parties’ eldest child, T.W., corroborated the support arrangement, testifying that her clothes were bought exclusively by her mother and grandmother.
Wilhelms disputed the existence of an express agreement to accept support in kind from Lori Sexton’s parents in lieu of child support. Aside from the first year when B.W. was in daycare, he denied getting a break on the rent, claiming that he was only required to pay $400 per month. He did, however, acknowledge that the Sextons gave generously to his children, and he conceded that the “provision of clothes and things” relieved him of the necessity of purchasing those items. Nonetheless, Wilhelms stated that he objected to Mrs. Sexton’s lavish spending, which he believed put the children on a “pedestal” and “bought” the children’s allegiance. Judy Wilhelms, Wilhelms’s wife since 2003, disputed the amount of rent that was due when they lived in the Sexton rent house. She claimed the rent was only $400 per month. However, she confirmed that the Sextons spent lavishly on the children.
The trial court denied Wilhelms’s counterclaim for past-due support. It found that Sexton had “successfully asserted” each of the elements of equitable estoppel as well as laches. Further, the trial court specifically found that there was an agreement that Sexton not pay child support “in lieu of other financial child support that she was providing, either herself, or through her parents.” The trial court also made express findings that Wil-helms’s testimony was not credible and that Mrs. Sexton’s testimony was credible.
Before we address Wilhelms’s points on appeal, we first take up Sexton’s argument that this appeal should be dismissed because we do not have appellate jurisdiction. This argument is based on Wilhelms’s failure to strictly follow the requirements of Rule 3(e) and Rule 5 of the Arkansas Rules of Appellate Procedure — Civil. Citing Cloverdale Neighborhood Association v. Goss, 368 Ark. 675, 249 S.W.3d 810 (2007), for the proposition that compliance with Rule 5 must be “strict,” Sexton asserts that this appeal must be dismissed because Wilhelms failed to follow the procedures specified in the rule for securing an extension of time to prepare the trial transcript, which makes its filing untimely. She also raises Wilhelms’s untimely arrangement with the court reporter as grounds for the dismissal of this appeal. We decline to dismiss this appeal.
In Holloway v. Arkansas State Board of Architects, 348 Ark. 99, 71 S.W.3d 563 (2002), the supreme court held that an appellee may not challenge the appellant’s failure to strictly comply with Rule 5 after a transcript has been lodged within the time granted by the trial court. That is exactly the situation here. Likewise, Wilhelms’s failure to strictly comply with Rule 3(e) is of no moment because the court reporter has been paid and the record has been lodged. Clayton v. Ideal Chem. & Supply Co., 335 Ark. 73, 977 S.W.2d 228 (1998). We therefore consider Wilhelms’s appeal on the merits.
Wilhelms argues that the trial court incorrectly applied the doctrines of equitable estoppel and laches in ruling that Sexton, who never paid “one penny” of child support, was “absolved” of responsibility for more than $20,000 in arrearages. Wilhelms notes that he denied that he ever told Mrs. Sexton that he was not going to “make” her daughter pay child support. Furthermore, he asserts that Mrs. Sexton acknowledged that he never asked her to spend money on the children and that he never told her that her daughter did not have to “worry about child support” because the grandparents were spending money on the children. Wilhelms acknowledges that equitable defenses may be invoked when a party attempts to enforce a child-support order. He contends, however, that the trial court erred in finding that the elements of estoppel were present in this case. Specifically, he argues that the alleged “agreement” was between him and Sexton’s parents and that Sexton did not “change her position” in reliance on what her mother was doing. Wilhelms likewise challenges the application of laches to this case. He notes that in Cunningham v. Cunningham, 297 Ark. 377, 761 S.W.2d 941 (1988), the supreme court held that nine years was not a sufficient delay in bringing an action to recover a child-support arrearage, and he asserts that his delay of five years should also be insufficient to constitute laches.
Our standard of review for an appeal from a child-support order is de novo, and we will not reverse a finding of fact by the trial court unless it is clearly erroneous. McGee v. McGee, 100 Ark. App. 1, 262 S.W.3d 622 (2007). In reviewing a trial court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. We give no deference to a trial court’s conclusions of law. Id.
We believe that the instant case is analogous to and governed by the principles that this court announced in Lewis v. Lewis, 87 Ark. App. 30, 185 S.W.3d 621 (2004). In Lewis, we reversed a trial court for failing to consider whether estoppel might apply to a situation where an ex-wife was seeking to collect her marital share of her ex-husband’s military retirement when she had agreed not to seek her share in lieu of providing child support while the children were in the custody of her ex-husband, id. We held that where the agreement had been completely executed, it could give rise to an estoppel. Id. As we noted in Lewis, estoppel arises where, by the fault of one party, another has been induced, ignorantly or innocently, to change his position for the worse in such a manner that it would operate as a virtual fraud upon him to allow the party by whom he has been misled to assert the right in controversy. In Lewis, we were guided by this court’s earlier holding in Ramsey v. Ramsey, 43 Ark. App. 91, 861 S.W.2d 313 (1993), where we affirmed a trial court’s decision not to enforce a support decree where, after the entry of the decree, the parties continued to reside together as a family unit and the ostensible payor had effectively supported the children.
In the instant case, the trial court found the existence of an agreement that Wilhelms would forego child support in exchange for the Sextons’ help with the children’s expenses for everything from clothing and shelter to school lunches. While such an agreement might not have been enforceable, as we noted in Lewis, the instant case is analogous to Lewis in that Wilhelms only attempted to repudiate the arrangement after the Sextons had fully performed. As we noted previously, in testimony that the trial court expressly found to be credible, Mrs. Sexton recounted that she and her husband provided $39,143.91 worth of shelter, clothing, food, and other support to the children. This total is nearly double the approximately $20,000 that Wilhelms had sought to collect from Sexton. Moreover, Wilhelms does not cite any law that proscribes a person or persons from voluntarily paying the obligations of another, as was the case here. Accordingly, we hold that the trial court did not err in finding that Wilhelms was estopped from attempting to collect the child-support arrearage from Sexton.
Finally, to the extent that Wilhelms is challenging the existence of the agreement whereby he would forego collecting child-support payments from Sexton in favor of what he would receive from her parents, we hold that matter rests entirely upon which side the trial court chose to believe. As noted previously, we defer to the trial court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. McGee, supra. Because we find that the trial court did not clearly err in finding that Wilhelms was estopped from collecting past-due child support from Sexton, we need not address that portion of Wilhelms’s argument concerning laches.
Wilhelms also attempts to appeal from an order of contempt that was entered after he had appealed from the August 29, 2006 order that excused Sexton from paying her child-support arrearages. We note, however, that the record does not contain a notice of appeal from a December 6, 2006 order finding him in contempt for failing to pay child support since the change of custody. Our supreme court has held that failure to file a timely notice of appeal deprives the appellate court of jurisdiction. Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995). Accordingly, we must dismiss Wilhelms’s appeal of this order.
Affirmed in part; dismissed in part.
Robbins and Miller, JJ., agree.
We acknowledge that there is significant evidence in the record of parental alienation undertaken by Lori Sexton. However, even though we find such conduct deplorable, Wilhelms has not appealed the custody award.
Rule 5(b)(1)(C) states in part:
(b) Extension of time.
(1) If any party has designated stenographically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period ... may extend the time for filing the record only if it makes the following findings:
(A) The appellant has filed a motion explaining the reasons for the requested extension and served the motion on all counsel of record;
(B) The time to file the record on appeal has not yet expired;
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing[.]
We noted that an agreement promising not to seek child support was not an enforceable contract. | [
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John B. Robbins, Judge.
Appellant Alan Prendergast devised a scheme to cut and sell timber from lands owned by his sisters, appellees Kathleen Craft and Gayle Rutledge. However, he did not have permission to do so. Prendergast contracted with appellee Wyatt Williams, d/b/a Long Valley Timber, to cut the timber. Williams, in turn, contracted to sell the harvested logs to appellee Missouri Walnut, LLC. Once the scheme was exposed, two suits, including cross-claims and counterclaims, were filed and later consolidated. A Benton County jury found Prendergast liable to each of the appellees and ordered him to pay $43,276.45 in compensatory damages and $85,000 in punitive damages to Missouri Walnut; $48,276.45 to the Crafts; and $15,000 in compensatory damages and $35,000 in punitive damages to Williams. The damages awarded to the Crafts were trebled pursuant to Ark. Code Ann. § 18-60-102 (Repl. 2003). Prendergast raises three points on appeal, challenging the jury instructions on the measure of the Crafts’ damages, the punitive damages awards to both Missouri Walnut and Williams, as well as the compensatory award to Williams. We affirm.
I. Facts and Proceedings in Circuit Court
Alan Prendergast entered into an agreement with Wyatt Williams under the terms of which Williams was to harvest certain walnut trees from property Prendergast represented was owned by him. Pursuant to this agreement, Prendergast signed a timber deed to Williams on January 21, 2005. This property was actually owned by the Crafts, and Prendergast later testified that he did not have the authority to sign the timber deed. Williams cut and harvested the walnut logs pursuant to their agreement. On January 26, 2005, Williams entered into a contract for Missouri Walnut to purchase the 808 walnut logs that had already been cut, set out, and identified. The purchase price was $43,276.45. Missouri Walnut paid for the logs on January 26, 2005. One check was payable to Williams in the amount of $18,310.58. The second payment was made to Prendergast in the amount of $24,965.87. Missouri Walnut did not have any direct contact with Prendergast, relying on communications from Williams concerning Prendergast’s sale of the logs.
Subsequent to Missouri Walnut’s payment for the logs, the Crafts informed Missouri Walnut that Prendergast did not have any ownership interest in the property and did not have their consent to the cutting or sale of the logs. The Crafts intended to sell the logs to other timber companies for approximately $40,000.
Neither Missouri Walnut nor Williams researched the Benton County real estate records to determine the ownership of the real estate prior to issuing the two checks to Prendergast and Williams. However, there was testimony from Williams and others in the timber industry that industry standards did not require such a title search.
On March 2, 2005, Missouri Walnut filed a complaint in replevin against the Crafts asserting that it was a “good faith purchaser” who had acquired good title to the 808 logs and was seeking to recover possession of the logs Williams had cut. Missouri Walnut later amended its complaint to seek, in the alternative, damages for the value of the logs. The Crafts filed an answer and counterclaim in which they generally denied the allegations of the complaint and sought treble damages for the injury to their land.
On March 11, 2005, Missouri Walnut filed a companion suit against Prendergast and Williams, asserting breach-of-contract claims against each and a fraud claim against Prendergast. The complaint sought damages in the amount of $43,276.45 (the amount Missouri Walnut paid for the logs) against each defendant. Missouri Walnut also asserted that Prendergast should be liable for punitive damages for the fraud claim. Williams and Prendergast each denied the material allegations of the complaint. In addition, Williams filed a cross-claim against Prendergast, seeking judgment for any amounts Williams might be ordered to pay Missouri Walnut, together with punitive damages. On May 8, 2006, Pren-dergast filed a cross-complaint against Williams, alleging that Williams was negligent in not waiting until Prendergast had obtained his sisters’ permission before cutting the timber. The cross-complaint sought judgment for any amount Prendergast might be ordered to pay. The circuit court consolidated both cases for trial.
On July 8, 2005, the Crafts filed a cross-claim against Williams and Prendergast, alleging that Prendergast and Williams had trespassed across their lands and destroyed timber without permission. The cross-complaint sought damages of $43,276.45 for the value of the timber, together with the $5,000 cost of restoring the land.
The case was tried to a jury over two days. The jury returned a verdict by answering a series of interrogatories. The interrogatories were as follows:
INTERROGATORY NO. 1 As between Missouri Walnut, LLC and Alan Prendergast, we find in favor of Alan Prendergast. ANSWER: Not answered
INTERROGATORY NO. 2 As between Missouri Walnut, LLC and Alan Prendergast, we find Alan Prendergast liable to Missouri Walnut, LLC in the amount of $43,276.45. This interrogatory was signed by the foreman.
INTERROGATORY NO. 3 As between Missouri Walnut, LLC and Wyatt Williams, d/b/a Long Valley Timber, we find in favor ofWyatt Williams, d/b/a Long Valley Timber. This interrogatory was signed by the foreman.
INTERROGATORY NO. 4 As between Missouri Walnut, LLC and Wyatt Williams, d/b/a Long Valley Timber, we find Wyatt Williams, d/b/a Long Valley Timber, liable to Missouri Walnut, LLC in the amount of $_. ANSWER: Not answered
INTERROGATORY NO. 5 As between Leo and Kathleen Craft and Gale Lyn Rudedge and Alan Prendergast, we find in favor of Alan Prendergast. ANSWER: Not answered
INTERROGATORY NO. 6 As between Leo and Kathleen Craft and Gale Lyn Rutledge and Alan Prendergast, we find Alan Prendergast liable to Leo and Kathleen Craft and Gale Lyn Rutledge in the amount of $48,276.45. This interrogatory was signed by the foreman.
INTERROGATORY NO. 7 As between Leo and Kathleen Craft and Gale Lyn Rutledge and Wyatt Williams, d/b/a Long Valley Timber, we find in favor of Wyatt Williams, d/b/a Long Valley Timber. This interrogatory was signed by nine jurors.
INTERROGATORY NO. 8 As between Leo and Kathleen Craft and Gale Lyn Rutledge and Wyatt Williams, d/b/a Long Valley Timber, we find Wyatt Williams, d/b/a Long Valley Timber, liable to Leo and Kathleen Craft and Gale Lyn Rutledge in the amount of $_. ANSWER: Not answered
INTERROGATORY NO. 9 As between Alan Prendergast and Wyatt Williams, d/b/a Long Valley Timber, we find in favor of Wyatt Williams, d/b/a Long Valley Timber. This interrogatory was signed by the foreman.
INTERROGATORY NO. 10 As between Wyatt Williams, d/b/a Long Valley Timber, and Alan Prendergast, we find Alan Prendergast liable to Wyatt Williams, d/b/a Long Valley Timber, in the amount of $15,000.00. This interrogatory was signed by nine jurors.
INTERROGATORY NO. 11 As between Wyatt Williams, d/b/a Long Valley Timber, and Alan Prendergast, we find in favor of Alan Prendergast. ANSWER: Not answered
INTERROGATORY NO. 12 As between Alan Prendergast and Wyatt Williams, d/b/a Long Valley Timber, we find Wyatt Williams, d/b/a Long Valley Timber, hable to Alan Prendergast in the amount of $_. ANSWER: Not answered
INTERROGATORY NO. 13 Do you find Wyatt Williams, d/b/a Long Valley Timber, is entitled to recover punitive damages from Alan Prendergast? ANSWER: Yes This interrogatory was signed by ten jurors.
INTERROGATORY NO. 14 If your answer to Interrogatory No. 13 is yes, state the amount of punitive damages which Wyatt Williams, d/b/a Long Valley Timber, should recover from Alan Prendergast. ANSWER: $35,000.00 This interrogatory was signed by ten jurors.
INTERROGATORY NO. 15 Do you find that Missouri Walnut LLC is entitled to recover punitive damages from Alan Prendergast? ANSWER: Yes This interrogatory was signed by ten jurors.
INTERROGATORY NO. 16 If your answer to Interrogatory No. 15 is yes, state the amount of punitive damages which Missouri Walnut, LLC should recover from Alan Prendergast. ANSWER: $85,000.00 This interrogatory was signed by ten jurors.
Pursuant to agreement of the parties, the circuit court then determined that Prendergast was guilty of willful misconduct so that the damages awarded to the Crafts should be trebled pursuant to Ark. Code Ann. § 18-60-102. The court reduced the award to the Crafts by $20,005, the amount a third party offered to pay for the logs. Judgment was entered accordingly on June 1, 2006. Prendergast filed a motion for new trial and a motion for judgment notwithstanding the verdict on June 12, 2006, alleging that he was entitled to a new trial to reduce the excessive damages award and to adjust the jury’s error in the assessment of damages; that the verdicts were clearly against the preponderance of the evidence; and that the jury was improperly instructed as to the measure of damages. The motions were deemed denied and this appeal followed.
II. Arguments on Appeal
A. Measure of damages
Prendergast first argues that the circuit court erred in refusing his proffered instruction taken from this court’s decision in King v. Powell, 85 Ark. App. 212, 148 S.W.3d 792 (2004), as to the measure of damages. It is well settled that this court will not reverse a circuit court’s refusal to give a proffered jury instruction unless there was an abuse of discretion. Williams v. First Unum Life Ins. Co., 358 Ark. 224, 188 S.W.3d 908 (2004). Moreover, it is not error for the circuit court to refuse a proffered jury instruction when the stated matter is correctly covered by other instructions. Id.
In King, the jury was instructed as follows:
If the answer to an interrogatory requires you to assess damages against Mr. Clay King in favor of Linda Powell, you will do so in the following manner:
1. If you find that Ms. Powell’s intended use of the damaged or destroyed trees was for ornamental or shade purposes, then you will award damages equal to the value of the damaged or destroyed trees, if any, plus the cost of replacing stone or soil displaced or removed, if any.
2. Otherwise, you will award damages equal to the difference in the fair market value of Ms. Powell’s property before and after the trespass.
85 Ark. App. at 220-21, 148 S.W.3d at 797. This court held that this instruction was a correct statement of the law. In the present case, the jury was instructed as follows:
If an interrogatory requires you to assess the damage to timber and lands belonging to Leo Craft, Kathleen Craft, and Gale Rutledge, you must then fix the amount of money which will reasonably and fairly compensate them for the following elements of damage:
First, the fair market value of the timber cut.
Second, the reasonable expense of necessary repairs to any property damaged.
Prendergast objected to the instruction given by the circuit court as not being a correct statement of the law and proffered an instruction based on King.
Prendergast’s argument fails to acknowledge that there could be other measures of damages than that provided for in King. In Stoner v. Houston, 265 Ark. 928, 582 S.W.2d 28 (1979), the supreme court noted that there were two measures of damages in actions brought under section 18-60-102 — the value of the timber or the damage to the market value of the land. Similar instructions were given in Jackson v. Pitts, 93 Ark. App. 466, 220 S.W.3d 265 (2005), and Auger Timber Co. v. Jiles, 75 Ark. App. 179, 56 S.W.3d 386 (2001), where this court noted that the market value of the timber was one of two possible measures of damages.
Prendergast concedes that the Crafts can recover the value of the timber, regardless of the use they make of their land, by suing for conversion. That is, in essence, what the Crafts did because, under section 18-60-102, a party can recover either the value of the timber (not just the value of the trees as shade trees) or the diminution in the market value of the land. Revels v. Knighton, 305 Ark. 109, 805 S.W.2d 649 (1991); Stoner, supra. As noted above, it is not error for a circuit court to refuse to give a proffered jury instruction where the stated matter is correctly covered by other instructions. The circuit court’s instruction as to the fair market value of the timber as being a measure of the Crafts’ damages was a correct statement of the law. It also covered the area sought to be covered by the proffered instruction. Therefore, we cannot say that the circuit court abused its discretion in not giving Prendergast’s instruction based on King v. Powell.
B. Punitive damages
Prendergast argues that the punitive-damages awards to Missouri Walnut and to Wyatt Williams should be reversed because there is insufficient evidence to support the awards and because they are the result of passion or prejudice by the jury.
Prendergast is procedurally barred from raising the first argument. He made no directed verdict motion to dismiss either Missouri Walnut’s or Williams’s claim for punitive damages, nor did he object to the jury being instructed on punitive damages. The failure to preserve the issue at one of these stages precludes Prendergast from now raising the issue on appeal. Superior Fed. Bank v. Mackey, 84 Ark. App. 1, 129 S.W.3d 324 (2003). The first objection appeared in his posttrial motion.
However, the same does not hold true for Prendergast’s argument that the punitive-damages awards were excessive, even though that argument was also made for the first time in the posttrial motion. Obviously, a party is unaware of the excessive nature of a verdict until that verdict is rendered. We therefore consider the merits of this argument.
Where the argument on appeal is that the damages are excessive as a matter of state law, 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. Calvary Christian Sch., Inc. v. Huffstuttler, 367 Ark. 117, 238 S.W.3d 58 (2006). When reviewing an award of punitive damages, 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. Id.
Here, the awards do not shock the conscience of the court. Prendergast engaged in a fraudulent scheme to sell timber that he did not own from property owned by his sisters. This involved lying to Williams about the ownership of the timber, and doing so with knowledge that Williams would be selling the logs on to a mill. Prendergast testified that he knew that he did not own the land or the timber. Also, when confronted by Missouri Walnut, Prendergast refused the request to refund the money paid to him. Instead, he deposited the funds into his account and used them for gambling and to take a trip to Hawaii. Prendergast does not identify the evidence that he claims demonstrates that the punitive damages are the result of passion or prejudice. This court may not substitute its judgment for the jury’s when there is a basis in the evidence for the award and when there is no evidence, appropriately objected to, which tends to create passion or prejudice. Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003).
Prendergast sets out some of the elements required for a due process challenge to the punitive-damages awards; however, neither in the trial court nor in his appeal before us does he specifically make a constitutional argument. Therefore, we need not address the constitutional factors.
C. Compensatory damages to Williams
Prendergast argues that the circuit court erred in failing to direct a verdict on Williams’s claim against him. A directed-verdict motion is a challenge to the sufficiency of the evidence, and when reviewing the denial of a motion for a directed verdict, this court determines whether the jury’s verdict is supported by substantial evidence. Ken’s Discount Bldg. Materials, Inc. v. Meeks, 95 Ark. App. 37, 233 S.W.3d 176 (2006). 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, this court reviews the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id.
In this case, the jury was instructed that Williams had brought a claim for deceit against Prendergast and the elements of that claim. The only objection Prendergast made was to request a jury instruction on constructive notice that the circuit court rejected. Williams presented evidence that he suffered a loss of business related to Prendergast’s action. In the year prior to the transaction with Prendergast, Williams had approximately $300,000 in sales of walnut logs but, since that transaction, he had only $130,000 to $150,000 in sales. He attributed the decline in sales to the adverse publicity caused by Prendergast. By not objecting to this testimony, Prendergast implicitly consented to the issue being tried. See Neste Polyester, Inc. v. Burnett, 92 Ark. App. 413, 214 S.W.3d 882 (2005). The fact that Williams did not have tax returns or other evidence to corroborate his testimony does not make his testimony that he suffered a loss any less substantial because the lack of corroboration goes to the weight to be given to the testimony, a matter within the sole province of the jury. See JAG Consulting v. Eubanks, 77 Ark. App. 232, 72 S.W.3d 549 (2002).
Affirmed.
Pittman, C.J., Bird, Glover, and Heffley, JJ., agree.
Griffen, J., concurs.
Hart and Baker, JJ., dissent.
Craft’s husband, Leo Craft, is also an appellee. We will collectively refer to these appellees as the Crafts.
The circuit court awarded Missouri Walnut $15,406.21 in attorney’s fees in a subsequent order. Prendergast did not appeal from the fee award. | [
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John B. Robbins, Judge.
Appellant James Renny Efird was udge. rape and sexual indecency with a child. He was sentenced to consecutive prison terms of forty and twelve years. Mr. Efird now appeals, arguing that the trial court erred in allowing his younger half-brother, Doug Efird, to testify about prior sexual misconduct by the appellant. Alternatively, Mr. Efird argues that the trial court erred in denying his motion for a continuance, which was requested so he could investigate his brother’s allegations and prepare for cross-examination. We agree with appellant’s first argument, and we reverse and remand for a new trial.
The alleged victim in this case was appellant’s former stepdaughter, H.M., who was eleven years old at the time of the trial. Mr. Efird was married to H.M.’s mother for several years before they separated in September 2005. H.M. testified that Mr. Efird had been a father figure to her, and that during the time they lived in the same house he did things that made her uncomfortable.
Specifically, H.M. testified that, “He peed in my mouth a few times and one time it had sperm in it.” She stated that these episodes happened in the bathroom. H.M. further testified that at least thirty to fifty times “he stuck his penis in my butt.” H.M. stated that this first happened at her aunt’s house when she was four years old. On the other occasions, Mr. Efird would have anal sex with H.M. in H.M.’s mother’s room, while her mother was at work. H.M. indicated that the sexual abuse continued until she was eight years old. On cross-examination, H.M. testified that appellant never put his penis in her mouth or touched her in her private area in the front.
Appellant’s half-brother, Doug Efird, testified for the State over appellant’s objection. Doug testified:
James Efird did something inappropriate to me. When we were young, James touched me in my genital area. He had me touch him in his genital area and we had oral sex. He had me perform it on him and he performed it on me. This happened in our bedroom. We shared a bedroom. We had separate beds and he would come over and get in my bed with me. This occurred in the early to mid 1990’s. I can’t remember exacdy.
On cross-examination, Doug testified:
I guess I was twelve to thirteen years old when this event happened. There was a one year age difference between myself and my brother. I am now twenty nine years old. It happened approximately seventeen years ago. I can’t recall whether it was voluntary or not.
On appeal, Mr. Efird contends that the trial court erred in permitting his half-brother’s testimony because it was inadmissible pursuant to Ark. R. Evid. 404(b), which provides:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
InLindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994), the supreme court held that if the introduction of testimony of other crimes, wrongs or acts is independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal — then evidence of that conduct may be admissible with a cautionary instruction by the court. Thus, if evidence of another crime, wrong, or act is relevant to show that the offense of which the appellant is accused actually occurred and is not introduced merely to prove bad character, it will not be excluded. Id. In the present case, Mr. Efird contends that evidence of his prior sexual acts with his half-brother was not relevant to any material issue and was merely introduced to show his bad character, and thus that the evidence should have been excluded.
The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998). We hold that the trial court abused its discretion in admitting Doug Efird’s testimony.
The State argues that the exceptions to Rule 404(b) apply here because Doug’s testimony showed appellant’s intent, plan, motive, preparation, or opportunity to rape or commit sexual indecency with H.M. The State further relies on the “pedophile exception” to Rule 404(b), where the supreme court has approved allowing evidence of similar acts with the same or other children when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship. See Flattery v. State, 362 Ark. 311, 208 S.W.3d 187 (2005). We cannot agree that any 404(b) exceptions are applicable to this case.
When the charge concerns the sexual abuse of children, the supreme court has held that evidence of sexual abuse with children other than the victim is admissible to show motive, intent, or plan pursuant to Ark. R. Evid. 404(b). Parish v. State, 357 Ark. 260, 163 S.W.3d 843 (2004). The rationale for recognizing the “pedophile exception” is that such evidence helps to prove the depraved instinct of the accused. White v. State, 367 Ark. 595, 242 S.W.3d 240 (2006). The basis of the exception is our acceptance of the notion that evidence of sexual acts with children may be shown as that evidence demonstrates a particular proclivity or instinct. Hernandez v. State, 331 Ark. 301, 962 S.W.2d 756 (1998). For the “pedophile exception” to apply, we require that there be a sufficient degree of similarity between the evidence to be introduced and the sexual conduct of the defendant. See id. We also require that there be an “intimate relationship” between the perpetrator and the victim of the prior act. Berger v. State, 343 Ark. 413, 36 S.W.3d 286 (2001). Since the adoption ofRule 404(b), the supreme court has recognized time as a factor in determining the probativeness of evidence of a prior crime. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994).
In the instant case, Mr. Efird’s sexual acts with his half-brother that occurred seventeen years ago were too dissimilar in character and temporally removed from the crimes charged to come under any exception to Rule 404(b), including the “pedophile exception,” and only went to prove appellant’s bad character. The testimony of Doug Efird showed that while he and appellant were adolescents of between twelve to fourteen years of age, they engaged in genital touching and oral sex while sharing the same bedroom. Doug could not remember whether or not he participated voluntarily. By contrast, the current charges allege that Mr. Efird, as an adult and father figure with an intimate relationship with H.M., repeatedly forced anal sex on H.M. when she was four to eight years of age. H.M. testified that Mr. Efird never touched her on her “private area in the front” and never put his penis in her mouth. And unlike the prior incident with appellant’s half-brother, there was evidence that appellant threatened H.M. and told her not to tell anyone. Given the contrasting circumstances of the charged crimes and alleged prior conduct, we cannot say that the acts between appellant and his half-brother demonstrated any proclivity or instinct relevant to determining Mr. Efird’s guilt in the present case. Such evidence was erroneously admitted and should have been excluded under Rule 404(b).
The State alternatively argues, citing Johnson v. State, 337 Ark. 477, 989 S.W.2d 525 (1999), that even if Doug’s testimony was erroneously admitted, the error was harmless because the evidence of guilt was overwhelming and the error was slight. We do not agree. The only two witnesses to testify during the guilt phase of the trial were the victim and appellant’s half-brother. James Efird did not confess to any criminal activity, and the only competent evidence of his guilt was provided by H.M.’s testimony. While the testimony of a rape victim is sufficient to sustain a conviction if believed by the jury, under these circumstances we cannot say that H.M.’s testimony alone constituted overwhelming evidence of appellant’s guilt. Nor was the error slight given the probable prejudicial effect of Doug Efird’s testimony. Therefore, we reverse and remand for a new trial. Because we agree with appellant’s first argument, we need not address his alternative argument that a continuance should have been granted.
Reversed and remanded.
Hart and Miller, JJ., agree.
While the time lapse between events was not in itself sufficient to exclude evidence of the prior conduct, it is significant when coupled with the dissimilarity of the acts and the fact that the prior conduct occurred at a time when appellant was a juvenile. | [
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D.P. Marshall Jr., Judge.
An eleven-person jury convicted Jerry Lee Marshall of maintaining a drug premises and delivering crack cocaine. At the start of trial, the circuit court seated twelve jurors and asked the parties if they would agree to try the case to these twelve jurors or their survivors. The prosecutor and Marshall’s counsel both agreed. The court seated no alternates and the trial proceeded. During deliberations, it was revealed to the court that one of the twelve jurors was Marshall’s second cousin. After she was questioned by the lawyers, the court excused her. Marshall then sought a mistrial because the jury no longer contained twelve people. The court denied the motion. Though Marshall also asserts error on an unrelated point, the main question presented is whether the circuit court made an error of law when it allowed the jury to continue deliberating and reach a verdict with only eleven members.
I.
The right to a twelve-person jury is a fundamental right guaranteed by our State Constitution. Collins v. State, 324 Ark. 322, 327, 920 S.W.2d 846, 848 (1996). The Constitution says that this right is “inviolate” but may be “waived by the parties in all cases in the manner prescribed by law. ...” Ark. Const, art. 2, § 7. The defendant in a criminal case may waive this right in several ways, including “through counsel if the waiver is made in open court and in the presence of the defendant.” Ark. R. Crim. P. 31.2; see also Johnson v. State, 314 Ark. 471, 472, 863 S.W.2d 305, 306 (1993), supplemental opinion denying rehearing, 314 Ark. 478-A, 868 S.W.2d 42 (1993). The waiver-through-counsel provision came into this Rule by amendment in 1994 to reflect the holding in Bolt v. State, 314 Ark. 387, 862 S.W.2d 841 (1993). In re Arkansas Rules of Criminal Procedure, 317 Ark. App’x 649, 650 (1994).
In this case, we do not have a waiver of a jury in favor of a bench trial. Compare Burrell v. State, 90 Ark. App. 114, 114-15, 204 S.W.3d 80, 81 (2005). We have an agreement to start with a twelve-person jury and end with however many of those jurors survived to reach a verdict, thus eliminating the need for alternate jurors. This agreement between counsel was definite. After the circuit court seated the twelve-person jury and no alternates, this exchange occurred:
The Court: All right. Can we agree to try this case to these twelve or their survivors?
[Prosecutor]: That’s fine with The State, Your Honor.
[Marshall’s Lawyer]: Yes, Your Honor.
Marshall was present. Later, when Marshall’s counsel sought a mistrial after the circuit court had excused the cousin juror, he said “[w]e understand that we agreed to try the case to whatever jurors survived,” and then tried to backtrack on that agreement. Because Rule 31.2 and Johnson would have allowed the defendant to waive a jury entirely in these circumstances, we hold that they allowed the parties’ agreement: a twelve-person jury without alternates and a verdict by all the surviving jurors.
This case is unlike Grinning v. City of Pine Bluff, 322 Ark. 45, 47, 907 S.W.2d 690, 691 (1995). There a six-person jury was seated — with no waiver or agreement — pursuant to a statutory procedure for a six-person jury that was later ruled unconstitutional. 322 Ark. at 47-48, 907 S.W.2d at 691. This case did not start with half a jury; it started with the agreed possibility of a verdict by less than the original twelve.
Nor does our decision in Davis v. State, 81 Ark. App. 17, 97 S.W.3d 921 (2003) control. First, Davis is a jury/non-jury case, not a no-alternates case. Second, and more importantly, counsel there responded “yeah” when the circuit court asked if the parties were ready for trial, and then counsel said nothing when the court proceeded with a bench trial. 81 Ark. App. at 19, 97 S.W.3d at 922. Unlike in this case, no exchange on the record about a jury occurred. Davis is thus in the Collins line of cases: silence can never waive the defendant’s right to a twelve-person jury. Finally, the clear prescription of Rule 31.2, not Davis’s concluding words about the defendant making a knowing and intelligent waiver, governs this case. 81 Ark. App. at 22-23, 97 S.W.3d at 924. Under the Rule, Marshall’s acknowledged agreement — through his lawyer — for no alternates establishes, at least presumptively, that the defendant made a considered choice. If we had to inquire behind every Rule 31.2(2) waiver by counsel, and seek to discern the defendant’s understanding of the issue no matter what his lawyer had said, then the Rule would be undone. The peculiar circumstances of this case present no occasion for any such extraordinary inquiry.
No precedent is exactly in point, but Collins is closest. There the circuit court asked if the State and the defendant would agree to try the case to the jury or however many of the twelve jurors survived until the verdict. Collins, 324 Ark. at 325-26, 920 S.W.2d at 848. The State said “yes” and the defendant said nothing. Ibid. Collins’s lawyer also said nothing. Ibid. In the face of this complete silence from the defendant’s table, the circuit court proceeded and then allowed the trial to continue when one juror had to leave the trial because of a sick child. Ibid. The supreme court reversed in strong words, and rightly so. No waiver or agreement occurred.
This case is different. Marshall’s lawyer — in the defendant’s presence and in open court — agreed to the no-alternate procedure with the inherent possibility of a verdict by less than twelve. Marshall’s lawyer confirmed his prior agreement when the circuit court excluded the cousin juror. Just as a defendant “cannot sit idly by while his counsel proceeds to waive his right to a jury[,]” Tumlison v. State, 93 Ark. App. 91, 99, 216 S.W.3d 620, 625 (2005), he cannot sit idly by while counsel agrees to a jury without alternates.
This defendant invited this alleged error. If Marshall had not agreed to start without alternates, then the circuit court could have seated some when the trial began. As the court said during the mistrial colloquy, Marshall had to know that his second cousin had been seated as a juror. Yet he let the matter go. Then, when the defect was discovered, he wanted a mistrial. Marshall thus created a win/win situation for himself: a possibly partisan juror and no available alternates, which might justify a mistrial. None of the reported cases involve this kind of conduct, which invited the problem that Marshall now complains about on appeal. Clinkscale v. State, 13 Ark. App. 149, 155-56, 680 S.W.2d 728, 732 (1984).
The right to a twelve-person jury is fundamental. But this is all the more reason that our law should not allow that right to be manipulated to make sure one gets either a corrupted jury or two trials.
II.
Marshall argues one other point for reversal. He was charged with other crimes, including being a felon in possession of a firearm. These other charges were severed and tried later. (We recently affirmed Marshall’s convictions for those crimes. Marshall v. State, CACR07-1090, slip op. (Ark. App. 19 March 2008)). No one reminded the circuit court about the severance, however, until it began to read the charges for the venire at the start of this trial on the drug-related charges. When the circuit judge said that Marshall was also charged with being a felon in possession of a rifle, the prosecutor interrupted and said that the drug counts were “the only two counts that we will be trying.” The circuit court told the jury that he did not have his “paperwork in proper order” and that the “last charge I was reading to you is not a charge.” The court also instructed the jury to disregard his statements beyond the first two charges. After about ten transcript pages’ worth of voir dire, Marshall sought a mistrial because the jury had been told inadvertently that he was a felon.
The circuit court did not abuse its discretion by denying this motion. Marshall waived this alleged error by not objecting at the first opportunity. Smith v. State, 330 Ark. 50, 53-54, 953 S.W.2d 870, 871-72 (1997). Moreover, the circuit court’s prompt explanation and cautionary instruction adequately protected the defendant and cured any prejudice in the circumstances. Williams v. State, 338 Ark. 178, 191, 992 S.W.2d 89, 97 (1999).
Affirmed.
Pittman, C.J., Bird, Griffen and Heffley, JJ., agree.
Baker, J., dissents. | [
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John B. Robbins, Judge.
On March 4, 1991, appellee Darrell Jackson Britt sustained a compensable injury to his heart while working for appellant Martin Charcoal, Inc. On that day, Mr. Britt was working near a charcoal kiln that was producing thick toxic smoke. After inhaling the smoke, he suffered an acute myocardial infarction. In an opinion dated November 27, 1996, the Workers’ Compensation Commission found that the myocardial infarction was causally related to the smoke inhalation, and the Commission awarded permanent and total disability benefits for that injury. No appeal was taken from that decision.
On October 24, 2003, Mr. Britt’s counsel submitted a letter to the Commission seeking compensation for “the medical bills arising out of his injury already found to his heart and lungs on or about March 4, 1991, during the course of and arising out of employment with Martin Charcoal.” Mr. Britt’s counsel asserted in this letter that the inhalation of chemicals had caused permanent damage to Mr. Britt’s lungs, and that Martin Charcoal was no longer paying for breathing medications, which it had been covering over the past three years. Martin Charcoal controverted compensability for Mr. Britt’s lung condition.
After a hearing held on July 19, 2006, the ALJ entered an order finding that Mr. Britt’s claim for a separate lung injury was barred by the applicable statute of limitations. Thus, the ALJ did not discuss whether a lung injury occurred on March 4, 1991. The ALJ further rejected Mr. Britt’s alternative claim that his lung condition is a compensable consequence of the original compensable heart injury. Finally, the ALJ awarded reasonably necessary medical treatment, including but not limited to a concurrent heart/lung transplant, on the basis that both transplants are necessary to stabilize or maintain the compensable heart condition. The Commission affirmed and adopted the ALJ’s decision.
Martin Charcoal now appeals from the Commission’s most recent decision, arguing that the Commission erred in finding that a heart/lung transplant is reasonably necessary medical treatment for Mr. Britt’s compensable heart injury. Mr. Britt has cross-appealed, arguing (1) that the Commission erred in ruling that his claim for a separate lung injury was barred by the statute of limitations; (2) that the preponderance of the evidence established separate compensability of his lung condition; and (3) that, alternatively, there is no substantial evidence to support the Commission’s finding that his lung condition is not a compensable consequence of the March 4,1991, compensable heart injury. We affirm on direct appeal, and we affirm on cross-appeal.
When reviewing a decision from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm the decision if it is supported by substantial evidence. Lepel v. Vincent, 96 Ark. App. 330, 241 S.W.3d 784 (2006). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Id. Where 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. Davis v. Old Dominion Freight Line, Inc., 341 Ark. 751, 20 S.W.3d 326 (2000). It is the Commission’s function to weigh the medical evidence and assess the credibility and weight to be afforded any testimony. Clairday v. Lilly Co., 95 Ark. App. 94, 234 S.W.3d 347 (2006).
Mr. Britt testified that he is fifty-five years old and that the symptoms concerning his lungs began on March 4, 1991, when he suffered the compensable injury from smoke inhalation. Mr. Britt stated that his symptoms include shortness of breath and pressure in his lungs and chest, and that his lungs have progressively worsened. He also stated that his heart condition causes him to be short of breath. Mr. Britt maintained that he never experienced shortness of breath or any other respiratory problems prior to the March 4, 1991, heart attack.
Mr. Britt acknowledged that he was smoking a pack or a pack and a half of cigarettes per day before suffering the heart attack in March 1991. He stated that he quit smoking thereafter, but had repeated relapses. He testified:
I would have maybe four to six relapses a year, which would last for maybe a week to two weeks. It might take me a week to smoke a pack of cigarettes. So, I was perhaps smoking two to three cigarettes per day during my relapses. That was true up until the year 2000.
Mr. Britt testified that his condition deteriorated during a vacation in Hawaii in June 2000. The day after he arrived, his wife took him to the hospital where he was administered breathing treatments. After returning from the vacation, Mr. Britt was referred to a pulmonologist, Dr. James L. Hargis. According to the testimony of Mr. Britt’s wife, Mr. Britt’s condition has steadily worsened since the Hawaii vacation, and he has been on oxygen twenty-four hours a day since 2003.
Dr. Hargis testified that he first saw Mr. Britt in 2000 on a referral from Mr. Britt’s cardiologist, Dr. Donald Myears. A pulmonary function study conducted on July 13, 2000, revealed a severe obstructive lung defect. On August 25, 2000, Dr. Hargis diagnosed chronic obstructive pulmonary disease (COPD). In a June 24, 2003, letter to appellant’s insurance carrier, Dr. Hargis wrote, “Mr. Britt has severe chronic obstructive lung disease and has a previous 29 pack year history of smoking. There is no association between his COPD and previous myocardial infarction.” In his deposition, Dr. Hargis testified:
Mr. Britt suffers from a very severe case of COPD. I noted in my records, for the sake of completeness, that Mr. Britt smoked a pack of cigarettes per day for 29 years. Smoking is the number one cause of COPD and emphysema. The severe COPD indicated in my notes means Mr. Britt has severe obstruction to the air flow through the bronchial tubes, which we have documented with the pulmonary function tests. I think it is secondary to his smoking. I believe the primary cause of his COPD is his smoking history. I doubt that his COPD was caused in any way by the accident he experienced at work in 1991.
Dr. Myears testified that he first saw Mr. Britt in the early 1990s and has been seeing him since that time on a regular basis. Dr. Myears stated that Mr. Britt has a diagnosis of an enlarged and weak heart muscle, with congestive heart failure and severe lung disease. In a letter dated June 12, 2003, Dr. Myears documented a lung injury “which was unmasked [in 2000] by the use of beta blockers for his cardiac condition,” and further wrote that Mr. Britt was evaluated for a heart/lung transplant but was not listed for consideration at that time. However, Mr. Britt subsequently-visited the Mayo Clinic in Rochester, Minnesota, and in a letter dated June 2, 2005, Dr. Brooks Edwards expressed an intention to proceed with a combined heart/lung transplant taking into consideration Mr. Britt’s “severe limitation and relative youth.” Mr. Britt’s name was placed on the national computer list for a heart/lung transplant on July 13, 2005.
Dr. Myears gave the following testimony concerning the prospect of a heart/lung transplant:
I believe realistically that a heart transplant is Darrell’s only chance at long-term survival. With regard to whether he only has a heart transplant, knowing what I know about his lungs, I am not a pulmonologist, so I would not be able to make a very specific prognosis, but in general terms, he would be extremely limited by shortness of breath and his quality of life would not be substantially different than it is now because his limiting factor at that time would be his severe lung disease. Presuming a successful heart and lung transplant procedure with no complications, I think such a procedure would be reasonable care that is necessary to help Darrell survive and have a longer life span.
I believe the people at Bames Hospital concluded [in 2003] that in order to completely rectify Mr. Britt’s problems, he would require a heart/lung transplantation and because of his age, they felt he was not an excellent candidate for it. Assuming a successful procedure with no complications, I would expect a heart/lung transplant to result in an excellent quality of life for Mr. Britt compared to what he has been dealing with for the last 15 years. I think he would be extremely limited if he were to receive only one organ system or the other. If the lungs are transplanted, he would still be a class 3 to 4 debilitated because of his heart. If he had his heart transplant only, I am afraid he would still be oxygen dependent and probably limited to walking no more than 50 to 100 feet because of his lung disease.
When asked what Mr. Britt’s prognosis would be if he did not have the heart and lung transplants, Dr. Myears replied, “I will be surprised if he lasts longer than twelve to eighteen months.”
As to the causation of Mr. Britt’s medical problems, Dr. Myears reported on February 8, 2006:
It is my opinion based upon a reasonable degree of medical certainty that although Darrell Britt smoked prior to his inhalation injury of charcoal smoke and dust in 1991, the major cause (more than 50%) of his need for a heart/lung transplant or other medical treatment to his lungs and heart was the inhalation of charcoal smoke and dust in 1991 which rendered him permanently and totally disabled and the consequent limitations.
In his deposition, Dr. Myears testified that smoking certainly plays a role in Mr. Britt’s lung condition, but he could not assign percentages to his lung dysfunction as to what percentage was due to chronic smoking versus the initial toxic fume exposure. However, Dr. Myears went on to testify that, “I think within a degree of medical certainty that the toxic exposure he had to his lungs at the time of the inhalation set the stage for the lung disease that he now has. I think there is a greater than fifty percent chance that the toxic lung exposure has lead to the severity of lung disease that Mr. Britt now has.”
Dr. Louis Roddy reviewed the medical records and disagreed with Dr. Myears regarding the causation of Mr. Britt’s lung disease. In a report dated February 8, 2006, Dr. Roddy gave the following opinion:
It is apparent from a review of these records that prior to Mr. Britt’s inhalation injury in 1991, his pulmonary status was near normal. However, it is important to note at this time that both prior to and following the inhalation injury in 1991 Mr. Britt was a rather heavy tobacco user. Thus, although he likely had near normal pulmonary functions, he may have had subtle small airway abnormalities as a result of his tobacco use as early as 1991. Following Mr. Britt’s injury and despite the suggestions of multiple physicians, Mr. Britt continued to smoke. It is difficult to quantitate Mr. Britt’s pack year consumption but in all likelihood it exceeds 60 pack years. Thus, it is my opinion based on reasonable medical probability that the cause of Mr. Britt’s obstructive lung disease is the continued use of cigarettes. In addition, Mr. Britt’s continued use of tobacco from 1991 until 2001 worsened his underlying lung disease and was more likely than not responsible for the chronic obstructive pulmonary disease. It is also my impression based on reasonable medical probability that Mr. Britt’s current rather significant obstructive lung disease is more likely than not related to tobacco consumption and not to any inhalation injury. Thus, it follows that Mr. Britt’s need for a lung transplant as a result of his obstructive lung disease is not related to his inhalation injury but as stated previously related to his lengthy tobacco abusing history. Thus, it is my opinion based on reasonable medical probability that Mr. Britt’s lung transplant is necessary not as the result of any compensable injury but solely the result of ongoing rather heavy tobacco consumption.
In resolving the issues in this appeal and cross-appeal, we will first address appellant Martin Charcoal’s sole argument that it raises in its direct appeal. Martin Charcoal argues that there is no substantial evidence to support the Commission’s conclusion that medical treatment including a heart/lung transplant is reasonably necessary treatment for Mr. Britt’s compensable heart injury.
The statute applicable to Mr. Britt’s request for reasonably necessary medical treatment provides:
The employer shall promptly provide for an injured employee such medical, surgical, hospital, and nursing service, and medicine, crutches, artificial limbs, and other apparatus as may be reasonably necessary for the treatment of the injury received by the employee.
Ark. Code Ann. § ll-9-508(a) (1987). Martin Charcoal contends that the heart/lung transplant proposed by Mr. Britt’s doctors does not constitute reasonably necessary treatment. Appellant notes that Mr. Britt was evaluated in 1994 for a heart transplant, but his doctors concluded that the procedure was not necessary and Mr. Britt continued with aggressive medications. Appellant submits that Mr. Britt’s heart condition was essentially stable from March 1991 through 2000, and that the subsequent deterioration of Mr. Britt’s heart and lungs was the result of his continued smoking against his doctor’s orders. Appellant notes that for reasons including Mr. Britt’s age and the waiting period for a heart/lung organ block, he was again found not to be a proper transplant candidate in 2003. Appellant contends that simply because Mr. Britt was placed on a list for a heart/lung transplant in 2005 does not make the procedure reasonably necessary treatment.
Martin Charcoal further argues that even if a heart transplant is reasonably necessary, a lung transplant is not. While Dr. Myears testified that Mr. Britt would have a low quality of life if he has only a heart transplant, the appellant asserts that this fact does not render a lung transplant compensable where appellee’s lung injury was unrelated to the compensable incident.
We hold that there was substantial evidence to support the Commission’s finding that a heart/lung transplant constitutes reasonably necessary treatment for Mr. Britt’s compensable heart injury. In so holding, we are guided by our opinion in Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983), which was relied on by the Commission in reaching its decision. In that case, the appellee was involved in an accident that resulted in the compression of four or five vertebrae. He failed to respond to ordinary treatment, and was referred to a cancer specialist, who discovered widespread bone cancer that predated appellee’s work injury. In an earlier opinion, the court of appeals determined that the cancer had weakened the appellee’s bones, thus predisposing him to compression fractures and making cancer treatments, consisting of radiation and chemotherapy, necessary both to halt the spread of the cancer and to stabilize the bones and help heal the fractured vertebrae. A subsequent Commission opinion found that additional chemotherapy was necessary not only to maintain the stabilization of the cancerous condition, but to stabilize the damaging effects of the compensable injury. In affirming that decision on appeal, we held that “medical treatments which are required so as to stabilize or maintain an injured worker are the responsibility of the employer.” Id. at 203, 649 S.W.2d at 846.
In the present case, Mr. Britt was left permanently and totally disabled following his compensable heart attack in 1991. He was evaluated in 2003 for a possible heart/lung transplant but it was deemed unsuitable at that time due to facts such as Mr. Britt’s age. However, after subsequent evaluations the treatment plan changed and Mr. Britt was placed on the list for a transplant. Dr. Myears gave the opinion that a heart/lung transplant was the only realistic chance for long term survival, and that a heart transplant alone would be of little use. Dr. Hargis characterized Mr. Britt’s heart and lung problems as “severe” and thought that the conditions aggravated each other. And there was evidence that a heart transplant alone was not a viable option given Dr. Joseph Rogers’s report on March 14, 2003, that, “I am afraid that the severity of his lung disease will preclude him from undergoing isolated cardiac transplantation and if he is up to undergo any kind of thoracic organ transplantation, he would require a combined heart and lung block.”
This medical evidence was substantial evidence to support the Commission’s finding that Mr. Britt must undergo a lung transplant as well as a heart transplant to stabilize or maintain his compensable heart condition, in accordance with our prece dent in Artex Hydrophonics, supra. Martin Charcoal contends that Artex Hydrophonics should not be followed because there was no legal authority to support our proposition in that case that medical treatments that are required so as to stabilize or maintain an injured worker are the employer’s responsibility. However, we think our interpretation of what constituted “reasonably necessary medical treatment” in that case was based on sound reasoning, and we reject appellant’s invitation to overrule it. Significantly, both Artex Hydrophonics and the present case involve injuries occurring before July 1, 1993, so the applicable law requires liberal construction of the statutes and the Commission to draw all reasonable inferences favorable to the claimant. See Aluminum Co. of Am. v. Rollon, 76 Ark. App. 240, 64 S.W.3d 756 (2001); Howard v. Ark. Power & Light Co., 20 Ark. App. 98, 724 S.W.2d 193 (1987). Martin Charcoal also attempts to distinguish the present facts from Artex Hydro-phonics because that case involved treatment of a preexisting condition. We, however, conclude that it is immaterial whether Mr. Britt’s lung condition developed before or after the compensable injury. The fact remains that the heart/lung transplant is necessary to stabilize or maintain the appellee’s compensable condition. Accordingly, we affirm on direct appeal.
We now turn to Mr. Britt’s arguments on cross-appeal. Mr. Britt first argues that the Commission erred in ruling that his claim for a separate lung injury was barred by the statute of limitations. Because Mr. Britt’s alleged lung injury occurred before Act 796 of 1993 became effective, the timeliness of his claim must be determined under the laws then in effect. See Taylor v. Producers Rice Mill, Inc., 89 Ark. App. 327, 202 S.W.3d 565 (2005). This is significant because the 1993 Act added the provision that a latent injury or condition shall not delay or toll the limitations periods.
Arkansas Code Annotated section ll-9-702(a) (1987) provides, “A claim for compensation on account of an injury, other than an occupational disease and occupational infection, shall be barred unless filed with the Commission within two (2) years from the date of the injury.” Section ll-9-702(b) (1987) provides, “In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one (1) year from the date of the last payment of compensation, or two (2) years from the date of the injury, whichever is greater.” In his argument, Mr. Britt contends that his claim for a lung injury was timely filed at the same time he claimed a heart injury following the work-related accident in 1991. He maintains that his initial claim included all conditions arising from that incident. Mr. Britt submits that there is simply no requirement that an injured worker state with specificity the precise nature of the injury sustained, and that often times the specific nature of an injury cannot be determined until after a claim is determined to be compensable and medical treatment provided. Thus, Mr. Britt characterizes his claim as one for additional benefits under subsection (b), and asserts that because the appellants have continued to pay compensation throughout this case, the one-year limitation period under that subsection never elapsed and his claim is not barred.
We cannot agree with Mr. Britt’s assertion that he effectively filed a claim for a lung injury at the same time he filed his initial timely claim for a heart injury. It is evident from the record that Mr. Britt initially claimed only a heart injury, and in the Commission’s November 27, 1996, opinion awarding compensation, the Commission found only that Mr. Britt sustained a compensable myocardial infarction. A single employment accident may create more than one “compensable injury,” for purposes of an act, which in turn results in more than one date for the start of the statute of limitations. 100 C.J.S. Workers’ Compensation § 825 (2000). Mr. Britt’s heart condition and lung condition are two distinct injuries for which compensation must be timely claimed under our statutes. The first time Mr. Britt claimed compensation for a lung injury was on October 24, 2003, which was outside of the two-year limitations period. Accordingly, appellant’s claim cannot be considered as one for additional compensation under the theory advanced in his brief because, contrary to his argument, he did not timely claim compensability for any lung disorder. The Commission correctly concluded that Mr. Britt’s claim for a compensable lung injury was barred by the statute of limitations.
Mr. Britt relies in the alternative on the “latent injury” rule, which applies in cases predating Act 796 of 1993. See Taylor, supra. In Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 443 (1983), we explained that the two-year limitations period does not begin to run until the true extent of the injury manifests itself and causes an incapacity to earn wages. Because Mr. Britt was rendered incapable of earning any wages by his compensable heart condition long before he alleged a lung injury, we are concerned here with when the extent of the lung injury manifested itself. Mr. Britt contends that he was unaware of the true extent and nature of his lung condition until a visit to the Barnes-Jewish Hospital on March 11, 2003. With this we cannot agree.
Mr. Britt fails to recognize that a June 10, 2000, x-ray gave proof of his lung condition, revealing “markedly abnormal lungs raising question of severe asthma/chronic obstructive pulmonary disease.” AJuly 13, 2000, pulmonary function test showed a “severe obstructive lung defect,” and on August 25, 2000, Dr. Hargis diagnosed COPD. Thus, the extent and nature of Mr. Britt’s lung condition manifested itself more than two years prior to his claim filed on October 24, 2003, and the Commission correctly found that the latent injury rule did not save Mr. Britt’s claim.
Mr. Britt’s next argument is that the preponderance of the evidence established compensability for his lung condition that occurred on March 4, 1991, and that the Commission erred in failing to address this issue. He contends that the record overwhelmingly supports his contention that the inhalation of toxic smoke on that day was causally related to his lung injury.
Because Mr. Britt’s claim for a separate lung injury occurring on March 4, 1991, is barred by the statute of limitations, we need not address the merits of this argument. The Commission declined to consider the issue of compensability arising on that date, and so do we.
Mr. Britt’s remaining argument is that the Commission erred in failing to find that his lung condition is a compensable consequence of the compensable heart injury. If an injury is compensable, then every natural consequence of that injury is also compensable. Air Compressor Equip, v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). Mr. Britt refers us to Dr. Myears’s opinion that the use of beta blockers “unmasked” his lung disease, and he urges that it was the use of beta blockers that aggravated or accelerated his lung condition.
Mr. Britt’s final argument is without merit. Dr. Myears believed that Mr. Britt sustained a separate lung injury on March 4, 1991. Dr. Hargis believed that there was no association between appellee’s COPD and the previous myocardial infarction. And Dr. Roddy gave the opinion that appellee’s need for a lung transplant was solely the result of tobacco consumption. The Commission correctly indicated that there was a lack of proof that the lung condition was a compensable consequence of the heart injury, and its opinion displays a substantial basis for denying relief for that claim.
Affirmed on direct appeal; affirmed on cross-appeal.
Marshall and Baker, JJ., agree. | [
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Sam Bird, Judge.
Ruben Marmolejo was convicted in a jury trial for being an accomplice to delivery of methamphetamine and was sentenced to twenty-five years’ imprisonment and a fine of $15,000. As his sole point on appeal, Marmolejo contends that the trial court abused its discretion by admitting evidence of prior bad acts under Arkansas Rule of Evidence 404(b). We hold that any error in the admission of the evidence was harmless, and we affirm.
The charge against Marmolejo resulted from an undercover officer’s purchase ofmethamphetamine at the home of Tyler West on February 16, 2006, when Marmolejo and Cody Poole were there. Marmolejo filed a motion in limine to exclude anticipated testimony by West and Detective Andy Lee, an undercover narcotics investigator, that Marmolejo had been West’s drug supplier in the past. The State argued at the pretrial hearing that West’s testimony would establish his credibility and explain why the case proceeded as it did. According to the State, West’s testimony would explain “why a drug transaction was set up with Ruben Marmolejo, and why he was contacted and these events were set into motion as a whole. The State believes it is necessary in order to establish its case today that Ruben Marmolejo was an accomplice to the delivery in question.” The State also anticipated, in order to establish why the officers “proceeded as they did,” bringing out through Detective Lee’s testimony “that West told him he could set him up with one of his suppliers and that he named that supplier as Ruben Marmolejo.”
Marmolejo responded that being West’s past supplier was not relevant to the question of what happened inside the house when Poole delivered the drugs on February 16, 2007. He also argued that any probative value of proof of his previous relationship with West would be grossly outweighed by the prejudicial effect of testimony “in the very beginning” that Marmolejo was a drug dealer.
The court ruled that the testimony would be allowed, stating as follows:
The reason I think that it is relevant is that we have to assume the defense will not present any defense. The burden in this case is on the prosecution to prove its case beyond a reasonable doubt and that the credibility of the State’s witnesses has a bearing on burden and whether they can meet it.
I think that to grant the motion in limine is, in essence, forcing the prosecution to try its case in a vacuum. If their case develops, as I think it is going to develop, you have this Tyler West making assurances to Andy Lee of what he can do and why. Then you have Tyler West making contact with Mr. Marmolejo. I think the testi mony is admissible to show a state of mind and to explain his actions. Otherwise, as I said, you have got the State trying to prove its case in a vacuum.
The prosecutor informed the jury during opening statements that West told investigators “he could set up a drug deal with his supplier and he named that supplier as Ruben Mar-molejo.” As the State’s first witness, Detective Lee testified that West was “very cooperative” on February 16, 2006, when officers executed a search warrant at West’s residence, where Lee had made other drug buys. Lee testified that West said he owed Marmolejo $1300 for fifteen grams of methamphetamine West had taken to his residence after stealing it from Marmolejo. Lee stated, “West agreed to work with us and set us up with two of his suppliers. He identified Cody Poole and Ruben Marmolejo as the suppliers.” The trial court then instructed the jury that the testimony was being allowed into evidence, not as proof that Marmolejo had been a drug dealer or supplier at some previous time, but only to explain West’s state of mind and the actions he took, should the jury believe the testimony.
Lee testified that the following events occurred in his presence at West’s residence. West telephoned two people, whom he identified as Marmolejo and Poole, to arrange a delivery of methamphetamine that same night. Marmolejo and Poole arrived at the residence in Marmolejo’s van. Poole began negotiating with Lee but looked to Marmolejo for approval or disapproval of the prices discussed, which Marmolejo gave by nodding or shaking his head. Lee then negotiated directly with Marmolejo, settling on $2400 for two ounces of methamphetamine. Poole handed the tape-wrapped drugs to West, who handed them to Detective Lee Kelley, who handed them to Lee, who confirmed the weight with Marmolejo and Poole before giving the money to Poole. Mar-molejo was present the entire time. Lee testified, “Based upon my experience and training, Ruben Marmolejo was definitely in control of this drug transaction.”
West testified that he was “busted” when the search warrant was executed at his house. He stated, “I discussed with the officers making a buy with Ruben Marmolejo. He is a dealer.” The court then directed the jury’s attention to the limiting instruction previously given during Detective Lee’s testimony. The court instructed the jury that, similarly, West’s testimony about his relationship with Marmolejo was allowed for the limited purpose of explaining West’s state of mind and what action he took that evening, and not as proof that Marmolejo was a drug dealer or had done previous dealings.
After the limiting instruction was given, West testified that he had once been a dealer for Marmolejo. Regarding the events of February 16, 2006, West stated that he set up the deal for two ounces of methamphetamine to be delivered and for the $1300 he owed Marmolejo to be picked up. West said that Poole and Marmolejo came to the house, that Poole and Lee argued over the price, that Poole looked at Marmolejo for each price, and that Marmolejo would shake his head to indicate yes or no.
Poole testified that he went to Marmolejo’s house after receiving a telephone call to come, and methamphetamine was in the garage when he arrived. Using scales that were in the garage and tape from Marmolejo’s house, Poole wrapped the drugs into packages. When a call came on Marmolejo’s phone, Poole and Marmolejo traveled to West’s residence to make the deal, with Marmolejo driving his van. Poole handed the drugs to Marmolejo on the way out the door, Marmolejo handed them back on the way to West’s house, and Poole threw two ounces of methamphetamine on the coffee table in West’s living room. Poole testified that during negotiations he was not watching Marmolejo, who was “within feet” behind him for the entire transaction and could hear what was going on.
Detective Lee Kelley testified that he helped execute the search warrant and that West said he could introduce the officers to his suppliers. Kelley testified that West made phone calls to arrange for the delivery of the methamphetamine, that Marmolejo and Poole showed up, that Poole put the drugs on the table, that Lee and Poole initially talked about price, and that Lee began dealing with Marmolejo. Kelley said that Poole looked at Marmolejo to get the “yea or nay” on each price discussed. Kelley testified that Marmolejo, who could see and hear what was going on, watched the entire transaction and agreed with Poole that “the dope would weigh out.” Kelley characterized Marmolejo as “pretty much the main guy” giving the okay on prices and said that “a lot of dealers have guys underneath them that deal for them.”
Evidence of Prior Bad Acts
In issues relating to the admission of evidence under Ark. R. Evid. 401, 403, and 404(b), a trial court’s ruling is entitled to great weight and will not be reversed absent an abuse of discretion. Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Even when a circuit court errs in admitting evidence, the appellate court will affirm the conviction and deem the error harmless if the evidence of guilt is overwhelming and the error is slight. Eastin v. State, 370 Ark. 10, 257 S.W.3d 58 (2007); Anderson v. State, 71 Ark. App. 200, 33 S.W.3d 173 (2000). To determine if the error is slight, we can look to see if the defendant was prejudiced. Wooten v. State, 93 Ark. App. 178, 217 S.W.3d 124 (2005).
Here, the jury had before it testimony that West arranged for a methamphetamine deal by phoning Marmolejo and Poole. Poole testified that he packaged the methamphetamine in Marmolejo’s garage, using scales that were there and tape from Marmolejo’s house. Poole handed Marmolejo the packaged drugs, Marmolejo handed them back, and Marmolejo drove his van to West’s house for the drug deal. Marmolejo could see and hear the entire transaction in the living room. According to the undercover officers, Marmolejo indicated his approval or disapproval of proposed prices by nodding or shaking his head, the final price was negotiated directly with him, and he confirmed the weight of the drugs.
West testified that he called Marmolejo and set up the deal. Detective Kelley stated that many dealers “have guys underneath them that deal for them” and that Marmolejo was “pretty much the main guy who was giving the okay on prices.” Kelley concluded “without a doubt” that Marmolejo was in charge of the drug deal. Detective Lee testified, based on his experience and training, that “Marmolejo was definitely in control of this drug transaction.”
We hold that, even if testimony referring to Marmolejo as a drug dealer or supplier should have been suppressed, the error was harmless in view of overwhelming proof of guilt as presented through the testimony as summarized above. Prejudice is not presumed, and a conviction will not be reversed on appeal absent a showing of prejudice by the defendant. Eastin, supra.
Affirmed.
Pittman, C.J., and Gladwin, Glover, and Vaught, JJ., agree.
Griffen, J., dissents.
Detective Lee Kelley (Kelley) was involved with Andy Lee (Lee) in the controlled buy, and each gave testimony in this case.
The dissent relies in part upon Phavixay v. State, STS Ark. 168, 282 S.W.3d 795 (2008), in which our supreme court reversed and remanded the appellant’s conviction for delivery of methamphetamine upon holding that evidence of his prior drug transaction was error under Rule 404(b). Because Phavixay did not analyze the issue ofharmless error, it does not guide our present decision. | [
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D.P. Marshall Jr., Judge.
Brent Patterson appeals a jury verdict in favor of United Parcel Service in this personal-injury case. We confront questions about judicial notice of federal law and jury instmctions.
Patterson was an employee of Fleming Network Services, a company that UPS hired to install communications cables at a UPS warehouse in Dermott. The Fleming employees had to use ladders to install the cables. There was a fixed ladder at the warehouse with a platform at the top. Patterson did not have to use UPS’s fixed ladder; Fleming trucks come equipped with ladders. But Patterson used the fixed ladder and during his second or third time climbing it, he fell off.
Patterson then filed this lawsuit against UPS and the warehouse owners who rented UPS the building. He alleged that the ladder and premises were negligently constructed and maintained in violation of OSHA standards 29 C.F.R. § 1910.27(c)(4) & (6). UPS asserted cross-claims against the warehouse owners for contribution and indemnity. Before trial, Patterson dismissed his claims against the owners. The jury concluded that UPS was not negligent. The trial court then entered judgment for UPS and dismissed its cross-claims against the warehouse owners with prejudice. Patterson appeals. He contends that the circuit court abused its discretion by refusing to take judicial notice of the OSHA regulations, thereby impeding his case, and by refusing his proffered jury instruction about UPS’s duty of care to him.
I.
Patterson first argues that the circuit court abused its discretion by refusing to take judicial notice under Arkansas Rule of Evidence 201 of the OSHA regulations and that they applied to this ladder at the UPS warehouse. The record shows some confusion at trial about whether and how the circuit court could take judicial notice of federal law. Judicial notice is a vexed question in general. 9 Wigmore, Evidence § 2566, at 711-20 (Chadbourn rev. 1981). And the confusion below is not surprising given how the part of this doctrine about noticing foreign law evolved. See generally Greene v. State, 335 Ark. 1, 14-23, 977 S.W.2d 192, 198-203 (1998). In a case such as this one, where the real issue is what law applies, to talk about a court taking judicial notice of the law clouds rather than clarifies that issue.
Arkansas Rule of Evidence 201 permits, and sometimes requires, judicial notice of only adjudicative facts, not foreign law. Our rule is modeled on the federal rule, and the Advisory Committee Notes to the original federal rule make Rule 201’s fact-only scope clear. In a “Note on Judicial Notice of Law,” after referring to Federal Rule of Civil Procedure 44.1 and its companion Federal Rule of Criminal Procedure 26.1, the Advisory Committee explained: “These two new admirably designed rules are founded on the assumption that the manner in which law is fed into the judicial process is never a proper concern of the rules of evidence but rather the rules of procedure.” The Advisory Committee accepted this understanding and rejected the common-law rule, which considered foreign law as a fact and therefore required proof about it. When Arkansas adopted our Rule of Evidence 201, which echoes the federal rule, our State endorsed this understanding.
Arkansas Rule of Civil Procedure 44.1 provides the best method for invoking foreign law in a case like this one. Our supreme court has assumed that Rule 44.1 applies to federal law. Overton Const., Inc. v. First State Bank, Springdale, 281 Ark. 69, 70-71, 662 S.W.2d 470, 471 (1983). Under that rule, “[a] party who intends to raise an issue concerning [foreign law] shall give notice in his pleading or other written notice. . . [and] [t]he court, not the jury, shall determine the law of any jurisdiction or governmental unit thereof outside this State.” Ark. R. Civ. P. 44.1 (a) & (c). Like the federal rule after which it was modeled, our Rule 44.1 “allows the court to determine foreign law without extensive and cumbersome fact finding procedures]]” based instead on the parties’ arguments. Getty Petroleum Marketing, Inc. v. Capital Terminal Co., 391 F.3d 312, 326, n. 20 (1st Cir. 2004). Rule of Evidence 201, which applies only to adjudicative facts, is simply not the correct basis for arguing that non-Arkansas law applies in a case. Lively v. State, 25 Ark. App. 198, 200-01, 755 S.W.2d 238, 239-40 (1988).
We acknowledge a handful of older precedent which, though Patterson does not rely on it, seems to support his argument for taking judicial notice of federal law. Elms v. Hall, 214 Ark. 601, 606, 215 S.W.2d 1021, 1024 (1948) (court refused to take notice of federal regulation but implied that it could have done so); Ark. Valley Co-op. Rural Elec. Co. v. Elkins, 200 Ark. 883, 887, 141 S.W.2d 538, 540 (1940) (supreme court took judicial notice of federal statute creating the Rural Electrification Administration), held superseded in immaterial part by statute in Parish v. Pitts, 244 Ark. 1239, 1245, 429 S.W.2d 45, 48 (1968); St. Louis I.M. & S. Ry. Co. v. Maddry, 57 Ark. 306, 310-12, 21 S.W. 472, 473 (1893) (the amount of a pension fixed by federal statute was not a matter for proof, but could be judicially noticed and presented to the jury in the instructions); Cox v. Morrow, 14 Ark. 603, 610-11 (1854) (stating, in dicta, that federal law applied throughout the nation and thus could be noticed in state court).
This older precedent does not decide this case. First, and most importantly, all of it predates Rule ofEvidence 201 and Rule of Civil Procedure 44.1. These cases thus embody the pre-rule understanding about how applicable law comes into a case. Greene, 335 Ark. at 14-15, 977 S.W.2d at 198-99. Second, none of these older cases approved the critical step that Patterson asked the circuit court to take here: read the OSHA regulation to the jury, or allow his counsel to do so, as evidence during Patterson’s case in chief. Indeed, Maddry rejected a party’s similar effort. 57 Ark. at 312, 21 S.W. at 473.
In this case, Patterson asked the circuit court to take judicial notice under Rule 201 that federal OSHA regulations about ladders were in effect at the time of the accident and that they applied to this UPS warehouse. The court refused to do so, but allowed Patterson to question witnesses about the regulations and gave a jury instruction about them over UPS’s objection. These rulings were all correct; the court handled this issue of federal regulatory law as an issue of law, not as a fact deemed established under Rule 201.
Patterson gave the circuit court and UPS sufficient notice of his intention to rely on the regulations in his amended complaint. Ark. Appliance Distributing Co. v. Tandy Electronics, Inc., 292 Ark. 482, 484-86, 730 S.W.2d 899, 900 (1987). But then he took wrong turns at the pre-trial conference: he argued the issue as a matter of fact under Rule 201; he gave no explanation about how he intended to use the OSHA regulations with the witnesses; and he wanted to read the regulations, or have the court read them, to the jury as part of the plaintiff’s evidence. Because the regulations were law, not facts, the circuit court did not abuse its discretion by refusing to take judicial notice of them under Rule of Evidence 201, Mhoon v. State, 369 Ark. 134, 136, 251 S.W.3d 244, 246 (2007), or by refusing to admit the regulations as evidence adrift from any witness.
Patterson also contends that the circuit court abused its discretion by not letting him refer to the OSHA regulations when questioning witnesses or in his opening statement. The record, however, shows that the circuit court did not stop Patterson from questioning witnesses about the regulations. After opening statements, the court told Patterson’s attorney that “[i]f you have a proper foundation through witnesses that will make that OSHA regulation relevant then you can [mention it].” Patterson questioned at least two witnesses about the general applicability of OSHA regulations to this warehouse and ladder. When these witnesses expressed no familiarity with whether the regulations applied, Patterson moved on to other questions.
The circuit court did not allow Patterson to refer to the OSHA regulations in his opening statement because Patterson had yet to lay an evidentiary basis showing that the regulations were applicable. In the pre-trial conference, Patterson neither proffered nor explained the anticipated lay-witness testimony that would have supported his referring to the regulations in his opening. Moreover, he had no expert testimony on the issue. Given that the circuit court allowed Patterson to question witnesses about the OSHA regulations and gave a jury instruction about them, and given the court’s broad discretion in controlling opening statements, we see no abuse of discretion here. Lewis v. Pearson, 262 Ark. 350, 353, 556 S.W.2d 661, 663 (1977).
II.
Patterson next argues that the circuit court abused its discretion by refusing to give his proffered model civil jury instruction, and by giving a non-AMI instruction instead, about UPS’s duty as a matter of premises liability to Patterson. Patterson proffered part of AMI 1104 — Duty Owed to Invitee. His instruction would have told the jury that “[i]n this case, Brent Patterson, was an invitee upon the premises of Defendant, United Parcel Service, Inc., who owed a duty to use ordinary care to maintain the premises in a reasonably safe condition.” UPS proffered an alternative instruction quoting D.B. Griffin Warehouse, Inc. v. Sanders, 349 Ark. 94, 105-06, 76 S.W.3d 254, 262 (2002). UPS urged that its instruction from Sanders was a recent and correct statement of UPS’s duty to an independent contractor’s (Fleming’s) employees.
At this point, the circuit court asked Patterson to proffer the entire AMI 1104 instruction, which should be used if substantial evidence existed that some condition of the premises (here, the ladder and platform) presented an open and obvious danger. Note on Use, AMI Civ. 1104 (2007). Patterson did not do so. The jury had heard testimony and seen photographs, however, that created an issue of fact about whether the dangers of the ladder and the platform were open and obvious. This was one of the central disputed issues in the case. With the evidence in the record, the circuit court did not abuse its discretion by choosing the Sanders instruction over the partial AMI 1104 offered by Patterson, which omitted a key issue. Williams v. First Unum Life Ins. Co., 358 Ark. 224, 229, 188 S.W.3d 908, 911 (2004).
Affirmed.
Hart and Gladwin, JJ., agree. | [
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RAYMOND R. ABRAMSON, Judge
| iThis is an appeal from a bench trial in which the Jefferson County Circuit Court convicted Maurice Langford of sexual indecency with a child. The court sentenced him to four years’ probation, ordered him to register as a sex offender, and fined him $5,000. On appeal, Langford argues that the circuit court erred when it denied his motion for directed verdict. We affirm.
At trial, Officer Edwards, M.H. (the juvenile victim), and Detective Johnson testified for the State. Officer Edwards testified that, on September 27, 2013, he was dispatched to Laurel Street concerning a call that two black males had entered an abandoned house. He explained that when he arrived, he saw that the house door had been kicked in and he smelled marijuana. He testified that he entered the house, announced himself as a police officer, and asked that anyone inside come out with his hands up. He testified that Langford | ¡..appeared and informed him that another male was in the house. He stated that he and Langford yelled the male’s name, and M.H. appeared. Officer Edwards placed Langford and M.H. in handcuffs and escorted them to his car. He explained that after placing Langford and M.H. in handcuffs, Officer Boykin arrived at the scene. He testified that he and Officer Boykin walked through the house. He testified that the house reeked of marijuana, but they did not find any drugs. He stated that they found a condom wrapper with a liquid substance on it in the living room. Officer Edwards testified that after finding the condom wrapper, he contacted his supervisor and reported the incident. His supervisor then called a detective. He stated that the detective arrived, photographed the scene, and took the condom wrapper into evidence.
M.H. testified that, on September 27, 2013, he was fourteen years old. He explained that on that day, he saw Langford while riding his bike to a football game at Pine Bluff High School. He noted that he knew Langford through mutual friends and that Langford had previously shown him pornographic videos. He testified that Langford asked him to smoke marijuana and he agreed. He explained that he and Langford then went to an abandoned house, where Langford gave him marijuana and they smoked it. M.H. testified that while they were smoking, Lang-ford removed a laptop from his book bag and played pornographic videos on the computer and told him to watch the videos. M.H. testified that Langford said the female in the video was fifteen years old. M.H. explained that, after watching the videos, Langford said “he was going to give me (M.H.) some head for some money ... like a hundred and something dollars.” M.H. testified he did not have a chance to respond because lathe police then entered the house. M.H. explained that when the police arrived, Langford went toward the police but he hid in the closet because he was scared. M.H. stated that he did not know how the condom wrapper got into the house.
Detective Johnson testified that on September 27, 2013, he responded to a call concerning two black males in a vacant residence. He testified that inside the residence he saw a condom wrapper on the floor covered with some type of lubricant. He testified that after seeing the wrapper, he took M.H. and Langford to the detective office. He testified that he obtained a search warrant to search Langford’s book bag and found recording equipment, multiple SD cards, and an iPad. He testified that he then obtained a search warrant for the SD cards and found videos of a pornographic nature on them but could not determine the age of the individuals from the videos. He stated that Langford told him that he worked in the film industry.
After Detective Johnson’s testimony, the State rested. Langford then moved for a directed verdict. Specifically, Langford’s counsel stated
at this time, I move for a directed ver-diet, that the State has not put on evidence that is sufficient to show that on this date that Mr. Langford solicited another person to engage in sexual intercourse or deviate sexual activity or sexual contact. I do not believe the State has met their burden of proof. They have to show beyond a reasonable doubt that — that does not give rise to suspicion, that you have to fill in the blanks with this. Obviously, from the testimony of [M.H.], he cannot seem to get out the — -just the basics: color, descriptions, phrases that are used. He also testified that he was smoking marijuana prior to the date that he went into this house with Mr. Langford and he smoked marijuana in this house. It is very possible — and I — I will say from his testimony that he does not have a good grasp of — on some things. And so I would move the, Court to direct a verdict in favor of Mr. Langford.
| ¿The circuit court denied the motion.
Langford then testified on his own behalf. He testified that on. September 27, 2013, he was forty years old. He stated that on that day, M.H. invited him to smoke marijuana at the abandoned house. He testified that M.H. told him that he had hidden marijuana at the house but when they arrived, they could not find the drugs. He testified that he did not show M.H. pornographic videos on his laptop and noted that he had not owned a laptop since 2009. He admitted that he owns an iPad and had the iPad with him on that day. He also testified that he did not offer M.H. money to perform a sexual act and that he did not know M.H.’s age.
Following his testimony, Langford renewed his motion for a directed verdict. The circuit court denied the motion. The court then found Langford guilty of sexual indecency with a child pursuant to Arkansas Code Annotated section 5-14-110(a)(l) (Repl. 2013). The court sentenced him to four years’ probation, ordered him to register as a sex offender, and fined him $5,000. Langford then filed this appeal.
On appeal, Langford argues that the circuit court erred by denying his motion for a directed verdict. Specifically, Langford argues that the evidence was insufficient because the State produced only circumstantial evidence and did not offer any direct evidence that he solicited M.H. to engage in sexual contact. Lang-ford also argues that the evidence is |¡insufficient because the State did' not present forensic evidence, noting that the condom wrapper was never tested.
A directed-verdict motion is a challenge to the sufficiency of the evidence. Rounsaville v. State, 372 Ark. 252, 273 S.W.3d 486 (2008). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Alexander v. State, 78 Ark. App. 56, 77 S.W.3d 544 (2002). 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. A motion for directed verdict requires the movant to apprise the circuit court of the specific basis on which the motion is made. See, e.g., Rounsaville, 372 Ark. 252, 273 S.W.3d 486. 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 by the scope and nature of the objections and arguments presented at trial. See id.
Here, Langford’s arguments on appeal were not part of his directed-verdict motion in the circuit court. Specifically, at trial, Langford argued that the evidence was insufficient because M.H.’s testimony was unreliable. However, on appeal, Langford asserts that the evidence was insufficient because the State produced only circumstantial evidence and because the condom wrapper was never tested. Accordingly, Langford changed the basis for his directed-verdict motion on appeal, and his arguments are not preserved for our review. However, even had Langford preserved his arguments, the circuit court properly denied his motion for a directed verdict. M.H.’s testimony was sufficient evidence to support Langford’s | (¡conviction. Further, any forensic evidence on the condom wrapper is irrelevant to the offense of sexual indecency. Sexual indecency only requires solicitation of sexual intercourse or contact. See Ark.Code Ann. § 5-14-110(a)(1).
Affirmed.
Gladwin, C.J., and Harrison, J., agree.
. SD cards are digital memory cards.
. Under Arkansas Code Annotated section 5-14-110(a)(1), a person commits sexual indecency with a child if being eighteen years of age or older, the person solicits another person who is less than fifteen years of age or who is represented to be less, than fifteen years of age to engage in sexual intercourse, deviate sexual activity, or sexual contact. | [
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JOHN MAUZY PITTMAN, Judge.
| Appellant appeals from the Arkansas Workers’ Compensation Commission’s decision that appellant’s decedent, Frederick Bogar, was jointly employed by Welspun Pipes, Inc., and Prime Industrial Recruiters (a/k/a Elite Services) at the time of his injury and death, thus entitling Welspun to protection from a tort suit for wrongful death. Also injured in this accident was Mr. Bogar’s co-worker, William Durham. Mr. Durham’s appeal, involving issues that are essentially identical to those presented herein, was disposed of in a companion case, Durham v. Prime Industrial Recruiters, Inc., 2014 Ark. App. 494, 442 S.W.3d 881.
The dual-employment doctrine was explained in the Arkansas Supreme Court case of Daniels v. Riley’s Health & Fitness Centers, 310 Ark. 756, 840 S.W.2d 177 (1992), as follows. Citing Charles v. Lincoln Construction Co., 235 Ark. 470, 361 S.W.2d 1 (1962), and 1C Arthur Larson, The Law of Workmen’s Compensation § 48.00 (1962), the court held that, when a general employer lends an employee to a special employer, the special employer becomes | {.liable for workers’ compensation only if (a) the employee has made a contract for hire, express or implied, with the special employer; (b) the work being done is essentially that of the special employer; and (c) the special employer has the right to control the details of the work. Daniels, supra. When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workers’ compensation. Id. The Daniels court also said:
[T]he solution of almost every such case finally depends upon the answer to the basic, fundamental and bedrock question of whether as to the special employees the relationship of employer and employee existed at the time of the injury. If the facts show such relationship, the existence of a general employer should not change or be allowed to confuse the solution of the problem.
Id. at 759-60, 840 S.W.2d at 178 (quoting Stuyvesant Corp. v. Waterhouse, 74 So.2d 554 (Fla.1954)).
The sole issue presented in this appeal is whether the Commission erred in finding that there was an implied contract for hire between Welspun and appellant’s decedent. Appellant argues that the Commission’s finding of such an implied contract was erroneous because (1) the Commission employed an erroneous standard in determining whether such an implied contract existed; and (2) the Commission “arbi trarily ignored” evidence favorable to appellant.
Appellant first asserts that the Commission erroneously conflated the elements of dual employment, finding that (a) there was an implied contract for hire with Welspun solely because (b) the work being done was essentially Welspun’s and (c) Welspun had the right to control the details of the work. This is an oversimplification of the Commission’s findings and is without merit. The existence of an implied contract for hire is a fact question to be |.^determined based on the totality of the circumstances surrounding the relationship of Welspun and appellant’s decedent. Dixon v. Salvation Army, 86 Ark.App. 132, 160 S.W.3d 723 (2004) (citing Schneider v. Salvation Army, 217 Minn. 448, 14 N.W.2d 467 (1944) (totality test); Arkansas State Police v. Davis, 45 Ark.App. 40, 870 S.W.2d 408 (1994) (fact question)). The Commission’s opinion did not merely consider that the work being done at the time of the injury was Welspun’s and that Welspun had the right to control the details of the work; instead, it clearly analyzed the issue based on the totality of the circumstances concerning the relationship:
The undisputed testimony in this case indicates that Elite Services recruits employees for Welspun. However, once the employees go to work at the Wel-spun facility, Welspun dictates the hours they work, sets their rate of pay, can discipline the individuals and can terminate the individuals. Once Elite Services hires and supplies an employee to Welspun, Elite Services’ primary function is to process payroll. Because Elite Services has an exclusive market contract with Welspun in Little Rock, if Welspun fires an Elite Services employee, that employee has nowhere else to go with Elite Services. This examiner can think of no greater indications of an implied employment contract than the ability to determine a worker’s weekly hours, his rate of pay, his discipline, and his termination, combined with the right to control the work being performed.
(Emphasis added.) Here, the Commission considered not only the right to control the work but also the relationship between the general and special employers; the role of the general employer after supplying an employee to the special employer; the nature of the market contract between the general and special employers; and the effect of that market contract upon an employee’s prospects for continued employment with the general employer if terminated by the special employer. In the following paragraph, the Commission recited that another employee injured in the accident, Mr. Durham, testified that:
[H]e understood that if he was hired by Elite Services that he would be working in the Welspun plant because Elite Services only supplied employees to the Welspun plant. |4Mr. Durham also understood that Welspun could fire him. Mr. Durham felt like he was more of an Elite Services employee, but that he was also a Welspun employee.
Noting that the parties had stipulated that the facts testified to by Mr. Durham also applied to the situation involving appellant’s decedent, the Commission considered Mr. Durham’s testimony together with all of the evidence recited above in finding that an implied contract for hire existed.
We cannot say, on this record, that the Commission employed an erroneous standard by failing to consider the totality of the circumstances concerning the relationship between appellant’s decedent and Welspun in finding that there was an implied contract for hire. Nor can we say that evidence of mutual assent or obligations was lacking or that the Commission failed to consider these elements. Assent to the terms of the employment by Welspun is to be found in Mr. Durham’s testimony. Mutuality of contract simply means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; thus, neither party is bound unless both are bound. Tyson Foods, Inc. v. Archer, 356 Ark. 136, 147 S.W.3d 681 (2004). Consideration is any benefit conferred or agreed to be conferred upon a promisor to which he is not lawfully entitled, or any prejudice suffered or agreed to be suffered by a promisor other than such as he is lawfully bound to suffer. McIlroy Bank & Trust Co. v. Comstock, 13 Ark.App. 13, 678 S.W.2d 782 (1984). Here, mutual obligation is to be found in the evidence, also recited by the Commission, that Welspun reimbursed Elite Services for payments made by Elite to employees for work performed at Welspun: the decedent’s obligation to perform work for Wel-spun was balanced against the obligation of Welspun to provide reimbursements for Elite’s payments for that | ¡¡work. We hold that the findings underlying the determination of an implied contract for hire are supported by substantial evidence.
Next, appellant argues that the Commission erred by arbitrarily regarding “dispositive evidence” in the form of documents evincing the agreement between Welspun and Elite, and evidence that Elite employees were treated differently than Welspun employees. We do not agree that this evidence was either arbitrarily disregarded or dispositive. Although it is true that the Commission may not arbitrarily disregard evidence, the Commission’s failure to specifically discuss conflicting evidence does not mean that it was arbitrarily disregarded where there is substantial evidence to support its decision, Raulston v. Waste Management, Inc., 2012 Ark. App. 272, 411 S.W.3d 711, and we have already held that the finding of an implied contract for hire is supported by substantial evidence. Furthermore, even if the Commission had been persuaded by the evidence that appellant mentions to find that Bogar was an Elite employee, this would not preclude a finding that Wel-spun was a special employer. See National Union Fire Insurance v. Tri-State Iron & Metal, 323 Ark. 258, 914 S.W.2d 301 (1996).
Affirmed.
WALMSLEY and HIXSON, JJ., agree. | [
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ROBIN F. WYNNE, Judge.
| ¶ Joel Buckley appeals from his convictions on charges of failure to appear and driving while intoxicated (fourth offense). He argues on appeal that the trial court erred by allowing his former attorney to testify regarding a conversation between her and appellant and by allowing testimony at trial regarding a portable breath test administered by police. The trial court’s sentencing order is affirmed in part and reversed and remanded in part.
Appellant was charged with two counts of failure to appear and one count of driving while intoxicated (fourth offense). Pri- or to trial, the State issued a subpoena to appellant’s former attorney, Autumn Tol-bert, directing her to testify at trial. Appellant filed a motion to quash the subpoena, which was denied by the trial court. Appellant’s trial for the driving-while-intoxicated offense and a separate failure-to-appear charge, which had been set for July |215, 2012, was continued until September 19, 2012. Appellant did not appear on September 19, 2012. At trial, Ms. Tolbert testified that the practice in the trial court before which appellant was tried was for attorneys to advise their clients of a new trial date when a new date was issued. She advised appellant of the September 19, 2012 court date by telephone.
Officer Garrett Levine, who arrested appellant on suspicion of driving while intoxicated, testified at trial that he pulled appellant over because the license plate on his pickup truck was registered to a sports-utility vehicle. He noticed that appellant’s speech was slurred and his eyes were bloodshot and glassy. Officer Levine testified that he administered a horizontal gaze nystagmus (HGN) test to appellant prior to his arrest. According to Officer Levine, appellant declined the other field-sobriety tests due to gout. Appellant was taken to the hospital after complaining of low blood sugar and refused to take either a breath or blood test. Officer Levine also testified, over appellant’s objection, that he administered a portable breath test to appellant and concluded that appellant was intoxicated based on the results.
The jury found appellant guilty of two counts of failure to appear and one count of driving while intoxicated (fourth offense). He was sentenced to eighty-four months’ imprisonment for the failure to appear that occurred on September 19, 2012, thirty-six months’ imprisonment for the failure to appear that occurred on February 23, 2012, and seventy-two months’ imprisonment for the offense of driving while intoxicated (fourth offense). The sentences were ordered to be run consecutively, for a total sentence of 192 months’ imprisonment. This appeal followed.
| sAppellant’s first argument is that the trial court erred by allowing appellant’s former attorney to testify regarding the phone call in which she advised appellant of the September 19, 2012 court date. Matters pertaining to the admissibility of evidence and rulings on relevancy are left to the trial court’s sound discretion. Turner v. State, 2014 Ark. App. 428, 439 S.W.3d 88. We will not reverse a trial court’s evidentiary ruling absent an abuse of that discretion and a showing of prejudice. Id. Abuse of discretion is a high threshold that does not simply require error in the trial court’s decision, but requires that the circuit court acted improvidently, thoughtlessly, or without due consideration. Id.
Arkansas Rule of Evidence 502(b) (2014) states that
[a] client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer’s representative, (2) between his lawyer and the lawyer’s representative, (8) by him or his representative or his lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.
A communication is “confidential” if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. Ark. R. Evid. 502(a)(5) (2014).
In Byrd v. State, 826 Ark. 10, 929 S.W.2d 151 (1996), a defendant’s former attorney was allowed to testify regarding his unsuccessful attempts to communicate with the defendant in order to, among other things, notify him of a trial date. Our supreme court held that the | ¿attempts by the attorney to contact the defendant “fell within the rubric ‘confidential’” because neither the defendant nor his attorney intended for the unsuccessful attempts to be made public. 326 Ark. at 14, 929 S.W.2d at 154. In this case, likewise, there is no indication that either appellant or Ms. Tolbert intended for the phone call notifying him of the September 19, 2012 trial date to be made public.
The State responds that the communication of the new court date was not “confidential” because the new court date was a matter of public record and the phone call by Ms. Tolbert was a procedural matter. The State misapprehends what is being argued was confidential. Appellant’s new trial date was indeed a matter of public record. It is not the contents of the disclosure that are arguably confidential in this case; it is the fact that the disclosure was made. In Byrd, it was the unsuccessful attempts at communication by the attorney that were held to be privileged. In the instant case, a successful communication between an attorney and that attorney’s client is likewise privileged. Based on the holding in Byrd, the fact that Ms. Tolbert contacted appellant while serving as his attorney in a criminal matter is privileged. The trial court abused its discretion by admitting the testimony by Ms. Tolbert.
To be convicted of failure to appear under Arkansas Code Annotated section 5-54-120(a)(2), our supreme court has explained that the State must prove that the defendant (1) failed to appear, (2) without a reasonable excuse, (3) after having been lawfully set at liberty, (4) upon the condition that he appear at a specified time, place, and court. As Ms. Tolbert’s testimony is the only evidence in the record that appellant did not have a reasonable excuse |sfor failing to appear based on lack of notice, the State’s argument in the alternative that any error by the trial court in admitting the testimony is harmless is without merit. Accordingly, we reverse the conviction for failure to appear on September 19, 2012, and remand the matter to the trial court.
Appellant’s next argument on appeal is that the trial court erred by allow ing Officer Levine to testify regarding the portable breath test. The trial court ruled that the testimony was admissible because appellant “opened the door” to the testimony during cross-examination of Officer Levine. We agree. As a general rule, portable breath tests are valid evidence only to support an arrest, which appellant did not contest, and not as substantive evidence absent proof of reliability. Gazaway v. State, 2010 Ark. App. 776, 2010 WL 4638827. However, on cross-examination, appellant asked Officer Levine if the HGN test was the only test given to appellant. The testimony regarding the portable breath test was given in response to this questioning, so it was relevant. Also, appellant was not prejudiced by this testimony because he opened the door to it by asking about other tests administered by Officer Levine. An appellant suffers no prejudice from the admission of the testimony where he or she opens the door to the line of questioning. Gilliland v. State, 2012 Ark. 175, 2012 WL 1415999 (citing Edwards v. Stills, 335 Ark. 470, 503, 984 S.W.2d 366, 383 (1998)).
Affirmed in part; reversed and remanded in part.
GLOVER, J., agrees.
HARRISON, J., concurs.
. Appellant does not challenge his conviction for failure to appear on February 23, 2012. | [
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COURTNEY HUDSON GOODSON, Justice.
| Appellants Regional Care of Jacksonville, LLC, d/b/a Woodland Hills Healthcare and Rehabilitation of Jacksonville; Woodland Hills Healthcare and Rehabilitation of Jacksonville, LLC; Cornerstone Health Care, Inc.; Christian Health Care Hospice, Inc.; and Angela Herd, in her capacity as administrator of Woodland Hills Healthcare and Rehabilitation of | ¡.Jacksonville (collectively “Woodland Hills”), appeal the order entered by the Pulaski County Circuit Court denying their motion to dismiss and to compel arbitration of the claims asserted against them by appellee Shirley Henry, as special administrator of the Estate of Lucille Betnc-ourt, deceased (Henry). For reversal, Woodland Hills contends that the circuit court erred by not requiring arbitration of Henry’s claims. We affirm the circuit court’s decision.
The record reflects that Lucille Betnc-ourt was a resident of Woodland Hills, a nursing-home facility, on eight separate occasions between January 2008 and her death in December 2012. Woodland Hills provided an admission agreement to its residents for execution upon entering the facility. Betncourt signed admission agreements on January 4, 2008, March 10, 2008, and May 20, 2010. She signed the latter two agreements with an “X.” Dewey Brockwell, Betncourt’s husband, executed an admission agreement as the “Responsible Party” on September 8, 2010. Henry, Betncourt’s daughter, signed the last four admission agreements as the “Responsible Party” on November 15, 2011, June 4, 2012, June 28, 2012, and September 26, 2012. All of the admission agreements contained an arbitration clause.
On August 12, 2013, Henry filed a complaint against Woodland Hills asserting causes of action for negligence, medical malpractice, breach of the admission agreement, violations of the Arkansas Long-Term Care Residents’ Right Act, breach of the Medicare/Medicaid provider agreement, and for violating the Arkansas Deceptive Trade Practices Act. Woodland Hills subsequently filed a motion to dismiss and to compel arbitration of these | Sclaims. In its supporting brief, Woodland Hills relied on the arbitration clauses, which are identical, found in each of the admission agreements executed after 2008. This clause states as follows:
Arbitration. By signing this Admission Agreement, Resident, Responsible Party, and Guarantor agree with the Facility that any dispute between the Parties, other than a dispute over billing or collecting for services, but including any services rendered prior to the date this Admission Agreement was signed, and any dispute arising out of the diagnosis, treatment, or care of the Resident, including the scope of this arbitration clause and the arbitrability of any claim or dispute, against whomever made (including, to the fullest extent permitted by applicable law, third parties who are not signatories to this Admission Agreement) shall be resolved by binding arbitration. The Parties hereby agree and intend that this Admission Agreement and the Resident’s stay at the Facility substantially involve interstate commerce, and stipulate that the Federal Arbitration Act (“FAA”) in effect as of November 1, 2008 and federal case law interpreting such version of the FAA shall apply to this Admission Agreement, shall preempt any inconsistent state law and shall not be reverse preempted by the' McCarran-Ferguson Act: United States Code Title 15, Chapter 20, or other law. Any amendment to such version of the FAA is hereby expressly waived. This Admission Agreement binds all parties whose claims may arise out of or relate to treatment or service provided by the Facility, including any spouse or heirs of the resident. This provision for arbitration may be revoked by written notice delivered to the Facility within twenty-one (21) days of signature. Resident, Responsible Party and Guarantor understand that the result of this arbitration agreement is that claims, other than those dealing with billing or collection matters, but including malpractice claims Resident, Responsible Party, and Guarantor may have against the Facility and its employees and agents, cannot be brought as a lawsuit in court before a judge or jury, and agree that all such claims will be resolved as described in this section. The arbitrator(s) shall apply the Federal Rules of Evidence and Federal Rules of Civil Procedure except where otherwise stated in this Admission Agreement. Also, the arbitrator(s) shall apply, and the arbitration award shall be consistent with, the state substantive law (including any and all statutory damage caps) for the state in which the Facility is located, except as otherwise stated in this Admission Agreement or where preempted by the FAA. Any award of the arbitrator(s) may be entered as a judgment in any court having jurisdiction over the Parties. In the event an arbitrator(s) or a court having jurisdiction finds any portion of this Admission Agreement unenforceable, that portion shall not be effective and |4the remainder of the Admission Agreement shall remain in full force and effect. This Arbitration provision shall remain in full force and effect notwithstanding the termination, cancellation, or natural expiration of this Admission Agreement and/or the death of Resident.
(Bold typeface in original.) Woodland Hills argued that the arbitration clause in question was enforceable because it contained mutual obligations to arbitrate. It also asserted that the admission agreements signed by Henry were binding on Betncourt’s estate because Henry was clothed with apparent authority to act on Betncourt’s behalf. Alternatively, Woodland Hills argued that the estate, was bound by the admission agreements executed by Henry because Betncourt was a third-party beneficiary of the agreements. In response, Henry contended that, in executing the agreements, she did not possess the authority necessary under the law of agency to bind Betncourt; that the arbitration clause failed for lack of mutuality of obligation; and that the arbitration clause at issue was unconscionable. She also contended that Betncourt lacked the mental capacity to enter into the admission agreement executed in May 2010 and that Betncourt did not make a knowing and voluntary waiver of the right to a jury trial when she signed that agreement. Woodland Hills filed a brief in reply to the arguments made by Henry.
On December 12, 2013, the circuit court entered an order succinctly finding “that Defendants’ Motion to Dismiss and to Compel Arbitration should be and hereby is denied.” Woodland Hills filed a motion asking the circuit court to amend its order to include specific findings on the issues raised by the parties. The circuit court denied the motion by written order, and this timely appeal followed.
Before addressing the merits of the appeal, we note that an order denying a motion to |scompel arbitration is an immediately appealable order under Arkansas Rule of Appellate Procedure — Civil 2(a)(12) (2013). When a circuit court denies a motion to compel arbitration without expressly stating the basis for its ruling, that ruling encompasses the issues presented to the circuit court by the briefs and arguments of the parties. Asset Acceptance, LLC v. Newby, 2014 Ark, 280, 437 S.W.3d 119. On appeal, we review a circuit court’s order denying a motion to compel arbitration de novo on the record. HPD, LLC v. TETRA Techs., Inc., 2012 Ark. 408, 424 S.W.3d 304.
For reversal, Woodland Hills first contends that the documentation submitted by Henry does not support a finding that Betncourt was mentally incompetent to execute the agreements. It next argues that the admission agreements executed by Henry are valid and enforceable because it reasonably relied on Henry’s apparent authority to enter into the agreements. As an alternative to that argument, Woodland Hills asserts that the agreements signed by Henry are binding on the estate because Betncourt was a third-party beneficiary of the agreements. In another issue, it contends that the circuit court erred in concluding that mutuality of obligation did not exist. Last, it maintains that the arbitration clause is not unconscionable. We confine our decision to the issue of mutuality, as it is dispositive of the outcome of the appeal.
As stated, there were eight admission agreements executed in connection with Betncourt’s residencies at Woodland Hills. Each of them excluded from the requirement of arbitration “a dispute over billing or collecting for services.” Henry argued below, and the circuit court agreed, that mutuality of obligation was lacking because, by carving out billing |fior collection for services, Woodland Hills reserved the right to hail its residents into court to pursue the most likely claim it would have against them, while exclusively binding its residents to arbitrate any claims that residents might have against it. In contesting the circuit court’s ruling, Woodland Hills argues that mutuality of obligation exists because a resident, particularly one who pays for services privately, could possibly dispute a charge for services and thus might have a claim for billing.
The parties in this matter do not dispute that the Federal Arbitration Act (FAA) applies in this case. Congress enacted the FAA, 9 U.S.C. §§ 1-16, to overcome judicial resistance to arbitration. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006). The Act establishes a national policy favoring arbitration when the parties contract for that mode of dispute resolution. Preston v. Ferrer, 552 U.S. 346, .128 S.Ct. 978, 169 L.Ed.2d 917 (2008) (citing Southland Corp. v. Keating, 465 U.S. 1,104 S.Ct. 852, 79 L.Ed.2d 1 (1984)). So, too, in Arkansas, arbitration is strongly favored 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. Newby, supra. Although an arbitration provision is subject to the FAA, courts look to state contract law to decide whether the parties’ agreement to arbitrate is valid. DIRECTV, Inc. v. Murray, 2012 Ark. 366, 423 S.W.3d 555.
This court has observed that a threshold inquiry is whether a valid agreement to arbitrate exists; that is, whether there has been mutual agreement, with notice as to the terms and subsequent assent. See Alltel Corp. v. Sumner, 360 Ark. 573, 203 S.W.3d 77 (2005). We also have said that the essential elements for an enforceable arbitration agreement are (1) |7competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligation. Bank of the Ozarks, Inc. v. Walker, 2014 Ark. 223, 434 S.W.3d 357.
In Arkansas, the element of mutuality of contract means that an obligation must rest on each party to do‘ or’permit to be done something in consideration of the act or promise of the other; that is, neither party is bound unless both are bound. The Money Place, LLC v. Barnes, 349 Ark. 411, 78 S.W.3d 714 (2002). A contract, therefore, that leaves it entirely optional with one of the parties as to whether he will perform his promise would not be binding on the other. Shoumethemoney Check Cashers, Inc. v. Williams, 342 Ark. 112, 27 S.W.3d 361 (2000). There is no mutuality of obligation where one party uses an arbitration agreement to shield itself from litigation, while reserving to itself the ability to pursue relief through the court system. Cash in a Flash Check Advance of Ark., LLC v. Spencer, 348 Ark. 459, 74 S.W.3d 600 (2002). Thus, under Arkansas law, mutuality requires that the terms of the agreement impose real liability upon both parties. E-Z Cash Advance, Inc. v. Harris, 347 Ark. 132, 60 S.W.3d 436 (2001).
These basic principles of mutuality are illustrated in our decision of Tyson Foods, Inc. v. Archer, 356 Ark. 136, 147 S.W.3d 681 (2004). There, this court held that an arbitration agreement lacked the necessary mutuality of obligation because swine producers were limited to pursuing any grievance in an arbitral forum, while the owner of the swine retained the sole right to pursue legal or equitable remedies in a court of law. Perhaps more instructive here is our opinion in E-Z Cash, supra. In that case, we found that an arbitration clause was not enforceable where the clause allowed the check casher the right to all civil remedies, including |sa return-check fee, court costs, and attorney’s fees, when a check was returned, but limited the customer to arbitration. Although the clause allowed both parties access to small-claims court, we held that any argument that this provision supplied the necessary mutuality was “disingenuous” in light of. the other provision allowing the check casher to go to court for returned checks because “taking into account their line of business, it is difficult to imagine what other causes of action against a borrower remain that E-Z Cash would be required to submit to arbitration.” E-Z Cash, 347 Ark. at 141, 60 S.W.3d at 442. In other words, mutuality was deemed lacking because the check casher could litigate the only kind of claim that it might have against a borrower.
In the case at bar, we also conclude that the arbitration clause lacks mutuality. By reserving the right to litigate billing or collection disputes, Woodland Hills excluded from arbitration the only likely claim it might have against a resident. Its argument that a private-pay resident might have a billing claim rings hollow in light of this reservation, and particularly so in this case where the resident was a recipient of Medicaid and Medicare. The fact remains that Woodland Hills retained the right to litigate its billing and collection claims, while strictly limiting the residents to arbitration. Thus, the clause imposes no real liability on Woodland Hills to arbitrate its own claims. For these reasons, the arbitration clause offends our law requiring mutuality of obligation and cannot be enforced. Because no valid | ¡¡arbitration agreement exists due to lack of mutuality, we need not address any of the remaining issues. Pine Hills Health & Rehab., LLC v. Matthews, 2014 Ark. 109, 481 S.W.3d 910.
Affirmed.
. There is some question in this appeal as to which admission agreement is controlling in this case, and the parties have directed their arguments to all of them. We need not decide which one is the operative agreement because each arbitration clause excepts billing and collection disputes from arbitration and thus fails for want of mutuality. | [
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ROBERT J. GLADWIN, Chief Judge.
| ]This case comes to us from two orders of the Arkansas Public Service Commission in Docket No. 12-056-U. In Order No. 7, the Commission found that a temporary surcharge implemented by appellee Entergy Arkansas, Inc., complied with Act 310 of 1981. In Order No. 8, the Commission approved Entergy’s resulting rate schedule. The Consumer Utilities Rate Advocacy Division of the Arkansas Attorney General's Office (“the AG”) appeals both orders after unsuccessfully urging the Commission to consider certain grounds for disapproval of the surcharge. For reversal, the AG argues that the Commission erred in failing to make findings as to those grounds and in relying on a previous Commission ruling from another docket to decide an issue in this case. We agree with both of the AG’s points and reverse and remand for additional findings by the Commission.
\?I. Act 310 of 1981
Act 310, which is codified at Arkansas Code Annotated sections 23-4-501 to -509 (Repl.2002), allows a utility to recover certain expenditures by imposing a surcharge on its customers outside the context of a general rate case. Recovery is allowed for expenditures reasonably incurred as a direct result of legislative or regulatory requirements relating to the protection of the public health, safety, and the environment. See Ark.Code Ann. § 23-4-502.
The surcharge mechanism is unusual in that it does not require Commission approval before its implementation. Rather, the surcharge becomes effective immediately upon being filed by the utility. Ark. Code Ann. § 23-4-504. Within thirty days of the filing and upon reasonable notice to the utility, the Commission must conduct an investigation concerning the reasonableness of the surcharge. Ark.Code Ann. § 23-4-505. Following the investigation and a hearing, the Commission may modify or disapprove the surcharge. Ark.Code Ann. § 23^-507(a).
II. Entergy’s Act 310 Filing
On July 26, 2012, Entergy filed an interim rate surcharge under Act 310. Enter-gy’s notice to the Commission and accompanying attachments declared that, since July 1, 2010 (the end of the pro-forma period in its last general rate case), it had increased its capital expenditures by approximately $39 million based on three government mandates: 1) Nuclear Regulatory Commission (NRC) requirements to upgrade security at the Arkansas Nuclear One power plant; 2) Federal Energy Regulatory Commission (FERC) requirements to upgrade information-technology security; and 3) Arkansas Highway & Transportation | .^Department (AHTD) requirements to relocate poles and other facilities during road projects. Entergy asserted that, pursuant to Act 310, the expenditures were reasonably incurred as a direct result of legislative or regulatory requirements relating to the protection of public health and safety and were therefore recoverable through an interim surcharge under Act 310.
The AG opposed the filing, arguing that Entergy’s expenditures did not meet the purposes of Act 310. According to the AG, Act 310 was intended to remedy a situation in which a utility faced a “gross inequity” by being forced to spend “abnormal, significant amounts of money for the public good for which the public is not providing fair compensation in the form of just, reasonable, and sufficient rates.” In this instance, the AG claimed, Entergy’s expenditures were neither substantial enough, nor new and different enough, to warrant Act 310 treatment, and were in fact “probably included in current rates.” The AG additionally claimed that Entergy’s highway-relocation expenditures did not result from legal requirements relating to the protection of public health and safety.
III. Commission Hearing
The Commission held a hearing on En-tergy’s interim surcharge on February 19, 2013. Entergy witnesses Bryan Ford and Christopher Peters testified that the company had recently expended money for NRC and FERC security measures in order to comply with laws or regulations relating to public health and safety. They explained that, in response to concerns that terrorists would attack nuclear plants or disrupt a utility’s computer system, the NRC and FERC promulgated new regulations requiring upgrades to physical and cyber security. With regard to Entergy’s highway-relocation expenditures, Bernard Neumeier testified that, as the |4result of government highway projects, Entergy had spent money to relocate its distribution lines and poles. Neumeier referenced the AHTD’s Utility Accommodation Policy (UAP), which mandated the relocations. He said that failure to comply with the UAP would create hazardous conditions for the public during highway construction. Neumeier also testified that the Commission had ruled in a previous docket, No. 91-078-U, that the UAP’s provisions were related to public safely.
Entergy witnesses Michael Considine and Cindy Layne testified as to the manner in which Entergy’s surcharge was calculated. They determined which of the expenditures at issue were not already included in Entergy’s rate base, and, after performing the regulatory accounting, computed a final retail revenue requirement of about $4.4 million (later modified to about $4 million), for which each residential-rate customer would pay approximately twenty-four cents per month.
PSC Staff witness Jeff Hilton agreed that Entergy’s expenditures were in compliance with Act 310. He recommended approval of the interim surcharge, with the previously mentioned accounting adjustments.
William Marcus testified for the AG that a utility’s interim expenditures under Act 310 must be for the purpose of substantial additional investments. He stated that the $4 million sought by Entergy did not appear to meet the substantiality requirement because it paled in comparison to Entergy’s overall revenue requirement and gross plant investment. Marcus also stated that a utility must demonstrate a “gross inequity” before utilizing the Act 310 interim surcharge. He testified that Entergy could not meet that standard because the company would | Bsoon file a new general rate case in which it could recover its expenditures and, in any event, En-tergy may have been over-earning since its previous general rate case and could recover its expenditures without seeking interim relief. Regarding the highway-relocation expenditures, Marcus stated that they were not the result of a legal or administrative mandate relating to public health and safety as required by Act 310. He also testified that the Commission should not rely on its ruling in Docket 91-078-U, where it held that AHTD’s UAP provisions were related to public safety.
IV. Commission’s Ruling
Following the hearing, the Commission ruled in Order No. 7 that Entergy’s surcharge complied with Act 310. The Commission rejected the AG’s arguments that Entergy’s expenditures were not made for the purposes set forth in Act 310, stating:
The expenses included for recovery in this Docket are consistent with the purposes of Act 310. The Commission finds that the expenditures for the security upgrades at [Arkansas Nuclear One] and the information technology upgrades made in compliance with FERC CIP Standards are made for the purposes relating to the protection of the public health, safety or the environment, and, therefore, are properly recoverable[.]
The Commission also rejected the AG’s argument that Entergy’s highway-relocation expenditures were not the result of legal mandates relating to public health and safety, stating:
The issue of Act 310 recovery for highway relocation costs for utility facility relocations has been previously resolved before this Commission. In Docket No. 91-078-U, General Staff vigorously litigated its position that the AHTD UAP was not a | fisafety regulation that would entitle Arkansas Louisiana Gas Company to recovery under Act 310. However, the Administrative Law Judge, sitting pursuant to delegation of the Commission, found there was some evidence that safety factors were comprehended within the UAP provisions ... Order No. 4 of Docket No. 91-078-U has been undisturbed for over twenty years [.]
(Emphasis in original.)
Upon the entry of Order No. 7, Entergy submitted a rate schedule for the surcharge, which the Commission approved in Order No. 8. Thereafter, the AG filed a petition for rehearing, which was deemed denied. The AG then filed a timely notice of appeal with our court. Two arguments are presented for reversal: 1) the Commission erred in failing to make findings as to certain grounds urged by the AG for disapproval of the surcharge; and 2) the Commission assigned improper “preclusive weight” to its ruling in Docket 91-078-U.
V. Standard of Review
Our review of Public Service Commission decisions shall not be extended further than to determine whether the Commission’s findings are supported by substantial evidence and whether the Commission has regularly pursued its authority, including a determination of whether the Commission’s order violated any right of the petitioner under the laws or constitutions of the United States or the State of Arkansas. Ark.Code Ann. § 23 — 2—423(c)(4) (Repl.2002). Nevertheless, it is for our court to decide questions of law and to direct the Commission where it has not pursued its authority in compliance with the statutes governing it. Brandon v. Ark. W. Gas Co., 76 Ark.App. 201, 61 S.W.3d 193 (2001). In particular, interpretation of a statute is a judicial function, and the Commission’s construction is not binding on the court. Sw. Bell Tel. Co. v. Ark. Pub. Serv. Comm’n, 69 Ark.App. 323, 18 |7S.W.3d 197 (2000). Still, the interpretation of a statute by an agency charged with its execution is highly persuasive, and while not conclusive, should not be overturned unless it is clearly wrong. Id.
VI. Discussion of Act 310 Issue
Arkansas Code Annotated section 23-4-507(a)(1) permits the Commission to modify or disapprove an interim surcharge if the underlying expenditures “were not made for the purposes set forth in section 23^4-501.” Section 23-4-501 reads as follows:
23^4-501 Legislative findings and intent.
(a) It is recognized that legislative or administrative regulations impose certain legal requirements upon public utilities relating to the protection of the public health, safety, or the environment, and that:
(1) In order to comply with such legislative or regulatory requirements, utilities are required to make substantial additional investments or incur additional expenses with respect to existing facilities used and useful in providing service to the utility’s customers; and
(2) Although such additional investments and expenses are necessary in order to provide service to the utility’s customers, such additional investments and expenses are not included in the utility’s rates and cannot be recovered in a prompt and timely fashion under existing regulatory procedures.
(b) It is intended by the General Assembly that utilities be permitted to recover in a prompt and timely manner all such costs incurred by utilities in order to comply with such legislative or regulatory requirements through an interim surcharge which, if approved, shall be effective until the implementation of new rate schedules in connection with the next general rate filing of the utility wherein such additional investments or expenses can be included in the utility’s base rate schedules. However, the costs to be recovered through such an interim surcharge shall not include increases in the cost for employment compensation or benefits as the result of legislative or regulatory action.
| ^Before the Commission, the AG argued that Entergy’s expenditures were not made for the purposes set forth in section 23^4-501 because they were not “substantial additional investments,” and they were already included in Entergy’s rates or could be promptly recovered in a general rate case. The AG also relied on the emergency clause of Act 310, which states in pertinent part:
Existing statutes of this State do not provide for a procedure to permit immediate recovery of additional expenditures with respect to existing utility facilities incurred by public utilities as a result of legislative or regulatory requirements without filing a general rate case with the Public Service Commission. These circumstances result in a gross inequity in that utilities must make expenditures to provide facilities which are clearly in the public interest which costs cannot be recovered in a prompt and timely manner by the utility.
Act 310 of 1981, § 6 (emphasis added).
The Commission, without making findings as to the factors urged by the AG, ruled that Entergy’s expenditures were consistent with the purposes of Act 310 because they were made in response to government regulations for purposes relating to the protection of the public health and safety, or the environment. Essentially, the Commission determined that its scrutiny of the surcharge was limited to whether Entergy’s expenditures met that singular criterium.
On appeal, the AG argues that the Commission’s interpretation of section 23-4-501 was too restrictive and that the statute sets forth several purposes that, if not met, could be grounds for disapproval of the surcharge. Citing language contained in section 28-4-501, the AG asserts that the Commission should have considered and made findings as to whether Entergy’s expenditures were 1) made with respect to existing facilities; 2) substantial; 8) additional; 4) not included in the utility’s rates; 5) unrecoverable in a prompt and timely | ^fashion under existing regulatory procedures; and 6) not employment or compensation benefits.
By contrast, Entergy and the PSC Staff support the Commission’s narrow inquiry. They argue that the language in section 23-4-501 that utilities are being required to make “substantial additional investments” that are “not included in the utility’s rates,” etc., is simply a recital of the state of affairs that existed at the time the Act was passed; in other words, a justification for its enactment. They conclude that, once the Commission determines that the utility’s expenditures resulted from legislative or administrative regulations relating to the protection of the public health, safety, or the environment, no additional findings by the Commission are necessary.
Given the parties’ and the Commission’s differing constructions of section 23-4-501, our task on appeal is one of statutory interpretation. The first rule of statutory construction is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Berryhill v. Synatzske, 2014 Ark. 169, 432 S.W.3d 637. We also construe statutes so that, if possible, every word is given meaning. Dachs v. Hendrix, 2009 Ark. 542, 354 S.W.3d 95. Moreover, we do not engage in statutory interpretations that defy common sense and produce absurd results. Id.
| ^Applying these precepts, we disagree with Entergy and the PSC Staff that the text of section 23-4-501 contains a mere recital of fixed conditions that are presumed to exist when an interim surcharge is filed. Such an interpretation forecloses the possibility that a utility, despite meeting the overarching purpose of incurring expenditures based on legislative or administrative regulations relating to the protection of the public health, safety, or the environment, could impose a surcharge that runs afoul of the statute as a whole. Under Entergy’s and the PSC Staffs interpretation, the Commission would be powerless to disapprove the surcharge in that instance or, at the very least, the Commission would not be required to make a finding on that issue, even if the surcharge was challenged on that ground.
We deem the more common-sense interpretation to be the one posed by the. AG. Section 23-4-501, as its title states, contains the legislative intent in passing Act 301. As such, it recognizes that, not only have legislative or administrative regulations imposed legal requirements on utilities relating to public health and safely or the environment, but that, in order to comply with those legal mandates, utilities are being required to make substantial addi tional investments or incur additional expenses with respect to existing facilities; and that, although these additional investments and expenses are necessary, they are not included in the utility’s rates and cannot be recovered in a prompt and timely fashion under existing regulatory procedures. The statute then goes on to say that the legislature intends that a utility be permitted to timely and promptly recover “all such costs” incurred by the utility in order to comply with government requirements, through an interim surcharge. Thus, the statute, when read in full, sets forth not only the single purpose of allowing recovery of expenditures |nmade in complying with government health-and-safety or environmental regulations but the purpose of allowing recovery of “such costs” when certain described situations exist. See, e.g., Ark. Gas Consumers, Inc. v. Ark. Pub. Serv. Comm’n, 354 Ark. 37, 118 S.W.3d 109 (2003) (rejecting Act 301 as justification for a surcharge in part because it did not involve a utility’s “existing facilities”).
Based on the foregoing, we hold that the Commission’s interpretation of Act 310 was clearly wrong and that additional findings by the Commission are required. The Commission’s decision must be in sufficient detail to enable a court to determine the controverted question presented by the proceeding. Ark.Code Ann. § 23-2^421 (a) (Repl.2002). And, although the Commission is not required to make findings of fact upon all items of evidence or issues, the findings should be sufficient to resolve the material issues. Pressler v. Ark. Pub. Serv. Comm’n, 2011 Ark. App. 512, 385 S.W.3d 349.
That being said, we decline to embrace the AG’s implication that the Commission must, in all instances, consider and make findings as to each and every factor contained in section 23^4-501. Our holding is that, when an opposing party seeks disapproval of a surcharge based on any of those factors, the Commission must make a finding as to such factors. We therefore reverse and remand on this point to allow the Commission to make additional findings as to the challenges to the surcharge made by the AG.
VII. Discussion of Commission’s Reliance on Previous Ruling
|1gThe AG argued to the Commission that Entergy’s highway-relocation expenditures were not incurred as the result of government requirements relating to public health and safety. The AG was referring to the AHTD’s 2010 Utility Accommodation Policy, which provides that a utility must bear certain costs of relocating its facilities, such as poles and lines, dining highway construction projects. The Commission ruled simply that it had decided over twenty years earlier in Docket 91-078-U, which found that provisions of the AHTD Policy “relate to safety.” The AG now argues that the Commission gave an improper “preclusive effect” to the former docket. We agree.
The doctrine of res judicata may be applied in an administrative proceeding. See Hamilton v. Ark. Pollution Control & Ecol. Comm’n, 333 Ark. 370, 969 S.W.2d 653 (1998). However, the issue-preclusion aspect of res judicata only operates as a bar to relitigation of a matter previously litigated when the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Craven v. Fulton Sanitation Serv., Inc., 361 Ark. 390, 206 S.W.3d 842 (2005). The AG was not a party to Docket 91-078-U and therefore did not have a full and fair opportunity to litigate the issues in that docket. Moreover, our courts have held that res judicata has little application to regulatory action in fixing utility rates because rate-making is a legislative function. See Sw. Bell Tel. Co. v. Ark. Pub. Serv. Comm’n, 267 Ark. 550, 593 S.W.2d 484 (1980). In fact, every rate order may be superseded by another, not only when conditions change but when administrative understanding of those conditions change. Id.
(¡¡Based on these authorities, we reverse and remand on this point so that the Commission may make findings on this issue raised by the AG without solely relying on its 1991 order.
Reversed and remanded.
PITTMAN, WALMSLEY, HIXSON, and WOOD, JJ., agree.
BROWN, J., dissents.
. Entergy filed a general rate case in March 2013, with new rates going into effect in December 2013.
. Other witnesses testified before the Commission, but their testimony is not critical to our discussion.
. The PSC Staff cites Arkansas Oklahoma Gas Corp. v. Arkansas Public Service Commission, 301 Ark. 259, 783 S.W.2d 350 (1990), to support a narrow inquiry. However, the inquiry in Arkansas Oklahoma Gas was limited by the nature of the case, which differs considerably from the case at bar.
. This case also cited the emergency clause in Act 310 as an interpretive aid to the legislature's intention. 354 Ark. at 54-55, 118 S.W.3d 119-20. | [
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RHONDA K. WOOD, Judge.
| ¡Jamar Samuels appeals the termination of his parental rights to A.S., his five-year-old daughter. He challenges the court’s best-interest finding, the court’s findings of the statutory grounds for termination, the lack of accommodations pursuant to the Americans with Disabilities Act (ADA), and his counsel’s ineffectiveness. We find no error and affirm.
I. Facts and Procedural History
In 2011, DHS removed A.S. from the custody of her mother following the death of her sibling. The court adjudicated her dependent-neglected and ordered the goal of permanent custody with Samuels, her father. After some time, the court placed A.S. in Samuels’s temporary custody. Thirty-one days later, Samuels was arrested and pleaded guilty to the third-degree domestic battery of his girlfriend; A.S. had been present during the incident. The court removed A.S. from his custody and she remained in foster care for ^another sixteen months. In August 2013, the court found that it was in A.S.’s best interest to return her to Samuels’s custody a second time. Yet, a month later, Samuels was arrested again, and the court returned A.S. to DHS’s custody. In January 2014, the court terminated Samuels’s parental rights.
II. Standard of Review and Applicable Law
We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Grounds for termination of parental rights must be proved by clear and convincing evidence. M.T. v. Ark. Dep’t of Human Servs., 58 Ark.App. 302, 952 S.W.2d 177 (1997). The question on appeal is whether the circuit court’s finding that a disputed fact was proved by clear and convincing evidence is clearly erroneous, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Dinkins, supra.
Termination of parental rights is a two-step process that requires the circuit court to find that the parent is unfit and that termination is in the best interest of the child. L.W. v. Ark. Dep’t of Human Servs., 2011 Ark. App. 44, 380 S.W.3d 489. The first step requires proof of one or more of the statutory grounds for termination. Ark.Code Ann. § 9-27-341(b)(3)(B) (Supp.2013). The second step requires consideration of whether the termination of parental rights is in the juvenile’s best interest. Ark.Code Ann. § 9-27-341(b)(3)(A).
| ¡Whether termination is in the juvenile’s best interest includes consideration of the following: (i) the likelihood that the juvenile will be adopted if the termination petition is granted and (ii) the potential harm, specifically addressing 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). The court, however, does not have to determine that every factor considered be established by clear and convincing evidence; instead, after considering all of the factors, the evidence must be clear and convincing that the termination is in the best interest of the child. L.W., supra.
III. Discussion
Here, the circuit court found two statutory grounds for termination: (1) that other factors or issues arose subsequent to the filing of the original petition that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues, Ark.Code Ann. § 9-27-341(b)(3)(B)(vii)(a), and (2) that the father subjected the child to aggravated circumstances, Ark.Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A).
Since the original filing, the court removed A.S. from Samuels’s custody on two occasions. Both occasions were due to Samuels being arrested. The court also ordered, after the initial filing, that Samu-els regularly take his medication and attend counseling; however, he failed to comply with both. We cannot say it was clearly erroneous for the court to find that other factors arose after commencement of the case and that Samuels demonstrated an incapacity and indifference to remedy these issues.
l4The circuit court also found that Samuels subjected A.S. to aggravated circumstances under Ark.Code Ann. § 9-27-341(b)(3)(B)(ix)(o )(3)(A )-(B). DHS alleged this ground in its petition and the court found this ground was proved as a basis for termination. Samuels contends that there was no proof presented that a court had found aggravated circumstances; however, he failed to raise this specific argument at trial and therefore it is not preserved on appeal. Ark. Dep’t of Human Servs. v. Jones, 97 Ark.App. 267, 248 S.W.3d 507 (2007).
Next, we hold that the circuit court did not err when it found that termination of Samuels’s parental rights was in A.S.’s best interest. First, Samuels challenges the finding that A.S. is adoptable. Adopt-ability is only one of the factors that the court considers when making a best-interest decision. Ark.Code Ann. § 9-27-341 (b)(3)(A)(i) -(ii). The trial court must simply consider the likelihood that a child will be adopted. Dority v. Ark. Dep’t of Human Servs., 2011 Ark. App. 295, 2011 WL 1495988. Here, the court noted that A.S. was “five years old and adoptable, even with the behavior issues.” Supporting this finding was the testimony of Marea Smith, an adoption specialist. She explained that there were 35 families within 150 miles of A.S.’s zip code that would be interested in adopting a child with characteristics similar to those of A.S.’s. Additionally, she testified that there were other factors that would improve the likelihood of A.S. being adopted, such as A.S. being biracial, over the age of two, and qualified for a subsidy. Finally, there was testimony that A.S.’s current foster family and the family who adopted her half-siblings were considering adopting her.
|fiSecond, Samuels challenges the court’s finding that there exists potential harm or risk to A.S. if she were to return to his custody. The circuit court is not required to affirmatively identify a potential harm or to find that actual harm would result if the child were returned to the parent; rather, the potential-harm evidence must be viewed in a forward-looking manner and considered in broad terms. Gutierrez v. Ark. Dep’t of Human Servs., 2012 Ark. App. 575, 424 S.W.3d 329. In the course of this case, the court provided two opportunities for Samuels to have custody of A.S. Both times it resulted in her return to foster care. The court considered several other factors that demonstrated a risk of harm, such as Samuels’s consistent failure to take his medication, his unstable housing, and his missing approximately forty percent of his counseling sessions. A failure to comply with court orders can indicate potential harm. B.H.1 v. Ark. Dep’t of Human Servs., 2012 Ark. App. 532, 2012 WL 4478389. All of this evidence of potential harm, combined with the evidence regarding A.S.’s adoptability, supports the court’s ruling that termination of Samuels’s parental rights was in A.S.’s best interest.
Last, Samuels contends in a convoluted argument that the termination of his parental rights was in error because the court failed to make reasonable accommodations for him under the ADA. He admits that he failed.to raise this below, but contends it qualifies as a Wicks exception to the contemporaneous-objection rule. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Samuels acknowledges that our supreme court has never found a Wicks exception in a termination case, but contends that we should do so now because he had ineffective assistance of counsel. First, if he is in fact attempting to raise an ineffective-assistance-of-counsel argument, wfe cannot consider it because Samuels | (¡failed to raise it below. We will not review an ineffective-assistance-of-counsel claim on appeal unless it was “first raised in the trial court and the facts and circumstances surrounding the claim were fully developed in the trial court.” Jones v. Ark. Dep’t of Human Servs., 361 Ark. 164, 191, 205 S.W.3d 778, 794 (2005). Second, Samuels does not provide any legal support for application of a Wicks exception, nor does he state which Wicks exception would be applicable. As the Arkansas Supreme Court explained, we “will not do [appellant’s] research” and “will affirm when the appellant’s argument is neither supported by legal authority nor apparent without further research.” Hopper v. Garner, 328 Ark. 516, 524, 944 S.W.2d 540, 544 (1997).
After a review of all the points raised, we find no error by the circuit court and affirm.
Affirmed.
GLADWIN, C.J., and BROWN, J„ agree. | [
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BRANDON J. HARRISON, Judge.
11 Angela Poss and George Brumley appeal the Washington County Circuit Court’s termination of their parental rights to G.B. and C.F. Counsel has filed a motion to withdraw as counsel and a no-merit brief stating that there are no meritorious grounds to support an appeal for either parent. Ark. Sup.Ct. R. 6-9 (2013); Linker-Flores v. Ark. Dep’t Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004). Our court’s clerk sent a copy of counsel’s motion and brief to Poss and Brumley, informing them that they had the right to file pro se points for reversal. See Ark. Sup.Ct. R. 6-9(i)(3). Both parents did so. We affirm and grant counsel’s motion to withdraw as to the mother, Angela Poss; we deny counsel’s motion to withdraw as to the father, George Brumley, and order counsel to rebrief Brumleys case as a merit appeal.
|2I. History
G.B. (age 9) and C.F. (age 7) were removed from Angela Poss’s custody in October 2012 after she was arrested for terror-istic threatening, third-degree assault on a family member, and second-degree endangering the welfare of a minor, and there was no other legal caretaker for the children. When the removal occurred, G.B.’s father, George Brumley, was in prison.
The court adjudicated the children dependent-neglected in November 2012. The adjudication order states that Poss was arrested for being out of control and that she had a history of illegal-drug use. The court ordered her to refrain from illegal-drug use, submit to weekly drug screens, complete parenting classes, participate in individual counseling and follow all recommendations, receive a psychological evaluation, maintain stable housing, find employment, and keep a safe, clean home. As for Brumley, the court ordered him to take classes if they were offered in prison, maintain stable housing and employment, maintain a safe, clean home, participate in individual counseling, and not use illegal drugs. The court order also authorized Brumley to send appropriate letters and cards to the children and make phone calls to G.B. at the foster parents’ discretion. The court did not order any child support from either parent.
The court held a review hearing in May 2013 and found that Brumley was still incarcerated and took self-improvement classes in prison. Poss, on the other hand, had failed a drug test and her visits with the children were suspended until she could pass one drug test. The case goal remained reunification.
|sThe permanency-planning hearing order, entered in September 2013, stated that Poss tested positive for meth and amphetamines and that Poss had admitted drug use to the DHS supervisor, Angela Wood. The court noted that although Poss had participated in individual counseling, received a psychological evaluation, and stayed in touch with the caseworker, she still had not complied with all the court orders because she missed seven drug screens, had a positive hair-follicle test, and lacked stable housing. Turning back to Brumley, the court found that he was the legal father of G.B., that he remained incarcerated and, although he had taken various parenting, life-skills, and sobriety classes in prison, Brumley could not care for the children “as he is in prison and will be for [the] next nine months.” The court’s order characterized Brumley’s participation in reunification services as minimal; yet it also stated from the bench during the termination hearing that “DHS can’t provide services” to Brumley while he’s in prison. The court changed the case goal from reunification to adoption.
DHS filed a petition for termination of parental rights in October 2013. The petition alleged that termination was in the children’s best interest and that four separate statutory grounds existed to support termination.
Three statutory grounds were alleged to apply to both parents:
1. Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(u). That a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.
2. Ark.Code Ann. § 9-27-341(b)(3)(B)(ii)(a). The juvenile has lived outside the home of the parent for a period of twelve (12) months, and the parent has willfully failed to provide significant material Usupport in accordance with the parent’s means or to maintain meaningful contact with the juvenile.
3. Ark.Code Ann. § 9-27-341(b)(3)(B)(vii)(a). That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent the placement of the juvenile in the custody of the parent.
A fourth statutory ground was pled solely against Brumley:
4.Ark.Code Ann. § 9-27-341(b)(3)(B)(viii)(a). The parent is sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the juvenile’s life[.]
The court held the termination hearing in December 2013. After receiving testimony the court terminated Poss’s and Brumley’s parental rights. The court found that a termination was in the children’s best interest because Poss “still has not adequately addressed her meth addiction” and Brumley “has not seen G.B. since 2007;” and “[G.B.] does not have a relationship with his father;” and Brumley was not scheduled to be released from prison until September 2014. The court’s decision was based on two grounds alleged in the petition — the “12-months-failure-to-remedy” and the subsequent “other factors or issues” grounds. Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(a); Ark.Code Ann. § 9-27-341(b)(3)(B)(vii)(a).
II. Discussion
A. Standard of Review
We review termination-of-parental-rights cases de novo. Cheney v. Ark. Dep’t of Human Serv., 2012 Ark. App. 209, 396 S.W.3d 272. An order terminating parental rights |fimust be based upon a finding by clear and convincing evidence that the termination is in the children’s best interest. Id. The circuit court must consider the likelihood that the children will be adopted if the parent’s rights are terminated and the potential harm that could be caused if the children are returned to a parent. Harper v. Ark. Dep’t of Human Servs., 2011 Ark. App. 280, 378 S.W.3d 884. The circuit court must also find that one of the grounds stated in the termination statute is satisfied. Id. Clear and convincing evidence produces in the fact-finder a firm conviction that the allegation has been established. Pratt v. Ark. Dep’t of Human Servs., 2012 Ark. App. 399, 413 S.W.3d 261. When the burden of proving a disputed fact is by clear and convincing evidence, we ask whether the circuit court’s finding on the disputed fact is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made. Id.
In dependency-neglect cases, if, after studying the record and researching the law, appellant’s counsel determines that the appellant has no meritorious basis for appeal, then counsel may file a no-merit petition and move to withdraw. Ark. Sup. Ct. R. 6 — 9(i)(l) (2013). The petition must include an argument section that lists all adverse rulings that the parent received at the circuit-court level and explain why each adverse ruling is not a meritorious ground for reversal. Ark. Sup.Ct. R. 6-9(i)(l)(A). The petition must also include an abstract and addendum containing all rulings adverse to the appealing parent that were made during the hearing from which the order on appeal arose. Ark. Sup.Ct. R. 6 — 9(i)(l)(B).
|fiB. Angela Poss
The record shows that the children’s mother tested positive for drugs throughout the case and failed, without reasonable excuse, to show up for court-ordered drug screening twenty-four separate times. Although Poss introduced evidence of a rental agreement she obtained less than one month before the termination hearing, she had moved throughout the case and did not keep DHS advised of her whereabouts. So DHS was apparently unable to assess the stability or appropriateness of her housing, and the court found that she failed to maintain stable housing. DHS caseworker Miranda Collins testified that G.B. and C.F. were adoptable and recommended that Poss’s rights be terminated and the children be placed with a maternal aunt and uncle. When the termination convened, Poss had not seen her children in more than six months because her visitation right was tied to passing a drug test, and she did not do that.
After a “full examination of the record” we are persuaded that appealing the court’s termination decision as to Poss pursuant to Ark.Code Ann. § 9-27-341(b)(3)(B)(vii) (a) (the subsequent “other factors or issues” ground) “is frivolous.” Linker-Flores v. Ark Dep’t Human Servs., 359 Ark. 131, 141, 194 S.W.3d 739, 748 (2004). Poss was repeatedly non-compliant throughout the case and continued to use drugs without making any serious attempts to remedy her circumstances. The court’s best-interest finding is also supported by the evidence. Poss’s failures to comply with court-ordered drug testing, her positive drug tests, and her unstable housing situation produced the risk of harming the children if returned to her. The caseworker’s testimony about G.B.’s and C.F.’s adoptability, and her 17recommendation that Poss’s rights be terminated, also supports the court’s best-interest finding. See Reed v. Ark. Dep’t of Human Sews., 2010 Ark. App. 416, 375 S.W.3d 709.
Counsel overlooked one adverse eviden-tiary ruling the court made during the termination hearing that impacted Poss. This ruling appears in the abstract on page 57. Our supreme court has held that a failure to discuss every adverse ruling does not prohibit us from granting counsel’s motion to withdraw and affirming the termination order, if the rulings clearly did not inject reversible error. Lewis v. Ark. Dep’t of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005). We have reviewed the evidentiary objection and its context and do not believe we must order the point briefed. See Hardrick v. State, 47 Ark. App. 105, 885 S.W.2d 910 (1994) (declining to reach appellant’s hearsay argument where the objection below was lack of foundation for officer’s knowledge). Poss’s objection touched on the propriety of a final visit, not the termination decision. So the overlooked adverse ruling clearly did not constitute reversible error.
In her pro se points, Poss essentially argues that “DHS failed to do their part.” She cites Strong v. Arkansas Department of Human Services, 2013 Ark. App. 278, 2013 WL 1859243 as a reason to reverse. Her appellate counsel adequately addressed the Strong-based argument in the no-merit brief.
We affirm the circuit court’s decision to terminate Angela Poss’s parental rights and grant counsel’s motion to withdraw as to her.
C. George Brumley
We have reached a different conclusion on George Brumley and the court’s decision to terminate his parental rights to G.B. based on the “12-months-failure-to-_Jremedy”8 and' the subsequent “other factors or issues” grounds. He has been in prison since 2007, so he was incarcerated before, during, and after the DHS case. Hearing testimony showed that Brumley had written many letters (at least once a week) to the children while in prison, urged his mother to visit the kids on his behalf, and supported G.B. financially during his incarceration (up to $150 per week). Brumley also participated in three parenting classes, a nine-month drug-treatment behavior-modification program, PALS program, and an 18-month-long Pathway to Freedom life-skills program. Brumley testified that he would be paroled in approximately nine months and he had a sponsor and a place to live when released. That is the so-called good news. The bad news is that, out of the nine years of G.B.’s life, Brumley had only lived with G.B. for approximately six months and had not seen G.B. since being imprisoned. For its part, DHS offered no evidence that it had offered services to Brumley while the case was open.
Brumley’s appellate counsel concludes that the court’s termination of his parental rights was correct because “[d]espite all of George’s efforts, he was in no position to take care of G.B. at the time of the termination hearing, nor would [he] be able to do so in the near future.” Counsel argues that a termination was in G.B.’s best interest because Brumley could not provide stability for G.B., and G.B. was adoptable (by a maternal aunt and uncle). Counsel also concludes that the one necessary statutory ground to support the termination, the subsequent “other factors or issues” ground, was satisfied by clear and convincing evidence because, after G.B. was removed from the home, Brumley never obtained employment and income and did not have adequate housing “wherein to bring G.B. home in a reasonable time.” Counsel also cites Brumley’s mother’s testimony that 13“we’re just waiting for him to get out and get started” as supporting evidence for the termination ground.
The no-merit argument is based on Hoffman v. Arkansas Department of Human Services, 2010 Ark. App. 856, 380 S.W.3d 454, and Criswell v. Arkansas Department of Human Services, 2014 Ark. App. 255, 435 S.W.3d 26. But these cases do not persuade. Simply summarized, counsel asks us to affirm the court’s finding on the subsequent “other factors or issues” ground using Hoffman, but Hoffman was decided on a “12-months-fail-ure-to-remedy” ground and on a record that does not closely mirror this one. Criswell fares no better because it, too, was decided on a different statutory ground than was this case. We affirmed the no-merit termination in Criswell based on Ark.Code Ann. § 9-27-341(b)(3)(B)(viii)(a) (“The parent is sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the juvenile’s life[.]”). Here, the imprisonment ground was pled against Brumley in DHS’s termination petition, but the court did not terminate Brumley’s parental rights on the imprisonment ground. In fact, it marked through/ crossed out the imprisonment ground in its order.
This leads us to Jackson v. Arkansas Department of Human Services, 2013 Ark. App. 411, 429 S.W.3d 276, where this court held that a father’s absence due to imprisonment cannot be a cause of the removal under the 12-months ground (Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(a)). Nor is it a subsequent “other factors or issues” ground (Ark.Code Ann. § 9-27-341 (b)(3)(B)(vii)(<z)). The arguable issue of merit is that the circuit court erred in terminating Brumley’s rights on these two grounds. We therefore deny the 11(lmotion to withdraw and order rebriefing. See Baker v. Ark. Dep’t of Human Sens., 2011 Ark. App. 69, 2011 WL 386974.
Finally, we acknowledge Brumley’s pro se points but will not discuss them given our decision to order his appeal rebriefed as a merit case.
III. Conclusion
We grant counsel’s motion to withdraw as to Angela Poss and affirm the termination of her parental rights to G.B. and C.F.; we deny counsel’s motion to withdraw as to George Brumley and order his appeal to be rebriefed as a merit case.
Affirmed in part; motion to withdraw granted in part.
Rebriefing ordered in part; motion to withdraw denied in part.
WYNNE and GLOVER, JJ., agree. | [
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Sam Bird, Judge.
On April 23, 2008, this court handed down a published opinion affirming two orders of the circuit court against Tami Brock, a custodial parent: an order holding her in contempt of court for failure to abide by the court’s previously entered child-visitation schedule, and a permanent restraining order that enjoined her from interfering with Bobby Eubanks’s visitation with their minor child. Brock has now filed a petition for rehearing. We grant the petition and issue this substituted opinion.
Brock raises the following points: (1) whether any evidence supports the circuit court’s contempt order and the permanent restraining order; (2) whether the circuit court erred in ruling on a motion-for-contempt citation filed only three days before a hearing previously scheduled on other matters; and (3) whether the permanent restraining order improperly delegated judicial authority to law-enforcement officers, who are part of the executive branch of government, by giving them discretion to arrest and incarcerate Brock should they “determine or reasonably suspect” her willful violation of any court orders in this case, whenever issued. We affirm the circuit court’s finding of contempt; we reverse the portion of the permanent restraining order that imper-missibly delegates the court’s contempt power to law-enforcement officers.
Whether any evidence supports the circuit court’s contempt order and the permanent restraining order
Eubanks filed motions for contempt against Brock on February 7 and February 20, 2007, alleging that she had interfered with his visitation with their child. In separate responses to each motion, Brock denied willful contempt of any order of the court. On appeal she argues that, in the absence of competent and “live” testimony to support Eubanks’s claims of contempt, the affidavits attached to his motions were not competent evidence in support of contempt. Arkansas Rule of Civil Procedure 43(c), however, which deals with evidence on motions, expressly permits the trial judge to hear the matter on affidavits presented by the respective parties. Here, where Brock was aware of the contempt hearing but did not appear, the trial court was well within its discretion in hearing the matter on the affidavits alone.
Whether the circuit court erred in ruling, at a hearing previously scheduled on other matters, on a motion for contempt citation filed three days before the hearing
On February 14, 2007, the circuit court ordered Brock to appear at a February 23 hearing on Eubanks’s first motion for contempt, which he had filed on February 7, to show cause why she should not be cited for contempt of previous orders of the court. In his February 20 motion Eubanks alleged that Brock had committed contemptuous acts on February 16; on February 20 the court again ordered her to attend the February 23 hearing to show cause why she should not be cited for contempt of previous orders of the court. Brock filed her response to the February 7 motion on February 14 and filed her response to the February 20 motion on February 27. She contends on appeal that the court erred in considering the allegations of the February 20 motion at the February 23 hearing because she was not given the ten days that Ark. R. Civ. P. 6 allows for responding.
The statute dealing specifically with contempt, Ark. Code Ann. § 16-10-108 (Supp. 2007), sets no fixed time for a party’s response to a charge of contempt, providing in subsection (c) only that the party charged must be notified and given a “reasonable time” to make a defense. Here, the circuit court had before it adequate evidence to support the finding of contempt even without considering instances that occurred after the first show-cause order was issued, especially in light of Brock’s failure to appear as ordered after her motion for a continuance was denied. Nevertheless, we think that those subsequent acts were properly considered: Brock was given adequate notice that she stood accused of ongoing violations of the visitation order, and the affidavits attest to a pattern of ongoing conduct demonstrating a disregard of the court’s orders. The court did not violate her due process rights by taking notice of the instances of contempt alleged in the February 20 motion, which constituted part of the ongoing contempt alleged in the show-cause order.
Whether the permanent restraining order improperly delegated judicial authority to law-enforcement officers by giving them discretion to arrest and incarcerate Brock should they “determine or reasonably suspect” her wilful violation of any court orders in this case, whenever issued
Brock contends that only a court can make a contempt finding, and that, under the Separation of Powers doctrine of the Arkansas Constitution, the executive branch of government (which includes law enforcement) cannot exercise the contempt powers vested solely in the judicial branch. She argues that the circuit court attempted to make the executive branch the judge and jailer by delegating to law-enforcement officers the authority to “determine” if she was in contempt of any order of the court and to “arrest and incarcerate” her upon a determination or reasonable suspicion of violation of the court’s orders. We agree with her arguments.
The circuit court found in its permanent restraining order that Brock had committed multiple, contemptuous violations of previous orders. The court found that the issuance of the permanent restraining order was necessary “for the purpose of coercing . . . Brock’s compliance” with the agreed visitation order entered by the court, the standing order on visitation, and an order of contempt issued a week earlier. The court also found it necessary and appropriate “to use law enforcement” to coerce Brock’s compliance with “all” the court’s orders should she at any future time fail to fully comply with those orders or any other orders subsequently issued in the case. Finally, the court found that the use of law enforcement, if necessary to enforce the court’s orders, should extend to the transport of the minor child to her father’s home and also extend to Brock’s arrest and incarceration “if law enforcement determines or has reasonable suspicion that Tami L. Brock has willfully violated” previous or future orders of the court pertaining to this case.
The following passage of the permanent restraining order sets forth this latter finding:
[T]he use of law enforcement, if necessary to enforce the Court’s Orders, should extend... to the arrest and incarceration of Tami L. Brock if law enforcement determines or has reasonable suspicion that Tami L. Brock has willfully violated the Agreed Visitation Order entered January 6, 2007, this Court’s Standing Order on Custody, Visitation and Support, and/or this Court’s Order of Contempt issued on 23 day of February, 2007, or any other Order subsequently issued by the Court pertaining to this case, including this Permanent Restraining Order.
Brock characterizes this order as the unconstitutional delegation of judicial authority to the executive branch.
The General Assembly is given power by our state constitution to regulate by law punishment for contempt “not commit ted in the presence or hearing of the courts, or in disobedience of process.” Ark. Const, art. 7, § 26, Indirect contempt. The constitutional authority delegated to the legislature to regulate punishment for contempt is in addition to, and not in derogation of, the inherent power of the court to punish contempt in disobedience of their process. Smith v. Smith, 28 Ark. App. 56, 770 S.W.2d 205 (1989).
The legislature has enacted Ark. Code Ann. § 16-10-108, which states:
(a) Every court of record shall have power to punish, as for criminal contempt, persons guilty of the following acts and no others:
(1) Disorderly, contemptuous, or insolent behavior committed during the court’s sitting, in its immediate view and presence, and direcdy tending to interrupt its proceedings or to impair the respect due to its authority;
(2) Any breach of the peace, noise, or disturbance directly tending to interrupt its proceedings; [and]
(3) Willful disobedience of any process or order lawfully issued or made by it[.]
(c) Contempts committed in the immediate view and presence of the court may be punished summarily. In other cases, the party charged shall be notified of the accusation and shall have a reasonable time to make his or her defense.
Ark. Code Arm. § 16-10-108 (Supp. 2007). Under this statute, only contempts committed in the immediate view and presence of the trial court may be summarily punished. Harvell v. Harvell, 36 Ark. App. 24, 820 S.W.2d 463 (1991). As to the mode of procedure in cases of contempt not committed in the immediate view or presence of the court, the contempt must be brought before the court by affidavit of the persons who witnessed it, or who have knowledge of it. Ex parte York, 89 Ark. 72, 115 S.W. 948 (1909).
The York court quashed judgments punishing the appellants because the chancery court had proceeded without any affidavit or its equivalent as a foundation for the contempt proceedings. The basis of the supreme court’s decision was as follows:
In State v. Henthorn, the court truly said: “And a careful examination of the authorities satisfies us that in all cases of constructive contempt whether the process of arrest issues in the first instance or a rule to show cause is served, a preliminary affidavit or information must be filed in the court before the process can issue. This is necessary to bring the matter to the attention of the court, since the court cannot take judicial notice of an offense committed out of court, and beyond its power of observation. There are a few cases in the books where the courts have taken notice of constmctive contempts and issued process, without any affidavit or information having been filed to bring the subjectmatter [sic] of the contempt to the attention of the court. But such cases are very rare in this country, and the practice is nearly or quite obsolete. The great weight of authority is certainly opposed to such practice.”
In harmony with the foregoing authorities, section 3989 of Kirby’s Digest provides: “Disobedience of an injunction may be punished by the court, or by the judge thereof, or any circuit judge in vacation, as a contempt. An attachment may be issued by the court or judge upon the production of evidence by affidavit of the breach of the injunction against the party committing the same.”
89 Ark. at 72, 115 S.W. at 949 (citations omitted). Henderson v. Dudley, 264 Ark. 697, 574 S.W.2d 658 (1978), reiterated the holding of York:
[I]n all cases of constructive contempt, i.e., contempt not committed in the immediate view or presence of the court, since the court cannot take judicial notice of an offense committed outside its presence, it is necessary that the matter be brought to the attention of the court by a preliminary affidavit or information before an order to show cause or other process could be served.
Id. at 702, 574 S.W.2d at 661-62.
In Davis v. Merritt, 252 Ark. 659, 480 S.W.2d 924 (1972), our supreme court ruled that the chancery court exceeded its jurisdiction by appointing a committee of three lawyers to conduct an investigation and report to the chancery court whether or not in their opinion, based on their investigation, parts of an abstract filed by other lawyers in an appeal constituted contempt of court or violation of the Code of Professional Ethics. The Davis court held that no constitutional, statutory, or case law justified the entry of the chancellor’s order. See also Ex parte Coulter, 160 Ark. 550, 255 S.W. 15 (1923) (quashing an order for the appellant to be taken into custody and confined in jail until he made past due child-support payments because the appellee’s attorneys had no authority to require the appellant to appear in court to answer their charge that he was in contempt and because the attorney’s “notice to appear,” although served on appellant, had not been given by the trial court).
Disobedience of any valid judgment, order, or decree of a court having jurisdiction to enter it may constitute contempt, and punishment for such contempt is an inherent power of the court. Hilton Hilltop, Inc. v. Riviere, 268 Ark. 532, 597 S.W.2d 596 (1980). Unless the court initiates the proceedings on its own motion, however, any proceeding to punish for contempt committed outside the presence of the court must be initiated by an affidavit of a person who witnessed the contempt or otherwise has knowledge of it. Id.; see also Nelson v. Nelson, 20 Ark. App. 85, 723 S.W.2d 849 (1987); Henderson v. Dudley, supra; Ex Parte Coulter, 160 Ark. 550, 255 S.W. 15 (1923); Lee v. State, 102 Ark. 122, 143 S.W. 909 (1912); York v. State, 89 Ark. 72, 115 S.W. 948 (1909).
The permanent restraining order in the present case authorized law-enforcement officers to arrest and incarcerate Brock for actions far beyond the statutory offense of interference with visitation. The order impermissibly vested officers with the discretion to arrest and incarcerate Brock should they “determine or reasonably suspect” that by acts committed outside the presence of the court she had violated any of seven duties besides custody exchange, as well as any current or future order related to the case. Nor was Brock provided a means of purging herself of contempt should officers decide to incarcerate her. Clearly, the order was an impermissible delegation of the circuit court’s judicial power to enforce its orders by finding a party in contempt and assigning punishment for the contempt, an inherent power of the court.
This impermissible delegation of judicial powers cannot be overcome simply by depicting persons upon whom the power is conferred as “officers of the court.” It is one thing for a court to order law-enforcement officers to arrest and bring before the court a person who the court has determined has committed a violation of its order. It is quite another thing for a court to authorize law-enforcement officers to decide whether a person has willfully violated a court order and to arrest that person upon the officers’s reasonable suspicion that a willful violation of its order has occurred. The former is clearly nothing more than the court’s use of its strong arm to carry out the court’s function of compelling certain action or conduct by parties to litigation pending before it. The latter is nothing less than the court’s assigning to law enforcement the judicial function of deciding whether conduct constitutes a violation of the court’s order and whether such conduct is willful and, therefore, contemptuous.
The order under consideration here does not require law enforcement, after arresting Brock, to bring her before the court or even inform the court that the arrest has been accomplished. This concern is not overcome, as suggested by the dissent, merely because the order is silent on this point. It cannot be assumed that the provision of Ark. Code Ann. § 12-11-104, cited by the dissent, would extend to officers who determine that a person is in violation of visitation orders. Nor is the court’s order here entitled to the “presumption of regularity” attaching to judgments, to which the dissent refers. The order clearly and unambiguously delegates the judiciary’s contempt power to law-enforcement officers, rendering the order, quite simply, one that is not regular on its face. Finally, as for a court of equity’s historic ability to mold remedies suitable to the evil, Cox v. Cox, 17 Ark. App. 93, 95, 704 S.W.2d 171, 173 (1986), does not hold that a court can delegate its contempt powers to law enforcement.
There is no question that law-enforcement officers are members of the executive branch under our system of government. While they may occasionally function simultaneously as officers of the court (i.e., as court bailiffs), they are not officers of the court when in the performance of their law-enforcement functions. Even a law-enforcement officer who executes a search or arrest warrant or serves civil process or orders issued by a court is performing those functions as a part of the executive branch, not as a judicial officer. The 1953 Ohio intermediate appellate court decision relied upon by the dissent is a dubious anomaly, unsupported by authority in Arkansas or any other state. The dissent incorrectly suggests that law-enforcement officers who are performing their law-enforcement function of serving a court order are somehow anointed as judicial officers with authority to make decisions traditionally and constitutionally assigned to the courts.
In summary, the permanent restraining order delegated to law-enforcement officers the power to determine whether Brock was in contempt, it made no provision for bringing her before the court after her arrest and incarceration, and it failed to assign anyone that responsibility. The order did not address how or when her incarceration could be ended, and she was deprived of the opportunity to testify and raise affirmative defenses to contempt that are allowed by Ark. Code Ann. § 5-26-501. We therefore reverse the portion of the order that grants law-enforcement officers the discretion to arrest and incarcerate Brock if they determine or have reasonable suspicion that she has willfully violated orders of the court.
Affirmed in part; reversed in part.
Gladwin, Griffen, Glover, and Vaught, JJ., agree.
Pittman, C.J., dissents.
Interference with visitation occurs if a person, “knowing that he or she has no lawful right to do so,... takes, entices, or keeps any minor from any person entitled by a court decree or order to the right of visitation with the minor.” Ark. Code Ann. § 5-26-501 (Supp. 2007).
For example, the order required Brock to prompdy return missed phone calls from Eubanks, and to have the child’s bags packed and ready before time for pick up.
Under this statute, officers authorized to execute process, who find or have reason to believe that resistance will be made to the execution of the process, shall report to the court from which process is issued the names of the resisters so that they may be punished for contempt. Ark. Code Ann. § 12-11-104 (Supp. 2007). | [
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John B. Robbins, Judge.
This is a workers’ compensation case. Appellant Brenda K. Rutherford was hurt in an admittedly compensable work-related accident in June 2002, while she was driving a vehicle for her employer, appellee Mid-Delta Community Services, Inc. She received medical treatment and other benefits until her healing period ended in March 2006. At that point, the parties could not agree on the extent, if any, of her permanent disability. Appellant presented a claim for permanent total disability (PTD) as defined by Arkansas workers’ compensation laws, which was resisted by the employer. The administrative law judge found her to be permanently totally disabled. The employer appealed, and on de novo review, the Commission found that appellant sustained no ratable permanent partial impairment to any part of her body, and that this barred any claim for permanent disability, including PTD.
Appellant appeals, asserting a single legal issue for our resolution: is a permanent partial impairment rating a prerequisite to a claim for PTD? If not, then this case must be remanded back to the Commission for it to render findings of fact on this issue, but if so, then the Commission’s decision must be affirmed. We hold that pursuant to the present Workers’ Compensation Act, a permanent partial impairment rating or a ratable condition is not a prerequisite to consideration of a claim for PTD. Thus, we reverse and remand for the Commission to reconsider this claim.
Beginning with Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961), the wage-loss factor was defined, distinguished from solely anatomical loss, as the extent to which a compensable injury had affected the claimant’s ability to earn a livelihood. See also Rooney & Travelers Insurance Co. v. Charles, 262 Ark. 695, 560 S.W.2d 797 (1978); Sapp v. Phelphs Trucking, Inc., 64 Ark. App. 221, 225, 984 S.W.2d 817, 819 (1998). Attendant factors relevant to that query include medical evidence, age, education, experience and other circumstances reasonably related to a claimant’s earning power. Perry v. Mar-Bax Shirt Co., 16 Ark. App. 133, 698 S.W.2d 302 (1985). This is noted in the code section relevant to PTD, where it is required that PTD “shall be determined in accordance with the facts.” Ark. Code Ann. § 11-9-519(c) (Repl. 2002).
Our workers’ compensation law specifically defines “disability” to mean “incapacity because of compensable injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the compensable injury.” Ark. Code Ann. § 11-9-102(8) (Repl. 2002). The code specifically defines “permanent total disability” to mean “inability, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment.” Ark. Code Ann. § ll-9-519(e)(l). Our legislature has set forth that with regard to permanent partial disability (PPD), there must first be an impairment rating, i.e., a physical manifestation of permanent injury, before consideration of PPD will ensue. This rule regarding PPD is found at Ark. Code Ann. § 11 — 9-522(b) (1), which provides:
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 future earning capacity.
That an impairment rating was required in the context of a permanent partial disability claim was made case law in Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 479, 10 S.W.3d 882, 884 (2000), where it was held by our supreme court that:
[A]ny consideration of “the employee’s age, education, work experience, and other matters reasonably expected to affect his earning capacity” may not occur until the Commission has first determined “the percentage” of permanent physical impairment.
There is an entirely different statute in play when the issue is PTD. Arkansas Code Annotated section 11-9-519 sets forth the law on that subject, and appellant argues that the only statutorily required proof for PTD set out in subsection (c) is that PTD “shall be determined in accordance with the facts.” Appellant argues that this statute does not mention permanent impairment to the body anywhere else in that code section, with the exception of subsection (g), which speaks only to the adoption of an impairment-rating guide by the Commission. Thus, appellant argues that strictly construing the statutes, as we must, there is no statutory requirement in making a PTD determination that a claimant must have an impairment rating established by the medical evidence. We agree.
We review issues of statutory construction de novo, and we look to the plain language of a statute in determining legislative intent. See Great Lakes Chemical Corp. v. Bruner, 368 Ark. 74, 243 S.W.3d 285 (2006). The basic rule of statutory construction is to give effect to the intent of the legislature. Ward v. Doss, 361 Ark. 153, 205 S.W.3d 767 (2005); Arkansas Tobacco Control Bd. v. Santa Fe Natural Tobacco Co., Inc., 360 Ark. 32, 199 S.W.3d 656 (2004). We are duty-bound to provide strict construction to the Workers’ Compensation Act. Ark. Code Ann. § ll-9-704(c)(3).
Act 796 of 1993 made significant changes in the workers’ compensation statutes and the manner in which workers’ compensation claims are to be resolved. Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002). The doctrine of strict construction directs us to use the plain meaning of the statutory language. Wallace v. West Fraser South, Inc., 365 Ark. 68, 225 S.W.3d 361 (2006). We are mandated in our interpretation not to broaden or narrow the scope of Act 796 of 1993. Id. Strict construction means narrow construction and requires that nothing be taken as intended that is not clearly expressed. Elam v. Hartford Fire Ins. Co., 344 Ark. 555, 568, 42 S.W.3d 443, 451 (2001).
In short, appellant is correct in that the relevant statute does not require a permanent impairment rating or ratable condition. We impermissibly expanded the meaning of section 11-9-519 in Wren v. Sanders Plumbing Supply, 83 Ark. App. 111, 117 S.W.3d 657 (2003), to require such a rating in a claim for PTD. Wren involved a claim for PTD and we held that, “Without such a rating, a claimant is not entitled to permanent disability benefits or wage-loss benefits.” Our cited authority for this statement was Wal-Mart Stores, Inc. v. Connell, supra, discussed above, which clearly addressed a claim for permanent partial disability. We overrule Wren on this particular point.
The Commission’s decision denying appellant’s claim for PTD benefits is hereby reversed, and this case is remanded for further proceedings, including, inter alia, whether appellant is totally and permanently unable to earn any meaningful wages in the same or other employment, and, if so, whether her compensable injury is the major cause of such disability.
Reversed and remanded.
Gladwin, Marshall, and Baker, JJ., agree.
Pittman, C.J., and Griffen, J., concur in part; dissent in part.
We do not know why the legislature requires an impairment rating in a claim for permanent partial disability arising from an unscheduled injury, but not in a claim for permanent total disability. In a claim such as Ms. Rutherford’s, where the claimant is contending that her wage-loss is 100%, the percentage of anatomical impairment pursuant to the AMA Guides is not essential. | [
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Robert J. Gladwin, Judge.
Lowell W. Taylor, Jr. (Decedent), died testate on August 8, 2003. Appellant Carra Taylor, the decedent’s widow, appeals from the circuit court’s decision refusing to remove appellee James Woods as one of the three co-executors of the estate; from the court’s award of a fee to Woods for his services as co-executor; from the court’s allowance of a claim against the estate by another co-executor, appellee Edward Connell, for $10,000 for legal services he performed for the decedent over a twenty-plus-year period; and from the circuit court’s decision not to award her attorney’s fees against Connell on claims where she prevailed. Woods appeals from the award to Taylor of attorney’s fees against him personally. Connell appeals from the circuit court’s partial summary judgment on the issue of the construction of the decedent’s will in the manner advocated by Taylor and from the award of attorney’s fees against him personally. Gail Taylor Woods, John Michael Beck Taylor, Christine Owen, Charlotte Dodd, Deborah Eubanks, Wesley Taylor, and Beck Taylor (collectively, the “older children” or the “natural children”) are the decedent’s children or grandchildren from a prior marriage. They appeal from the circuit court’s construction of the will. We affirm the circuit court in all respects.
I. Factual background
The decedent died in August 2003. At the time of his death, the decedent left a will dated May 26,1994, and a first codicil dated August 5, 2002. Article I of the will, as modified by the first codicil, bequeathed to Taylor all of the decedent’s personal and household effects and the decedent’s interest in three Florida condominiums and a residence in Memphis, Tennessee.
Article II of the will created a marital-deduction trust for Taylor for life, with the remainder to Taylor’s children that the decedent adopted. The trust was to consist of 50% of the decedent’s
adjusted gross estate as finally determined for federal estate tax purposes, less (meaning subtract) the aggregate amount of marital deductions, if any, allowed for interests in property passing or which have passed to Carra Lewis Taylor otherwise than by the terms of this Article and Article I of my Will. I hereby define my “adjusted gross estate” as my gross estate as finally determined for federal estate tax purposes, less the aggregate amount of deductions allowed by [the Internal Revenue Code].
Woods and Connell were to serve as trustees for the trust.
Article III of the will creates four residuary trusts for the older children. Woods and Connell were also the trustees for each of the trusts.
Article VI of the will waived the filing of inventories and accountings by the executors. It also instructed the executors to attempt to minimize the estate tax payable by the decedent’s estate.
The decedent’s will was admitted to probate by order entered on August 21, 2003. A dispute arose over the proper construction of the will. On July 27, 2005, Taylor filed a petition seeking construction of the will, the filing of an inventory and accounting, the removal of Woods and Connell as co-executors, and the disgorgement of fees by Connell. She asserted that she was entitled to the items in Article I of the will in addition to the 50% share bequeathed in trust in Article II and that Connell, the draftsman of the will, and Woods asserted that the proper interpretation was that the 50% share in Article II included the property described in Article I. Taylor also asserted that Woods and Connell interpreted the will for the benefit of the natural children, filed incorrect estate tax returns, failed to answer Taylor’s questions concerning the administration of the estate, and failed to file inventories or accountings as required.
As to the count seeking disgorgement of fees, the petition alleged that Connell submitted a claim against the estate for $59,445, based on an alleged agreement that Connell would render legal services to the decedent from 1981 until the end of the decedent’s life without sending statements for those services and that the claim was paid without court approval, despite the fact that Connell, one of the co-executors, had an inherent conflict of interest and no documentation to support the alleged agreement. The petition also alleged that Connell had been paid $40,000 as an executor’s fee, Woods had been paid $5000, and Monteverde paid $10,000, and that the three claimed in the federal estate tax return that they were entitled to $146,000 for serving as the co-executors.
Finally, as to the removal of the co-executors, the petition alleged, in addition to the allegations already set forth, that they engaged in self-dealing, had conflicts of interest, failed to distribute assets from the estate, and breached their fiduciary duties. The petition also alleged that Woods was acting as real-estate agent for the estate and stood to profit from transactions to sell two parcels of real property in which the estate has an interest without notice to the beneficiaries of the estate. It further alleged that Woods substantially undervalued the properties for purposes of the federal estate tax purposes when compared to the real-estate contracts on those properties.
Woods and Monteverde filed a joint response to Taylor’s petition in which they alleged that she lacked standing to raise issues regarding Articles II or III of the will. In their brief in support of the motion to dismiss, they asserted that only the trustees could bring such claims. They also denied the material allegations of the petition and stated that the order appointing them as co-executors excused them from making any inventories or accountings. Connell’s separate response also raised the issue of standing and denied the material allegations.
The older children filed their own petition seeking construction of the will as suggested by Woods and Connell. They also objected to that portion of Taylor’s petition seeking the disgorgement of fees and the removal of the co-executors in that they averred that Taylor was kept fully informed as to the filing of the estate tax return and the valuation of the property.
On March 30, 2006, Taylor filed a motion for partial summary judgment as to the construction and interpretation of the will. Attached to the motion was an opinion letter from Robert Naylor, a CPA, opining that Taylor’s interpretation was correct because the bequest to the trust was not reduced by property passing under Articles I or II and that the Florida condominiums and the Tennessee residence all passed under Article I of the will. The older children filed a countermotion for partial summary-judgment as to the construction of the will. In his response to Taylor’s motion, Connell adopted by reference the older children’s motion for partial summary judgment as to the construction of the will.
By order entered on July 26, 2006, the circuit court granted Taylor’s motion for partial summary judgment and denied the older children’s motion. The court found that, pursuant to Article II, Taylor was entitled to 50% of the decedent’s adjusted-gross estate without any reduction for the items passing under Article I.
At trial, much of the testimony focused on the valuation of real property in which the decedent held an interest. There was also testimony concerning the disagreements among the executors and the two sets of children as to the proper construction of the will.
II. The circuit court’s ruling
The circuit court ruled from the bench and began by noting that the will’s appointment of the three co-executors was a conflict waiting to happen because of the relationships of the persons appointed and the way the will based the bequests to Taylor on the size of the adjusted-gross estate. The court also noted that there may have been a misunderstanding by some as to the proper role of an executor, which is to carry out the decedent’s wishes as expressed in the will and not to represent any heir or group of heirs.
The court first ordered the executors to file an amended estate tax return to conform to the court’s interpretation of the will and that Woods and Connell pay Taylor her attorney’s fees incurred in obtaining a construction of the will. The court then turned to the related issue of whether the estate tax return should be further amended to correct the undervaluation of assets, concluding that such an amended return should be filed. The court noted that there were discrepancies totaling almost $1.5 million in how some property was appraised for estate tax purposes when compared to other purposes, as well as the fact that a commercial property generating rent of $90,000 per year was valued at $59,000. The executors were ordered to retain new appraisers and seek court approval of those appraisers. The court also ordered the executors to file verified inventories and accountings but declined to award Taylor her fees on this issue, finding that the executors were entitled to rely on the earlier court order that admitted the will to probate and waived the filing of inventories and account-ings.
The court found that Connell’s claim required court approval and, because there was no such approval, the claim was improperly paid. In considering whether Connell was entitled to any amount on his claim, the court noted that it was undisputed that Connell had performed legal services for the decedent for many years and that he was not paid for those services but that there was no proof as to how Connell arrived at the amount of his claim. The court found that, although Connell testified that he had an agreement that he would keep a continuing bill that would not be paid until the decedent’s death, Connell did not keep a continuing bill, instead creating the bill after the decedent’s death from a review of the files. The court concluded that $10,000 was a reasonable fee under the circumstances. Connell was ordered to repay the estate $49,445 plus interest at 6%. The interest was awarded because of the court’s conclusion that the claim should never have been paid without a hearing. Taylor was awarded her attorney’s fees on this issue, to be paid out of the recovery from Connell. The amount of the fee was not specified.
The court found that the $40,000 executor’s fee paid to Connell was not proper; that Connell was not entitled to any fee because he did not perform any substantial services for the estate; and that he caused many of the problems by not seeking the court’s construction of the will when a dispute arose, by preparing an order waiving the inventory and accounting, and by paying his claim against the estate without a hearing and court approval. Connell was ordered to personally pay Taylor’s fees on this issue.
The court found that Woods had provided services to the estate by harvesting crops and managing the real estate and that his executor’s fee of $5000 was not reasonable and that Woods deserved more. The court declined to have Woods pay Taylor’s legal fees.
Whether the executor’s fee paid to Monteverde and whether he should be removed as co-executor were the next issues addressed by the circuit court, who concluded that there was no basis for removing Monteverde and that, although Monteverde believed that he did not deserve his fee, such fee was reasonable. The court found that Monteverde was the one co-executor who most closely fulfilled the role of an executor because he questioned the interpretation of the will, the payment of commissions to Woods, and the payment of Connell’s claim.
The court then turned to the issue of whether Connell should be removed as co-executor because he was “unsuitable.” The court found that Connell was unsuitable by acting in his own self-interest in accepting a $40,000 executor’s fee for little work and by making a claim against the estate without seeking court approval. The court noted that Connell was not a novice, having focused his practice on wills and estates since 1961 and having taught the law on those very subjects. The court declined to award Taylor an attorney’s fee on this claim, concluding that Connell had “paid enough.”
Finally, the circuit court began its discussion of the issue of whether Woods should be removed as co-executor by noting that Woods had a great deal of feelings for the decedent and that he had divided loyalties. The court found that Woods acted properly in some respects by marshaling the assets of the estate, managing the estate property, and by not unnecessarily incurring expenses chargeable to the estate. The court also found that Woods failed to seek a construction of the will despite a clear dispute, paid Connell’s claim without court approval, paid real-estate commissions to his firm without a claim being filed or court approval, and failed to question the appraisals that undervalued some of the property of the estate. The court found that it was not a per se conflict for Woods to have acted as both executor and real-estate agent for the estate or in receiving commissions on the sale of real estate. The court also found that, although Woods did not inten tionally misinterpret the will or undervalue the assets for purposes of causing harm to Taylor, he and Connell focused almost exclusively on reducing estate taxes. On balance, the court concluded that Woods should not be removed as executor but added the caveat that, should it be necessary to remove Woods in the future, he will be ordered to pay attorney’s fees, both for that future case, as well as the present case.
Judgment was entered in accordance with the court’s findings on July 31, 2006. On August 14, 2006, Taylor filed a motion for new trial, asserting the same issues that she raises in this appeal. Taylor filed her notice of appeal on August 30, 2006. By order entered on September 11, 2006, the circuit court denied Taylor’s motion for new trial, the motion by Woods and Monteverde seeking reconsideration, and Connell’s motion for new trial on the issue of attorney’s fees. Taylor amended her notice of appeal to include the denial of her motion for new trial. Woods filed his notice of cross-appeal on September 14, 2006, from the judgment requiring him to personally pay Taylor’s attorney’s fees and the denial of his motion for reconsideration. Connell also filed his notice of cross-appeal on September 14, 2006, from the partial summary judgment construing the will, from that part of the judgment requiring him to personally pay Taylor’s attorney’s fees, and from the denial of his motion for new trial. The older children filed their notice of cross-appeal from the circuit court’s order on partial summary judgment, both the grant of Taylor’s motion and the denial of their cross-motion.
III. Standard of review
We review probate cases de novo and affirm the circuit court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Conner v. Donahoo, 85 Ark. App. 43, 145 S.W.3d 395 (2004). A finding of fact is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been committed. Id. In reviewing the circuit court’s findings, we give due deference to the circuit judge’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id.
IV Removal of co-executor and disgorgement of executor’s fees
Taylor first argues that the circuit court erred in failing to remove James Woods as one of the co-executors of the decedent’s estate. She also argues that the circuit court erred in failing to require Woods to disgorge his $5000 executor’s fee after the court found that Woods had conflicts of interest and had neglected his duties. Taylor testified that she had lost trust in Woods after February 2005 and that she was not comfortable with any of the older children serving as executor. Woods testified that he wanted to remain as executor because that was the decedent’s wish.
Arkansas Code Annotated section 28-48-105 (Repl. 2004) allows a court to remove a personal representative of an estate if that person “becomes mentally incompetent, disqualified, unsuitable, or incapable of discharging his or her trust, has mismanaged the estate, has failed to perform any duty imposed by law or by any lawful order of the court.” The statute makes removal discretionary with the circuit court by use of the term “may.” See Jones v. Balentine, 44 Ark. App. 62, 866 S.W.2d 829 (1993).
In Davis v. Adams, 231 Ark. 197, 328 S.W.2d 851 (1959), the Arkansas Supreme Court affirmed the probate court’s order removing the appellant as administratrix of her deceased husband’s estate. In doing so the supreme court cited a Massachusetts case, Quincy Trust Co. v. Taylor, 57 N.E.2d 573 (Mass.1944), and noted that the Quincy court gave an interesting discussion on the word “unsuitable,” which is one of the bases provided in section 28-48-105 for removing a personal representative. The court in Quincy stated:
The statutory word “unsuitable” gives wide discretion to a probate judge. Past maladministration of a comparable trust, bad character, misconduct, neglect of duty, or physical or mental incapacity, warrants a finding that an executor or administrator is unsuitable. Such a finding may also be based upon the existence of an interest in conflict with his duty, or a mental attitude toward his duty or toward some person interested in the estate that creates reasonable doubt whether the executor or administrator will act honorably, intelligently, efficiently, prompdy, fairly and dispassionately in his trust. It may also be based upon any other ground for believing that his continuance in office will be likely to render the execution of the will or the administration of the estate difficult, inefficient or unduly protracted. Actual dereliction in duty need not be shown.
Quincy, 57 N.E.2d at 574, footnoted in Davis, 231 Ark. at 205 n.5, 328 S.W.2d at 856 n.5.
Taylor relies on Guess v. Going, 62 Ark. App. 19, 966 S.W.2d 930 (1998), where this court ordered the probate court to remove an executrix on the ground of unsuitability because of an existing conflict of interest. Before her death, Anna Guess granted Alice Going a durable power of attorney. Prior to Anna’s death, Going entered into an extremely favorable land-sale contract with her daughter and son-in-law. Upon Anna’s death, the court appointed Going as executrix, over the opposition of the other heirs. As executrix, Going refused to challenge the land-sale agreement and testified that a “mother’s love” prevented her from doing so. This court found that this attitude created a conflict of interest that would prevent Going from performing her fiduciary duties, noting that the other heirs would not properly benefit from the agreement. The Guess court relied on Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975), where the supreme court required the probate court to remove an administratrix who persistently acted in her own interests in order to deprive her stepchildren of their entitlements. The administratrix had failed to follow specific orders of the court.
Although the circuit court found that Woods had made some errors as one of the co-executors, it also found that Woods was not intentionally attempting to harm Taylor. The court did not find that any of Woods’s actions endangered the estate property or that they were intended to harm any party. Rather, the court noted that many of the problems stemmed from a misunderstanding of the proper role of an executor and that Woods should have a better understanding of his role. Also, the fact that the property was undervalued had more to do with Woods and Connell wanting to reduce the estate’s tax liability rather than any self-dealing or attempt to benefit themselves.
The circuit court weighed Woods’s actions, both positive and negative, and found that, on balance, the positive benefits to the estate outweighed the negative. Although Taylor conceded the discretion of the circuit court, her argument that Woods should nevertheless be removed because of the court’s finding of conflicts of interest would effectively amend the statute to remove the court’s discretion in such matters. We cannot say that the circuit court abused its discretion in not removing Woods as one of the co-executors.
Taylor also challenges the circuit court’s allowance of a $5000 executor’s fee to Woods'. She argues that Woods is not entitled to a fee because of the conflicts of interest. Arkansas Code Annotated section 28-48-108(c) provides, in pertinent part, that “the court, in'the exercise of its discretion, may decline to allow any compensation to or on behalf of a personal representative who has failed .... to perform any other substantial duty pertaining to his or her office, and, for the same reason, the court may reduce the compensation which would otherwise be allowed to or on behalf of such a personal representative.” Taylor relies upon Estate of Torian v. Smith, 263 Ark. 304, 564 S.W.2d 521 (1978), in which a reduction of the executor’s fees was upheld where the executor ignored counsel’s advice to probate the will first in Arkansas, instead of Mississippi, and that action was found to have dangerously depleted the interests of the Arkansas estate. However, Estate of Torian does not help Taylor because, in that case, the executor’s actions seriously depleted the Arkansas assets of the estate and yet the executor was still allowed a fee, albeit reduced.
The Restatement (Second) of Trusts § 243 (1957) provides that a court has the discretion to allow the executor a fee, even in situations where the executor was found to have breached his fiduciary duties in some manner. Here, the circuit court weighed the factors that the Restatement suggests should be considered, such as (1) whether the fiduciary was acting in good faith; (2) whether the breach was intentional or negligent or without fault; (3) whether the breach related to all or only part of the property; (4) whether the breach occasioned any loss and, if so, whether the loss has been made good by the fiduciary; and (5) whether the fiduciary’s services were of value to the estate. See id. cmt. c. Woods was found not to have acted so as to intentionally harm Taylor and to have provided valuable services to the estate. The court also found that the undervaluation of the estate property could harm the heirs in terms of estate taxes and that his actions (such as the construction of the will) benefited some of the heirs to the detriment of other heirs. The court also noted that a higher fee was warranted. Because the circuit court considered the proper factors, we cannot say that it abused its discretion in allowing Woods an executor’s fee.
V. Allowance of Connell’s claim
For her next point, Taylor argues that the circuit court erred in allowing Connell any fee on his claim against the estate for legal services he provided from 1981 until the decedent’s death. She bases her argument, in part, on the fact that the claim was paid without prior court approval. She also argues that the payment of the claim violated Ark. Code Ann. §§ 28-50-105 and 28-50-107. Those sections generally require that a personal representative establish his own claim against the estate and obtain court approval.
Taylor does not contest the fact that Connell provided the services reflected in his statement. Instead, she argues that the circuit court found Connell’s claim to be excessive and that this justifies the denial of the claim for fees. However, the record does not support her argument. The circuit court started with the premise that Connell was to repay the entire amount of his claim, with interest, because the claim was originally paid without court approval. The court then proceeded to consider the claim anew and determined that $10,000 was a reasonable fee for Connell’s services to the decedent. This was made clear during the hearing on the motions for new trial on this issue when the court said that it
did not necessarily make a finding of an unreasonable or excessive fee, except to the extent that the Court did not find that the application was supported by any proof beyond the $10,000 fee. And, I felt like that the, that what was indicated on the claim did justify a fee of $10,000. It could have been more, but it wasn’t justified in my mind for any more than that.
In support of her argument, Taylor relies on White v. McBride, 937 S.W.2d 796 (Tenn.1996). However, such reliance is misplaced because McBride did not involve a claim against a decedent’s estate for services performed for the decedent but rather a contingency contract with the surviving spouse based on a percentage of the amount of the estate awarded to that spouse by operation of law. Crawford & Lewis v. Boatmen’s Trust Co., 338 Ark. 679, 1 S.W.3d 417 (1999), another case relied on by Taylor, also did not involve a claim against the estate for services rendered to the decedent and is likewise distinguishable from the present case.
VI. Attorney’s fees
Under this heading we will consider points advanced by Taylor, Woods, and Connell. Taylor argues that the circuit court erred in not awarding her attorney’s fees from Connell on claims where she prevailed, such as the removal of Connell as co-executor and the requirement that accountings and inventories be filed. Connell and Woods each appeal from the award to Taylor of attorney’s fees against each of them, personally, for construction of the will. They argue that there is no authority for an award of fees against them personally.
A. Authority forfee award
We first address the arguments by Connell and Woods that there is no authority for the circuit court’s award of fees to Taylor against them personally. The law in Arkansas has long recognized that probate courts do not have authority to award attorney’s fees for services rendered to individual beneficiaries. Swaffar v. Swaffar, 327 Ark. 235, 938 S.W.2d 552 (1997); Paget v. Brogan, 67 Ark. 522, 55 S.W. 938 (1900). Taylor cites Alexander v. First National Bank, 278 Ark. 406, 646 S.W.2d 684 (1983), where the supreme court held that attorney’s fees could properly be awarded against a former personal representative who breached her duty to the estate. The Alexander court construed what is now Ark. Code Ann. § 28-52-101(c), which provides that a personal representative shall he chargeable in his accounts for loss resulting from neglect, embezzlement, or self-dealing, among other things. However, the “in his accounts” language indicates that the personal representative is liable to the estate, not to an individual beneficiary. Alexander also did not address the issue of the court’s authority for an award of fees. Therefore, Alexander is not authority for an award of fees to Taylor.
Nonetheless, under the circumstance of this case, Ark. Code Ann. § 28-73-1004 (Supp. 2007), gives the circuit court the discretion to award Taylor her attorney’s fees to be paid by Woods and Connell. A trustee is entitled to seek instructions whenever he has reasonable doubt regarding any matter relating to administration of the trust. See Arkansas Baptist State Convention v. Board oj Trustees, 209 Ark. 236, 189 S.W.2d 913 (1945). These matters can include the construction of the trust instrument, the extent of the trustee’s duties or powers, the identity and interests of the beneficiaries, or the resolution of a dispute among beneficiaries. See Patterson v. Polk, 229 Ark. 272, 317 S.W.2d 286 (1958); Restatement (Third) ofTrusts § 71 (Tentative Draft No. 4 2005). Taylor’s petition seeking a construction of the will necessarily involved a construction of a trust instrument as well because the will devised to Woods and Connell, as trustees, all of the decedent’s property not otherwise disposed of in the trusts created for the benefit of Taylor and the older children. This court has held that an action to determine whether certain property is an asset of a trust is an action “involving the administration of a trust” within the meaning of section 28-73-1004. Calvert v. Estate of Calvert, 99 Ark. App. 286, 259 S.W.3d 456 (2007). Therefore, the circuit court had authority to award Taylor attorney’s fees to be paid by Woods and Connell personally.
B. Taylor’s claim for additional fees
The decision to award attorney’s fees and the amount to award are discretionary determinations that will be reversed only if the appellant can demonstrate that the circuit court abused its discretion. Perry v. Baptist Health, 368 Ark. 114, 243 S.W.3d 310 (2006). Prior to awarding attorney’s fees, the circuit court is required to make a determination of which party, if any, prevailed on the merits of the case as a whole, and need not make such a determination for particular issues within the case. Id. Here, the circuit court awarded Taylor fees on certain issues and specified how the fees were to be paid, i.e., by Woods and Connell personally or from the recovery against Connell. The court was not required to grant Taylor her fees on each particular issue. Therefore, we cannot say that the court abused its discretion in not awarding Taylor fees on every issue involved in the litigation.
VII. Construction of the will
The older children and Connell appeal from the circuit court’s order construing the will in Taylor’s favor. They argue that the circuit court erred in granting Taylor’s motion for partial summary judgment while denying their own cross-motions because the will unambiguously directs that the value of the property passing to Taylor under Article I of the will be subtracted from the portion of the decedent’s adjusted gross estate bequeathed in trust for Taylor’s benefit in Article II.
We begin with Taylor’s challenge of the appeal as being untimely because the older children and Connell did not file their notices of appeal within thirty days of the entry of the order of partial summary judgment on July 26, 2006. Although Ark. Code Ann. § 28-1-116(a) allows an appeal from almost any probate order, it does not require that a notice of appeal be filed immediately instead of when the court issues a final order. Section 28-1-116(g)(1) provides that, except as otherwise provided in the probate code, appeals in probate cases shall be taken according to the procedures for appeals in equity cases. See In re Guardianship of Vesa, 319 Ark. 574, 892 S.W.2d 491 (1995); Snowden v. Riggins, 70 Ark. App. 1, 13 S.W.3d 598 (2000).
Here, the partial summary judgment lacked finality because it was obviously partial and other issues remained. In Servewell Plumbing, LLC v. Summit Contractors, Inc., 360 Ark. 521, 202 S.W.3d 525 (2005) (per curiam), the supreme court held that a notice of appeal filed from an order that lacked finality was a nullity and that any appeal brought from a non-final order is subject to dismissal. Therefore, any attempt to appeal from the partial summary judgment in the present case would have been a nullity. The partial summary judgment also did not contain an Ark. R. Civ. P. 54(b) certification allowing for an immediate appeal.
The partial summary judgment became final on July 31, 2006, when judgment was entered disposing of the remaining claims. Motions for new trial were filed and, under Ark. R. App. P.-Civil 4(b), such motions extended the time for all parties to file their notice of appeal. The older children filed their notice of appeal on September 18, 2006. When sections 28-1-116(a) and (g) are read together, the appeals by Connell and the older children are timely. See Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002), where the court held that, in a divorce case, a spouse was not required to immediately appeal the trial court’s final decision on custody, even though Ark. R. App. P.-Civil 2(d) permitted an immediate appeal, where there were other issues remaining. Therefore, we proceed to the merits of the point.
In the interpretation of wills, the paramount principle is that the intent of the testator governs. Carpenter v. Miller, 71 Ark. App. 5, 26 S.W.3d 135 (2000). The testator’s intent is to be gathered from the four corners of the instrument itself. Id. However, extrinsic evidence may be received on the issue of the testator’s intent if the terms of the will are ambiguous. Harrison v. Harrison, 82 Ark. App. 521, 120 S.W.3d 144 (2003). Here, all parties agree that the will is unambiguous.
The circuit court correctly interpreted the will. The marital trust established for Taylor’s benefit was to include 50% of the decedent’s adjusted gross estate “less (meaning subtract) the aggregate amount of marital deductions, if any, allowed for interests in property passing or which have passed to [Taylor] otherwise than by the terms of this Article and Article I of my Will.” The “otherwise than by” language describes the class of property interests passing to Taylor that reduces the amount of the bequest to the trust, i.e., those property interests passing or which have passed otherwise than by Article I and Article II of the will. Because the condominiums and the Tennessee residence pass to Taylor by the terms of Article I, they are excluded from the class of property to be subtracted from the bequest made in Article II. If the decedent had wanted the property passing under Article I to be subtracted from the bequest in Article II, there needed to be some punctuation or other language used to indicate that Article I was not part of the language controlled by the “otherwise than by” language.
As the circuit court noted, the argument that the decedent wanted his estate to be equally divided between the older children and Taylor and her children is contradicted by Article IX of the will. That section provides that, if Taylor survived the decedent, all estate and inheritance taxes were to be payable solely out of the residuary estate passing under Article III of the will. If the estate and inheritance taxes were to be paid solely out of the residuary estate, the older children would not be getting half of the estate.
Affirmed.
Bird and Vaught, JJ., agree.
Gail Taylor Woods is the spouse of co-executor James Woods. Deborah Eubanks, Wesley Taylor, and Beck Taylor are the children of the decedent’s fourth child, Lowell W. Taylor, III. Charlotte Dodd is the mother of Deborah, Wesley, and Beck.
There was a second codicil, dated March 26,2003, that added Daniel Monteverde as the third co-executor with all of the powers of the original co-executors.
One of the condominiums was titled solely in the decedent’s name. Taylor held a 54% interest in the second condominium. The third condominium was joindy held.
The adopted children are Mary Henrietta Taylor Watt, Lewis Frederick Taylor, Cynthia Elaine Taylor Monteverde, and Christopher Albert Taylor. These parties are collectively referred to as the “adopted children.” Cynthia Monteverde is the spouse of co-executor Daniel Monteverde.
Connell also challenges the award of fees against him on the claim that he should disgorge his executor’s fee.
Section 28-73-1004 provides that “[i]n a judicial proceeding involving the administration of a trust, a court, as justice and equity may require, may award costs and expenses, including reasonable attorney’s fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.” | [
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John Mauzy Pittman, Chief Judge.
This case is before us for the second time. The appellant was employed by the City of Pine Bluff as a police officer. While acting in the course and within the scope of that employment on March 1,2003, appellant was struck on the right side of the head and shot in the left ankle by a felon. He was provided medical benefits and subsequently filed a claim asserting that he was entitled to disability benefits for his injuries. The Arkansas Workers’ Compensation Commission found that he failed to prove that he sustained a compensable anatomical impairment or wage-loss disability and denied his claim. On the first appeal, we held that the Commission erred in rejecting all evidence that did not constitute an objective finding and remanded for the Commission to make new findings based on our holding. Singleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W.3d 709 (2006). The Commission has conducted further proceedings, entered a new order, and the case is once again before us.
The Commission has not complied with our mandate. A “mandate” is the official notice of action of the appellate court, directed to the court or administrative agency below, advising of the action taken by the appellate court, and directing the lower court or agency to have the appellate court’s judgment duly recognized, obeyed, and executed. Johnson v. State, 366 Ark. 390, 235 S.W.3d 872 (2006). It is a fundamental rule that every lower tribunal is bound to honor rulings in the case by superior courts and has no power or authority to deviate from the mandate issued by an appellate court. Id, Instead, the tribunal below must implement both the letter and spirit of the mandate, taking into account the appellate court’s opinion and the circumstances it embraces; where a remand limits the issues for determination, the court on remand is precluded from considering other issues, or new matters, affecting the cause. Id. When a case is remanded for a specific act, the entire case is not reopened, but rather the lower tribunal is only authorized to carry out the appellate court’s mandate. Id. These rules apply both to trial courts and to the Workers’ Compensation Commission. Bussell v. Georgia-Pacific Corp., 64 Ark. App. 194, 981 S.W.2d 98 (1998).
Matters decided on our prior appeal are the law of the case and govern our actions on the present appeal to the extent that we would be bound by them even if we were now inclined to say that we were wrong in those decisions. Lunsford v. Rich Mountain Electric Co-op, 38 Ark. App. 188, 832 S.W.2d 291 (1992). We are not so inclined.
The mandate in our prior decision reversed for the reasons set out in our opinion, i.e., that the Commission had erroneously and arbitrarily ignored all medical proof that did not constitute an “objective finding” in arriving at its decision. We remanded for the Commission to make new findings of fact consistent with the law as expressed in our opinion. Instead of making additional findings of fact as directed, the Commission ignored our mandate and denied relief on the same theory of law that we held to be erroneous in our prior opinion, justifying this refusal to comply with our mandate on the legal theory that compensability was decided by the Guides it had adopted, rather than by the provisions of the Arkansas Workers’ Compensation Act as interpreted by this court. Although it “recognized” in its opinion that we had expressly held that objective medical evidence was not necessary to prove each and every element of compensability, the Commission stated that it had adopted the Fourth Edition of the Guides to the Evaluation of Permanent Impairment as an impairment rating guide, stated that it had done so pursuant to authority vested in it by the legislature, and denied benefits on the ground that “[t]here is not a single table or figure in [the Guides] which allows the Commission to assign a permanent anatomical impairment to the instant claimant’s left ankle in accordance with the relevant standards of Act 796 of 1993.”
This is not a proper basis for denying relief. Although the Commission is authorized pursuant to Ark. Code Ann. § 11-9-521(h) (Repl. 2002) to “adopt an impairment rating guide to be used in the assessment of anatomical impairment,” the Commission has no authority to adopt a guide that changes the definition of compensable injury as established by the legislature and interpreted by the Arkansas judiciary. The Arkansas Constitution of 1874 separates the functions of the three departments of state government and prohibits any person or collection of persons belonging to one department from exercising any power belonging to either of the others, except as expressly provided. Oates v. Rogers, 201 Ark. 335, 144 S.W.2d 457 (1940). There is no constitutional provision permitting the Workers’ Compensation Commission to usurp the function of the judiciary. The Guides are just that: mere guides to aid the Commission in assessing the degree of a claimant’s disability as defined by statute and interpreted by the courts. If those Guides do not contain an express method of rating an injury that is compensable pursuant to Arkansas law, the Commission must adopt a reasonable method of doing so.
The Arkansas Workers’ Compensation Commission is not an appellate court. White v. Air Systems, Inc., 33 Ark. App. 56, 800 S.W.2d 726 (1990). It is, instead, the fact finder, and as such its duty and statutory obligation is to make specific findings of fact, on de novo review based on the record as a whole, and to decide the issues before it by determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence. Id. Because the Commission did not make additional findings of fact as it was directed to do in our prior opinion, we are required to take the extraordinary step of issuing an additional opinion to enforce our original mandate. See Jones v. Jones, 328 Ark. 684, 944 S.W.2d 121 (1997).
The Workers’ Compensation Act is expressly intended to provide timely disability benefits for injured workers. Ark. Code Ann. § 11-9-1001 (Repl. 2002). The Act is a remedial one, and the speedy provision of appropriate benefits is of such importance that the General Assembly has provided that appeals from the Commission to this court are expedited and take precedence over other civil appeals. Ark. Code Ann. § 11-9-711(b)(2) (Supp. 2007). Should the Commission, on remand, again refuse to comply with our mandate, recourse may be had to enforcement by the Arkansas Supreme Court through writ of certiorari. See Fulkerson v. Thompson, 334 Ark. 317, 974 S.W.2d 451 (1998).
Reversed and remanded with directions.
Bird and Vaught, JJ., agree.
“The courts must ultimately interpret and apply any constitutional and statutory provisions limiting or otherwise affecting agency action. The courts must ultimately determine all questions of law related to agency action, including the legal sufficiency of the evidence supporting agency determinations of fact. The courts must act as the ultimate guardians against arbitrary and capricious agency action.” L. Scott Stafford, Separation oj Powers and Arkansas Administrative Agencies: Distinguishingjudidal Power and Legislative Power, 7 U.Ark. Little Rock L.J. 279, 353 (1984). | [
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Larry D. Vaught, Judge.
James Lynn has appealed from a summary judgment for his former employer, appellee Wal-Mart Stores, Inc. On appeal, Lynn argues that he was fired for reporting inhumane workplace conditions in some foreign manufacturing facilities from which Wal-Mart buys goods, violating the public policy of this state, and that his termination breached a written employment contract for a specific term of three years. We find no error in the circuit court’s entry of summary judgment to Wal-Mart, and we affirm.
Lynn began working for Wal-Mart in 1993. In January-2002, he signed the following “Global Assignment Letter” in contemplation of his transfer to Costa Rica as a Global Services manager:
This Global Assignment Letter confirms our mutual understanding of the terms and conditions applying to your global assignment with Wal-Mart Stores Inc. or one of its affiliates.
The intent of this letter is to provide a statement of salary and benefits effected by your acceptance of this Global Assignment. Please refer to the Global Assignment Policy Manual for a detailed description of each of these terms as well as other important information related to your assignment. The content of this letter represents your compensation at the beginning of your assignment; the terms of this letter may change throughout the assignment based on salary increases, adjustments to the allowance tables, change of family status, overall policy changes or other individual circumstances as described in the Global Assignment Policy Manual.
Date of letter:
Position:
Home Country:
Host Country:
International Effective Date:
Type of assignment:
Anticipated duration of assignment:
Tax origin/relocated from:
12/20/2001
Global Services Manager US
Costa Rica
January 12, 2001
Expatriate
3 years
Arkansas
It is understood that this letter is not to be construed as an employment agreement nor a contract for employment and that each of these terms is described in detail in the Wal-Mart Global Assignment Policy Manual.
Lynn moved to Costa Rica in February 2002. By early March, other Wal-Mart employees and his immediate supervisor, Odair Violim, began complaining about his work performance. Lynn was counseled about these problems in mid-March. By April 2, 2002, however, his superiors decided that he should be terminated “right away.”
While based in Costa Rica, Lynn accompanied an inspector in mid to late April 2002 as he evaluated working conditions at some manufacturing facilities that did business with Wal-Mart. According to Lynn, he observed, and then reported to Wal-Mart executives, inhumane working conditions at the factories.
Also in April 2002, Wal-Mart opened an investigation of whether Lynn had an inappropriate relationship with a subordinate. On April 21, 2002, Lynn and this woman traveled to Guatemala on business. A “Wal-Mart Loss Prevention Associate,” Juan Valverde, also traveled to Guatemala to watch them and checked into the same hotel. Valverde reported that, late on the night of April 24, he saw Lynn enter the woman’s room, heard sounds that he believed were indicative of sexual contact, and saw Lynn leave her room with messy hair and with his shirt out of his pants. In his report to Wal-Mart, Valverde described what he observed in detail.
On May 6, Violim separately interviewed Lynn and the woman. She admitted that she and Lynn had an inappropriate relationship, which she described as going “further . . . than a friendship” and “a big mistake.” Although Lynn at first denied an inappropriate relationship, after he was informed that Wal-Mart had evidence of one, he admitted kissing her. Lynn and the woman then signed written statements acknowledging a romantic relationship. On May 7, 2002, Wal-Mart terminated Lynn for violating the company’s fraternization policy, which provided that it was against company policy for a supervisor to become romantically involved with an employee he supervised and that employees who did so would be subject to immediate termination.
Lynn filed his complaint in the Benton County Circuit Court on June 17, 2005, alleging several causes of action that included wrongful discharge and breach of contract. He alleged that his termination for violating the company’s fraternization policy was a pretext and that he had actually been fired because he had reported the factory-certification program’s failure to Wal-Mart. He asserted that he had reported inhumane working conditions in the factories and that Wal-Mart employees were being pressured by Wal-Mart executives to alter factory-certification results. Lynn alleged that he had discovered that Wal-Mart’s factory-certification process was designed only to create the impression that Wal-Mart bought goods produced under humane working conditions which, in fact, were terrible and which violated Wal-Mart’s internal rules and regulations.
Lynn contended that, in October 2003, Wal-Mart made the following misrepresentation in its 2002 annual report on supplier standards:
Wal-Mart strives to do business only with factories ran legally and ethically. We continue to commit extensive resources to making the Wal-Mart system one of the very best. We require suppliers to ensure that every factory conforms to local workplace laws and there is no illegal child or forced labor. Wal-Mart also works with several different outside monitoring firms to randomly inspect thousands of these factories each year to ensure compliance. In fact, we conduct more than 300 factory inspections each week as part of our commitment. In short, we have no desire to do business with any factory being run illegally or unethically, and we feel that our program is helping to improve working conditions and create economic opportunity for workers around the world.
Lynn stated that he was terminated in violation of Arkansas’s public policy against falsifying business records and protecting the consumer from the deceptive trade practice of making a false representation concerning the source or certification of goods. He also alleged that his Global Assignment Letter was an enforceable contract, which his termination breached.
Wal-Mart moved for summary judgment on the grounds that Lynn’s allegations did not constitute a violation of Arkansas’s public policy and that he did not have an enforceable employment contract. Along with the motion, Wal-Mart attached excerpts from the depositions of Lynn and several Wal-Mart executives, an executive’s affidavit, and the statements of Lynn, his subordinate, and Valverde. In his deposition, Lynn admitted that he had violated Wal-Mart’s fraternization policy. As exhibits to his response, Lynn filed copies of some factory-monitoring reports; emails among Wal-Mart executives prior to his termination; excerpts from several depositions; and Wal-Mart’s 2002 annual report on supplier standards.
The circuit court entered summary judgment for Wal-Mart, holding that, as a matter of law, even if Lynn’s allegations were true, he was not terminated in violation of the public policy of Arkansas:
6. Lynn alleges his termination violated the public policy articulated in the Arkansas Deceptive Trade Practices Act. Ark. Code Ann. § 4-88-107. The Arkansas Deceptive Trade Practices Act, however, is not implicated by Lynn’s allegations. There is no evidence of a misrepresentation of the quality of Wal-Mart’s goods or a misrepresentation in the advertisement of the goods Wal-Mart sells. There is no evidence of any damage or injury to a consumer who has purchased Wal-Mart goods. The Annual Report on Wal-Mart’s Factory Certification Program does not implicate the Arkansas Deceptive Trade Practices Act.
7. There is no evidence that there are any material misrepresentations in the Annual Report onWal-Mart’s Factory Certification Program. The Report conveys the philosophy to Wal-Mart stockholders of what Wal-Mart is trying to do to improve working conditions in foreign factories and that Wal-Mart does not want to do business with factories that do not comply with a certain standard of working conditions. The Report describes Wal-Mart’s policy of inspecting factories for compliance with Wal-Mart’s standards. If a violation is found, the violation is noted and the factory is given a chance to improve. If the factory does not improve to Wal-Mart’s satisfaction, Wal-Mart ceases doing business with that factory. The Report does not state that Wal-Mart will cease doing business with a factory forever if a violation is discovered but does state that Wal-Mart has ceased doing business with a certain number of factories for violations of certification standards.
The circuit court also granted summary judgment to Wal-Mart on Lynn’s breach-of-contract claim because, as a matter of law, the Global Assignment Letter was not an employment contract. The court ruled that the letter did not alter Lynn’s at-will status; that it did not provide for employment for a specific period of time; and that it did not state that Lynn could be terminated only for cause. The court also held that, even if the letter was a contract, there was no evidence that Wal-Mart breached it, because Lynn had admitted that he had violated Wal-Mart’s fraternization policy. The court dismissed Lynn’s complaint in its entirety, leaving Wal-Mart’s counterclaim against Lynn for breach of contract. The court entered a certification for an interlocutory appeal under Ark. R. Civ. P. 54(b). Lynn then brought this appeal.
Summary judgment should be granted only when it is clear that there are no disputed issues of material fact. Holliman v. Liles, 72 Ark. App. 169, 35 S.W.3d 369 (2000) (treating a dismissal as a summary judgment). All evidence must be viewed in the light most favorable to the party resisting the motion; he is also entitled to have all doubts and inferences resolved in his favor. Id. Summary judgment is inappropriate when facts remain in dispute or when undisputed facts may lead to differing conclusions as to whether the moving party is entitled to judgment as a matter of law. Id. When the evidence leaves room for a reasonable difference of opinion, summary judgment is not appropriate. Id. The object of summary-judgment proceedings is not to try the issues but to determine if there are any issues to be tried, and if there is any doubt whatsoever, the motion should be denied. Id. Summary judgment can be entered in appropriate circumstances in the context of a wrongful-termination case. Hice v. City of Fort Smith, 75 Ark. App. 410, 58 S.W.3d 870 (2001).
In Arkansas, an employer may fire an employee for good cause, bad cause, or no reason at all under the employment-at-will doctrine. Magic Touch Corp. v. Hicks, 99 Ark. App. 334, 260 S.W.3d 322 (2007). While a contract for an indefinite term is terminable at will, a contract for a definite term may not be terminated before the end of the term, except for cause or by mutual agreement, unless the right to do so is reserved in the contract. Id. There are two other exceptions to the at-will doctrine: (1) where an employee relies upon a personnel manual that contains an express agreement against termination except for cause; and (2) where the employment agreement contains a provision that the employee will not be discharged except for cause, even if the agreement has an unspecified term. Id.
We will first address Lynn’s breach-of-contract argument. Lynn contends that the Global Assignment Letter was a contract for a definite period of time, three years, and was, therefore an exception to the at-will doctrine. He alleges that he established an issue of fact as to whether Wal-Mart breached that contract by firing him without cause. We disagree. It is readily apparent to us that the Global Assignment Letter was unambiguous and that it cannot reasonably be construed as promising to employ Lynn for the next three years. Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one equally reasonable interpretation. Magic Touch Corp. v. Hicks, 99 Ark. App. at 339, 260 S.W.3d at 326. The letter met neither requirement but simply set forth the location and other conditions of Lynn’s employment, as an at-will employee, for the next three years. In fact, the letter expressly stated that it was not a contract of employment.
In any event, even if the Global Assignment Letter was a contract, Lynn clearly provided good cause for his termination by admittedly violating the fraternization policy. We therefore affirm on Lynn’s breach-of-contract argument.
The next question is whether Lynn’s termination fell within the public-policy exception to the at-will doctrine. A public-policy-discharge action is predicated on the breach of an implied provision that an employer will not discharge an employee for an act done in the public interest. Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988). The public policy of the state is contravened if an employer discharges an employee for reporting a violation of state or federal law. Id. This exception is limited and is not designed to protect private or proprietary interests. Id.
Lynn argues that Wal-Mart violated Arkansas’s public policy, as set forth in the Arkansas Deceptive Trade Practices Act, by firing him for his reports to Wal-Mart about problems with the factory-certification process. According to Lynn, the 2002 annual report on supplier standards contained deceptive representations about working conditions in the factories where Wal-Mart goods were produced. He specifically refers to Wal-Mart’s representations that it would not accept products from suppliers that use forced labor, that discriminate on the basis of gender, or that fail to provide a safe, clean, and healthy environment for their employees.
Wal-Mart’s purported failure to follow its private, internal policies or the labor laws of foreign countries does not implicate the public policy of this state. A well-established public policy of the State must be found in our statutes or in our constitution. Sterling Drug, Inc. v. Oxford, supra; Hice v. City of Fort Smith, supra. The statute that Lynn cites as embodying the public policy of Arkansas is Ark. Code Ann. § 4-88-107(a)(1) (Supp. 2007), which states:
(a) Deceptive and unconscionable trade practices made unlawful and prohibited by this chapter include, but are not limited to, the following:
(1) Knowingly making a false representation as to the characteristics, ingredients, uses, benefits, alterations, source, sponsorship, approval, or certification of goods or services or as to whether goods are original or new or of a particular standard, quality, grade, style, or model....
We cannot interpret this statute as applying to WalMart’s statements in its annual report about its factory-certification process, even if we accept Lynn’s factual allegations as true. Lynn has simply shown no nexus between his reports of problems with the factory-certification process and any public policy of this state. Even if we were to hold that Lynn’s allegations did implicate public policy — which we do not — his admitted violation of Wal-Mart’s fraternization policy provided independent, sufficient grounds for his termination.
Affirmed.
Gladwin and Glover, JJ., agree. | [
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Larry D. Vaught, Judge.
Appellant Deanna Jean Bobo was convicted of two counts of first-degree sexual assault. She was sentenced to two six-year terms of imprisonment, to run consecutively. She argues that the trial court abused its discretion in (1) allowing two witnesses to testify that, prior to the alleged sexual assault, the victim touched her on the breast; (2) admitting into evidence nineteen emails allegedly exchanged between her and the victim; and (3) permitting the jury to hear, during her recorded statement, her request to speak with an attorney, which she claims is a violation of her Fifth Amendment right to not testify against herself. We affirm.
Because Bobo does not challenge the sufficiency of the evidence on appeal, only the evidence relevant to the appeal is discussed in this opinion. On the morning of November 3, 2005, Twilla Frosco checked her email on the family computer. She saw that the email account of her fourteen-year-old son (DF) was open on the screen. She read some of the messages and found that there were multiple email exchanges between DF and Bobo, one of DF’s former school teachers. The messages were sexually explicit. Twilla forwarded the emails to her personal email account and called her husband, Richard Frosco, who asked Twilla to forward the emails to him at work.
Upon receipt of the emails, Richard called the prosecutor’s office in Sebastian County and was referred to the Greenwood Police Department. Fie ultimately spoke with Detective Heather McCaslin of the Greenwood Police Department, who asked Richard to forward the emails to her. Greenwood Police Department Sergeant James Flynn testified that Detective McCaslin forwarded the emails to him on November 3, 2005. He thereafter issued subpoenas to the internet providers of the parties involved, obtained consent to search DF’s computer, and secured a warrant to search Bobo’s computer.
At trial, DF testified that when he was in eighth grade, Bobo was his math co-teacher. In February 2005, Bobo picked DF up at church and drove him to a loading dock where DF testified they had sexual intercourse in Bobo’s vehicle. Afterwards, Bobo drove DF back to church. DF testified that Bobo came to his house a few weeks later while his parents were not home, and they had sexual intercourse again.
The State offered the testimony of two classmates of DF. Madison Rambin testified that while in the classroom in the fall of 2004, she witnessed DF “scoop” Bobo’s breast. Rambin testified that scooping occurs when one person uses his hand and touches another person on the chest. She stated, “Scooping is something that the kids at school do a lot. This is something that kids will go do to other kids in the hall and run off. It can be kind of a pestering thing. It is kind of comparable to how it used to be like pulling a pigtail or something to irritate.” Rambin further testified that the act did not seem to bother Bobo and that DF did not get in trouble for doing it. Cody Johnson, another classmate of DF’s, testified that he witnessed DF scoop Bobo in the hallway at school. Johnson testified that DF took his hand and “kind of flips [sic] the breast out.”
Finally, the State and Bobo presented competing expert testimony on the issue of whether the emails Twilla forwarded from DF’s email account were accurate, had been altered, and whether they were actually from Bobo.
The jury convicted Bobo of two counts of first-degree sexual assault pursuant to Arkansas Code Annotated section 5-14-124 (Repl. 2006). The trial court imposed the sentence recommended by the jury — two consecutive six-year sentences of imprisonment in the Arkansas Department of Correction — and Bobo filed a timely notice of appeal.
Bobo’s appeal consists of two evidentiary matters and a constitutional argument. Specifically, she argues that the trial court abused its discretion in (1) allowing Rambin and Johnson to testify that DF scooped her; (2) admitting into evidence nineteen emails allegedly exchanged between her and DF; and (3) permitting the jury to hear during her recorded statement her request to speak to an attorney, which she claims is a violation of her Fifth Amendment right to remain silent.
Bobo’s first point on appeal is that the trial court abused its discretion in allowing Rambin and Johnson to testify that DF scooped her twice at school. At a pre-trial hearing, the State argued that this testimony was admissible under the pedophile exception to Rule 404(b) because it concerned antecedent conduct that corroborated DF’s testimony and it showed that DF and Bobo were familiar and intimate with each other. Over Bobo’s objection, the trial court admitted the testimony into evidence.
On appeal, Bobo argues that the scooping incidents should not have been admitted under the pedophile exception because (1) there is a lack of similarity between the scooping incidents and the sexual-abuse allegations made by DF; (2) the scooping was non-sexual in nature; (3) the prejudicial value of the evidence substantially outweighs its probative value; (4) the evidence is not relevant because the scooping occurred prior to the alleged abuse; and (5) the evidence is not relevant because DF committed the acts — not her.
While Bobo filed several motions in limine, she did not file a motion in limine making any of the above arguments related to this issue except for the relevancy argument — that evidence about the scooping incidents was inadmissible because DF committed the act, not Bobo. In order to preserve an argument for appeal, it must be raised at trial. Randle v. State, 372 Ark. 246, 273 S.W.3d 482 (2008). Therefore, Bobo’s only preserved argument is that the scooping incidents are irrelevant and inadmissible because DF committed the scooping act.
We hold that the evidence that DF scooped Bobo on two occasions is admissible because it is independently relevant and falls within the pedophile exception. Rule 404(b) provides:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. Hyatt v. State, 63 Ark. App. 114, 975 S.W.2d 443 (1998). We have long recognized a “pedophile exception,” which allows proof of “similar acts with the same child or other children in the same household when it is helpful in showing a proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship.” Id. at 116, 975 S.W.2d at 444. Such evidence not only helps to prove the depraved sexual instinct of the accused, but is also admissible to show the familiarity of the parties and antecedent conduct toward one another and to corroborate the testimony of the victim. Id.; see also Johnson v. State, 288 Ark. 101, 702 S.W.2d 2 (1986) (holding that prior sexual-abuse testimony was admissible where it was not introduced for the purpose of proving a substantive crime, but rather to show the relation, familiarity, and intimacy of the parties, their disposition and antecedent conduct towards each other, and as corroborative of the testimony of the prosecuting witness). A student-teacher relationship is an intimate relationship for purposes of the exception. Garner v. State, 81 Ark. App. 309, 101 S.W.3d 857 (2003).
In the case at bar, the scooping evidence was antecedent conduct that demonstrated an intimacy between DF and Bobo. DF was comfortable enough in the relationship with Bobo to touch her on the breast on two occasions during school hours with other students nearby. This antecedent sexual conduct further corroborated DF’s testimony that he and Bobo were later sexually involved. The scooping incidents also show Bobo’s proclivity to engage in sexual acts with minors with whom she had an intimate relationship. As such, the evidence is independently relevant and is admissible under the pedophile exception.
Bobo’s second point on appeal is that the trial court erred when it admitted into evidence nineteen emails allegedly exchanged between her and DF. Because the original emails from the computers of DF and Bobo no longer exist, she argues that the State failed to properly authenticate the forwarded emails (as there was evidence of tampering and/or altering of them) and that the emails were admitted in violation of best-evidence rules found in Arkansas Rules of Evidence 1001-1004 (2007).
In evidentiary determinations, a trial court has wide discretion, and we do not reverse a ruling on the admission of evidence absent an abuse of that discretion. Smith v. State, 354 Ark. 226, 118 S.W.3d 542 (2003). We hold that the trial court did not abuse its discretion in admitting the emails because there was sufficient evidence that the emails had been authenticated.
Rule 901(a) of the Arkansas Rules of Evidence provides that: “The requirement of authentication ... as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” According to the rule, one example of authentication is the “testimony of a witness with knowledge that a matter is what it is claimed to be.” Ark. R. Evid. 901(b)(1). Authentication requirements are satisfied if the trial court, in its discretion, concludes that the evidence presented is genuine and, in reason able probability, has not been tampered with or altered in any significant manner. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002); Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001). To satisfy these requirements, every possibility of tampering need not be eliminated. Guydon, supra.
Under these standards, the emails were properly authenticated. DF testified that he either mailed to Bobo or received from Bobo each of the emails in question. Moreover, DF’s mother testified that she read the original emails exchanged between DF and Bobo. Bobo admitted to sending emails to DF, and although she denied any of the sexual content of the emails, she admitted that she sent emails to DF with non-sexual content. For example, she admitted visiting with DF via email about her computer problems, his new school, and his girlfriend. She also admitted that she sent him an email telling him that she hoped he did not forget her. All of this non-sexual content was contained in the emails in question.
Further, the State presented evidence confirming that the emails in question were properly addressed to DF’s email account and the email account of Bobo and her husband. Sergeant Adam Holland of the Fort Smith Police Department and Michael Parks of the Fayetteville Police Department conducted forensic examinations of DF and Bobo’s computer and located the emails in question. The State offered an additional expert witness, Paul Brown, who not only examined the computers but also the server through which the emails traveled. Brown verified that fifteen of the emails sent by Bobo to DF matched a temporary, unique IP internet address for her computer. Despite arguments made by Bobo that the emails could have been tampered with or altered because some of the forwarded emails had no headers, the State’s experts concluded that the emails were genuine and that the validity of the emails was not in question.
Likewise, we hold that the trial court did not abuse its discretion in finding that the email printouts used at trial were the best evidence of the original emails exchanged between DF and Bobo. Arkansas Rule of Evidence 1002 provides: “To prove the content of a writing,... the original writing... is required, except as otherwise provided in these rules. . . .” Rule 1004 provides that “[t]he original is not required, and other evidence of the contents of a writing ... is admissible if. . . [a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.” Ark. R. Evid. 1004(1). “If data are stored in a computer . . . any printout or other output readable by sight, shown to reflect the data accurately, is an ‘original.’ ” Ark. R. Evid. 1001(3).
The emails at issue were stored in the computers of DF and Bobo. Original emails could not be printed from Bobo’s computer because it crashed in June 2005, and could not be printed from DF’s computer because he deleted them. However, under Rule 1004, because the originals were lost or destroyed, it is permissible to admit other printouts of the emails, which were forwarded to other computers, as long as they were shown that they reflect the data accurately. As set forth above, there is sufficient evidence demonstrating that the emails offered into evidence are accurate. Furthermore, the bad-faith exception does not apply because there is no evidence that the State — the proponent of the emails — in bad faith lost or destroyed the emails.
Bobo’s third and final argument for reversal is that evidence was improperly presented to the jury that she invoked her Fifth Amendment right to not testify against herself. During her videotaped statement, Bobo stated that she needed to speak to an attorney. She claims that statement effectively informed the jury that she invoked her Fifth Amendment right to not testify against herself, which is information the jury is prohibited from receiving. While Bobo acknowledges that a contemporaneous objection is required in order to raise an issue on appeal, and concedes that no objection was made at trial on this issue, she argues that the error is so serious that a contemporaneous objection is not required to preserve this issue for appeal.
Bobo cites Griffin v. U.S., 380 U.S. 609 (1965), for the proposition that the jury cannot be informed of a defendant’s right to remain silent. Even if Griffin applied to this case, our supreme court has held that a defendant must object at trial to evidence that the defendant invoked his right to remain silent in order to raise that issue on appeal. In Ronning v. State, 295 Ark. 228, 748 S.W.2d 633 (1988), the defendant argued on appeal that the prosecutor’s closing argument commented on the defendant’s failure to testify as evidence of guilt, in violation of Griffin. On appeal, our supreme court held that because the defendant failed to make a contemporaneous objection at trial, the argument was not preserved for appeal. Ronning, 295 Ark. at 235, 748 S.W.2d at 637. The court stated: “In hundreds of cases we have repeated the fundamental rule that an argument for reversal will not be considered in the absence of an appropriate objection in the trial court.” Id. Bobo concedes that she did not object at trial on this issue; therefore, it is not preserved for review.
Affirmed.
Pittman, C.J., and Bird, J., agree.
Johnson was not available to testify at trial; however, portions of his testimony from a pre-trial evidentiary hearing were provided to the jury.
Arkansas Code Annotated section 5-14-124(a)(3) provides:
A person commits sexual assault in the first degree if the person engages in sexual intercourse or deviate sexual activity with another person who is less than eighteen (18) years of age and is not the actor’s spouse and the actor is: ... An employee in the victim’s school_
DF deleted the emails from his computer, and Bobo’s computer crashed in June 2005.
Bobo also cites McCoy it State, 60 Ark.App. 306, 962 S.W.2d 822 (1998) and Collins it State, 324 Ark. 322, 920 S.W.2d 846 (1996), for the proposition that when a fundamental right to trial is denied, reversal is warranted even if the basis for same is raised for the first time on appeal. The fundamental rights at issue in McCoy and Collins are not the rights at issue in the instant case. In McCoy, the issue was whether the trial court established that the defendant knowingly, intelligendy, and voluntarily waived his right to a jury trial, and it was held that he did not. McCoy, 60 Ark. App. at 309-10, 962 S.W.2d at 824. In Collins, the defendant argued on appeal, for the first time, that he was denied the fundamental right to a twelve-person trial, and the court reversed on that issue. Collins, 324 Ark. at 327-28, 920 S.W.2d at 849. In contrast, Bobo was not denied her fundamental right to trial. She had a twelve-person jury trial. Therefore, these cases are inapplicable. | [
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LARRY D. VAUGHT, Judge
| Appellants Linda and Freddy McDou-gal appeal from the order entered by the Independence County Circuit Court granting the motions to dismiss filed by appel-lees Sabine River Land Company (SRLC) and XTO Energy, Inc. (XTO). We affirm.
In May 2013, the McDougals filed a complaint for declaratory relief against SRLC and XTO. In the complaint, the McDougals alleged that on or about January 11, 2005, they and SRLC entered into an oil and gas lease (first lease) of their real property located in Independence County. The McDougals’ complaint stated that they originally believed that the lease had a five-year term, although it actually had a ten-year term. The complaint further alleged that SRLC advised the McDougals that the first lease was invalid after it discovered that a third party, Ruby McDougal, owned a life estate in the property. On or about March 29, 2005, Ruby McDougal conveyed her interest to the McDougals, and on March 30, 2005, lathe McDougals signed a second oil and gas lease (second lease) provided to them by SRLC. The second lease had a five-year term. A year later, on or about March 31, 2006, SRLC assigned its interest in the first lease to XTO, and XTO recorded the assignment on April 6, 2006.
The McDougals’ complaint alleged that in 2010, when they believed the second lease was near expiration, they contacted XTO to inquire whether it planned to renew the lease. At that time XTO informed the McDougals that it had been assigned the first lease, that the first lease was valid, and that it had a ten-year term. In response, the McDougals, relying on the validity of the second lease, filed the complaint for declaratory judgment, requesting that the circuit court determine which lease was valid.
On August 22, 2011, XTO filed a motion for summary judgment arguing that as a matter of law it was the bona fide purchaser because (1) it had no notice or knowledge of the second lease at the time it purchased the first lease from SRLC, and (2) its assignment of the first lease was recorded first. XTO also filed a counterclaim on August 22, 2011, alleging that the McDougals breached their warranty to defend title and seeking monetary damages for that breach. XTO further requested declaratory relief, declaring it to be relieved of all obligations .to explore or develop the leased premises, entitling it to suspend all royalties or other payments to the McDougals until the matter was resolved, and to an automatic extension of the lease for a period equal to the duration of the litigation.
On August 29, 2011, the McDougals filed an amended complaint for declaratory judgment and, in the alternative, a complaint for breach of contract against SRLC. The new breach-of-contract allegation was that SRLC knowingly assigned the first lease to XTO when pit (SRLC) knew the lease was invalid. Both SRLC and XTO moved to dismiss the McDougals’ amended complaint, arguing that it was barred by the five-year statute of limitations set forth in Arkansas Code Annotated section 16-56-111 (Repl. 2005).
After a hearing, the trial court entered an order granting the motions to dismiss of SRLC and XTO. It found that the McDougals’ cause of action for breach of contract accrued when they “first could have maintained an action to a successful conclusion,” which the trial court found was “the date they knew of the conflicting terms [in the leases], which would have been the date they signed the second lease on March 30, 2005.” Finding that the McDougals’ May 13, 2011 complaint for declaratory relief was filed beyond the five-year statute-of-limitations period, the trial court found their causes of action were barred as a matter of law. The circuit court dismissed the McDougals’ claims, and the McDougals timely appealed.
In a previous opinion, McDougal v. Sabine River Land Co., 2014 Ark. App. 210, 2014 WL 1327837, this court dismissed the McDougals’ appeal without prejudice for lack of a final order because the circuit court’s order had not disposed of XTO’s counterclaims. The circuit court subsequently entered a new “Final Judgment” that repeated its previous finding that the McDougals’ claims were barred by the statute of limitations and again granted appellees’ motions to dismiss. The new order contains a Rule 54(b) certificate stating that XTO’s counterclaims are now moot, unless this court reverses the dismissal of the McDougals’ complaint. Therefore, the circuit court found that there was no just reason for delay of this appeal based upon the unresolved counterclaims.
|4In reviewing a circuit court’s decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Deer/Mt. Judea Sch. Dist. v. Kimbrell, 2013 Ark. 393, at 11, 430 S.W.3d 29, 39. In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed, Baptist Health v. Murphy, 2010 Ark. 358, 373 S.W.3d 269. Our standard of review for the granting of a motion to dismiss under Rule 12(b)(6) is whether the circuit judge abused his or her discretion. St. Vincent Infirmary Med. Ctr. v. Shelton, 2013 Ark. 38, 425 S.W.3d 761.
The only issue on appeal is whether the circuit court abused its discretion in dismissing the McDougals’ complaint based upon the expiration of the statute of limitations. The circuit court found that the five-year statute of limitations for contracts in writing codified at Arkansas Code Annotated section 16-56-lll(a) applied to the McDougals’ declaratory-judgment action. On appeal, the McDougals argue that, because they were not alleging any breach of contract or misrepresentation, there was no triggering event to cause the statute of limitations to begin to run. The McDougals also argue that the statutory period did not begin to run until they were made aware that the appellees intended to rely upon the [¿first lease rather than the second lease, which the McDougals say was not until they contacted XTO in 2010 to inquire about renewal.
First, we note that the McDou-gals cannot avoid application of the relevant statute of limitations by disavowing the underlying substantive legal claims upon which their declaratory-judgment action is based. The Arkansas Supreme Court has explained that declaratory judgment was unknown in the common law; it first became available in Arkansas by Act 274 of 1953, which conferred authority on the courts to hear declaratory-relief actions. Martin v. Equitable Life Assur. Soc. of the U.S., 344 Ark. 177, 180, 40 S.W.3d 733, 736 (2001). Prior to that time, courts were not authorized to render declaratory judgments. Christy v. Speer, 210 Ark. 756, 197 S.W.2d 466 (1946). A declaratory judgment declares rights, status, and other legal relationships whether or not further relief is or could be claimed. Ark.Code Ann. § 16-111-103(a) (1997). However, declaratory-judgment actions are intended to supplement rather than supersede ordinary causes of action. City of Cabot v. Morgan, 228 Ark. 1084, 312 S.W.2d 333 (1958). “A declaratory-relief action is not a substitute for an ordinary cause of action. Rather it is dependent on and not available in the absence of a justi-ciable controversy.” Martin, 344 Ark. at 180-82, 40 S.W.3d at 736-37 (quoting Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996)).
In Martin, the Arkansas Supreme Court noted that, although Martin argued that the statutory-limitations period should not apply to a declaratory-judgment action, “Martin has mistaken declaratory judgment for a cause of action. Statutes of limitation control when a cause of action may be pursued.” Martin, 344 Ark. at 182, 40 S.W.3d at 737; McEntire v. Malloy, 288 Ark. 582, 707 S.W.2d 773 (1986). The court explained that, although Martin 1 Berred in pleading this case as seeking declaratory judgment, the trial court properly treated it as if it were an ordinary civil case alleging misrepresentation. Therefore, in Martin, the trial court interpreted the declaratory-judgment action as possibly raising either a tort or contract cause of action and applied the longer of the two limitations periods. Our supreme court approved of this approach, stating that, where a party has erred in using the declaratory-judgment procedures, his case will still be reviewed. Martin, 344 Ark. at 181, 40 S.W.3d at 736.
In keeping with Martin, the circuit court treated the McDougals’ complaint for declaratory relief as if it were raising a breach-of-contract issue and applied the relevant statute of limitations. The McDougals have attempted to distinguish Martin by arguing that they are not raising either a breach-of-contract or misrepresentation claim. This argument fails because it would leave the McDougals without any justiciable controversy upon which to base their declaratory-judgment action. The Arkansas Supreme Court has repeatedly held that a declaratory-judgment action is available only where the case involves a present justiciable controversy in which a claim of right is asserted against one who has an interest in contesting it. Martin, 344 Ark. at 182, 40 S.W.3d at 737; Andres v. First Ark. Dev. Fin. Corp., 230 Ark. 594, 324 S.W.2d 97 (1959). Therefore, in accordance with Martin, we find that the circuit court appropriately treated the McDougals’ claim as raising contract-enforcement issues and applied the relevant statutory period.
|7Arkansas Code Annotated section 16 — 56—111(a) provides for a five-year statute of limitations for all “actions to enforce written obligations, duties, or rights.” The test for determining when a breach-of-contract action accrues is the point when the plaintiff could have first maintained the action to a successful conclusion. Dupree v. Twin City Bank, 300 Ark. 188, 777 S.W.2d 856 (1989); Phillips v. Union Pac. R.R. Co., 89 Ark. App. 223, 226, 201 S.W.3d 439, 441 (2005). The circuit court found that the limitations period began to run when the parties knew or should have known of the existence of two competing leases with differing' terms, which would have been at the time they signed the second lease. This analysis is reasonable, given the McDougals’ insistence that there was no subsequent breach or misrepresentation to trigger the statute. The McDougals’ own theory of the case was simply that two competing contracts existed, requiring the court to determine which of the two contracts was valid and controlling. The court reasoned that, under such a theory, the McDougals would have known about the existence of both contracts when they signed the second one, giving them all the necessary information to pursue their claim at that time.
The McDougals argue that, prior to becoming aware of the assignment of the first lease and XTO’s intention to rely upon it, they had no reason to bring a cause of action. We affirm the dismissal of the McDougals’ complaint because, even if we accept for the sake of argument that the statute of limitations did not begin to run until the McDougals were put on notice that appellees intended to rely upon the first lease, the McDougals’ complaint was nevertheless time-barred. SRLC assigned the lease on March 31, 2006, and XTO recorded the assignment on April 6, 2006. Once a deed or other instrument indicating an interest in real estate is filed with the appropriate county clerk, it serves as “constructive notice to all | «persons from the time the instrument is filed for record.” Ark.Code Ann. § 14-15-404(a)(1). The Arkansas Supreme Court has succinctly described the rule in this way: where a man has sufficient information to lead him to a fact, he shall be deemed cognizant of it. Waller v. Dansby, 145 Ark. 306, 310, 224 S.W. 615, 617 (1920). Here, the McDougals had previous knowledge of the fact that they had executed two competing leases and were put on notice of the assignment of the first lease at the time it was recorded. Therefore, even under their theory that the statute of limitations did not begin to run until they were made aware of appellees’ reliance on the first lease, the McDougals’ claim was untimely because it was brought more than five years after the assignment was recorded.
Affirmed.
Hoofman and Brown, JJ., agree.
. The circuit court's order incorrectly stated that the applicable statute was found in section 15-56-111(a). The applicable statute of limitations is section 16-56-111(a).
. At the hearing, the McDougals’ attorney stated that they did not claim any misrepresentation or breach of contract. On appeal, the McDougals acknowledge that their amended complaint raised a breach-of-contract claim but argue that it was pled "in the alternative,” and that they were only seeking declaratory relief. The McDougals later state in their brief that "the [McDougals] do not argue or allege that either the first or second lease was breached by [SRLC or XTO].”
. This is not to say that the facts as presented fail to rise to the level of a justiciable controversy. We simply note that a party may not avoid the application of a relevant statute of limitations by disavowing all relevant underlying legal theories for its declaratory-judgment action. | [
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LARRY D. VAUGHT, Judge
| Appellant Khosrow Gyalog appeals the permanency-planning order, changing the goal of his children’s dependency-neglect case from reunification to adoption] and the subsequent order terminating his parental rights. He argues that both orders were against the children’s best interest. We affirm.
On June 6, 2013, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect as to K.G.1, then eleven years old, and K.G.2, then seven years old. The petitions were based upon their mother’s drug use and the physical environment in which they were living. Gyalog, their father, was incarcerated at the time. The court entered the emergency order the same day, and on June 10, 2013, a probable-cause order was entered. On August 2, 2013, the court adjudicated the children dependent-neglected due to neglect and parental unfitness. Gyalog attended that hearing via telephone and was permitted to continue writing letters to the children. The court ordered | ?DHS to facilitate weekly visits between Gyalog and the children as soon as Gyalog was released and ordered that a home study be conducted on Jeanette Rayburn, Gyalog’s sister who lived in California. At a December 18, 2013 review hearing, the court ordered in-person visitation between Gyalog and the children at his work-release facility. The court noted that he had maintained contact with DHS and with the children.
Gyalog’s counsel filed a motion to continue the permanency-planning hearing, scheduled for April 30, 2014, on the grounds that the home study had not been completed on Rayburn. The court took testimony from the children’s therapist, who was present in the courtroom at the time, then continued the hearing until May 30, 2014. When the permanency-planning hearing resumed in May, the home-study results had not yet been returned, but the court proceeded with the hearing.
Lori Johnson, the former DHS caseworker assigned to this case, testified about the delays in conducting the home study, explaining that she had not been able to contact Rayburn for quite some time, despite leaving messages for her. She testified that Rayburn whs equivocal about the placement. Johnson also testified that, even if the home-study results permitted placement with Rayburn, she would recommend against such placement because the children were now closely bonded with their foster parents, who wanted to adopt them.
The new caseworker, Margot Gaston, testified that Gyalog exhibited bizarre and overly affectionate behavior during visitation with the children, forcing them to kiss him and each other on the lips and holding them like infants. Although she had taught the children to use “safe words” should they feel uncomfortable, she testified that they never used the | ?,words. However, she was sufficiently concerned about Gyalog’s behavior to mention it to the children’s therapist. Both the CASA worker and the warden at Gyalog’s work-release center testified that Gyalog’s behavior was normal for a father who had not seen his children in a long time and was happy to see them. They testified that the children did not seem uncomfortable.
As to the home study, Gaston reiterated Johnson’s position that, even if the home study came back in favor of placement with Rayburn, DHS would recommend termination and adoption. She explained that the children were bonded with their foster parents, while they did not have a bond with Rayburn.
Rayburn testified that DHS had contacted her as early as October or November 2013 regarding the home study, that she had gotten their phone messages, that she believed DHS was cooperating in facilitating the home study, and that she had gotten the home-study paperwork a few weeks after first speaking to a caseworker about it. She was hesitant about removing the children from their current foster placement if it was working out well and noted that she was nervous about providing for the children.
The children’s therapist testified in favor of adoption, stating that the children needed permanency.
Gyalog testified, expressing his distrust in DHS and his caseworkers. He claimed that the caseworkers were lying and had purposely tried to deny him court-ordered visitation. Gyalog explained that he was still incarcerated but was housed at a work-release facility. He testified that he could not take the children at that point.
I/The court found that the children could not be returned to either parent, could not be placed with Rayburn or other relatives, and that there was no evidence that DHS had not made efforts to complete Rayburn’s home study. The court found that neither parent had made sustainable or measurable progress in working the case plan despite the fact that DHS had made reasonable efforts to provide reunification services. The court changed the goal of the case from reunification to termination and adoption.
At the termination hearing, held on August 27, 2014, the children’s therapist testified that further visitation with Gyalog would be counterproductive for the children, that the children were ready to move forward with adoption, that they were making good progress in their current foster placement, that they wanted to be adopted, and that they displayed signs of anxiety around the time of the visits with their father. Caseworker Gaston testified again about Gyalog’s bizarre behavior during visitation, which included his demands of physical affection and treating the children like infants.
The children’s foster mother testified that they were doing very well in school, had made academic improvements since coming into care, and got along well with the other children in the foster home. She testified that the children displayed anxiety related to visits with their father. She stated that she and her husband would be interested in adopting the children.
RThe warden and the CASA worker both testified again as to their conflicting impressions of Gyalog’s behavior during visitation. The CASA worker recommended termination.
Gyalog testified and repeated his previous allegations that DHS workers had lied about why he was denied visitation, had purposely sabotaged his attempt to have the children placed with his sister in California, and had misrepresented his behavior during visitation. He testified that he had a full-time job, which he would retain upon his release. He testified that he attended AA meetings at the work-release facility and was divorced from the children’s mother.
The court announced from the bench that it was terminating parental rights as to both parents. The court entered a termination order on September 8, 2014. The court found that the children had been adjudicated dependent-neglected, had continued out of the custody of their parents for over twelve consecutive months, and despite meaningful efforts by DHS to rehabilitate the parents and correct the conditions that caused removal, those conditions had not been remedied. The court further found that Gyalog did not comply with the court orders, case plan, and services offered by DHS in that he remained incarcerated throughout the case and was sentenced to twenty years (twelve of those suspended) in Séptember 2011. He could not protect the children or provide stable housing for them due to incarceration. He had complied with many requirements, such as counseling, attending AA/NA meetings, and obtaining employment, but he did not have stable housing for the children. The court found that continued contact with Gyalog was not recommended | (¡because the children needed permanency and he could not provide for them or parent them at that time. The court found that the children were adoptable, that the foster family wanted to adopt them, that adoption was in their best interest, and that they should remain in their current placement and continue counseling as recommended. This appeal follows.
We review findings in dependency-neglect proceedings de novo, but we will not reverse the trial court’s findings unless they are clearly erroneous. Contreras v. Ark. Dep’t of Human Servs., 2014 Ark. 51, at 5-6, 431 S.W.3d 297, 300 (citing Lamontagne v. Ark. Dep’t of Human Servs., 2010 Ark. 190, 366 S.W.3d 351). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, based on the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Id. at 5-6, 431 S.W.3d at 300. Furthermore, this court defers to the trial court’s evaluation of the credibility of witnesses. Id., 431 S.W.3d at 300.
Gyalog’s first issue on appeal challenges the circuit court’s best-interest finding in the permanency-planning order. Before we reach the merits of his argument we must first determine whether Gyalog’s appeal of the permanency-planning order was properly preserved by his notice of appeal. Rule 2(b) of the Arkansas Rules of Appellate Procedure — Civil states in relevant part that “An appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment.” Rule 3(e), which governs the contents of a notice of appeal, states that the notice should “(ii) designate the judgment, decree, order or part thereof appealed from” and also “(iii) designate the contents of the record on appeal.” Ark. R.App. P—Civ. 3(e)(ii) & (iii).
|7In Velazquez v. Arkansas Department of Human Services, 2011 Ark. App. 168, 2011 WL 715659, we held that the appellant’s arguments challenging termination of parental rights actually related to the earlier permanency-planning hearing and review hearing, neither of which was before the court because the appellant’s notice of appeal failed to designate the permanency-planning order and bring up the record pertaining to the permanency-planning hearing. “While a termination order might bring up all intermediate orders, appellant did not designate the permanency-planning hearing in his notice of appeal, effectively waiving]” his arguments related to the permanency-planning order. Velazquez, 2011 Ark. App. 168, at 5. In Bryant v. Arkansas Department of Human Services, 2011 Ark.App. 390, at 7, 383 S.W.3d 901, 905, we held that “Bryant' failed to designate the permanency-planning hearing in her notice of appeal. Although she designated the permanency-planning order in her notice of appeal, the transcript of that hearing is not in the record.” In Thornton v. Arkansas De partment of Human Services, 2012 Ark. App. 670, at 3, 2012 WL 5949102, the appellant challenged whether DHS had made reasonable efforts to offer meaningful reunification services. We held that, since the trial court had made several findings throughout the case that DHS had made reasonable efforts, the most recent finding being in the permanency-planning order, and appellant had neither appealed those findings where applicable or designated them in his notice of appeal, he had waived his arguments regarding reunification services. In Aka v. Jefferson Hospital Association, Inc., 69 Ark. App. 395, 13 S.W.3d 224 (2000), we addressed whether a notice of appeal listing a final judgment after a jury trial was sufficient to preserve the appeal of a previously entered summary-judgment order and stated that it was, because the summary-judgment order was |snot previously appealable prior to the final judgment, and Rule 2 provides that an appeal of the final judgment also brings up all intermediate orders.
Here, there is no question that Gyalog designated the relevant portions of the record related to the permanency-planning hearing and order. The “Designation of Record” section of his notice of appeal lists, among other things, the permanency-planning order, the hearing transcript, and the hearing exhibits. Additionally, Gya-log’s notice of appeal provided actual notice that he planned to challenge the permanency-planning order on appeal: He listed “the transcript of the PPH hearing held on 4/30/14 and 5/30/14 to preserve the issues.” (Emphasis added.) Therefore, we hold that Gyalog’s notice of appeal was sufficient to preserve his challenge to the permanency-planning order.
Gyalog argues that the circuit court’s permanency-planning order, which changed the case goal from reunification to termination and adoption, was not in the children’s best interest because placement with Rayburn was a possibility and a court-ordered home study had not yet been completed as to that placement. However, Arkansas law permits a trial court to set termination/adoption as the case goal even where a relative is available and requests custody. Ark.Code Ann. § 9—27—338(c)(1)—(6); Davis v. Ark. Dep’t of Human Servs., 2010 Ark. App. 469, 375 S.W.3d 721. Arkansas Code Annotated section 9-27-338(c)(1)-(6) lists the permanency goals that the circuit court is to consider in determining the best interest of the children. The statute lists termination and adoption as a preference above permanent custodial placement with a relative, which is in keeping with the overall goal of permanency for the juvenile. Ark. Code Ann. § 9-27-338(c)(1)-(6). Moreover, the facts of this case indicate that placement with Rayburn was far from an immediately available alternative. The 13court found that Rayburn was equivocal about the placement, expressed concerns about taking the children out of their foster home, and expressed concerns about being able to provide for the children. Although there was conflicting evidence as to the cause of the delay, DHS workers testified that the failure to complete a home study on Rayburn in a timely fashion was due, at least in part, to Rayburn’s own failure to return phone calls and provide the necessary paperwork. There was evidence that the children were thriving in their foster home, that their foster parents were interested in adopting them, and that they need permanency, all of which supports a finding that termination and adoption would be in their best interest. The children had been in foster care for approximately a year, there was no immediate possibility of placing them in Gyalog’s care or placing them with a relative, they were thriving with foster parents who were interested in adopting them, and their therapist stressed their need for a permanent placement. The circuit court’s finding that termination and adoption would be in the children’s best interest was not clearly erroneous.
Gyalog raises the same argument in support of his next point on appeal. He claims that the trial court’s finding that it was in the children’s best interest to terminate his parental rights was clearly erroneous because it could have placed the children with Rayburn until his release from prison. As discussed above, the trial court’s finding was not clearly erroneous because Gyalog was sentenced to a lengthy prison term, Rayburn was equivocal about taking the children and was not an immediately available option for placement, and the children were thriving with their foster parents, who were interested in adopting them and providing permanency.
Affirmed.
|inHoofman and Brown, JJ., agree.
. The trial court also explored placement with other relatives; however, none of those placements proved to be viable options. Gyalog’s only arguments on appeal relate to the possibility of placement with Rayburn.
. The mother, Rosita Gyalog, has not appealed the order terminating her parental rights.
. We also noted that Bryant did not raise her objections to the permanency-planning order below, so they were not preserved. | [
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LARRY D. VAUGHT, Judge
1In this divorce action, appellant Scott Meredith appeals the October 7, 2014 judgment entered by the Greene County Circuit Court awarding appellee Angela Meredith $16,875.84, which it found represented the debt owed by Scott on Angela’s 2009 Chevrolet Suburban. We affirm.
The Merediths’ divorce decree, entered January 8, 2013, granted Angela a divorce; awarded custody of the parties’ three minor children to Angela, with visitation to Scott; set Scott’s child-support obligation; and distributed several items of personal property and debt. On May 28, 2013, Angela and Scott entered into an agreed order for the distribution of all remaining items of marital property, debt, interests, and other obligations. Relevant to this appeal, the agreed order provided:
22. Angela will receive the 2009 Chevrolet Suburban and Scott will transfer any and all interest he may have in said vehicle to wife upon request by her. Husband will pay any and all indebtedness associated with said vehicle when due and he will hold Wife harmless for any and all liability associated with said indebtedness.
7. Scott will pay the automobile insurance for the 2009 Chevrolet Suburban being awarded to Angela herein until Angela is no longer obligated on any farm debts associated with Scott’s farming operation.
On July 3, 2014, Angela filed a verified petition for contempt, and on August 21, 2014, filed an amended petition, alleging that Scott failed to pay the indebtedness on the Suburban. At the hearing on Angela’s petition, she testified that in October 2013, she wrecked and totaled the Suburban, which had approximately $16,000 in debt remaining on it. Angela confirmed that after the loss the insurance company paid $16,875.84 to the holder of the Suburban note and paid her $6,863.41. She contended that because the agreed order awarded possession of the Suburban to her and ordered Scott to pay all of the debt on the vehicle, she was entitled to receive $16,875.84 from Scott — the amount of the debt on the vehicle that he did not have to pay. Scott disagreed, testifying that he complied with the agreed order because the vehicle and the insurance payments were current at the time of Angela’s accident.
The trial court ruled from the bench in favor of Angela, awarding her judgment in the amount of $16,875.84, stating that it was the amount of debt Scott did not have to pay despite his obligation to do so as per the agreed order. The trial court later entered its judgment in favor of Angela, and this appeal followed.
| ..¡Divorce cases are reviewed de novo. Farrell v. Farrell, 365 Ark. 465, 469, 231 S.W.3d 619, 622 (2006). With respect to the division of property, we review the trial court’s findings of fact and affirm them unless they are clearly erroneous or against the preponderance of the evidence; the division of property itself is also reviewed and the same standard applies. Id, 231 S.W.3d at 622. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id, 231 S.W.3d at 622.
On appeal, Scott challenges the trial court’s interpretation of the parties’ agreed order. Our supreme court has set forth the applicable standard of review for issues of contract interpretation.
The first rule of interpretation of a contract is to give to the language employed the meaning that the parties intended. In construing any contract, we must consider the sense and meaning of the words used by the parties as they are taken and understood in their plain and ordinary meaning. The best construction is that which is made by viewing the subject of the contract, as the mass of mankind would view it, as it may be safely assumed that such was the aspect in which the parties themselves viewed it. It is also a well-settled rule in construing a contract that the intention of the parties is to be gathered, not from particular words and phrases, but from the whole context of the agreement.
Singletary v. Singletary, 2013 Ark. 506, at 10, 431 S.W.3d 234, 240 (citations omitted).
Scott argues that the trial court’s finding is clearly erroneous because the facts are undisputed that he complied with the plain and ordinary meaning of the provisions in the agreed order by being current on the note secured by the Suburban and by satisfying his obligation to pay insurance for the vehicle. We disagree.
Under the plain and ordinary language of the agreed order, Scott’s obligations are not limited to making timely payments on the Suburban and insuring it. Regardless of what |4happened to the vehicle, the agreed order provided that “[h]usband will pay any and all indebtedness associated with [the Suburban] when due.” (Emphasis added.) The facts are undisputed that the debt on the Suburban became due when it was totaled and that Scott did not pay the indebtedness. Further, the language of the agreed order does not limit Scott’s payment of the indebtedness on the Suburban to the holder of the note. Therefore, we hold that the trial court’s findings that “[Scott] did not himself $16,875.84 of the debt owed on the 2009 Chevrolet Suburban, pursuant to the Agreed Order” (emphasis added), and that Scott owed that amount to Angela are not clearly erroneous.
The trial court’s interpretation of the agreed order is further supported by the purpose of damages in a contract action, which is to place the injured party in the same position she would have been in had the contract been performed. United Sys. of Ark. Inc. v. Season & Nalley, Inc., 2014 Ark. App. 650, at 3, 448 S.W.3d 731, 733 (citing Howard W. Brill, Law of Damages § 17:1 (5th ed. 2004); Acker Constr., LLC v. Tran, 2012 Ark. App. 214, 396 S.W.3d 279). In the instant case, had the agreed order been performed — meaning Scott had paid the debt in full before Angela totaled the vehicle — she would have received all of the insurance proceeds totaling $23,739.25.
Scott’s theory fails to place Angela in the same position she would have been in had the contract been performed. Under Scott’s theory, Angela would have ultimately possessed only $6,863.41, and Scott’s liability would have been reduced by $16,875.84. To the contrary, the trial court’s judgment, ordering Scott to pay Angela $16,875.84, placed both parties in the same position they would have been in had the agreed order been performed.
IsFor these reasons, we hold that the trial court’s judgment, ordering Scott to pay Angela $16,875.84, was not clearly erroneous.
Affirmed.
Hoofman and Brown, JJ., agree.
. Angela's original and amended petitions included several other allegations of contempt against Scott; however, because they are not pertinent to this appeal, we do not address them here. | [
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COURTNEY HUDSON GOODSON, Associate Justice
LThe Washington County Circuit Court found appellant Robert Leeka guilty of the offense of driving while intoxicated (DWI) and sentenced him to one day in jail. For reversal, Leeka claims that the circuit court erred in ruling that the Omnibus DWI Act of 1983 does not require proof of a culpable mens rea. We agree, and reverse and remand.
The Springdale District Court initially heard Leeka’s case and found him guilty of DWI. Leeka appealed to the Washington County Circuit Court. Before the circuit court, Leeka and the State filed stipulated facts with the court, in which the parties agreed to the facts contained in the Springdale Police Department Arrest Report, the results of Leeka’s breathalyzer test, a toxicology report from the Arkansas State Crime Laboratory, and an opinion letter from Dr. Joyce Simon.
The arrest report recounts the events leading to Leeka’s arrest as follows. On August 5, 2013, Springdale police officer Thomas Gregory responded to a call regarding a possible | intoxicated driver. Gregory observed Leeka’s vehicle driving recklessly, swerving, and running a red light. After initiating a traffic stop of Leeka, Gregory approached Leeka’s window. The report notes that “the driver looked extremely confused and very lethargic.” Gregory inquired if Leeka had been drinking or taking any prescription drugs, and Leeka replied that he had taken an allergy medication and a prescription pain medication. Gregory then asked Leeka to step out of the vehicle, and while attempting to exit the vehicle, Leeka lost his balance and fell against the car. Gregory reported that Leeka was very unsteady on his feet and continued to lose his balance. Ultimately, Gregory placed Lee-ka under arrest for DWI. Once at the police station, Leeka agreed to submit to breath and blood tests for intoxicating substances.
In addition to the police report, the parties also stipulated to the results of Lee-ka’s breathalyzer test, which reported a 0.00 alcohol level, and the toxicology report from his blood analysis, which showed only the presence of the drug zolpidem, a sleep medication more commonly known by its brand name, Ambien. The toxicology report showed no other intoxicants.
The parties also stipulated to a medical-opinion letter issued by Dr. Simon, in which she stated her opinion that Leeka “experienced a complex sleep behavior ... namely sleep-driving, which is a known adverse reaction to Ambien.” The stipulated facts also stated, “It is the Plaintiffs State of Arkansas/City of Springdale, position that a violation of ACA 5-65-103 Driving while Intoxicated is a strict liability crime, where it is the Defendant’s, Robert Grant Leeka, that a mental state is required.”
On the day following the filing of the stipulated facts, the circuit court issued a letter Lopinion in which it found that no culpable mental state was required for the DWI offense and ruled that the stipulated facts provided sufficient evidence to demonstrate that Leeka had violated the DWI act. Thereafter, the court held a sentencing hearing, at which it sentenced Leeka to one day in jail, a $300 fine, and court costs. Leeka filed the instant appeal.
On appeal, Leeka presents only one argument: whether the circuit court erred as a matter of law in concluding that the State was not required to prove a culpable mental state under the DWI statute. Lee-ka admits that the DWI statute, codified at Arkansas Code Annotated section 5-65-103 (Supp. 2013) does not contain an express requirement of a culpable mental state, but Leeka argues that a culpable mental state must be imputed to the offense through Arkansas Code Annotated section 5-2-203 (Repl. 2013). Section 5-2-203 provides that if a “statute defining an offense does not prescribe a culpable mental state, a culpable mental state is nonetheless required and is established only if a person acts purposely, knowingly, or recklessly.” Ark.Code Ann. § 5-2-203(b). There are two statutory exceptions to this general rule. First, no mental state is required where “the offense is a violation unless a culpable mental state is expressly included in the definition of the offense.” Ark.Code Ann. § 5 — 2—204(e)(1) (Repl. 2013). Second, no mental state is required where “an offense defined by a statute not a part of the Arkansas Criminal Code clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any element of the offense.” Ark.Code Ann. § 5-2-204(c)(2).
|4Leeka argues that section 5-2-203 applies to the DWI offense because the statute defining the offense does not prescribe a culpable mental state, and the offense is not subject to either of the exceptions enumerated in section 5-2-204(c). The State first responds by arguing that Lee-ka’s arguments are not preserved because he failed to file a motion to dismiss based on lack of proof of an element of the offense. On the merits of the argument, the State suggests that the circuit court did not err in its interpretation of the law because the exception found in section 5-2-204(e)(2) applies. Specifically, the State argues that the legislature intended for the DWI statute to be independent from the general criminal code and that the legislature indicated its intent to dispense with any culpability requirement by noting in its emergency clause that “the act of driving a motor vehicle under the influence of intoxicating alcoholic beverages or drugs constitutes a serious and immediate threat to the safety of all citizens of this State.” Act of Mar. 21, 1983, No. 549, § 19, 1983 Ark. Acts. 1153,1166-67.
The first question for this court is whether Leeka’s challenge is preserved for our review. The State argues that Lee-ka’s issue is not properly before us because Leeka did not file a motion to dismiss based on a lack of proof of an element of the offense, and because Leeka failed to argue a specific element of the offense that he thought the State was required to prove. Leeka replies that he argued to the circuit court that a mental state was required for prosecution under section 5-65-103 and that the circuit court found, as a matter of law, that the DWI statute did not require a culpable mental state.
The only possible justification for requiring Leeka to file a motion to dismiss would be found in Arkansas Rule of Criminal Procedure 33.1, which states,
| B(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution’s evidence, then the motion must be renewed at the close of all of the evidence.
(e) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues re lating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal. If for any reason a motion or a renewed motion at the close of all of the evidence for directed verdict or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.
Ark. R.Crim. P. 33.1. This court has held that Rule 33.1 is to be strictly construed. See, e.g., T.C. v. State, 2010 Ark. 240, 364 S.W.3d 53. Accordingly, in order to preserve a challenge to the sufficiency of the evidence, an appellant must make a specific motion for a directed verdict, both at the close of the State’s evidence and at the end of all the evidence, that advises the trial court of the exact element of the crime that the State has failed to prove. Id. However, Rule 33.1 requires a motion to dismiss only where the defendant seeks to challenge the sufficiency of the evidence. The rule does not require such a motion where the defendant raises an issue of law or statutory interpretation.
In this case, Leeka does not challenge the sufficiency of the evidence; rather he disputes the circuit court’s interpretation of the DWI statute, which is an issue of law. This issue is | (¡preserved for appeal. In the stipulated facts, Leeka raised the issue of whether the State was required to prove a culpable mental state, and the court stated in its opinion letter, “The issue before the court is whether a mental state is required as an element of proof by the State in order to convict Robert Grant Leeka of violating the provisions of the Omnibus DWI Act of 1983.” The court then ruled that the DWI Act did not require a culpable mens rea. In short, Lee-ka raised the issue before the circuit court and received , a ruling. No more is required to preserve this issue.
Furthermore, Leeka was not required to file any posttrial motion to preserve the issue. As we have recognized, “Although a party may petition the trial court to reconsider a decision, appeal is the usual procedure.” Harrell v. City of Conway, 296 Ark. 247, 249, 753 S.W.2d 542, 543 (1988). As we acknowledged in Harrell, where the circuit court acts sua sponte and enters an order ruling on a party’s issue, that issue is preserved for appeal even if the appellant failed to raise the specific arguments before the trial court. Id. at 249, 753 S.W.2d at 543. Here, the parties filed their stipulated facts on May 29, 2014, and the circuit court entered its opinion the following day, without providing Leeka with notice or the opportunity for a hearing on the issue. Under these circumstances, the interpretation of the DWI statute is preserved for our review.
Turning to the merits of Leeka’s argument, Leeka maintains that the circuit court erred in interpreting the DWI statute as not requiring a culpable mental state. Leeka argues that because the DWI statute is a criminal statute contained within the Arkansas Criminal Code, section 5-2-203 applies to impute a culpable mental state'. Section 5-2-203 provides that if a 17“statute defining an offense does not prescribe a culpable mental state, a culpable mental state is nonetheless required and is established only if a person acts purposely, knowingly, or recklessly.” Ark.Code Ann. § 5-2-203(b).
The question of the meaning of the DWI act involves an issue of statutory interpretation. We construe criminal statutes strictly, resolving any doubts in favor of the defendant. Hagar v. State, 341 Ark. 633, 19 S.W.3d 16 (2000). We also adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. Short v. State, 349 Ark. 492, 79 S.W.3d 313 (2002). We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, and if the language of the statute is plain and unambiguous, and conveys' a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Id.
In this case, the plain language of section 5-2-203 is clear, and provides that even if a statute defining an offense does not prescribe a culpable mental state, “a culpable mental state is nonetheless required and is established only if a person acts purposely, knowingly, or recklessly.” Ark.Code Ann. § 5-2-203(b). The State argues that the DWI statute falls under the exception to the general rule established in Arkansas Code Annotated section 5-2-204(c)(2) because the legislature intended the DWI act to be independent from the criminal code. Under that exception, no mental state is required where “an offense defined by a statute not a part of the Arkansas Criminal Code clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any element of the offense.” Ark.Code Ann. § 5-2-204(c)(2). However, the DWI statute is contained in Title 5, which is the Arkansas | RCriminal Code, and the State offers no support for its position that the DWI act was intended to be independent of the criminal code. In fact, the opposite appears to be true. As the State notes, the DWI statute was previously found in Title 27 dealing with transportation and motor vehicles, but in 1983, the General Assembly passed the DWI Omnibus Act arid moved the DWI offense to Title 5. Thus, the legislature specifically chose to incorporate the DWI offense into the criminal code rather than allowing it to remain in Title 27, which would have kept it separate from the criminal code. Accordingly, because the DWI offense is part of the Arkansas Criminal Code, the exception the State relies on is inapplicable. As a result, the circuit court erred in concluding that the DWI statute did not require a culpable mental state, as provided in section 5-2-203.
Reversed and remanded.
Hannah, C.J., and Danielson, J., dissent.
. Section 5-65-103 provides in relevant part, "It is unlawful and punishable as provided in this chapter for any person who is intoxicated to operate or be in actual physical control of a motor vehicle." Ark.Code Ann. § 5-65-103(a).
. The dissent misapplies and misconstrues the emergency clause to the DWI Omnibus Act as supporting its interpretation that the General Assembly intended to exempt the offense of DWI from section 5-2-203. First, an examination of the emergency clause is unnecessary and improper in this case because the language of the statute is clear and unambiguous. Quinney v. Pittman, 320 Ark. 177, 895 S.W.2d 538 (1995). Indeed, the dissent does not claim any ambiguity so its analysis errs in considering the emergency clause. Second, we have routinely held that in construing a statute, we will presume that the legislature, in enacting it, possessed “the full knowledge of prior legislation on the same subject.” Corn v. Farmers Ins. Co., 2013 Ark. 444, at 8, 430 S.W.3d 655, 660. Accordingly, in this case, we must assume that the legislature was aware of the existence of section 5-2-203 and its application to the entire criminal code when it passed the DWI Omnibus Act and made the offense of driving while intoxicated part of the criminal code. Finally, contrary to the dissent’s assertion, the clause contains no language indicating that the General Assembly intended for the DWI offense to be "specifically independent from the general criminal code.” Without any indication of such intent and in light of our presumption that the General Assembly is aware of existing legislation in passing subsequent acts, we must assume that it intended for section 5-2-203 to apply to DWI offenses. | [
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PER CURIAM
|TIn 2000, petitioner Rodney E. Barnett was convicted by a jury in the Mississippi County Circuit Court, Chickasawba District, of the capital murder of Lester Frazier and was sentenced to life imprisonment without parole. We affirmed. Barnett v. State, 346 Ark. 11, 53 S.W.3d 527 (2001).
In 2006, Barnett filed in this court a pro se petition to reinvest jurisdiction in the circuit court to consider a petition for writ of error coram nobis, in which he alleged that the prosecutor withheld material evidence to bolster the testimony of one of its witnesses, Larry Black. Specifically, Barnett contended that the prosecutor withheld jail records that would have supported his claim that he never shared a jail cell with Black and, thus, Black’s testimony regarding a jail-house confession could not have been credible. The petition was denied on the ground that Barnett’s claim that he did not share a jail cell with Black was made a part of the record through the cross-examination of Black, and, therefore, coram-nobis relief was not | ^appropriate where Barnett failed to demonstrate some fundamental error of fact extrinsic to the record. Barnett v. State, CR-00-1384, 2007 WL 185098 (Ark. Jan. 25, 2007) (unpublished per curiam).
Now before us is Barnett’s second pro se petition to reinvest jurisdiction in the circuit court to consider a petition for writ of error coram nobis. A petition for leave to proceed in the circuit court is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Cromeans v. State, 2013 Ark. 273, 2013 WL 3179379 (per curiam) (citing Sparks v. State, 2012 Ark. 464, 2012 WL 6218471 (per curiam)); Grant v. State, 2010 Ark. 286, 365 S.W.3d 894 (per curiam) (citing Newman v. State, 2009 Ark. 539, 354 S.W.3d 61). This court will grant such permission only when it appears that the proposed attack on the judgment is meritorious. Echols v. State, 354 Ark. 414, 418, 125 S.W.3d 153, 156 (2003). In making such a determination, we look to the reasonableness of the allegations of the petition and to the existence of the probability of the truth thereof. Id.
A writ of error coram nobis is an extraordinarily rare remedy more known for its denial than its approval. Cromeans, 2013 Ark. 273 (citing Howard v. State, 2012 Ark. 177, 403 S.W.3d 38). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Greene v. State, 2013 Ark. 251, 2013 WL 2460096 (per curiam) (citing Newman, 2009 Ark. 539, 354 S.W.3d 61). 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 the judgment. Id. The petitioner has the burden of demonstrating | sa fundamental error of fact extrinsic to the record. Williams v. State, 2011 Ark. 541, 2011 WL 6275431 (per curiam).
The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Cromeans, 2013 Ark. 273 (citing 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: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Greene, 2013 Ark. 251.
As grounds for the writ, Barnett asserts in the instant petition that the prosecutor withheld exculpatory evidence and knowingly allowed the State’s witnesses to commit perjury. Specifically, Barnett contends that the prosecutor withheld information pertaining to a confidential informant, his identity, and a statement made by him to police regarding the murder for which Barnett was convicted. Barnett asserts that the information possessed by this confidential informant, if it had been known to him at the time of trial, could have been used to impeach the testimony of the State’s witnesses, Larry Black and Donneitha Bradford. Barnett further states that a family friend, Carla Johnson, later discovered the identity of the | ¿confidential informant to be Floyd Riley and that Johnson interviewed Riley regarding his knowledge of the murder. Appended to the petition is Johnson’s sworn affidavit in which she avers that, during one such interview, Riley explained to her that Bradford admitted to killing the victim with her boyfriend, Frank Melton; that Bradford never mentioned Barnett’s name to Riley in her description of the crime; and that, on the night of the murder, Melton “was spending money with blood on it to buy drugs from Larry Black.”
Suppression of material exculpatory evidence by the State falls within one of the four categories of coram-nobis relief. Buckley v. State, 2010 Ark. 154, 2010 WL 1255763 (per curiam). When evidence favorable to the defense is wrongfully withheld by the State, it is a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and cause to grant a writ of error coram nobis. Hooper v. State, 2015 Ark. 108, 458 S.W.3d 229 (per curiam). 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 probabili ty 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.
In the instant petition, Barnett fails to demonstrate a Brady violation that would warrant issuance of the writ. Barnett contends that the identity of the confidential informant was | ¡(unknown to him at the time of trial but that the prosecutor and the circuit court were aware of the informant’s identity because the informant was subpoenaed to testify at Bradford’s trial. As Riley testified at the trial of Barnett’s accomplice, it is clear that the defense was aware, or could have been aware, of his identity and testimony at the time of trial. Moreover, Barnett sets forth no facts to show that the defense could not have obtained the identity of the confidential informant or that the prosecutor refused to disclose any requested information regarding the confidential informant, and a review of the record in Barnett’s direct appeal does not reveal that the identity of the confidential informant was ever requested by the defense through discovery. Where a petitioner offers nothing to show that information was concealed from the defense, and the issue could have been determined with certainty at the time of trial, the petitioner has not demonstrated a Brady violation that warrants the issuance of a writ of error córam nobis. Sparks, 2012 Ark. 464.
Because Barnett has not met his burden of establishing a fundamental error of fact extrinsic to the record sufficient to overcome the strong presumption that the judgment of conviction in his case is valid, he has not established a ground to warrant issuance of the writ.
Petition denied.
. As was the case with the first petition, Barnett’s second petition is assigned the same docket number as the direct appeal from the judgment of conviction.
. Donneitha Bradford testified as an accomplice at Barnett's trial. Specifically, she testified that, after Barnett solicited her assistance in robbing the victim, she went to the victim’s residence with Barnett; that the victim was still alive when she left the residence; and that she saw the victim and Barnett leave the residence together. Prior to Barnett’s trial, Bradford was tried, convicted, and sentenced for the capital murder, kidnapping, and aggravated robbery of the same victim, and this court reversed and remanded. Bradford v. State, 325 Ark. 278, 927 S.W.2d 329 (1996). Bradford ultimately entered a plea of guilty to first-degree murder and was sentenced to forty years’ imprisonment.
Larry Black testified at Barnett's trial that he shared a jail cell with Barnett and that Barnett admitted to participating in the murder.
. The record lodged in Barnett’s direct appeal is a public record, which need not be incorporated into the record of a second appeal that stems from the same judgment of conviction. Johnson v. State, 332 Ark. 182, 964 S.W.2d 199 (1998) (per curiam).
. Because it is clear from the petition that Barnett failed to state any ground for relief cognizable in a proceeding for coram-nobis relief, we need not consider whether Barnett proceeded with due diligence in making application for relief. Nelson v. State, 2014 Ark. 91, 431 S.W.3d 852. | [
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PAUL E. DANIELSON, Associate Justice
| ¿This is an appeal from an order of the Saline County Circuit Court denying a motion by appellants, Certain Underwriters at Lloyd’s, London, to intervene in a class-action suit filed by appellees, David Bass; Donald Hughes; Liston Haseman, Jr.; John Kimbrough; Lewis Jenkins Trucking, Inc.; Lew Thompson & Son, Inc.; Moore Valley Farms, Inc.; Jeremy Poe; Franklin D. Pollard d/b/a The Regency Limited; Bobby and Earnestine Pollins; Robby Summers; Tommie Walker Auction, Inc.; Advada Ward; Lance Whitaker; and Shirley Williams, purchasers of surplus-lines insurance. Named as defendants were Michael Ellis Alexander, Terry Lynn Burnett, Dianna Lynn Farish, John Archie Griggs, John Christopher Hildebrand, James Robert Hill, Stephen Frederick Hoffmann, Michael Leon Johnson, Stanley Guy Payne, Frances S. Shaddox, Roy Mack Shaddox, Richard Paul Simon, Russell Ellsworth Short,'and Jimmy Sut-terfield, Arkansas licensed surplus-lines-insurance brokers. On appeal, appellants argue that the circuit court erred in denying its motion to intervene because (1) they are entitled to intervene as defendants to protect their contractual rights and their financial, business, and legal interests; and (2) appellants are not too amorphous for | smtervention. This court has previously recognized a right to appeal from the denial of a motion to intervene as a matter of right under Arkansas Rule of Appellate Procedure-Civil 2(a)(2) (2014). See Fort Smith Sch. Dist. v. Deer/Mt. Judea Sch. Dist., 2014 Ark. 486, 450 S.W.3d 239; Duffield v. Benton Cnty. Stone Co., Inc., 369 Ark. 314, 254 S.W.3d 726 (2007). We reverse and remand.
The record reflects the following facts. On May 22, 2013, appellees filed a class-action complaint for declaratory relief on behalf of themselves, individually and as class representatives, against a group of licensed surplus-lines-insurance brokers who contracted with appellants to place surplus-lines insurance. According to ap-pellees, these defendant brokers improperly placed contracts of insurance with persons who were not insurers approved by the Arkansas Insurance Commissioner (“Commissioner”). Appellees prayed that the circuit court declare that they have a right to treat, as voidable, contracts for placement of surplus-lines insurance placed by. defendant brokers between April 8, 2005, and March 18, 2011, with persons who were not approved or qualified as surplus-lines insurers by the Commissioner. Appellees further requested that the circuit court order defendants to account for and return to appellees all monies received by defendants for “the contracts in question.” Finally, appellees requested an award of attorney’s fees, prejudgment interest, and costs.
14Appellants filed their first motion to intervene and brief in support on June 20, 2013, and asserted that they had sub scribed to multiple insurance policies issued to appellees during the applicable time period. According to appellants, they had significant, recognized interests in the lawsuit because appellees sought to void multiple insurance contracts to which appellants subscribed as real parties in interest. In addition, appellants alleged in their motion to intervene that
6. The disposition of this lawsuit will impair Underwriters’ interests in the subject insurance contracts by determining Underwriters’ rights and obligations without affording Underwriters the opportunity to defend their clear contractual interests and leaving them with no independent remedy.
7. Because the Brokers are neither insurers nor parties to the contracts that the Plaintiffs seek to invalidate, Underwriters, as actual parties to those contracts, face separate and distinct obligations that are not adequately represented or protected by the existing parties to this lawsuit.
8. Underwriters are necessary and indispensable parties to the adjudication of this lawsuit because the Plaintiffs clearly seek to challenge the validity of contracts between the Plaintiffs and Underwriters and, in effect, to extinguish Underwriters’ substantial interests in those contracts.
Filed simultaneously with the motion to intervene was appellants’ “Rule 24(c) Pleading,” wherein they generally denied the allegation of the class-action complaint, including the allegation that the insurance contracts were voidable.
15In their brief in support of the motion to intervene, appellants asserted that they were entitled to intervention as a matter of right pursuant to Arkansas Rule of Civil Procedure 24(a)(2) because (1) their motion was timely; (2) they have a recognized interest in the lawsuit; (3) the disposition of the lawsuit would impair appellants’ interests; (4) their interests would not be adequately represented by the current parties; and (5) they were necessary parties to the lawsuit.
Following the filing of the initial complaint, appellees filed two amended complaints. In the first amended complaint, appellees alleged that defendants violated the Arkansas Surplus Lines Insurance Act, as well as the Arkansas Deceptive Trade Practices Act, by placing coverage with unapproved insurers. Appellees requested that defendants be ordered to pay restitution and that they be awarded actual damages under Arkansas Code Annotated section 4 — 88—113(f), punitive damages, prejudgment interest, and costs.
After appellees filed a second amended complaint adding two additional plaintiffs, appellants filed a renewed motion to intervene. Therein, appellants asserted that they remained necessary and indispensable to the lawsuit and continued to have significant recognized interests that would be impaired if they were not allowed to intervene.
Appellees filed a response and opposition to the renewed motion to intervene on January 29, 2014. In it, appellees asserted that the only purpose of the motion was to create diversity needed to support federal jurisdiction. Appellees also stated that their second amended complaint did not implicate any interests of appellants, as appellees were not seeking any relief against appellants nor had they alleged any wrongdoing on the part of appellants, |fiand the defendant brokers adequately represent any remaining interests of appellants. Appellees also argued that appellants’ decision to seek intervention as “Certain Underwriters at Lloyd’s, London, Subscribing to [Enumerated Policies]” was an attempt to proceed under a “cloak of anonymity” and demonstrated that the appellants were either “an unincorporated association formed for the purpose of intervening” or “a collection of smaller unincorporated associations.”
On March 19, 2014, appellees filed a third amended complaint for the purpose of consolidating this case with two other overlapping class-action cases. The allegations of the prior complaints were reiterated — primarily that appellants placed surplus-lines insurance with unapproved insurers, and as a result, the defendant surplus-lines brokers were not permitted to place insurance with appellants; thus, the subject policies were “materially nonconforming insurance.”
Appellants again renewed their motion to intervene on April 8, 2014, and a hearing on the motion to intervene was held on May 15, 2014. At that hearing, appellants explained that the underlying action involved multiple insurance policies consisting of thirty-three different syndicate numbers, with those syndicates consisting of thirty or forty thousand individual names. But, appellants stated that it is common practice in the insurance field to use the shorthand “Underwriters at Lloyd’s,” and that if you have a policy number, it can be tracked down and the underwriters identified. Appellants argued that they were entitled to intervene as a matter of right but also noted that they had requested that they be allowed to intervene permissively.
17Appellees argued that intervention was not warranted, in part, because it is only the brokers, not the insurers, who are charged with, and violated, the statutory requirements for surplus-lines insurance. According to appellees, it was the brokers sued in the underlying complaint that took appellees’ money and misused it and, as a result, appellees are entitled to restitution, which is not grounded in contracts, policies, or rescission. Appellees also argued that appellants could not intervene because they were an unincorporated association or artificial designation not capable of . suing or being sued in Arkansas. Finally, appel-lees argued that appellants had failed to present any Rule 24 proof demonstrating that they are entitled to intervene as a matter of right.
On May 21, 2014, the circuit court entered an order denying appellants’ motion to intervene, finding that appellees’ argument regarding appellants’ amorphous nature was persuasive and further noting that appellees’ other arguments opposing intervention were also persuasive. Appellants timely filed a notice of appeal.
I. Standard of Review
Appellants raise a threshold question of which standard of review applies when reviewing an order denying intervention as a matter of right. It is undisputed that an order denying permissive intervention is reviewed under an abuse-of-discretion standard. Billabong Prods., Inc. v. Orange City Bank, 278 Ark. 206, 644 S.W.2d 594 (1983). But, in Medical Park Hospital v. Bancorp South Bank of Hope, 357 Ark. 316, 166 S.W.3d 19 (2004), this court recognized that we have never articulated a standard of review for denial of a motion to intervene as a matter of right when timeliness was not the issue to be resolved. Although we | ^recognized in that case that no standard of review had yet been announced, we declined to announce a standard because neither party addressed the issue of the appropriate standard, and the court’s ultimate decision would have been the same whether it applied an abuse-of-discretion standard or reviewed the case de novo. Id.’, see also Fort Smith Sch. Dist., 2014 Ark. 486, 450 S.W.3d 239; Hunter v. Runyan, 2011 Ark. 43, 382 S.W.3d 643; DeJulius v. Sumner, 373 Ark. 156, 282 S.W.3d 753 (2008).
In the instant case, appellants assert that this court should employ a de novo review to the question whether the circuit court erred in denying their motion to intervene as a matter of right. In support, appellants argue that the question presented in a case such as this one is more akin to a question of law, which this court reviews de novo. We agree.
Notably, our law. is very clear that intervention as a matter of right cannot be denied if a party meets all three requirements for intervention as set forth in Rule' 24(a)(2). Pearson v. First Nat’l Bank of DeWitt, 325 Ark. 127, 924 S.W.2d 460 (1996). Thus, if the factors are satisfied, then a circuit court has no discretion to deny intervention. Moreover, although this court has never specifically announced a standard of review for this issue, we have in two prior appeals seemingly applied a de novo standard. See UHS of Ark., Inc. v. City of Sherwood, 296 Ark. 97, 752 S.W.2d 36 (1988) (no standard of review cited but review appears to be de novo because factors favoring appellant were weighed against inconvenience to ap-pellee); Billabong Prods., 278 Ark. 206, 644 S.W.2d 594 (abuse of discretion applied to permissive intervention; no standard of review cited for denial of intervention of right, but court ^appeared to apply de novo standard because we held appellant’s claimed interest was insufficient to allow intervention as a matter of right).
Finally, although there is a split of authority among the jurisdictions on the appropriate standard of review, we are more persuaded by those courts that have adopted a de novo review. The Mississippi Supreme Court in Madison HMA, Inc. v. St. Dominic-Jackson Memorial Hospital, 35 So.3d 1209 (Miss.2010), clarified its standard of review and stated that its Rule 24, its comment, and the underlying purposes of the rule clearly demonstrated that a de novo standard of review applied to all intervention-of-right judgments, as the abuse-of-discretion standard deviated greatly from the court’s historical de novo review of questions of law. The court also noted that the use of the word “shall” in the rule indicated that the trial court has little, if any, discretion in the matter. Id. at 1214. Similarly, the Connecticut Supreme Court clarified its standard of review and determined that a de novo standard of review was more consistent with the nature of the relevant inquiry taken to evaluate a claim of intervention as a matter of right. Kerrigan v. Comm’r of Pub. Health, 279 Conn. 447, 904 A.2d 137 (2006); see also Fox v. Tyson Foods, Inc., 519 F.3d 1298 (11th Cir.2008); Trans Chem. Ltd. v. China Nat’l Mach. Imp. & Exp. Corp., 332 F.3d 815 (5th Cir.2003); Securities & Exch. Comm’n v. Homa, 17 Fed. Appx. 441 (7th Cir.2001); Stevenson v. Rominger, 905 F.Supp. 836 (E.D.Wash.1995).
In light of the forgoing, we hold that an appeal from an order denying intervention as a matter of right is reviewed de novo. De novo review means that the entire case is open for review. See ConAgra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 30 S.W.3d 725 (2000). With this settled, we turn now to the issues on appeal.
11011. Amorphous Nature of Appellants
Although appellants address the issue of whether they established the three requirements for intervention as a matter of law as their first point on appeal, it is necessary for us to first review the circuit court’s ruling that appellants were too amorphous to allow intervention. Appellants argue that the circuit court erred in so ruling because their use of shorthand to identify the underwriters by reference to policy numbers clarified that all members of the relevant syndicates were being sued individually. According to appellants, the term “Underwriters,” along with the policy number, is a reference to the various persons or entities who subscribe to policies as part of a Lloyd’s syndicate.
Appellees counter that the circuit court correctly held that appellants were too amorphous for intervention and, moreover, that appellants have forfeited any chance to remedy any defects in their pleadings. According to appellees, the party designation of “Certain Underwriters at Lloyd’s, London subscribing to [specified policies]” was insufficient, was tantamount to an attempt to proceed anonymously, and is demonstrative of the fact that the names of those “Certain Underwriters” were never offered into the record. Appellees aver that it was proper for the circuit court to deny intervention on this basis where the record does not contain the names of the alien individuals and corporations who assert that they insured appellees’ policies. Moreover, appellees argue that there is no statute that gives “Certain Underwriters” the capacity or personhood necessary to proceed as intervenors.
This court has discussed the concept of a group being amorphous in the context of class-certification appeals and has made clear that a class must be susceptible to definition and_[iicannot be amorphous or imprecise. Teris, LLC v. Chandler, 375 Ark. 70, 289 S.W.3d 63 (2008). Such a rule requires that a class be defined with precision. In the instant case, appellees argue that appellants’ attempt to proceed as “Certain Underwriters” rendered appellants amorphous in the sense that no one, not the parties or the court, knew the names of the actual insurers. But, appellees also argued, in this same vein, that it would be unduly burdensome to allow appellants to intervene when the names of the individuals amounted to thirty or forty thousand.
Turning first to the issue of ascertaining the names of the insurers, appellees cite to the case of Doe v. Weiss, 2010 Ark. 150, 2010 WL 1253216, in support of their claim. In that case, this court affirmed the circuit court’s order denying a request by the plaintiffs to proceed anonymously. The plaintiffs, who were undocumented aliens, filed suit using pseudonyms against the director of the Department of Finance and Administration challenging the constitutionality of a statute requiring, among other things, proof of an individual’s social security number and lawful immigration status before issuing a driver’s license or identification card to that person. This court concluded that the circuit court did not abuse its discretion in finding that the appellants did not provide a sufficient reason to permit the use of pseudonyms to overcome the prejudice that the State would incur trying to defend an action against an anonymous party. Id.
Clearly, the decision in Doe is inap-posite. Appellants have never sought to proceed anonymously, despite appellees’ repeated assertions that appellants were attempting to proceed under a “cloak of anonymity.” Moreover, nothing in Doe speaks to appellees’ contention that “Certain Underwriters” is an unincorporated association not capable of suing or being sued |12in Arkansas courts. It is true that an unincorporated association cannot, in the absence of a statute authorizing it, be sued in its societal or company name, but all the members must be made parties, since such bodies have, in the absence of statute, no legal entity distinct from that of their members. Baskins v. United Mine Workers of Am., 150 Ark. 398, 234 S.W. 464 (1921). In Curators of Central College v. Bird, 148 Ark. 323, 229 S.W. 730 (1921), this court explained that suits must be instituted or defended by persons, either natural or artificial. Here, appellees aver, without any proof, that “Certain Underwriters” is an unincorporated association, but this allegation is contrary to the evidence.
During the hearing, counsel for appellants stated that the underlying action involved sixty-three insurance policies that were made up of thirty-three different syndicates, with those syndicates consisting of an estimated thirty or forty thousand individual names. As appellants pointed out, however, they attached to their motions to intervene affidavits of defendant brokers who actually dealt with appellees. Therein the defendant brokers averred that they had identified each of the policies at issue and all of the syndicates on those policies. The defendant brokers further averred that they had access to a list of the subscribers, otherwise known as the underwriters, and that they believed this information had been produced by counsel during discovery at ap-pellees’ request.
Accordingly, we agree with appellants that their mere use of the shorthand reference “Certain Underwriters” to describe the numerous insurers of these policies did not render them amorphous such that it was proper for the circuit court to deny their motion to intervene as a matter of right.
|1SIII. Rule 21(a)(2) Requirements
We turn now to the three requirements of Rule 24(a)(2), which must be demonstrated when a party seeks to intervene as a matter of right. Appellants argue that the circuit court erred in denying their motion to intervene as a matter of right because they are necessary parties to the suit between appellees and defendants below. Moreover, appellants assert that they satisfy the three requirements for intervention as a matter of right because (1) they have a recognized interest in the subject matter of the lawsuit; (2) the disposition of the lawsuit may impair their interests; and (3) their interests in the lawsuit are not adequately represented by the existing parties.
Appellees counter that appellants never met their burden of proving that they were the insurers of the appellees’ policies, or that the lawsuit between appellees and defendants would affect their interests. According to appellees, appellants failed to prove that they were parties to the insurance contracts with the plaintiffs and offered no proof that appellants and the insurers were the same. Appellees further assert that their complaint did not give rise to an interest or threaten any impairment to appellants, particularly where they abandoned their claim for a declaratory judgment and now sought an award of restitution by the defendant brokers who violated applicable statutory law by placing the surplus-lines insurance with unapproved companies.
Intervention as a matter of right is governed by Rule 24(a), which states as follows:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when the statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or | utransaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
Ark. R. Civ. P. 24(a)(1) — (2) (2014). Thus, this court has held that when a petitioner seeks to intervene as a matter of right pursuant to Rule 24(a)(2), he must satisfy three requirements: (1) that he has a recognized interest in the subject matter of the primary litigation, (2) that his interest might be impaired by the disposition of the suit, and (3) that his interest is not adequately represented by existing parties. Med. Park Hosp., 357 Ark. 316, 166 S.W.3d 19; Billabong Prods., Inc., 278 Ark. 206, 644 S.W.2d 594. This court has further held that, if a party meets all three factors under Rule 24(a)(2), intervention as a matter of right cannot be denied. Pearson, 325 Ark. 127, 924 S.W.2d 460.
The crux of appellants’ argument and, in fact, their point made throughout the intervention process, is that the insurance contracts at issue in this case are not contracts between appellees and the defendant brokers; rather, they are contracts between appellees and appellants, the underwriters. Although appellees assert that appellants never proved that they are the actual insurers, such an argument is unavailing when, as we previously stated, the defendant brokers submitted affidavits identifying the syndicates who subscribed to the policies and explaining the process for identifying each underwriter who is a member of those syndicates.
|I5It is clear under Arkansas law that a policy of insurance is a contract between an insurer and an insured, designating the coverage to be provided pursuant to the parties’ agreed-upon terms. Shelter Gen. Ins. Co. v. Williams, 315 Ark. 409, 867 S.W.2d 457 (1993). The underlying class action seeks to have those contracts voided on the basis that the defendant brokers placed the surplus-lines insurance with unapproved insurers. Although appellees would have us focus on the alleged conduct of the brokers, we cannot ignore the fact that the end result sought by appellees focuses on the validity of the contracts themselves. Likewise, the fact that appellees now seek the remedy of restitution instead of a declaratory judgment does not negate the interests that appellants have in contracts to which they are parties. Thus, we are persuaded that appellants demonstrated that they have an interest in the subject matter of the litigation.
We must next determine whether appellants have an interest that might be impaired by the disposition of appellees’ lawsuit if it proceeds without appellants. Generally, if a person seeking intervention will be left with the right to pursue his own independent remedy against the parties, regardless of the outcome of the pending case, then he has no interest that needs protecting by intervention of right. Billabong Prods., Inc., 278 Ark. 206, 644 S.W.2d 594. This is the key determination to be made when considering the second requirement for intervention as a matter of right. In discussing this issue, the court of appeals explained that intervention of right by a son in his parents’ divorce case was warranted, stating as follows:
Clearly, appellee had an interest in the real property of his parents that was not adequately represented by either of his parents in their divorce proceeding. It is also apparent that appellee’s interest in the property would be impaired by the public |ir,auction of his parents’ property following their divorce. If the thirty-eight-acre parcel of land had been sold at public auction, appellee would not have been left with a remedy against his parents. Therefore, appellee adequately demonstrated that he was entitled to intervene as a matter of right.
Bradford v. Bradford, 52 Ark. App. 81, 89-90, 915 S.W.2d 728, 728 (1996). Similarly, in UHS of Ark., Inc., 296 Ark. 97, 752 S.W.2d 36, a case relied on by appellants in support of their assertion that their interests will be impaired if they are not allowed to intervene, this court held that the appellant should have been allowed to intervene in a declaratory-judgment action regarding the applicability of an amendment to a statute. In so ruling, this court noted that it was obvious that the appellant’s interest was not adequately represented, as the appellant contended that a provision of the act was unconstitutional but none of the original parties on either side of the case had any interest in finding the legislation unconstitutional. Id.
In the present case, it may be true that the brokers have interests in proving that appellants were approved to insure risks in Arkansas. But, the defendant brokers do not have the same compelling interests in proving the validity of each of the insurance contracts. Moreover, appellants’ ability to take any further action on those contracts may be impaired. As such, appellants have satisfied the second requirement under Rule 24(a)(2) that they have sufficient interests that may be impaired if they are not allowed to intervene.
We turn now to the final requirement under Rule 24(a)(2) to determine whether appellants’ interests are adequately represented by another party. This court has held that the party opposing intervention bears the burden of persuasion to demonstrate that the 117intervenor’s interests are adequately represented by existing parties. Matson, Inc. v. Lamb & Assocs. Packaging, Inc., 328 Ark. 705, 947 S.W.2d 324 (1997). Ap-pellees, in opposing appellants’ claim that the broker defendants do not adequately represent their interests, point to the fact that appellants’ counsel are the same counsel representing the defendant brokers, and that appellants and the defendant brokers have raised the same defenses to the complaint. Appellants counter that the defendant brokers are neither insurers nor parties to the insurance contracts that ap-pellees seek to invalidate and that the brokers are mere middlemen or intermediaries between the contractual parties and, thus, do not adequately protect their interests.
In support of their argument that their interests are not identical to those of the defendant brokers, appellants cite to this court’s decision in Matson. There, the plaintiffs filed suit against their contractor’s surety, rather than their contractor, alleging claims for construction defects and breach of contract. This court held that the contractor should properly be allowed to intervene, noting that while the surety and the contractor shared counsel and had the same interest in disputing any breach of contract “at this stage of the proceedings, it [was] apparent that their interests would diverge if [the plaintiffs] were able to demonstrate that [the contractor] breached the construction contract.” Id. at 710, 947 S.W.2d at 326. The court further noted that there was an indemnity agreement between the contractor and the surety and, thus, the contractor’s interest in asserting the obligations of the construction contract were not the same as the surety’s. Id.
| isHere, the primary goal of the defendant brokers is to prove that they acted in conformity with the applicable statutory provisions governing the placement of surplus-lines insurance. Appellants, on the other hand, have an interest in defending their legal status as an approved insurer with regard to their past, present, and future contracts for insurance issued in this state. Simply because appellants and defendant brokers have some similar interests does not mean that all of appellants’ interests in the contracts are protected by the defendant brokers.
As demonstrated by our decision in Matson, it is not enough for appellees to rely on the fact that appellants and the defendant brokers have the same counsel and similar defenses when it is appellees that bear the burden of persuasion in this instance. Thus, we agree with appellants that their interests, which include proving that they are approved insurers and that all policies issued are valid, are ultimately different than the defendant-brokers’ interests when their ultimate goal is to deny any personal liability for premiums paid to appellants to procure insurance.
Having determined that the circuit court erred in denying appellants’ motion to intervene as a matter of right, it is not necessary for us to address appellants’ alternative argument that the circuit court erred in denying their motion for permissive intervention. Lastly, we note that there is no merit to appellees’ claim that this court should summarily affirm the circuit court’s denial of intervention on the basis that appellants failed to challenge all the grounds for denial of intervention. More specifically, appellees assert that they raised two .independent grounds in opposition to appellants’ motion, namely that appellants failed |19to rebut their argument that it would be “unduly burdensome” to add defendants to the instant litigation and that it was too late to amend deficiencies in appellants’ intervention motions and pleadings. In support, appellees cite to this court’s decision in Evangelical Lutheran Good Samaritan Society v. Kolesar, 2014 Ark. 279, 2014 WL 2814816, holding that when a circuit court bases its decision on more than one independent ground, and the appellant challenges fewer than all those grounds on appeal, we will affirm without addressing any of the grounds.
Appellees are simply incorrect that appellants failed to address the argument that adding appellants would be unduly burdensome to appellees. Appellants spend a great portion of their brief discussing their role as necessary parties as they are the parties to the insurance contract and, thus, it cannot be unduly burdensome to add them. Further, appellants discuss at length that there was no deficiency in the way they sought to intervene. Appellees’ argument on this point is simply unavailing.
Reversed and remanded.
Baker and Hart, JJ., concur.
. As denoted in the caption, appellants are Certain Underwriters who served as insurers in sixty-three specific insurance contracts at issue in this case.
. Arkansas law provides that when insurance coverage cannot be purchased from licensed Arkansas insurers, surplus-lines insurance may be purchased from out-of-state insurers, provided that the transaction proceeds through a licensed, Arkansas surplus-lines broker. See Ark.Code Ann. § 23-65-305 (Repl.2012).
. According to counsel for appellants, Lloyd’s of London is not an insurer; rather, it is a marketplace of insurers who are called underwriters, and they are members of Lloyd’s. The underwriters can be individuals, or an entity such as a corporation, partnership, or LLC. The underwriters form syndicates and participate to a different percentage in each syndicate, with syndicates having a managing agent who acts on behalf of all the underwriters in the syndicate.
. The question whether a party timely sought intervention under Rule 24(a) is usually treated as a threshold inquiry. See Kelly v. Estate of Edwards, 2009 Ark. 78, 312 S.W.3d 316. In the present case, however, appellees have abandoned any argument they raised below that appellants did not timely seek to intervene here. | [
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PER CURIAM
hRoy Lee Russell filed a pro se petition for writ of mandamus in this court in which he alleges that the Honorable Sam Pope, Circuit Judge, has failed to timely provide a ruling on a pro se petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2014) that Russell filed in Desha County Circuit Court on September 11, 2014. The circuit court previously denied the petition for lack of jurisdiction, but, on December 11, 2014, this court reversed and remanded because the order did not provide a basis for the circuit court’s finding that it did not have jurisdiction to consider the merits of the petition, and the petition appeared both timely and verified. Russell v. State, 2014 Ark. 530, 2014 WL 7004486 (per curiam).
In the mandamus petition, Russell requests an order directing judge Pope to rule on the Rule 37.1 petition. Russell appears to contend that the court has had sufficient time to summarily dispose of the petition under Criminal Procedure Rule 37.3(a), and he alleges that he is entitled to a hearing on the petition and other relief requested in the Rule 37.1 petition. Judge Pope filed a response to the mandamus petition stating that the Rule 37.1 petition is currently L.under consideration and that his review of the trial transcript has not yet been completed. Judge Pope asserts that, in light of the period of time that has passed since this court’s order, he has not failed to perform his duty to provide a ruling on the petition.
The primary function of the writ of mandamus is to require an inferior court' or tribunal to act when it has improperly failed or declined to do so, and the writ is not applied to control the discretion of a trial court or tribunal or to correct an erroneous exercise of discretion. Thornton v. Jones, 2015 Ark. 109, 2015 WL 1198668 (per curiam). The purpose of a writ of mandamus is to enforce an established right or to enforce the performance of a duty. Id. A writ of mandamus is issued by this court 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. Id.
Issuance of the writ is appropriate only where the duty to be compelled is ministerial and not discretionary. Brown v. Gibson, 2012 Ark. 285, 423 S.W.3d 34 (per curiam). A court does have a ministerial duty to timely act upon pleadings filed in that court, regardless of the merit of those pleadings. Id. A petitioner may not, however, seek to compel any particular ruling through mandamus. Wells v. Las er, 2010 Ark. 142, 2010 WL 987044 (per curiam). An applicant for the writ carries the burden to demonstrate that the relief he seeks is merited. Brown, 2012 Ark. 285, 423 S.W.3d 34.
To the extent that Russell seeks to compel Judge Pope to grant a hearing on the petition or order any other particular remedy, the duty is a discretionary one and not ministerial. To the extent that Russell would have this court compel Judge Pope to simply perform his ministerial | aduty to provide a timely ruling on the Rule 37.1 petition, Russell has not met his burden to show that relief is merited at this time.
Russell’s Rule 37.1 petition challenged his convictions for second-degree battery and felon in possession of a firearm. Russell had also been charged with and acquitted of three counts of kidnapping, one count of aggravated assault, and three counts of rape. The Arkansas Court of Appeals affirmed the judgment. Russell v. State, 2014 Ark. App. 357, 2014 WL 2560497. The record lodged in that appeal was eight volumes consisting of 787 pages. Because Judge Pope indicates that he is considering the merits of the petition and reviewing an extensive record, Russell has not shown that the judge has failed to discharge his ministerial duty to provide a timely ruling on the Rule 37.1 petition.
It is crucial to our judicial system that trial courts retain the discretion to control their dockets, and the independence of the bench in our judicial system requires that the trial court control its docket and the disposition of matters filed. Eason v. Erwin, 300 Ark. 384, 781 S.W.2d 1 (1989). Nevertheless, a judge is required to dispose of all judicial matters promptly, and where there has been no good cause shown to justify a delay in ruling on a Rule 37.1 petition, a writ of mandamus is granted. Ladwig v. Davis, 340 Ark. 415, 10 S.W.3d 461 (2000) (per curiam). Where a respondent judge did not provide an explanation for delay in acting on a pleading, this court has granted the writ. Urquhart v. Davis, 341 Ark. 653, 19 S.W.3d 21 (2000) (per curiam).
Judge Pope has in this case stated good cause for the delay so far. A matter relating to the incarceration of a prisoner, by its nature, is one that should be given priority, and Russell is entitled to a prompt ruling on his Rule 37.1 petition even though adequate time to review | ¿voluminous records may be essential to fairly evaluate the issues. We accordingly deny the petition for writ of mandamus, yet urge the court to promptly attend to the matter and dispose of the Rule 37.1 petition appropriately.
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BRANDON J. HARRISON, Judge
h Mario Thompson appeals his convictions for sexual assault and rape, arguing that the circuit court erred in (1) denying his motion for directed verdict, (2) denying his motion for severance, (3) denying his motion to suppress his statement to the police, (4) not allowing a certain forensic evaluation into evidence, (5) not allowing certain testimony pursuant to Ark R. Evid. 404(b), and (6) denying his motion to quash the jury panel. We affirm.
In case number CR-2012-709-1, Thompson was charged with two counts of sexual assault in the second degree. In case number CR-2014-776-1, he was charged with one count of rape. The cases were tried together, and a jury found Thompson guilty of all charges and fixed sentences of ten years’ imprisonment for each count of sexual assault and twenty-five years’ imprisonment for rape. The court imposed the sentences to |?run consecutively, and Thompson has now appealed. Specific facts pertinent to the points on appeal will be discussed below.
I. Sufficiency of the Evidence
The State’s evidence in this case can be summarized as follows. Fourteen-year-old J.C., the victim in CR-2012-709-1, testified that when she was five years old, her babysitter was Thompson’s mother, Lá-veme Thompson. J.C. explained that she and several other children stayed at La verne’s house during the summer and after school and that Thompson was there, too. On several occasions during naptime, while the other children were sleeping, Thompson took her to his bedroom, took her clothes off, positioned himself over her “in a push up position,” and put his penis into her vagina. J.C. testified that this also happened at her house when Thompson babysat her on his own, at the Boys and Girls Club in an equipment room, and once when Thompson picked her up from the Boys and Girls Club, drove her to a house that was under construction, and did “the same thing.” She agreed that she was approximately five to seven years old when these incidents occurred and that she guessed Thompson was “sixteen or seventeen.” J.C. said that she did not tell anyone about the abuse when it happened because Thompson told her not to and she was scared. J.C. told her mother about the prior abuse when she was twelve years old.
Officer Malachi Samuels of the Fayette-ville Police Department testified that he interviewed Thompson on 7 March 2012. Samuels agreed that during the course of the interview, Thompson initially denied sexual contact with J.C. but later admitted to it. Thompson also admitted that he sent J.C.’s mother a Facebook message apologizing for |/having intercourse” with J.C. Samuels explained that, according to his investigation, Thompson had access to J.C. from 2005 to 2008, and with Thompson’s birth date in September 1987, he was between seventeen and twenty years old during that time.
Terri Center, J.C.’s mother, testified that she received a Facebook message from Thompson on 6 March 2012, apologizing for “all that I have done in the past.” When Center asked if he had hurt J.C., Thompson responded, “No when I use[d] to babysit them and have any intercource [sic] with her like sex.” Center testified that she reported the sexual abuse to the police that same day.
Jeanette Walker, mother of K.W., the victim in CR-2014-766-1, testified that her son and Thompson were in “Explorers” together, which is akin to the Boy Scouts but focused on law-enforcement duties. Walker was a Deputy First Class at the Washington County Sheriffs Office, and Thompson volunteered at the Sheriffs Office in the dentention center. She explained that Thompson and her son were friends and that Thompson would sometimes come to her home. According to Walker, in the summer of 2007, there was an instance in which her daughter, nine-year-old K.W., wanted to go swimming, so Walker allowed Thompson to take K.W. to the swimming pool.
Sixteen-year-old K.W. testified that she first met Thompson when she was approximately seven years old. She said that when she was nine or ten years old, Thompson offered to take her swimming and her mother allowed her to go. At the swimming facility, Thompson told her to go into the family changing room with him. Thompson then locked the door, turned out the lights, and started touching her breasts and vagina. He also put his penis inside her vagina. He told her afterward that if she told |4anyone, they would both get into trouble. ■ She explained that she did not tell anyone about the incident until recently because she was scared and “didn’t want to be the weird girl that got raped.” She also testified that a similar incident happened again a short time later, again at the swimming facility’s family changing room.
Detective Richard Firsby with the Springdale Police Department testified that when this incident occurred, K.W. was nine years old and Thompson was nineteen.
Sue Stockton, a sexual-assault examiner with a specialty in pediatrics, testified that she examined K.W. on January 28, 2014, and that K.W. had a normal genital exam. She also said that a child can be penetrated without injury and that it is very difficult to diagnose vaginal penetration if a long period of time has passed.
In his directed-verdict motion below, Thompson argued that the State had failed to prove sexual gratification or penetration, that both victims’ testimony was not credible and insufficient to sustain a conviction, and that his age when the alleged offenses occurred had not been proven. On appeal, Thompson similarly argues that the State failed to provide sufficient evidence of penetration in CR-2014-776-1 and that, in both cases, the victims’ testimony was not credible and the State failed to prove his age at the time of the offenses.
This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence. See Tubbs v. State, 370 Ark. 47, 257 S.W.3d 47 (2007). In reviewing a challenge to the sufficiency of the evidence, we determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This court views the evidence in the light most favorable to the |Rverdict, and only evidence supporting the verdict will be considered. Id. The credibility of witnesses is an issue for the jury and not the court. Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.
A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. Ark.Code Ann. § 5-14-103(a)(3)(A) (Repl.2013). “Deviate sexual activity” is defined as “any act of sexual gratification involving the penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person.” Ark.Code Ann. § 5-14-101(l)(B) (Repl.2013). A person commits the offense of second-degree sexual assault if he, being eighteen years of age or older, engages in sexual contact with another person who is less than fourteen years of age and not the person’s spouse. Ark.Code Ann. § 5-14-125(a)(3) (Repl.2013). “Sexual contact” is defined as “any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female.” Ark. Code Ann. § 5-14-101(10) (Repl.2013).
We reject Thompson’s arguments. Both victims testified that Thompson penetrated their vaginas with his penis, and a rape victim’s uncorroborated testimony describing penetration may constitute substantial evidence to sustain a conviction of rape, even when the victim is a child. Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008). The rape victim’s testimony need not be corroborated, and scientific evidence is not | firequired. Kelley v. State, 375 Ark. 483, 292 S.W.3d 297 (2009). Thompson’s argument that the victims are not credible was an issue for the jury to decide. Morgan, supra.
Finally, regarding his age when the ofi fenses occurred. Officer Samuels’s testimony established that Thompson was between seventeen and twenty years old over the course of time that he sexually abused J.C., so the jury could have reasonably concluded that at least two of the sexual assaults occurred after Thompson turned eighteen. In addition, Officer Firsby testi- fíed that Thompson was nineteen at the time of KW.’s rape. No rebuttal evidence was presented. Therefore, we hold that substantial evidence supports Thompson’s convictions.
II. Motion for Severance
Thompson was charged in CR-2012-709-1 on 9 May 2012. In July 2012, Thompson filed a notice of his intent to raise mental disease or defect as a defense and asked the court to suspend the proceedings pursuant to Ark.Code Ann. § 5-2-305 (Supp.2011). In October 2012, Dr. Robin Ross performed a forensic evaluation of Thompson and diagnosed him with mild mental retardation with a full scale IQ of 62. Dr. Ross concluded that Thompson (1) had a mental defect, and (2) lacked the capacity to assist effectively in his own defense. As a result, Thompson was committed to the Department of Human Services “for detention, care, and treatment until restoration of fitness to proceed.”
In May 2013, Dr. Richard Back examined Thompson and also found that Thompson had a mental defect, namely retardation, with a full scale IQ of 53. Back also opined that Thompson did not have the capacity to appreciate criminality of his conduct, |7to conform his conduct to requirements of law, or to engage in purposeful conduct. In July 2013, however, Dr. Michael Simon performed another evaluation at the Arkansas State Hospital; Dr. Simon agreed that Thompson had a mental defect (mild mental retardation), but opined that Thompson did not lack the capacity to understand the proceedings against him, appreciate the criminality of his conduct, conform his conduct to the requirements of the law, or form the required culpable mental state. Dr. Simon also noted that recent testing rated Thompson’s IQ at 64. After a competency hearing in November 2013, Thompson was declared fit to proceed.
On 17 March 2014, the State filed a motion for continuance, explaining that the State intended to charge Thompson with additional charges “that involve the same motive, common scheme or plan,” and requesting that the new charges be tried at the same time as the current charges in CR-2012-709-1. The motion was granted, and on April 29, Thompson was charged in CR-2014-776-1 with one count of rape.
Thompson filed a notice of his intent to raise mental disease or defect as a defense to the new charge and asked the court to suspend the proceedings pursuant to Ark.Code Ann. § 5-2-305. Thompson also filed a motion to sever the two cases, arguing that the accused acts underlying the two cases “are not connected in their commission nor is there a common element of substantial importance in the commission of the two crimes.” Because there was no single scheme or plan, he argued, he was entitled to severance under Rule 22.2 of the Arkansas Rules of Criminal Procedure. Additionally, Thompson argued that the cases should be severed because his mental status with regard to the 2014 charge had not been addressed by any mental-health professional.
lsThe court heard arguments on the motions in May 2014 and questioned what had changed since the time Thompson had been declared competent to proceed in November 2013 other than the additional charges being filed. The State argued that nothing had changed, that both cases involved similar acts and circumstances, and that, under the pedophile exception, the evidence in one case would be admissible in the other case, so severance was not required. In its ruling, the court found:
I think clearly because the evidence in each case of the other conduct or alleged conduct of the Defendant would be ad missible in the respective cases, I think that standing alone would be reason to not grant the motion to sever. However there may well be, it appears there is similar conduct or alleged conduct on the part of the Defendant and clearly on the issue of lack of mistake or a possible plan, again, the evidence of his alleged conduct would be admissible so for all of those reasons I’ll deny the Motion to Sever[J
The decision of whether to grant a defendant’s motion for severance of two or more offenses lies within the circuit court’s discretion, and this court will not reverse absent an abuse of discretion. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). Where, however, the offenses are joined solely on the basis that they are of the same or similar character, a defendant has an absolute right to their severance. Id. Rule 22.2 of the Arkansas Rules of Criminal Procedure provides further that the circuit court should grant a motion to sever if necessary for a fair trial of each offense. Our supreme court has held that when each victim’s testimony would be admissible in the trial of the other to show a defendant’s intent, motive, or common scheme or plan, then there is no abuse of discretion in refusing to sever two cases. Parish v. State, 357 Ark. 260, 163 S.W.3d 843 (2004); see also Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992) (holding that the |9circuit court did not abuse its discretion in refusing a motion to sever separate charges of rape committed against the appellant’s two nieces).
Here, Thompson argues that all the psychiatric examinations introduced before the circuit court had focused on his mental status at the time of the charges alleged in CR2012-709 and that the cases should have been severed so that his mental state at the time of the charges alleged in CR-2014-766-1 could be determined. He also asserts that the two cases involved separate and distinct crimes, with ■ no single plan or scheme, so he was entitled to his right of severance under Rule 22.2.
Thompson’s Rule 22.2 argument is mistaken given the cases involving Rule 404(b) evidence. See Parish, supra, and Lukach, supra. Thompson conceded below that the victims’ testimony would be admissible under Rule 404(b) if the charges were tried separately. His argument that he was entitled to a second mental-health evaluation is likewise mistaken, as a defendant is not automatically entitled to a second evaluation simply because, after the first evaluation, he raises the defense of mental defect or mental incapacity or contests the first evaluation. Avery v. State, 93 Ark. App. 112, 217 S.W.3d 162 (2005). Whether a second mental evaluation is necessary is within the circuit court’s discretion to determine. Id. In this case, the crimes occurred during the same time frame, and the circuit court correctly noted that there had been no change in Thompson’s mental status since the November 2013 determination that he was fit to proceed. Thus, we hold there was no abuse of discretion in the circuit court’s denial of the motion for severance.
III. Motion to Suppress
|inOn 7 March 2012, Thompson was interviewed by Detective Samuels. In that interview, Thompson agreed that “something inappropriate” had happened between him and J.C., and he later admitted to touching her vagina with his penis and ejaculating on her. In November 2013, Thompson filed a motion to suppress this statement, arguing that, due to his mental disability, he could not understand his Miranda rights and the consequences of waiving them, so his statement was involuntary and inadmissible.
A hearing on the motion was held in March 2014. Detective Samuels testified that he advised Thompson of his Miranda rights by- reading them out loud while Thompson followed along. Samuels stated that Thompson responded to his questions and appeared to understand what was being said. Samuels explained that he had Thompson read aloud the last paragraph on the Miranda rights form, which stated: “I have read the statement of my rights and I understand what my rights are. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.” Samuels said that Thompson appeared to understand what that paragraph meant and that Thompson initialed each of his rights on the form and signed and dated it at the bottom. Samuels agreed that, to the best of his knowledge, Thompson’s statement was given freely and voluntarily. On cross-examination, Samuels described Thompson as “slower intellectually than others” but still capable of understanding what is being asked. On redirect, Samuels testified that he did not coerce or threaten Thompson in any way and reiterated that Thompson had read aloud the last paragraph on the Miranda rights form and agreed with that statement.
_|^Thompson argued that under Ark. Code Ann. § 5-4-618 (Repl.2013), an IQ of 65 or below creates a presumption of mental retardation, and the mental evaluations performed after his arrest rated his IQ in a range from 53 to 64. He asserted that the presumption “had not been and cannot be rebutted” and that he was “effectively unable to intelligently, knowingly waive any right that he has.” Thus, he argued, his statement should be suppressed.
The State responded that Thompson had already been found competent to stand trial, that he performed poorly on the mental evaluations because he did not try, and that Detective Samuels had done a good job of explaining to Thompson his rights and giving him ample opportunity to ask questions. The State asserted that Thompson “does understand what is going on” and requested that the motion to suppress be denied. The court took the matter under advisement and, at a later hearing in May 2014, denied the motion to suppress, stating that “the State met its burden on that issue.” The State later introduced an audio recording of the interview, as well as the transcript, during its case-in-chief.
A statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily. Bell v. State, 371 Ark. 375, 266 S.W.3d 696 (2007). In Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003), our supreme court clarified the appropriate standard of review for cases involving a circuit court’s ruling on the voluntariness of a confes- . sion — we make an independent determination based upon the totality of the circumstances. We review the circuit 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 the appellate court. Clark v. State, 374 Ark. 292, 287 S.W.3d 567 (2008).
To determine whether a waiver of Miranda rights is voluntary, knowing, and intelligent, we look to see if the statement was the product of free and deliberate choice rather than intimidation, coercion, or deception. Flanagan v. State, 368 Ark. 143, 243 S.W.3d 866 (2006). 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. Id. We will reverse a circuit court’s ruling on this issue only if it is clearly against the preponderance of the evidence. Id. Evaluating the credibility of witnesses who testify at a suppression hearing about the circumstances surrounding an appellant’s custodial confession is for the circuit court to determine, and this court defers to the circuit court in matters of credibility. Shields v. State, 357 Ark. 283, 166 S.W.3d 28 (2004).
As mentioned, Thompson argues that because of his mental retardation, he lacked the capacity to understand or waive his Miranda rights when interviewed by Detective Samuels, so all his statements were involuntary and inadmissible. But our supreme court has held that while mental capacity is a factor we consider, it alone is not sufficient to suppress a confession. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996). | ^Likewise, a low score on an intelligence-quotient test does not mean that a suspect is incapable of voluntarily making a confession or waiving his right. Id.
In reviewing the totality of the circumstances, we also note that Thompson was twenty-four years old when he gave his statement and had a high-school education. Detective Samuels testified that Thompson appeared to understand his rights and gave his statement after voluntarily waiving those rights. Thompson also signed, dated, and initialed the Miranda rights form and .never indicated that he did not understand his rights. Based on these points, Misskelley, supra, and our deference to the circuit court in matters of credibility, we hold that the denial of the motion to suppress was not clearly against the preponderance of the evidence.
TV. Admission of Dr. Ross’s Forensic Evaluation
As explained previously, in October 2012, Dr. Robin Ross performed a forensic evaluation of Thompson and diagnosed him with mild mental retardation with a full scale IQ of 62. Dr. Ross concluded that Thompson (1) had a mental defect, and (2) lacked the capacity to assist effectively in his own defense. Dr. Ross performed another evaluation of Thompson in January 2013, in reference to another criminal charge not at issue in this appeal, and concluded that while Thompson did have mild mental retardation with a full scale IQ of 62, he did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Dr. Ross also noted that her opinion of Thompson had changed since October 2012:
I am not sure how to explain the difference in his test scores; however, I do know that someone cannot test smarter than they actually are, and it would be my opinion that his full effort was given today and that a better | uassessment of his actual level of functioning concerning standing trial is seen in today’s results and not the results in October of 2012.
At a motions hearing in May 2014, the State announced that Dr. Ross had moved to Arizona and would not be called as a material witness. Defense counsel stated his intention to file a motion to restrict any reference to Dr. Ross’s reports, and the court told counsel to file a formal motion if he wished but “I think we have an understanding that no reference will be made to her examination or reports.”
On 3 June 2014, Thompson filed a motion in limine asking that the January 2013 • report be excluded because Dr. Ross would be unavailable for cross-examination but that Dr. Ross’s October 2012 report be admitted into evidence because it was “crime specific” to CR-2012-709-1. Immediately before trial, the circuit court denied the motion and reiterated that “neither party shall mention or make reference to Dr. Ross’s examination, reports, comments, [or] statements.”
On appeal, Thompson contends that the court’s denial of his motion in limine prevented him from offering evidence “in support of [his] statutorily plead [sic] defenses” and denied him a fair and impartial trial. First, Thompson has provided no convincing argument or citation to authority to explain why the October 2012 report should have been admitted when the January 2013 report was properly excluded. We do not consider arguments without convincing argument or citations to authority. See MacKool v. State, 2012 Ark. 287, 423 S.W.3d 28. Second, if Thompson wished to introduce the October 2012 report, he had to call Dr. Ross as a material witness in his own case-in-chief, which he did not do.
|1sCircuit courts have broad discretion in the admission of evidence, and a circuit court’s ruling on the admissibility of evidence will not be reversed absent an abuse of discretion. See Vance v. State, 2011 Ark. 392, 384 S.W.3d 515. Given these facts, we hold that Thompson has not established that the circuit court abused its discretion by not admitting Dr. Ross’s October 2012 report.
V. Rape-Shield Statute
On 9 June 2014, Thompson notified the State that he intended to call Jim Hill as a witness. According to Thompson, Hill would “confirm sexual activity” between K.W. and her boyfriend. The State responded that the evidence is inadmissible pursuant to Ark.Code Ann. § 16-42-101 (Repl.1999). At an in-camera hearing held after the first day of the trial, Thompson argued that Hill, a friend of K.W.’s boyfriend, would testify that K.W. and her nineteen-year-old boyfriend were having sex. He argued that the testimony was relevant because both K.W. and her boyfriend denied having intercourse. Thompson’s theory was essentially that K.W. had invented this story about Thompson assaulting her to explain to her mother why she was no longer a virgin.
The State first responded that the hearing was untimely and that there was no good cause for allowing it. It also argued that Thompson could not show that the alleged prior' sexual conduct clearly occurred, that the alleged prior conduct did not closely resemble the alleged crime, that the alleged prior conduct was not relevant or necessary to Thompson’s case, and that the prejudice of such evidence outweighed any probative value.
|1fiThe court found that there was “real strong argument” that the motion to admit Hill’s testimony was not timely, but the court ruled on it nonetheless. The court found that Hill’s testimony had “very little, if any, independent relevance on the issues before the court” and that “the prejudicial effect of such evidence would clearly outweigh any remote probative value.” So, Thompson was not permitted to present Hill’s testimony at trial.
Arkansas Code Annotated section 16-42 — 101(b) provides:
In any criminal prosecution under § 5-14-101 et seq. or § 5-26-202 ... opinion evidence, reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct with the defendant or any other person, evidence of a victim’s prior allegations of sexual conduct with the defendant or any other person, which allegations the victim asserts to be true, or evidence offered by the de fendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegations is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.
The purpose of the rape-shield statute is to shield victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges pending, paraded before the jury and the public when the conduct is irrelevant to the defendant’s guilt. Stewart v. State, 2012 Ark. 349, 423 S.W.3d 69. A circuit court is vested with wide discretion in deciding whether evidence is relevant and admissible, and we will not overturn that decision absent clear error or a manifest abuse of discretion. Id.
On appeal, Thompson argues that Hill’s testimony would have revealed a “lack of credibility and untruthfulness” in KW.’s testimony and that, while inflammatory, its probative value outweighed any prejudice. He also argues that Ark.Code Ann. § 16-42fl 17101 does not apply “to charges that are a violation of a minor.” The State counters that Thompson’s argument is not preserved because he failed to proffer Hill’s testimony for the record, that Thompson failed to file the required written motion before trial, and that the circuit court correctly ruled that Hill’s testimony was irrelevant and overly prejudicial.
As to Thompson’s violation-of-a-minor point, the argument is based on the holding in Donihoo v. State, 325 Ark. 483, 931 S.W.2d 69 (1996), which did hold that the rape-shield statute does not apply to charges for violation of a minor. But Thompson was charged with rape, not violating a minor, and the rape-shield statute clearly applies to a rape charge. Setting aside any timeliness issue, on the rape-shield point, we disagree that Thompson failed to make a sufficient proffer of Hill’s anticipated testimony. But that does not change the legal fact that the circuit court did not abuse its discretion by deciding that Hill could not testify given the proffered testimony. In Gaines v. State, the Arkansas Supreme Court stated that “virginity is not relevant per se in a rape case” and that “evidence of prior consensual sexual conduct is inadmissible unless such prior sexual conduct took place with the accused and, if admitted, the testimony is allowed only to show that consent may have been given.” 313 Ark. 561, 567, 855 S.W.2d 956, 959 (1993). Having reviewed the record of the in-camera hearing, the case law, and the rapeshield statute itself, we hold that the circuit court did" not abuse its discretion in deciding that Hill’s anticipated testimony was either irrelevant or unduly prejudicial.
VI. Failure to Quash the Jury Panel
Before jury selection on 11 July 2014, Thompson objected that there were not any black jurors in the jury pool. He stated that he was making an “extremely broad | ^objection” under Batson v. Kentucky and that “[w]e just need some black representation on that jury panel.” The court replied that it was not, at that point, a Batson issue; that the jury panel “was drawn in strict compliance with the statutes relating to the selection and summonsing of veniremen”; and that Thompson’s motion was denied. At the close of the State’s case, Thompson renewed his objection, which the court again ruled was not a Batson issue and characterized it as an attempt to quash the jury panel, which the court noted was untimely but nonetheless was denied.
We will reverse a circuit • court’s denial of a motion to quash a jury panel only when there is a manifest abuse of discretion. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002). Although selecting a petit jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to a jury trial, nothing requires that the petit jury mirror the community and reflect the various distinctive groups in the population. Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996). To quash a jury panel based upon its racial make-up, the moving party must prove that people of a certain race were systematically excluded from the panel. See Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007). To establish a prima facie case of deliberate or systematic exclusion, a defendant must prove that: (1) the group alleged to be excluded is a “distinctive” group in the community; (2) the representation of this group in venires from which the juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Thomas v. State, 370 Ark. 70, 257 S.W.3d 92 (2007). The defendant must prove systematic exclusion of members of his racial group from the venire; only after making a prima facie case by establishing these three elements does the burden shift to the State to justify its procedure. Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996).
On appeal. Thompson argues that the circuit court erred in failing to remove the entire jury pool and that because there were no black jurors in the jury pool, a prima facie case is presented that racial discrimination has occurred. The State counters that Thompson only argued that there were no black jurors m the jury pool, which met the first factor listed above, but he failed to offer any proof on factors two and three — namely that representation of this group in the jury pool was not fair and reasonable in relation to the number of such persons in the community or that this underrepresentation was due to systematic exclusion of the group in the jury-selection process.
We find no abuse of discretion by the circuit court. Thompson has failed to provide any evidence of a prima facie case of racial discrimination, and the primary case he relies on. Williams v. State, 254 Ark. 799, 496 S.W.2d 395 (1973), is distinguishable. There, the jury commissioners simply went down the list of qualified electors of the county and selected a jury panel from among individuals with whom they were personally acquainted, and because the commissioners were not as widely acquainted with blacks as with whites in the involved area, the result was a disparity between the races in jury selection. Thus, our supreme court held that the jury which tried the defendant was not a legally constituted jury.
lanln this case, the court stated that the-jury selection was done in strict compliance with the relevant statutes, which generally provide for a random-selection process. See Ark.Code Ann. § 16-32-103 (Supp.2013). And Thompson has failed to challenge that selection process or its result with any evidence that the jury selected was not fair and reasonable in relation to the number of such persons in the community. The circuit court did not abuse its discretion in denying the motion to quash.
Affirmed.
Virden and Hixson, JJ., agree.
. 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Under Batson, a prosecutor in a criminal case may not use peremptory strikes to exclude jurors solely on the basis of race. | [
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PER CURIAM
|Jn 2001, petitioner James E. Smith was found guilty by a jury of two counts of rape for engaging in sexual intercourse with his girlfriend’s daughters when they were both under the age of fourteen. Petitioner testified at trial that he had sex with the victims, but he contended that they were eighteen and twenty years old when the acts occurred and that both had consented. Petitioner was sentenced to two consecutive terms of twenty years’ imprisonment. The Arkansas Court of Appeals affirmed. Smith v. State, CR-02-228 (Ark.App. Jan. 8, 2003) (unpublished) (original docket no. CACR 02-228).
After the judgment was affirmed, petitioner sought postconviction relief in the trial court in a pro se petition pursuant to Arkansas Rule of Criminal Procedure 37.1 (2001). The petition was denied, and we affirmed the order. Smith v. State, CR-05-294 (Ark. Feb. 23, 2006) (unpublished per curiam).
In 2012, petitioner filed in this court a pro se petition, approximately 200 pages in length, pto reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. The petition was denied. Smith v. State, 2012 Ark. 403, 2012 WL 5304089 (per curiam).
In 2014, petitioner filed a second petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis, which was also approximately 200 pages in length. In the petition, petitioner repeated most of the claims for relief alleged in the first petition, albeit in somewhat different language, pertaining to inconsistent statements made by the victims. We dismissed the petition on the ground that it was a successive petition that repeated the allegations contained in the first such petition and lacked merit. Smith v. State, 2014 Ark. 246, 456 S.W.3d 731 (per curiam).
On March 12, 2015, petitioner filed his third coram-nobis petition that is now before us, which is also approximately 200 pages in length. Again, petitioner repeats the assertions contained in the first and second petitions, contends that the prosecution fabricated evidence, argues that the evidence against him was insufficient to sustain the judgment, and alleges that there were errors made by the trial court in the admission of evidence.
We first note that a petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Henderson v. State, 2014 Ark. 180, 2014 WL 1515878 (per curiam); Cloird v. State, 2011 Ark. 303, 2011 WL 3135958 (per curiam).
A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Pitts v. State, 2014 Ark. 132, 2014 WL 1096185 (per curiam); Martin v. State, 2012 Ark. 44, 2012 WL 310981 (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 trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. Camp v. State, 2012 Ark. 226, 2012 WL 1877371 (per curiam). To warrant a writ of error coram nobis, a petitioner has the burden of bringing forth some fact, extrinsic to the record, that was not known at the time of trial. Cloird, 2011 Ark. 303, 2011 WL 3135958. Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Cherry v. State, 2014 Ark. 81, 2014 WL 689026 (per curiam).
In the instant petition, petitioner raises some claims of trial error and argues that the evidence was insufficient to sustain the judgment, but the majority of the allegations rest on petitioner’s claim that the victims were not truthful in their testimony at trial and in their statements to the police and that the inconsistencies in the victims’ statements proves that he was innocent. He also contends, as he did in the original petition, that the prosecution withheld the statements of the victims from the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), thereby denying the defense the opportunity to compare the statements to the police report concerning the offenses. The same handwritten statements by the victims that were appended to the first and second coram-nobis petition are appended to this latest petition.
As with the first and second petitions, petitioner has not stated a ground for the writ. This court has previously recognized that a writ of error coram nobis is available to address errors found in only 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. Philyaw v. State, 2014 Ark. 130, 2014 WL 1096201 (per curiam); Camp, 2012 Ark. 226. Allegations of a Brady violation fall within one of the four categories of error that this court has recognized. Camp, 2010 Ark. 226, 364 S.W.3d 7; Hogue v. State, 2011 Ark. 496, 2011 WL 5589257 (per curiam). The fact that a petitioner alleges a Brady violation alone is not sufficient to provide a basis for error-coram-nobis relief. Camp, 2010 Ark. 226, 364 S.W.3d 7. Assuming that the alleged withheld evidence meets the requirements of a Brady violation and is both material and prejudicial, in order to justify issuance of the writ, the withheld material evidence must also be such as to have prevented rendition of the judgment had it been known at the time of trial. Id. To merit relief, a petitioner must demonstrate that there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the information been disclosed at trial. Id. It is a petitioner’s burden to show that the writ is warranted. Scott v. State, 2009 Ark. 437, 2009 WL 3047239 (per curiam). This court will grant permission for a petitioner to proceed with a petition for writ of error coram nobis only when it appears that the proposed attack on the judgment is meritorious. Hogue, 2011 Ark. 496, 2011 WL 5589257. We are not required to accept the allegations in a petition for writ of error coram nobis at face value. Charland v. State, 2013 Ark. 452, 2013 WL 5968924; Goff v. State, 2012 Ark. 68, 398 S.W.3d 896 (per curiam).
The evidence contemplated in Brady is “evidence material either to guilt or punishment.” 373 U.S. at 87, 83 S.Ct. 1194. The Court later defined the test for material evidence in the context of a Brady violation as being “whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would be different.” Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also Lacy v. State, 2010 Ark. 388, 377 S.W.3d 227. To establish a Brady I ¡^violation, three elements are required: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; (3) prejudice must have ensued. State v. Larimore, 341 Ark. 397, 404,17 S.W.3d 87, 91 (2000); see Lee v. State, 340 Ark. 504, 11 S.W.3d 553 (2000). This court has recognized that the withholding by the prosecution of material evidence is a ground for reinvesting jurisdiction in the trial court to consider a writ of error coram nobis. See Buckley v. State, 2010 Ark. 154, at 1, 2010 WL 1255763 (per curiam).
We have, already rejected petitioner’s arguments concerning the victims’ allegedly inconsistent statements. We further note, as we did when the prior petition based on the same claims was dismissed, that the evidence adduced at trial against petitioner was overwhelming. Both victims testified that petitioner had sexual intercourse with them frequently when they were in elementary school, below the ages of twelve. Petitioner conceded in cross-examination at trial that he had engaged in sexual relations with the victims but only after each one seduced him within a two-week period when they were adults over the age of eighteen. It was the jury’s task to assess the credibility of the witnesses. See Laswell v. State, 2012 Ark. 201, 404 S.W.3d 818. The significance of the inconsistent statements that petitioner alleges were hidden from the defense must be weighed against the totality of the evidence to determine if the statements at issue would have been such as to have prevented rendition of the judgment had the existence of those documents been known at the time of trial. Goff, 2012 Ark. 68, 398 S.W.3d 896; Sanders v. State, 2011 Ark. 199, 2011 WL 1687837 (per curiam). We consider the cumulative effect of the allegedly suppressed evidence to determine whether the evidence that was alleged to have been suppressed was | (¡material to the guilt or punishment of the defendant. Goff, 2012 Ark. 68, 398 S.W.3d 896. Here, the victims’ testimony was sufficient to establish that they were raped at ages well below fourteen. While petitioner asserts repeatedly that there were myriad inconsistencies between the victims’ handwritten statements and their testimony at trial, petitioner has not shown that any specific inconsistency between the statements and the testimony was substantial enough to undermine the victims’ testimony such that the judgment of guilt would not have been rendered. Petitioner has not demonstrated a Brady violation that warrants issuance of a writ of error coram nobis.
As he did in the first and second petitions, petitioner argues throughout his petition that the inconsistent statements of the victims rendered the evidence insufficient to sustain the judgment. The issue is not cognizable in a coram-nobis proceeding. Philyaw, 2014 Ark. 130, 2014 WL 1096201. The sufficiency of the evidence and the credibility of witnesses are matters to be addressed at trial. Id.
The petition before us also contains a number of assertions that amount to allegations of mere trial error. Such allegations by their very nature constitute issues known at the time of trial that were addressed, or could have been addressed, at that time. Such claims are not grounds for the writ. Anderson v. State, 2012 Ark. 270, 423 S.W.3d 20 (per curiam). This applies even to issues of trial error of constitutional dimension that could have been raised in the trial court. Travis v. State, 2014 Ark. 87, 2014 WL 689035 (per curiam).
After examining the claims raised in this third petition, we conclude that petitioner’s successive application for coram-nobis relief in this court is an abuse of the writ in that he 17alleges no fact sufficient to distinguish his claims in the instant petition from the claims in the first or second. He did not establish in the first or second petitions that there was any basis for the writ, and his reassertion of largely the same claims in the third petition is a misuse of the remedy. Accordingly, the petition is dismissed. Rodgers v. State, 2013 Ark. 294, 2013 WL 3322344 (per curiam) (“[A] court has the discretion to determine whether the renewal of a petitioner’s application for the writ, when there are additional facts presented in support of the same grounds, will be permitted.”); Jackson v. State, 2010 Ark. 81, 2010 WL 1006491 (per curiam) (citing Jackson v. State, 2009 Ark. 572, 2009 WL 3788895 (per curiam)); see also United States v. Camacho-Bordes, 94 F.3d 1168 (8th Cir. 1996) (res judicata did not apply to bar a second petition for writ of error coram nobis, but abuse-of-writ doctrine was applied to subsume res judicata).
Petition dismissed.
. The petition was assigned the docket number for the direct appeal of the judgment of conviction. | [
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Hart, J.
(after stating the facts). The decree was wrong for two reasons. In the first place, where a party desires to rescind his contract for the purchase of land on the ground of fraud, he must act promptly after discovering the facts. The plaintiff, Harris, received a deed from Fleming in the early part of January, 1918, and immediately moved on the farm. A part of the consideration for the purchase was a house and lot in Malvern, Arkansas, which Harris conveyed to Fleming. Fleming went into possession of the house and lot. Harris did not bring this suit until the 3d day of November, 1918. This, under the circumstances just recounted, was an unreasonable time. During all this time, Harris treated the land as his own and made no complaint to Fleming on the ground that there was a misrepresentation as to the twenty acres of timber land. Harris could not wait to experiment and see whether the transaction might not after all turn out well. Acquiescence, under the circumstances of this case, is fatal to his right of recovery, if any before subsisted. It was his duty to have moved in a reasonable time, and, not having done so, he could not speculate for a whole crop season upon whether or not his purchase might turn out well, and then, when he believed that it did not, come into a. court of equity ahd claim a rescission of the contract. Fitzhugh v. Davis, Admx., 46 Ark. 337.
In the next place, a careful consideration of the whole record leads us to the conclusion that Fleming did not intend to deceive Harris as to the boundary line of the farm. It is true Harris testified that the principal inducement to buy the farm was the fact that he got the twenty acres of timber land in question, but he is contradicted in this respect by Fleming and by all the circumstances in the case. We think a preponderance of the evidence shows that he was buying the eighty-acre farm for $1,600. There were a house and barn on the premises in a good state of repair worth $1,100. According to Harris ’ testimony there were thirty acres of land in cultivation. According to the testimony of other witnesses there were nearly fifty acres in cultivation. Harris does not attempt to place any value on the timber. The testimony of the other witnesses is that the twenty acres were wet and boggy and that but little of the twenty acres was susceptible of cultivation. Hence it will be seen that the main object of Harris was to buy the eighty-acre farm. He got all the land which his deed called for, and we are of the opinion that under the circumstances the representations made by Fleming as to the boundary line were but a mere expression of an opinion by him as to where his boundary line extended and that they were not representations that the boundary line as a matter of fact did extend to the creek.
It follows that the decree will be reversed, and the cause remanded with directions to dismiss the complaint of the plaintiff for want of equity. | [
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Humphreys, J.
This suit was instituted by petition of appellants against appellees, as commissioners of Greene-Craighead Drainage District No. 1, in the Greene Chancery Court, to enjoin them from issuing bonds, or other obligations, attempting to fix any liens on any lands in the district, and from awarding any contract or contracts for the construction of levees, drains or bridges in said district.
The bill, in addition to others, contained the following allegations: That an attempt was made to create the drainage district in question by Act No. 413 of the Acts of the General Assembly of the State of Arkansas for the year 1919; that, according to the plans and estimates of the engineers, the estimated cost for caring for the water, which descends upon the surface of the land from falling rains and snows, was approximately $85,000; that, in addition to these plans and specifications, there was incorporated in the engineer’s plans and specifications a system of levees along the St. Francis Biver, to prevent overflows therefrom, the cost of which was estimated at approximately $200,000; that appellee took a total snm of $328,190, representing an approximate cost of the total improvement, including the levee scheme, as a basis for assessing benefits against the lands in the district. The bill is quite long, and the additional allegations are fairly summarized in the brief of appellant, as follows:
“1. That Special Act No. 413 confers power only to effect reclamation against surface water and not against channel water of the St. Francis Biver; that $200,000 of the assessments are appropriated to build levees to confine the channel waters of the river within the charnel; and that said expenditure of $200,000 for said purpose is unauthorized and beyond the scope of said special act.
“2. That said levees will not benefit appellants’ lands, because (a) the only reason for their construction is that it is the opinion of the engineers that when the Mingo Swamp is drained in Missouri that the water level in the St. Francis Biver will be raised to such height as to require said levees; but that in fact the drainage of Mingo Swamp will not raise the water level at all, and that said levees will be wholly unnecessary; (b) even if the draining of the Mingo Swamp should raise the water level in the river the construction of the proposed levees would not benefit, but would injure, appellant’s lands because when constructed these proposed levees would make a dam which would hold all surface water upon their lands and would form a lake which would inundate their said lands — even if said levees should protect their lands from the channel waters of the river they would inundate their said lands by collecting the surface water and throwing it back upon said lands.
“3. That these lands are in five other improvement districts besides that involved in this case; that practically all said lands are mortgaged for one-half their value; that the aggregate of these fixed charges in many instances greatly exceeds the value of these lands; and that the annual income from these assessed lands will not be sufficient to pay the annual interest, annual assessments in improvement districts and annual general taxes, thus working a complete and total confiscation of the same.
“4. That no notice of the making, equalization, readjustment of assessments and damages was even given appellants.”
Appellee demurred to the bill for the alleged reason that it did not state sufficient facts to constitute a cause of action. The court sustained the demurrer and dismissed the bill for want of equity, from which an appeal has been duly prosecuted to this court.
It is insisted by appellants that Special Act No. 413, Acts of the G-eneral Assembly of 1919, did not confer power to construct levees along the St. Francis River so as to prevent its flood waters from overflowing the lands, in the district; that it was the purpose and intent of the act to authorize ditches, levees, etc., for the purpose of caring for surface water only, or such waters as diffused themselves over the surface of the ground from falling rains or snows. "We think it quite clear from a reading of the whole act that no intention was evinced by the Legislature to authorize the construction of an expensive levee system along the St. Francis River so as to prevent its channel waters at flood time from overflowing the lands in the district. The purpose for which the district was created is expressed in the following language, found in sections 2 and 23 of the act, and reads as follows:
“Said district is organized for the purpose of reclaiming said lands from surface water by the construction of the necessary ditches, drains and levees, and the straightening, widening and deepening of ditches already constructed in said territory. * * *
“The word ‘ditch’ as used in this act shall be held to include branch or lateral ditches, tile drain, levees, sluiceways, flood gates and any other construction work found necessary for the reclamation of wet and overflowed land.”
We do not think the word “levees” in the connection used, in the clause quoted, has reference to levees other .than those which may be constructed on the lower side of lateral ditches to retain the water in the laterals and force it into the main ditch, or ditches. We think, therefore, the surface waters intended by the act to be controlled by levees was such surface water only as diffused itself over the land from falling rains and snows, or such waters as flow over the surface from one body to another body of land, or such waters as may be characterized as “swamp” waters; and had no reference whatever to the building of levees to protect the lands against overflow from channel waters in flood time. Had it been the intention of the Legislature to authorize the construction of levees to protect the land against channel waters, it would have certainly evinced this intention by more accurate and definite language. Especially so, had it been intended that the major portion of the improvements were to be levees and not ditches. Certainly, at the time of the passage of the act the Legislature did not have in mind the flooding of the St. Francis Eiver by the drainage of Mingo swamp, located in Missouri, by a system of ditches toward and into the St. Francis Eiver, some sixty miles above the place selected for the construction of levees in the engineer’s plan. Certainly it was not in the mind of the Legislature to plan for protection against such a remote contingency at such a great expense. According to the allegations of the bill, the scheme of improvement is entirely unauthorized by the act creating the district. It is clearly within the province and jurisdiction of a chancery court to enjoin a sale of bonds or the award of contracts unauthorized by law, when the issuance of the bonds would cast a cloud upon the lands included -in the district.
Under this view of the case, we deem it nnnnecessary to pass upon or construe the other grounds of attack upon the act or proceedings thereunder.
For the error indicated, the judgment is reversed and the cause remanded with directions to overrule the demurrer to the bill. | [
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Wood, J.
Appellant was convicted of the crime of grand larceny in the stealing of three or four rolls of barbed wire. He complains that the court erred in overruling his motion for continuance, in which he set up that one Dan Slocum had been duly subpoenaed as a witness and was not present for the reason that he was in the service of the United States, and that the last information appellant had of him was that he was on the seas returning home. He set up that Slocum, if present, would testify that he heard the prosecuting witness say that the wire alleged to have been stolen was stolen on the 4th of July, 1918, whereas the witness Slocum would testify that he saw the wire at the place where the prosecuting witness Smith said it was stolen from, and he, Slocum, knew that the wire was moved from that place more than five days before July 4, 1918.
The indictment against appellant was returned on February 6, 1919, charging in apt words that the appellant stole the wire fencing to the value of $30 about June 10, 1918.
At the trial witness Boark testified that he and appellant moved the wire alleged to have been stolen some time in the summer of 1918, but he did not remember the date. Appellant claimed to own the wire and requested witness to assist him in moving it and told witness that he would give him $1.50 for his services.
Prosecuting witness Smith testified that he missed the wire on the morning of the 11th of July, 1918. Didn’t know how long it had been gone, as he left for his vacation on the 4th.
The court did not err in overruling the motion for continuance. It appears that the only purpose of the testimony of the absent witness was to contradict the testimony of the prosecuting witness Smith by showing that Smith had told Slocum that the wire was stolen on the morning of July 4, whereas, at the trial Smith testified that he missed the wire on the morning of July 11.
The indictment covered a period of three years before the date of its return by the grand jury. The precise day, therefore, within that period on which the wire was stolen is wholly immaterial. So, even if the prosecuting witness Smith did tell the absent witness that the wire was stolen on the 4th of July and this tended to contradict his testimony at the trial to the effect that he missed the wire on the 11th of July, this contradiction was immaterial ' because the material matter about which prosecuting witness Smith testified was that he missed the wire and that it was stolen within a period of three years prior to the indictment. The testimony of the prosecuting witness shows that he missed the wire on the morning of the 11th of July, but did not know how long before that it had been gone. The testimony of the witness Roark fixed the summer of 1918 as the time when the wire was taken.
The appellant also contends that there was no testimony to prove that the wire alleged to have been stolen was over the value of $10.
One of the witnesses testified that he knew what the market price of wire was in July, 1918. That he had been farming about forty years, and during that time had bought considerable wire, and had seen it bought and sold. That in July, 1918, he paid $5.50 per roll.
The testimony tended to prove, that three or four rolls of the wire were taken. There was, therefore, testimony to sustain the verdict.
Appellant urges that the court erred in permitting witness Boark to make the following statement: “And then about three or four days later the road foreman was asking me about it, and he asked me if I knew anything about it, and I told him that I did and told him what I knew about it.”
There was no prejudicial error in the ruling of the court in permitting the witness to make this statement. The statement does not contain anything prejudicial to the rights of the appellant. It at most was but a declaration of the witness that he had a conversation with the road foreman about it, but it does not show that the foreman said anything to the witness or that the witness said anything to the foreman that was in any manner prejudicial to the rights of the appellant.
Judgment affirmed. | [
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Smith, J.
The appellee, Fernandez, is a citizen and taxpayer of Fort Smith, and owned real estate in Paving District No. 5 in that city. This was an improvement district organized for the purpose of paving certain streets in that city, and assessments were made against the lands lying therein for the purpose of raising funds with which to pay for paving the streets in the improvement district. The assessments, were levied annually for several years, and when the last assessment had been collected there remained in the hands of the commissioners a surplus of about $22,000 after all cost of the improvement had been paid. Appellee had paid all the assessments levied against his property from the time the district was created, including the last assessments, whereupon he brought this suit against the mayor and commissioners of the city of Fort Smith, who, under the act under which Fort Smith adopted the commission form of government* were successors to the commissioners of the improvement district, for the purpose of having the surplus distributed among the property owners who had paid taxes.
A demurrer to the complaint was overruled, whereupon an answer was filed by the mayor and city commissioners, in which they alleged they were the legal successors of the commissioners of the original improvement district, and admitted that the improvement contemplated upon the original organization of the district had'been completed, but alleged the fact to be that all the affairs of the district could not be wound up until all outstanding assessments had been collected, as it could not be known prior to that time the sum to be divided among the taxpayers. That no provision had been made on the organization of the district for the maintenance of the pavements and that many of the streets were in bad repair and some of them almost impassable. That the city had no funds with which to repair the streets, and that necessary repair work could be done only by forming a new improvement district for that purpose or by using the surplus funds of the original district, and that an act had been passed by the General Assembly (approved April 1, 1919) authorizing the use of this surplus for the purpose of making these repairs.
The answer tendered to the court an offer of a full statement of the district’s finances, together with a statement of the delinquent taxes unpaid. The answer avowed the purpose to use the surplus as directed in the special •act of the General Assembly, unless the court should hold that, for any reason, the act did not confer that authority, in which event they prayed directions from the court in regard to the distribution of this surplus.
The court sustained a demurrer to that portion of the answer which recited the authority claimed under the special act of the General Assembly, holding it unconstitutional and void, and appointed a receiver to take charge of the funds of the district. The court held that, “Neither the said commissioners nor the said district have authority as such, nor can they derive authority from any order of the chancery court, to hold, handle or dispose of said funds unless the chancery court should deem it proper to constitute the personnel of said commissioners its own receiver under the qualification and affidavit and bond as required by law, and the court declines to appoint them receivers, because their attitude in this action is one of hostility in law to equitably return said money to its owners, but more particularly because they are defendants in the action, and further because the court wanted J. R. Chandler, the county treasurer of Sebastian County, as such receiver, relying upon and trusting his honesty, qualifications and integritv. ’ ’
The court apparently based its finding “of hostility in law to equitably return said money to its owners” upon the finding, also recited in the decree, that defendants had not applied to the chancery court for directions in regard to the disbursement of the funds in their hands, but had consented to and approved the introduction of the special act above referred to, as the decree also contained the finding that “the said commissioners and their predecessors had managed the affairs of said paving district in a business-like manner, free from fraud, and had sometimes theretofore consulted together to know what was the best to do with said money, and, being so advised, had contemplated filing a bill in equity for instructions, but that they abandoned that resolution, and consented to and approved the introduction of the special act of the Legislature of 1919, which was accordingly done.”
The receiver qualified and attempted to take charge of the fund, but defendants refused to turn it over, whereupon a citation for contempt issued, in response to which the defendants replied that they held the funds subject to the order of the court, and would pay them over as directed, and specifically disclaimed any intention to refuse to execute any order which the court might make, but recited that they desired to be heard in opposition to the court’s order in regard to the appointment of a receiver, as they were advised that that action was unauthorized by law. Upon the court’s direction they then turned the money over to the receiver.
Pursuant to the directions of the court, the receiver caused an audit to be made of the affairs of the district, employing expert accountants for that purpose, which audit was embraced in the report of the receiver. The court approved this report and ordered that “the whole sum of money now in the hands of said receiver and any that shall hereafter be collected by him be paid and distributed to the several land owners in such a just and equitable proportion to each as the court may hereafter find and declare,” and this appeal has been duly prosecuted from that order.
The majority of the court are of the opinion that the special act of the General Assembly is unconstitutional, as authorizing a diversion of funds collected for one purpose to be appropriated to another use, as an improvement district organized to construct streets has no authority to use funds collected for that purpose to thereafter appropriate any portion thereof for purposes of repair, and the special act did not confer that authority because it was not based upon the consent of the taxpayers of the city, as required by the Constitution. In other words, to create an improvement district for the purpose of building or repairing streets in a city, the consent of the taxpayers must first be obtained in the manner provided by law and the authority conferred by the original petition under which the district was formed could not be subsequently enlarged by legislative enactment to which the taxpayers had not consented.
But we are all agreed that the court erred in displacing appellants, and in appointing a receiver to take charge of the affairs of the district. It may be conceded that the testimony supports the finding made by the court below that appellants had abandoned their resolution to ask advice of the chancery court, and did in fact assent to the introduction and passage of the special act, and, but for the interposition of the chancery court, would have disbursed the fund as authorized by said act. But they were, nevertheless, under the law, the commissioners of the district, and, as such, were the officers designated by law to manage its affairs. The court was in error in assuming that the commissioners could be made subject to its orders, only by being appointed receivers of the court. On the contrary, they were subject to its orders as commissioners, and if they were about to make unauthorized or unlawful use of the district’s funds — as the court found — that action could have been prevented by appropriate orders of the court, and should have been prevented in that manner. In other words, the commissioners, as such, were as much amenable to the appropriate orders of the court as its receiver would have been; and we think there was neither authority, nor necessity, for the removal of the commissioners and the appointment of a receiver.
What we have just said is not in derogation of the right of the court to make appropriate orders, in limine, to prevent waste. Upon the contrary, the court has that right; but that right should have been exercised here by appropriate orders directed to the commissioners themselves, without displacing them.
It is provided by statute that whenever it shall not be forbidden by law and shall be deemed fair and proper in any case in equity, the court, judge or chancellor shall appoint some prudent person as receiver, who shall take an oath faithfully, impartially, diligently and truly to execute the trust reposed in him. Section 6342, Kirby’s Digest. And the court making this appointment must necessarily exercise a discretion, which will not be overturned by this court on appeal unless there appears to have been an abuse of that discretion; and this is especially true with reference to a decision by us of a controversy over the naming of a receiver, and learned counsel for appellee insist that the question of who should have been appointed receiver is the real question in the case, as they insist that the services of a receiver had become indispensable under the pleadings and testimony in the case.
We think, however, that the question is not who should have been appointed receiver, but, rather, did the court err in removing the commissioners'?
In 23 A. & E. Enc. of Law (2 Ed.), 1011, the law is announced as follows: “It may be stated as an undoubted general rule in this connection that a court of equity is reluctant to disturb the possession or control of a lawfully constituted trustee, and to supersede such authority by the appointment of a receiver. A trustee will not be displaced and a receiver appointed on slight or insignificant grounds. Thus it has been said that a court would not, at the instance of one of several parties interested in an estate, displace a competent trustee, or take the possession from him, unless he wilfully-or ignorantly permitted the property to be placed in a state of insecurity which due care or conduct would have prevented. And it would require a particularly strong case, it has been held, to warrant the appointment of a receiver of an internal improvement fund, created by the Legislature and vested in the governor and other State officers as trustees.”
On the following page the text continues: “Notwithstanding the reluctance of a court to supersede a trustee by the appointment of a receiver, if it appears that the trustee has been guilty of positive misconduct or waste, or an improper disposition of the trust estate, or that he has an undue bias towards one of two conflicting parties, or that the estate is liable to be wasted or destroyed, a proper case is made out for the appointment of a receiver.-’ ’
To the same effect see section 1510, Pomeroy’s Equity Jurisprudence, vol. 4 (4 Ed.); section 696, High on Receivers (4 Ed.). If this be the test as to ordinary trustees, how much stronger must be the showing required to remove from office persons who have a legal title to the office whose functions they are undertaking to perform; and, if it be conceded that the chancery court has the right, upon a proper showing, to remove such officers (which we do not decide), it must at least be said that such a case has not been made here.
No fraud or wilful misconduct is alleged or shown, nor does it appear that the commissioners were incapacitated or unwilling to execute the orders of the court, and we conclude, therefore, that the control and management of the affairs of the district should not, therefore, have been taken out of their hands, and for the error in doing so the decree of the court below is reversed and the cause remanded with directions to restore the fund to appellants.
HuMPP'ftEys, J., not participating, | [
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McCulloch, C. J.
J. M. Hughey, one of the appellants in this case, ran down and killed Tressa Lennox, a little girl between three and four years of age, while driving an automobile along a public road in Crawford County. The car belonged to J. W. Hansel, the other appellant in the case, and Hughey was driving the car as Hansel’s agent. This is an action instituted by appellee as administrator of the estate of Tressa Lennox to recover on two causes of action; one for the benefit of the estate of the decedent, and the other for the benefit of the parents of said decedent.
It is alleged in the complaint that at the time of the injury the child was traveling a footpath along the side of the road in company with another child about her own age and another girl about twelve years of age, and that Hughey negligently ran the car against this child and caused her death. The answer contained appropriate denials of the allegations of the complaint. There was a trial of the issues before a jury, which resulted in a verdict in favor of the plaintiff, assessing damages on the first count for the benefit of the estate of the decedent in the sum of $1,000, and on the other count in the sum of $2,000.
The following state of facts is deducible from the testimony, viewing it in the light most favorable to appellee :
The. child, Tressa Lennox, lived with her parents near the railroad station of Shibley, in Crawford County. There was a store at or near the station operated by a Mr. Brewer. Soon after the noon hour Tressa Lennox was sent to Brewer’s store, a short distance from her home, to make a small purchase for her father. She was accompanied by Margaret Conn, a very intelligent girl, twelve years of age, and her little brother, who was about the age of Tressa. The three, returning from the store, after having made the purchase, were walking along a footpath on the north side of the public road, Margaret holding one of the hands of each of the children. They were going westward along this footpath, and Hughey came along behind them driving the automobile and when he came within a distance of about 58 feet of the children the machine suddenly left the road and went over to the footpath and ran against Tressa Lennox and killed her. The other two children escaped uninjured. Margaret Conn testified that she had both of the children by the hand and that she succeeded in rescuing her little brother from the danger, but that the car struck Tressa and knocked her loose from her grasp before she could get her out of the way of the machine. The car struck the child violently and knocked her a considerable distance. Margaret Conn ran to the child after the car had passed over her and picked her up but appellant Hughey stópped the car and got out and took the child from Margaret’s arms and carried her back up to Brewer’s store. ■
The testimony with respect to probable suffering experienced by the child as the result of the blow came from Margaret Conn, so far as appellee’s side of the controversy is concerned, who testified that when she picked the child up she was crying and that she continued crying until after Mr. Hughey came and took her out of the witness’ arms. The child died about the time that Hughey reached the store and laid her down on the floor. It was proved by several witnesses that .the car left the roadway and moved along the footpath and that the child was struck while she was walking along or standing in the footpath. Mr. Brewer was standing on the porch at his store when the injury occurred, and he testified that he was looking at the car and the children at the time, and that he saw the car dart out suddenly from the road over to the path and that the car was running at a high rate of speed.
There was testimony adduced tending to show that Hughey was an inexperienced driver. At any rate we think that the testimony was sufficient to warrant the jury in finding that Hughey was guilty of negligence in operating the car, and that he is responsible for the injury inflicted.
Hansel is liable under the doctrine of respondeat superior, Hughey being his servant and agent in operating the car.
It is contended in the first place that the court erred in refusing to submit to the jury the question of contributory negligence on the part of the parents in permitting the child to travel along the public highway where the proof shows automobiles frequently move. Learned counsel for appellants rely on the case of St. Louis, Iron Mountain & Southern Railway Company v. Dawson, 68 Ark. 1, where it was held that parents suing for injuries to a child of tender age were barred by their own negligence in permitting the child to travel unaccompanied along a dangerous way and receive injuries as the proximate result of such negligence.
We do not think, however, that there was, in the present case, any evidence of contributory negligence sufficient to warrant a submission of that issue to the jury. There was testimony to the effect that a great many automobiles moved along this highway. Some of the witnesses expressed the opinion that they averaged more than fifty a day, but this little girl was not traveling alone. She was accompanied by another girl twelve years of age, who shows by her testimony that she is very intelligent and is capable of looking after the safety of her little companions. There was nothing especially dangerous about the situation which would have warranted the jury in finding that under those circumstances the parents were guilty of negligence in allowing the child to pursue such a short journey to the store. There was no occasion to cross the road, and the proof shows that there was a well defined footpath along the fence on the north side of the road, and that there was a space of about twelve feet between this footpath and the driveway. Certainly it is not negligence for an intelligent girl of twelve years to pursue a journey of that kind alone, and since this child, Tressa, was in care of the older girl, there is nothing, to justify a finding that it constituted negligence to permit her to go on the journey thus accompanied. The court was therefore correct in refusing to submit the question of contributory negligence to the jury.
Error of the court is assigned in refusing other instructions requested by appellants, but we think that the law of the case as stated in those instructions was fully covered by instruction No. 3, given at the request of appellee, which reads as follows:
“The defendants had the right to run their car upon the highways, but in so doing they must use due care and diligence not to injure other persons using the highway at the same time. It is the duty of a person operating- an automobile upon the highways to use due care to keep his automobile upon the highways; to use due care to keep his automobile under control, and he must possess reasonable skill in operating an automobile before he undertakes to operate said automobile upon the public thoroughfares or highways, if he fails to possess reasonable skill in operating the car or fails to exercise due care in operation of the car, that, constitutes negligence. Due care is such care as an ordinary person would use in operating an automobile upon the highway and lack-of this due care is negligence. Negligence is the failure to exercise that degree of care which an ordinarily careful person would use under the same or similar circumstances. ’ ’
Objection was made to that part of the instruction quoted above which states the law to be that a, person operating an automobile along a public highway “must' possess reasonable skill in operating an automobile before he undertakes” to do so upon the public highway. We are of the opinion that that part of the instruction is correct. An unskillful or inexperienced driver is not to be excused from liability for injuries inflicted because of Ms inexperience and unskillfulness. On the contrary, he should not frequent places where injury is liable to result from inexperience or unskillfulness in handling a car. When a person operates an automobile along a public highway frequented by other travelers, he assumes the responsibility for injuries resulting from his own unskillfulness in the operation of the car.
L. H. Kibler, a witness introduced by appellee, qualified as an expert in the operation of automobiles, and testified that a car running five miles an hour, with the machinery in fairly good working order, could be stopped in a distance of six or eight feet, and we think that the witness showed sufficient familiarity with the subject to qualify as an expert, and it was competent to show within what distance a car could have been stopped, since other proof shows that the car was driven 58 feet after it left the road, and some of the testimony tended to show that Hughey was driving about five miles per hour.
It is next insisted that there was no evidence of conscious suffering on the part of the child after she was struck by the automobile, and that for this reason the verdict was without evidence to sustain it, so far as relates to the recovery on the first count of the complaint.
We do not agree with counsel that there is entire absence of testimony tending to show that Tressa Lennox consciously suffered pain. Margaret Conn testified that as soon as the automobile passed over the body of the child she ran to the child and took her up in her arms, and that she was crying and continued to cry until Mr. Hughey got out of the car and took the child out of her arms. There was other testimony tending very strongly to. contradict tliis statement. Hughey testified that he did not himself take the child from the arms of Margaret Conn, but that he took the child up from the ground just as Margaret was about to take her up from the ground, and that she was not crying, nor did she give any other indication of conscious suffering. He testified that the child died just as he laid the body down on the floor at Mr. Brewer’s store. There was a physician who examined the body several hours after the death of the child, and he testified that from the wounds as he found them there could not have been any conscious suffering after the infliction of the injury. He testified, in other words, that there was total unconsciousness immediately resulting from the infliction of the injury, and that there could have been no pain endured by the child. The jury might have found, from the fact that the child was crying that she suffered pain for several minutes. It is not a case of entire absence of indications of suffering, as was the case in St. Louis, Iron Mountain & Southern Railway Company v. Dawson, supra, relied on by counsel for appellants. In that case the court said in the opinion that there was no testimony of any cries or moans on the part of the injured child. The very fact that the child was crying might have been, and doubtless was, accepted by the members of the jury as sure indication that there was conscious pain.
The time during which the child endured pain was, according to the undisputed evidence very short, and we are of the opinion that the recovery on that branch of the case is excessive. Of course, each case must to a certain extent stand upon its own peculiar facts, and we have reached the conclusion that the testimony in this case is not sufficient to warrant a recovery exceeding $250.
The contention is also made with respect to the recovery on the other branch of the case that the verdict was excessive, but after careful consideration we have reached the conclusion that the verdict on this branch of the case was not excessive. The child was healthy and intelligent, and even at the tender age of three years she was able to go on errands for her parents. The jury might have found that it was reasonably inferable that the child, during her minority, would be of substantial benefit to her parents, and that her services would be of sufficient value when reduced to present value to amount to the sum awarded. Much is left to the fair and intelligent judgment of the trial jury, as there is no exact standard by which damages in this sort of case can be measured.
The judgment of the court will, therefore, be modified by reducing the judgment on the first count to the sum of $250, with interest from the date of the rendition of the judgment below, and, as modified, the judgment will be affirmed. | [
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Smith, J.
In the complaint filed in this cause it was alleged that on March 4, 1914, appellant was the owner of certain lands, which she then conveyed to J. S. Matthews for the sum of $850, which said sum was secured by a deed of trust on said lands. That on January 6, 1916, Matthews, by quitclaim deed, conveyed the land to appellee, F. M. Arthur, who, on the .................. day of March, 1916, conveyed the same, by quitclaim deed, to one Andrews.
That default having been made by Matthews in the payment of the purchase money, a suit was brought to foreclose the deed of trust securing it, and a decree to that effect was obtained. The complaint proceeds to recite that the commissioner named in the decree sold the land, filed a report of sale, which was duly approved and confirmed, and that the commissioner had executed and delivered his deed, which had been duly approved by the court, to appellant, who was the purchaser af said foreclosure -sale, a copy of the deed being attached as an exhibit to the -complaint.
The complaint further alleged that “plaintiff further states that defendant, F. M. Arthur, failed to deliver up possession of said lands until January, 1918. That during the year 1917 defendant, without plaintiff’s knowledge and against her will and consent, retained possession of said above described lands, and rented or leased a part of same to one F. H. Barrett, and collected the rent for same to the amount of $150, and has converted same to his own use and benefit.” There was a prayer for judgment for $150.
A demurrer to this complaint was sustained, and the cause dismissed, and this appeal is from that order.
Appellee defends the action of the court upon several grounds. It is first insisted that the complaint shows Barrett, and not appellee Arthur, to he the occupant in possession of the land, and counsel, therefore, says: “Certainly, Barrett might by some way be sued for use and occupation of the farm, but by no law could Arthur be sued.” It is also asserted that the complaint does not allege appellant to be the owner of the lands, or that, if she ever had the title, she has not since conveyed it away; that the complaint does not allege that the lands had any rental value, or that appellant had been, deprived of their use, or, if so, that she had been damaged thereby.
It must be confessed that the complaint leaves something to be supplied by intendment; but it must also be remembered that its sufficiency is being tested on demurrer, and that when so tested every inference reasonably deducible therefrom must be considered. Sallee v. Bank of Corning, 122 Ark. 502. When so tested, we think it fairly appears that, the complaint has alleged that appellant is the present owner of the land by virtue of the commissioner’s deed, and was such owner during the occupancy for which she sues. The complaint does not specifically allege that the lands had a rental value; but it does allege that appellee collected $150 'on that account; and we think this is sufficient to allege that the lands did have a rental value. Of course, the sum collected by appellee is not conclusive of the amount of such value.
We conclude, therefore, that appellant has alleged facts entitling her to recover against the occupant, for in the case of Dell v. Gardner, 25 Ark. 134, the court, in construing the statute which has since become section 4700 of Kirby’s Digest, said: “It is not necessary, says the court in Hull v. Vaughan, that the- relation of landlord and tenant should be distinctly made out between the parties; if there is, in point of fact, an ownership on the one hand and an occupation on the other, that will suf fice; and this rule, so conducive to the ends of justice, we will adopt in this case, in which the entry appears to have been peaceable, and the occupation acquiesced in by the owners.” This doctrine has since been repeatedly reaffirmed.. Bright v. Bostick, 27 Ark. 55; Beardsley v. Nashville, 64 Ark. 240; Cooley v. Ksir, 105 Ark. 307.
Upon the proposition that the complaint shows Barrett, and not Arthur, to be the occupant, it suffices to say that appellant may elect, as she has done, to treat Barrett’s possession as that of Arthur, and may hold Arthur as the occupant, although his possession was by tenant. One is in possession of land whose tenant occupies it for him.
It appears that our use and occupation statute was modeled after the English statute on that subject, although, as was said in the case of Dell v. Gardner, supra, our statute is more comprehensive than the English statute. Yet, in the case of Bull v. Sibbs, decided in the Court of King’s Bench in 1799 (8 Durnford & East’s Reporter, 327), where a suit was brought under the use and occupation statute — when common law pleading in all its inflexibility was in force — the court said of the defense, that the defendant was not himself in possession, “that if Ditchell occupied the land under the defendant, the latter was answerable to the plaintiff in this form of action ; that the occupation by the tenant of the defendant was, as far as it respected the plaintiff, an occupation by the defendant himself.” See, also, 1 Underhill on Landlord & Tenant, sec. 364.
The decree is, therefore, reversed. | [
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Wood, J.
The appellant appeals from a judgment convicting him of the crime of selling liquor.
Counsel was appointed by the court to defend appellant.
At the trial three witnesses testified that they had bought whiskey from appellant within three years prior to the finding of the indictment. Appellant introduced testimony tending to impeach the character of two of these witnesses for truth and morality.
The appellant testified that he had not sold any liquor as charged in the indictment and testified to facts specifically rebutting the testimony of the witnesses for the State.
The court gave, among others, the following instruction, No. 4: “It devolves upon the State in a case of this kind to prove every material allegation in the indictment. And the material allegations in the indictment briefly stated are, ‘that the defendant sold liquor, some kind of liquor, as mentioned in this indictment or any kind of intoxicating liquor; that that occurred in Pope County, Arkansas, within three years next before the finding of this indictment.’ ”
One of the grounds of the motion for new trial is that the court erred in overruling appellant’s motion for continuance.
The bill of exceptions does not show that any exceptions were saved to the overruling of appellant’s motion for continuance. The motions themselves are not brought into the record by bill of exceptions and therefore we cannot consider this ground of appellant’s motion for new trial. Adkisson v. State, ante p. 34, and cases cited.
While the motions for continuance are set out in the motion for new trial, and the motion for new trial is brought into the bill of exceptions, this does not meet the requirements that the motion for continuance and ob-. jections and exceptions to the ruling of the court thereto must be made to appear in the bill of exceptions.
The court did not err in giving instruction No. 4. When all of the language of the instruction is considered together, a fair interpretation of it is that the court meant to tell the jury that it devolved upon the State to prove that the defendant had sold some kind of intoxicating liquor as charged in the indictment. When the language of the instruction is considered in connection with the language of the indictment its meaning is perfectly plain. The instruction, when thus considered, was not calculated to mislead the jury.
The indictment charged the appellant with “feloniously selling and giving away ardent, vinous, malt, spirituous and fermented liquors and alcoholic spirits and certain compounds and preparations thereof, commonly called tonics, hitters and medicated liquors, against the peace and dignity of the State of Arkansas.”
It was a felony under the law of Arkansas to sell such liquor or any kind of intoxicating liquor mentioned in the indictment. Act 30, p. 98, of the Acts of 1915.
The evidence was sufficient to sustain the verdict.
There is no error, and the judgment must be affirmed. | [
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Wood, J.
The Knights and Ladies of Honor was a fraternal insurance corporation organized under the laws of the State of Indiana and licensed to do business in Arkansas. On the 26th of April, 1916, it issued to Richard T. Johnson its certificate or policy of insurance for $2,000 in which Bonnie B. Johnson, the appellee, was named as the beneficiary.
On the 24th of August, 1916, the Knights and Ladies of Honor attempted to merge with the North American Union, the appellant. The appellant is a fraternal insurance society of the State of Illinois. It has never been licensed to do business in this State. After this attempted merger, the appellant on the 25th of October, 1916, issued its “certificate of membership” to Richard T. Johnson, which among other things provides:
“That, under and by virtue of merger and consolidation, made and entered into by and between the North American Union and the Supreme Lodge, Knights and Ladies of Honor, which became of full force and effect on the 24th day of August, 1916, and which said agreement, and all the terms and conditions thereof, together with the constitution, laws, rules, and regulations of the said North American Union, are hereby made a part thereof; that Richard T. Johnson, holder of benefit certificate No. 15422, issued by the said Supreme Lodge, Knights and Ladies of Honor, is entitled to the privileges of membership in the said North American Union, as acquired under, to the extent of, and according to the terms and conditions of said agreement of merger and consolidation, and the laws, rules, and regulations of the said'North American Union.
“The North American Union hereby assumes and agrees to pay to the lawful beneficiary or beneficiaries of said member, in the event of the death thereof, while in good standing, and the furnishing of satisfactory proof as to the fact and cause of the death of said member, the amount of insurance in force and effect, and payable upon the death of said member, according to the provisions of the said benefit certificate and the constitution, laws, rules, and regulations of the said Supreme Lodge, Knights and Ladies of Honor, in force and effect at the time of the execution of said agreement, provided that said member has made all payments in the time, manner and amount required and has complied with the laws, rules, and regulations of the said North American Union now in force, or thereafter enacted or adopted and the terms and conditions of the aforesaid agreement.
“This certificate shall be null and void, unless said member, at the time of the issuing thereof, is in good standing, etc.”
Richard Johnson died on the 31st of October, 1917.
The appellee instituted this action against the appellant on the above certificate, alleging that the insured at the time of his death was in good standing with the Knights and Ladies of Honor and with appellant; that the appellant was a foreign corporation and doing business in this State, but had not complied with the laws of Arkansas by appointing an agent upon whom the service of process could be had. She further alleged that one J. L. Hawkins, the garnishee, was the collector and secretary of the appellant and had in his hands money belonging to the appellant. She prayed for a writ of garnishment against him, and that he be enjoined from paying over the funds in his hands to appellant and that she have judgment against the appellant for the amount of the policy.
Summons was issued and was returned “duly served by delivering a true copy thereof to J. L. Hawkins, agent for the within named North American Union and a copy to Bruce Bullion, State Insurance Commissioner, as therein commanded.”
The appellant entered its appearance specifically for the supreme purpose of moving to quash service alleging that J. L. Hawkins was not its agent and further alleging that appellant had never engaged in business in the State of Arkansas and had never consented to having summons served upon the Insurance Commissioner. The court overruled the motion to quash the service. The appellant then filed its answer but without waiving its plea of insufficient service.
In its answer the appellant set up three defenses. First, that the certificate issued by it was void for the reason that the attempted merger between the appellant and the Knights and Ladies of Honor was in violation of law and ultra vires. Second, that no application for membership in appellant had ever been made by Richard T. Johnson and no medical examination of him was ever made, and that he, therefore, never became a member of appellant in the manner and form prescribed by the State of Illinois and the laws of appellant in such cases made and provided. Third, that Richard T. Johnson had violated the laws of appellant in that he used heroin' and other narcotic drugs to such an extent as to impair his health, which was expressly prohibited by the constitution and laws of appellant, and that in doing so he forfeited all of his rights in the certificate.
The issues of fact were sent to the jury under instructions. The trial resulted in a verdict and judgment in favor of appellee. From that judgment is this appeal.
First. Appellant contends that no service was had upon it and that the trial court was, therefore, without jurisdiction.
The supreme secretary of the appellant .testified that the appellant was an Illinois corporation; that J. L. Hawkins, the secretary and collector of Mimosa Lodge of the Knights and Ladies of Honor, held no position with appellant and received no compensation directly or indirectly from appellant; that the local councils of appellant elected their own officers, including secretary and collector or agent, for the collection of dues and assessments of the members of the local council; that the supreme council had nothing to do with whom the local council should appoint to serve as such officer or agent. The supreme council merely received such money as was sent to it by the local treasurer or local officers. The keeping and maintaining of the membership in good standing by the supreme council is a matter entirely within the control of the local council. He further testified, that the appellant had never done any business in this State.
James L. Hawkins testified that he was the secretary and collector of Mimosa Lodge of the Knights and Ladies of Honor, having been elected to that office by the local lodge prior to the merger with the appellant. He began collecting for the appellant after the merger. He received instructions from the appellant only in a general way. It instructed witness to collect and send the money on two different occasions in a circular letter sent out by the secretary. When collections were made from members of the local lodge, witness gave them a receipt furnished by the supreme secretary of the appellant. The appellant finally refused to send receipts, possibly in June, 1918. This was after the garnishment was served upon the witness. Witness had had some correspondence with the different officers of the appellant.
The correspondence was exhibited. It shows that the witness notified the appellant of the death of members, and received from it blank forms for use in submitting proofs of deaths to the appellant with instructions when same were completed to forward the same to appellant. Also inclosed blanks for suspension notice and certificates of good health and applications for reinstatement, stating that it was the desire of the appellant to have these blanks put in use by all former councils of the Knights and Ladies of Honor and instructing witness how and when to proceed in ease of suspensions and reinstatement.
Witness further testified that he forwarded to the appellant on an average of about $275 a month from the time of the merger until the writ of garnishment was served on him. Witness reinstated five or six members according to the directions of appellant, and witness reissued a policy to one of the members on one of its forms. The appellant paid one death claim and had others under consideration. Witness at appellant’s instance had pro duced proofs of death and under appellant’s instructions had collected the war tax from the members of the local lodge of Knights and Ladies of Honor. The appellant sent witness publications for distribution to members of the local lodge, and in a general way appellant urged witness to go ahead, look after the membership, keep up the dues 'and send a draft to the general office. Appellant urged witness to do what he could to keep the local lodge together.
I North American Union v. Oliphant, 141 Ark. 346, we said: “We think taking over the membership of the Knights and Ladies of Honor, adopting the local organization of this order as .its local organization, attaching riders to the policies of the members of the Knights and Ladies of Honor, thereby assuming liabilities under the policies, levying and collecting premiums and dues on the policies, paying losses and directing its representatives to solicit insurance, constitute a doing of business in the State under the statute. ’ ’
In Sovereign Camp, Woodmen of the World v. Newsom, ante p. 132, we held that where a fraternal organization has a central or supreme governing body with local lodges through which the membership is recruited and by the officers of which assessments are collected and remitted, that the local organization and its officers to whom are committed these duties are to be considered the agents of the governing body; that this agency is subject to the ordinary rules applicable to agencies of the same general character in the business of ordinary life insurance ; that the officer of a subordinate lodge charged with the duty of notifying the members of assessments made by the supreme lodge for the purpose of paying insurance certificates of deceased members and of collecting and forwarding to the supreme lodge such assessments is an agent of the supreme lodge in the performance of these duties.
It follows from the above decisions that the appellant was doing business in this State and is estopped from denying that the Commissioner of Insurance was its agent upon whom legal process directed against appellant might be served. The court did not err, therefore, in overruling appellant’s motion to quash the service. The service of summons upon the Insurance Commissioner, under the facts disclosed by this record, was sufficient to give the trial court jurisdiction over the appellant. North American Union v. Oliphint, supra, and oases there cited.
Second. The appellant contends that the merger between appellant and Knights and Ládies of Honor under which the certificate was issued on which this suit was based, was ultra vires and void, and that the performance of the alleged contract of insurance on the part of the assured Johnson and the conduct of its officers and agents in accepting the benefits of such performance, did not estop appellant from setting up the defense of ultra vires, and from denying liability.
The certificate of insurance issued by appellant upon which this suit is based, if valid at all, is an Illinois contract, and governed by the laws of that State, which is the domicile of the appellant. The certificate itself recites that the “constitution, laws, rules, and regulations of the said North American Union are hereby made a part thereof.”
Section 7 of the laws of appellant provide that the contract of membership in the order shall in all cases be construed according to the laws of the State of Illinois.
The laws of the order also form part of the contract of insurance. Sovereign Camp, Woodmen of the World v. Newsom, supra, and cases there cited.
In Royal Arcanum v. Green, 237 U. S. 532, it is held that “The rights of members of a corporation of a fraternal or beneficiary character have their source in the constitution and by-laws of the corporation and can only be determined by resort thereto and such constitution and by-laws must necessarily be construed by the laws of the State of its incorporation.”
The appellant is a fraternal benefit society organized under the insurance act of 1893 of Illinois, ap proved June 22, 1893. Laws of Ill. 1893, p. 130. Neither does that act, nor the charter powers conferred upon appellant under it, authorize fraternal societies to consolidate or merge. Such power is not necessary to enable these fraternal societies or corporations to effectuate the objects and purposes of their creation. Therefore, they do not have such power by implication.
“Corporations can only exercise such power as may be conferred by the legislative bodies creating them, either in express terms or by necessary implication.” Fritze v. Bldg. Loan, Assn., 180 Ill. 183-96; American Loan & Trust Co. v. Minn. & N. W. Ry. Co., 157 Ill. 641; Steele v. Fraternal Tribunes, 215 Ill. 190-3; Wallace v. Madden, 168 Ill. 356-60; Nat. Home Bldg. Assn. v. Home Savings Bank, 181 Ill. 35-40; Alexander v. Bankers Union, 187 Ill. App. 469.
The above is also a well established doctrine of our own court. Gregg v. L. R. C. of C., 120 Ark. 426-32; Rachels v. Stecher Cooperage Works, 95 Ark. 612; also Simmons Nat. Bank v. Dilley Foundry Co., 95 Ark. 368; Richeson v. Nat. Bank of Mena, 96 Ark. 594; Ozan Lumber Co. v. Biddie, 87 Ark. 587; Ark. Stave Co. v. State, 94 Ark. 27.
Therefore, the merger of appellant with the Knights and Ladies of Honor was ultra vires and void.
The law of Illinois, under which appellant was organized, provides that the certificate of association upon which the Insurance Superintendent is authorized to! issue a charter to fraternal insurance societies shall state among other things that ‘ ‘ medical examinations are required. ’ ’
The charter of appellant provides that “applicants for membership will be required to undergo a. strict medical examination before being admitted to membership in this corporation.”
Therefore, under the laws of Illinois, as well as the laws of appellant, medical examinations are required as a prerequisite to membership in fraternal benefit societies. A certificate issued without such medical examina tion is an ultra vires act upon the part of the corporation which renders such certificate not only voidable but wholly void and of no legal effect. Hence, neither party to such an alleged contract conld be estopped by any acts done under it from showing that the purported contract was in violation of the laws of the State. Wallace v. Madden, supra; Merc. Trust Co. v. Castor, 273 Ill. 332-43; Steele v. Fraternal Tribunes, supra; Theodore R. Converse v. Emerson & Co., 242 Ill. 619-27; Alexander v. Bankers Union, supra, where the above and other Illinois cases are cited.
As holding contrary to the above doctrine, learned counsel for appellee cite from other jurisdictions the following eases: Timberlake et al. v. Order of the Golden Cross of the World, 208 Mass. 411; Cathcart v. Equitable Mutual Life Assn., 111 Iowa 471; Denver Fire Ins. Co. v. McClelland, 9 Pac. 771.
He also cites the following cases of this court: Ark. Lumber Co. v. Posey, 74 Ark. 377; Minn. Fire & Marine Co. v. Norman. 74 Ark. 190; Ark. & La. Ry. Co. v. Stroude, 77 Ark. 109; Western Dev. & Invest. Co. v. Caplinger, 86 Ark. 287; Richeson v. Bank of Mena, 86 Ark. 595.
It would unduly extend this opinion to review each of the above cases, but it is believed that a critical examination of them with reference to the facts will discover that they do not contravene the doctrine announced above by the Supreme Court of Illinois. The eases mentioned upon which counsel for appellee relies merely announce and adhere to the well-established rule that when a corporation is proceeding to exercise powers within the scope of the general authority conferred upon it by its charter, or within the general purposes of its creation, and not in violation of the statute under which it was organized, but nevertheless, in a manner improper, irregular, and unauthorized by the laws of the corporation, it will not be allowed to set up the defense of ultra vires when sued on contracts which have been performed by the other party and from which it has received the benefit.
But there is a olear distinction between such contracts and those which are entirely foreign to the purposes, of the corporation as expressed in its articles of association and charter and which are in positive violation of the statutes under which the corporation is created. Of the latter all persons dealing with the corporation are bound to take notice. See Timberlake v. Golden Cross, supra; Ullman v. Golden Cross, 107 N. E. 960-2.
However, even if we are mistaken in our1 interpretation of the above cases, let it be remembered that, whatever may be the law in other jurisdictions, the laws of Illinois, as we have seen, must govern in determining the issue as to the liability of the appellant on the certificate upon which this action is based. "We are dealing with a contract of fraternal insurance, nothing else. The law of Illinois, as we have shown, requires a medical examination as a condition precedent to a contract of insurance with a fraternal benefit society.
But because the merger of the Knights and Ladies of Honor with appellant was ultra vires and void and because the laws of Illinois require a medical examination as a prerequisite to membership in a fraternal benefit society, does it necessarily follow that the certificate or policy of insurance issued by the appellant to Richard T. Johnson is also void and that appellant is not liable thereon? Let us see.
The terms and conditions of the merger are not disclosed in the certificate. Appellant, after the merger, did not treat the members of the Knights and Ladies or Honor as if they had been transferred in a body to appellant by the attempted merger and as if the merger, ipso facto, completed the contract of insurance between them and appellant. On the contrary, appellant proceeded to deal with the individual members of the Knights and Ladies of Honor and to propose membership and a contract of insurance with appellant as set forth in the certificate under consideration. The certificate itself and the correspondence concerning it show that the contract of insurance did not become complete until the certificate was “received, accepted and signed” by Johnson.
The merger agreement being ultra vires and therefore void, both appellant and Johnson must be held to have known that the inclusion of that agreement in the contract between them was a vain and idle thing, as no rights could be built upon it. They must be held to have intended that the real and only consideration to appellant was that Johnson should be in good standing and make “all payments required and comply with the laws, rules, and regulations” of appellant; that the consideration to Johnson in return was that appellant should pay to his beneficiary the amount named in the benefit certificate issued to him by the Knights and Ladies of Honor. These were legal and valuable considerations and carried mutual and binding obligations upon which the minds of the parties met. It is manifest that the parties did not intend that the terms of the merger agreement should constitute the consideration of the contract. This ultra vires merger can and must, therefore, be eliminated, and effect be given to the contract without it, as the parties intended. Fort Smith Light & Traction, Co. v. Kelly, 94 Ark. 461; Hanauer v. Gray, 25 Ark. 350; St. L., I. M. & S. Ry. Co. v. Matthews, 64 Ark. 398-405. See also 6 R. C. L., p. 858, secs. 246-248; Ragsdale v. Nage, 106 Cal. 332-36, 13 C. J., sec. 525-26. The contract when thus construed was one of the very kind that appellant was authorized to make under the statute and by the express terms of its charter, provided a medical examination of Johnson was required. Was such examination required?
While under the statute of Illinois “medical examination is required,” the statute does not prescribe the methods for conducting such examination. The how, icheu and tuhere of it is left entirely to the fraternal society. The by-laws of appellant provide that “an applicant shall not be entitled to benefits until he has * * * passed a successful medical examination and has been approved by the supreme medical director and obligated.” The benefit certificate of Johnson issued by the Knights and Ladies of Honor shows that one of the conditions upon which it was issued was “that the answers to all questions propounded in the medical examiner’s certificate are true.” This benefit certificate was in evidence.
The certificate upon which this action is predicated expressly refers to the benefit certificate held by Johnson in the Knights and Ladies of Honor and assumes to pay the amount of that certificate “according to provisions of the said benefit certificate and the constitution, laws, rules, and regulations of the Supreme Lodge of the Knights and Ladies of Honor,” etc.
The by-laws of appellant provide that the applicant must sign the application and medical examination blank prescribed by the laws of appellant; “that membership in the order shall only be permitted such persons as have complied with all the laws, rules, and regulations of the order pertaining to admission of members;” that “no subordinate body of the order nor any of its officers or members nor any officer or member of the supreme council shall have any power or authority for or on behalf of the North American Union to waive, modify, or annul any provision of the constitution or laws of the order;” that “no custom or practice upon their part in derogation of the provisions or requirements shall constitute a waiver; ’ ’ that this provision ‘ ‘ shall be binding on the society and each and every member thereof and all beneficiaries of members.”
The supreme secretary of appellant testified that Bichard T. Johnson had never made application for membership in appellant; that no medical examination of him was ever made.
Now none of the provisions , of appellant’s by-laws above mentioned were statutory requirements except the one relating to medical examination. The facts of this record as shown by the recitals of the benefit certificate held by Johnson in the Knights and Ladies of Honor and the recitals of the certificate upon which this action was based show that there was a medical examination of Johnson as a condition precedent to his membership in the Knights and Ladies of Honor, and that appellant ac cepted this examination as a sufficient compliance with the statute and the by-laws of appellant requiring a medical examination. In other words, the conduct of appellant under all the circumstances in evidence was tantamount to an adoption by it of the medical examination that had been made by the Knights and Ladies of Honor.
In the above respect the facts are somewhat similar to the case of Williams v. Bankers Union, 166 Ill. App. 495. In that case Williams was insured in the 'Bankers Union of the World, a Nebraska society, and a certificate of reinsurance was issued to him by the Bankers Union of Chicago, an Illinois corporation, on which his beneficiary instituted suit against the Illinois corporation. The court in its opinion said: “We are of the opinion that the evidence tended to show a reorganization of the Nebraska society and was in effect a mere continuation of the business of the Nebraska society by the Illinois society and the medical examination taken by the insured in becoming a member thereof was, under all the circumstances in evidence and so treated by the appellant, a compliance with the statute of this State in respect to the membership of the insured in the appellant society. It clearly appears that the appellant, with knowledge of said communications, accepted, considered and dealt with the insured as a member and to say that it did not so consider the insured would be to confess being a party to a fraud practiced on all members so secured.”
The act referred to above was the same as that under which the appellant here was organized.
In the absence of a statute prescribing the method for a medical examination, it is certainly not an ultra vires act for one fraternal ‘benefit society to accept as its own the medical examination made by another fraternal society and it could not be said in such case that no medical examination was required. Even though appellant in accepting Johnson as a member without application and recommendation as required by its by-laws and upon the medical examination made by the Knights and Ladies of Honor was acting contrary to its own constitution and laws, such acts were not ultra vires. The supreme power of appellant that made these laws could change them, and a compliance therewith could be waived through the conduct of duly authorized agents acting within the scope of their authority. See Timberlake v. Golden Cross, supra; Sovereign Camp Woodmen of the World v. Newsom, supra, and cases there cited.
The appellant here dealt directly with Johnson through its general manager who in a letter enclosed the certificate requesting Johnson to sign and attach thereto his benefit certificate in the Knights and Ladies of Honor with the declaration that “in order to keep his membership and insurance in force” it would be “only necessary to make payments promptly and in the same manner as heretofore.” On these conditions Johnson accepted the contract on October 26, 1916, and continued to pay the assessments or premiums due thereon until the time of his death, October 31, 1917. All of which appellant received.
The case of C. W. Kenniston et al. v. Fraternal Aid Union et al. has been brought into this record by agreement. The facts concerning that case so far as it may be necessary to state them here, are substantially as follows:
After the merger of the Knights and Ladies of Honor with appellant, the latter on the 20th of November, 1916, through some of its supreme officers, entered into negotiations with the Fraternal Aid Union of Kansas, under which they agreed upon a merger. On the 1st of August, 1917, O. W. Kenniston et al., former members of appellant, filed a bill of complaint in chancery in the. circuit court of Cook County against the Fraternal Aid Union and appellant. Afterward by amendment to their complaint the Knights and Ladies of Honor were also made parties defendant. The object of the suit was to test the validity of the merger of appellant with the Fraternal Aid Union and with the Knights and Ladies of Honor.
The Knights and Ladies of Honor answered the complaint and also filed its cross bill, setting up among other tilings that after the merger agreement with appellant the members of the Knights and Ladies of Honor had paid their assessments and dnes. to appellant, and that its supreme lodge had turned over all of its assets to appellant; that on the 20th of November, appellant entered into a contract of merger with the Fraternal Aid Union of Kansas, and that after such merger agreement the Knights and Ladies of Honor had turned over to the Fraternal Aid Union all of its assets, and that its members since that date had paid their dues to the Fraternal Aid Union; that a majority of the members of the Knights and Ladies of Honor since the merger of appellant with the Fraternal Aid Union had become members of that Order. They alleged that the merger between appellant and the Knights and Ladies of Honor was ultra vires and void. They prayed that same be so declared and that all the assets to which the Knights and Ladies of Honor and its members were entitled should be held by the Fraternal Aid Union, and that an accounting be had between the appellant the Fraternal Aid Union, and the Knights and Ladies of Honor, and that they should “have such other and further relief in the premises as the nature of the case should require.
The parties defendant to the original complaint answered same and also the defendants in the cross bill answered the same, and upon the issues thus joined the cause was heard and a decree was entered by consent.
Among other recitals in the decree are the following: “It being the intention hereof that all members of the North American Union and its affiliated societies who have remained with the Fraternal Aid Union shall be given an opportunity to elect whether they will remain with the Fraternal Aid Union or to return to the North American Union after they have been informed of the entry of this decree. * * * Any and all assessments, premiums and contributions paid for the month of October, 1917, and any month succeeding by members of the subordinate lodges of the Supreme Lodge of the Knights and Ladies of Honor located outside of the city of St. Louis * * * who may elect to remain members of the North American Union shall belong to the North American Union. ’ ’
The facts of that record and other recitals of the decree show that former members of the Knights and Ladies of Honor who after the merger with appellant, had accepted its certificates of insurance, could by the terms of that decree elect "to remain members of the North American Union.”
The decree in that case, after declaring the mergers between the appellant and the Fraternal Aid Union and the Knights and Ladies of Honor void, proceeded to declare the status of the former members of the Knights and Ladies of Honor with reference to the Fraternal Aid Union and the appellant and allowed them "to remain” with whichever organization they desired. That decree declared them already members of the organization which had issued to them benefit certificates upon their election to so remain with such organization. This decree did not require a formal application and observance of the by-laws of appellants as upon original application in order to become a member of appellant: But the decree validated unconditionally the benefit certificate that had been issued by appellant to all the former members of the Knights and Ladies of Honor who elected to remain with appellant and retain its policy or benefit certificate. Johnson was one of those members.
The circuit court of Illinois, although an inferior court, was nevertheless a court of general jurisdiction. It had jurisdiction of the different organizations, and through them, the members thereof, and also of the subject-matter of the mergers and their effect upon the societies and their members. The decree of that court was binding upon all parties to it, until reversed and set aside by the appellate tribunal.
Appellant did not appeal from that decree, but on the contrary consented thereto.
We, therefore, conclude that, under the laws of Illinois as expressed in her statute and declared by her courts, Johnson at the time of his death was a member of appellant and a rightful holder of its policy of insurance, and that the beneficiary named therein is entitled to recover in this action unless Johnson had forfeited his rights under the policy.
Third. This brings us in the last place to a consideration of appellant’s contention that Johnson had used heroin and other narcotic drugs to such an extent as to impair his health in violation of the constitution and laws of appellant. According to the constitution and laws of appellant, a member who uses morphine or other drug to the impairment or destruction of his health shall, ipso facto, lose his membership and the benefit certificates, and upon the death of a member from such cause his beneficiary forfeits all rights under the policy.
Johnson, when he became a member of the appellant, had knowledge of these provisions, and a compliance with same on his part was essential to the life of his policy and to give the beneficiary therein the right to recover thereon. Sovereign Camp Woodmen of the World v. Newsom, supra, and cases cited.
The issues as to whether or not Johnson had violated the constitution and laws of appellant by the use of heroin or other drug to the impairment or destruction of his health and whether or not his death was caused by the use of such drug were under the evidence purely of fact.
It could serve no useful purpose as a precedent to set out in detail and discuss the testimony bearing upon these issues. The testimony is voluminous, and after a careful consideration of it we have reached the conclusion that, although the preponderance of the evidence was against the jury’s finding, yet it cannot be said as a matter of law that there is no substantial evidence to sustain the verdict.
We find no prejudicial error to appellant in the instructions and other rulings of the court in submitting these issues of fact to the jury.
There is no reversible error, and the judgment is, therefore, affirmed. | [
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Humphreys, J.
This suit was instituted by appellee against appellant in the Little River Circuit Court to recover the amount of $300 on policy No. 31, issued to indemnify him against loss to his dwelling on the Arden farm, near Arden, Arkansas, and the contents thereof, by fire. The policy was executed by appellant to appellee on June 11,1917, but, under agreement, related back and took effect on January 1,1917, in order to conform to the application for the insurance made and paid for on the latter date. The policy was not issued on January 1, because appellant had no blank forms of policies at that time. Appellant company was organized under sections 4358 to 4361, inclusive, of Kirby’s Digest of the Laws of Arkansas, and is a farmers’ mutual aid association. Appellee alleged in the complaint that the Arden house, valued at $500 in the policy, and $100 of the household goods, valued at $700 in the policy, had been destroyed by fire; that, under the terms of the policy, he was entitled to recover from appellant one-half of the value of the house and one-half of the value of the household goods destroyed, or a total of $300; that he had fully complied with the requirements of the by-laws and constitution of appellant and the policy issued by appellant to him, as a prerequisite for a recovery.
Appellant filed answer, denying that appellee had complied with the terms of the policy,' and alleging a breach thereof, first, by failing to pay his assessments; second, by failing to actually reside in the house, and, third, by moving to and becoming a resident of the incorporated town of Ashdown and living there at the time the house and its contents burned. As an additional defense, appellant alleged that appellee included in his application for the insurance, property which he did not own, and permitted same to be included in the policy issued as effective of date January 1, 1917. By way of cross-bill, appellant alleged that it paid appellee $150 on the Redding house, destroyed by fire on February 6, 1917, which was not owned by appellee on January 1, 1917, but was fraudulently included in his application for the policy of insurance; that, at the time the Redding house was burned, appellee had no insurable interest therein, but had transferred all his right and title therein to J. L. Shafer, prior to his application for the insurance. Based upon the facts set up in the cross-bill, appellant prayed for judgment against appellee in the sum of $150 paid by it as aforesaid to appellee.
Appellee filed an answer to the cross-bill, denying the material allegations therein and reaffirming that he was the owner of all the property included in his application for insurance at the time he made same, and that he had an insurable interest in the Redding farm house at the time it burned, for which he rightfully collected the sum of $150 from appellant under the terms of his policy.
The cause was submitted to the jury upon the pleadings, evidence and instructions of the court, upon which a verdict was returned and judgment rendered in favor of appellee for $300, from which an appeal has been duly prosecuted to this court.
It is insisted that appellee forfeited his right to recover on the policy by failing to pay his last-assessment. This assessment was ordered on January 14, 1919, and, under the constitution of appellant, was due and payable in thirty days after notice. No notice of the assessment was given to appellee. There was evidence tending to show that he paid it without notice, March 3, 1919, or thirty-six days before the fire. There was substantial evidence pro and con on the issue of whether appellee paid the assessment. There being a conflict in the evidence on this issue, it must be treated on appeal as finally settled in appellee’s favor by the verdict of the jury. Shearer v. Bank, 121 Ark. 599.
It is also insisted that appellant forfeited his right to recover on the policy by including the Redding property in his application and policy, for the alleged reason that it was not owned by him on January 1, 1917, when the policy became effective. Appellee testified that he permitted J. L. Shafer to move on the Redding farm the latter part of December, 1916, with a view to either leasing or selling it to him; that, on the morning of January 9, 1917, he sold it to him for a small cash payment and the balance on time, secured by a vendor’s lien retained in the deed; that, on that date, the deed was acknowledged but dated back to January 1, 1917, to correspond with the notes evidencing the purchase money, which, by agreement, were to bear interest from the first day of January; that the deed was delivered a day or so afterward and recorded on January 13.- Appellee’s evidence was corroborated by that of the purchaser, J. L. Shafer. The evidence was ample to support a finding by the jury that appellee owned a fee simple title to the Redding farm when the application for insurance was signed and the policy became effective.
It is also insisted that appellee forfeited his right to recover on the policy because he did not reside in the house at the time it was destroyed by fire, on April 7, 1919, but had removed to, and was a resident of, an in corporated city. On inspection, we have been unable to discover any inhibition in the application, policy or bylaws, articles of incorporation or constitution of appellant, against moving out of the house, or moving to, or becoming a resident of, an incorporated town. In the absence of such a clause in the contract, articles, by-laws •or constitution governing the order, a mere change in the possession of the property will not void the contract. The statute under which appellant was organized never contemplated that a removal or change in possession of •the property would work a forfeiture of the contract. The purpose and intent of the statute was to designate the character of property insurable and to fix the qualifications for admission into the order. It provided that farm property, as distinguished from town or city property, was subject to insurance in the order; and a farmer, actually residing on and managing his farm, eligible to admission in the order. It was not necessarily inferable from the law that a removal from a farm to a town or city home of a member should work an automatic forfeiture of such member’s membership or insurance.
The objections and exceptions of -appellant to instructions given and refused were suggested by the interpretation it placed upon the statute under which the order was organized, its by-laws and constitution, and the contract -of insurance, consisting of the application and the policy. We think the construction placed upon the law and these instruments by the learned attorney for appellant is incorrect, and, for that reason, we deem it unnecessary to discuss appellant’s assignments of error to giving and refusing instructions further than to say, after a careful consideration thereof, we are of opinion that the cause was submitted to the jury under proper instructions.
A great many objections were made by appellant to evidence adduced by appellee, and to the exclusion of evidence offered by it. We have carefully examined the rulings of the court on the admission and exclusion of the evidence, and find that no prejudicial error was committed in this regard. To discuss each piece of evidence excluded or omitted over the objection of appellant, in relation to its bearings to the issue in the case, could serve no useful purpose and would extend this opinion to an unusual length.
This brings us to a consideration of the last insistence of appellant to the effect that the court committed reversible error in refusing to instruct peremptorily in its favor on the cross-bill. The determination of the issue presented by the cross-bill involved the solution of whether appellee owned the Redding farm on January 1, 1917, or whether he owned an insurable interest in the Redding house when destroyed by fire. Each party asked a peremptory instruction.
"Whether or not appellee was the owner of the Red-ding place on January 1, 1917, is largely a question of fact. The finding of the court in that particular is as conclusive on appeal as the verdict of a jury. The court’s verdict is supported by substantial evidence. Appellee testified positively that he did not sell the Redding property to J. L. Shafer until January 9, 1917. In the main, his evidence is corroborated by that of the purchaser.
"Whether appellee owned an insurable interest in the Redding house when destroyed is one of law, because the undisputed evidence is he sold and conveyed it to Shafer before the fire. In making the sale, however, appellee reserved a vendor’s lien to secure the unpaid notes evidencing the purchase money. The owner of a lien on property necessarily owns an insurable interest therein, where there is no provision in the contract providing that' the insurer shall own the exclusive or unconditional title in the property. There is no such provision in the instant contract.
No error appearing, the judgment is affirmed. | [
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Wood, J.
Appellant is a fire insurance company of New Orleans, Louisiana. Flynn & Ritter were general merchants, doing business at Monroe, Oklahoma. They had a policy of insurance on their stock of merchandise with appellant. The merchandise was destroyed by fire March 26, Í917. Flynn & Ritter became bankrupt. The appellee, as trustee of their estate in bankruptcy, brought this action against the appellant to recover the sum of $1,000 alleged to be due Flynn & Ritter on their policy.
After the destruction of the stock of merchandise of Flynn & Ritter the loss, was adjusted at the sum of $1,000, as the amount which the appellant, by compromise agreement, was willing to pay.
The general agents of appellant in a letter to the attorney of Flynn & Ritter, on September 22, 1917, stated that they were ready to make payment of the above sum as soon as a suit of Austin Clothing Company against Flynn & Ritter, pending in the justice court in Memphis, Tennessee, was dismissed and a certificate given to appellant to that effect. The suit referred to in the letter was a suit brought by the Austin Clothing Company, a corporation, against Flynn & Ritter, in which appellant had been garnisheed. The writ of garnishment against appellant in that suit was directed to and ran in the name of S. M. Williamson & Company, agents, and not in the name of appellant. The ap pellant, though a Louisiana corporation, was duly authorized to do business in Tennessee.
The return of the sheriff on the writ was as follows: “Garnisheed S. M. Williamson & Company, agents for the Mechanics & Traders Insurance Company of New Orleans, Louisiana.” No personal service was had on Flynn or Ritter and no property of theirs seized.
The attorney of Flynn & Ritter, on October 10, 1917, wrote the general agent of appellant to the effect that the justice court of Memphis did not have jurisdiction over the parties or the subject-matter, giving as a reason that ‘ ‘ the situs of the debt was such that the Austin Clothing Company could not legally attach funds in* the hands of the insurance company owing Flynn & Ritter.”
Appellant, in November, 1917, answered the garnishment issued in the suit of Austin Clothing Company against Flynn & Ritter and set up that under a fire policy, issued by it in favor of Flynn & Ritter, it owed the latter the sum of $1,000.
After the filing of this answer, judgment was rendered by the justice on the 15th of December, 1917, in favor of the Austin Clothing Company against Flynn & Ritter in the sum of $440 and against the appellant in the sum of $462.78. Appellant paid the amount of thé judgment against it March 20, 1918.
Flynn & Ritter were adjudged bankrupts January 15, 1918, and the appellee as trustee, as above stated,instituted this action.
Appellant answered and admitted that it owed Flynn & Ritter the sum of $527.22 and alleged that it had tendered that sum to the appellee. It further set up the proceedings above mentioned and the judgment rendered against it by the justice court óf Tennessee as a defense to any further judgment in the present action. It alleged that the lien of that judgment was binding from the 11th of April, 1917, the date upon which the writ of garnishment was served upon appellant’s agent.
The above are the material facts upon which judgment was rendered in favor of the appellee for the sum of $1,000 with interest, from which is this appeal.
First. The appellant contends that the judgment of the justice court of Tennessee against it'was valid and binding, and that the satisfaction of such judgment by it constitutes a complete defense to the appellee’s cause of action.
The appellant is correct in his contention that the legality of the judgment of the Tennessee court is governed by the laws of Tennessee, and that according to those laws the judgment rendered against it by the justice court in Tennessee is valid. See Harris v. Balk, 198 U. S. 215; B. & O. R. R. Co. v. Hostetter, 240 U. S. 620; N. Y. Life Ins. Co. v. Dunlevy, 241 U. S. 518; L. & N. R. R. Co. v. Deer, 200 U. S. 176; Shinn on Attachment & Garnishment, § 707.
It does not follow, however, that because the judgment of the Tennessee court was valid and binding at the time it was rendered, the satisfaction of that judgment is a defense to the present action.
In Kittrell v. Perry Lumber Co., 107 Tenn. 148, it is held (quoting syllabus) that: “Notice of garnishment is insufficient to require appearance and answer by a corporation which is addressed to an individual, naming him as agent of the corporation, and only requiring him personally to answer as to the debtor’s assets in his hands.”
The writ of garnishment in that case was in all essential particulars the same as in the case at bar. The service of the writ upon S. M. Williamson & Company, agents of appellant, did not give the justice court of Tennessee jurisdiction over appellant according to the above decision, and if that were all, the judgment of the Tennessee court against appellant in the garnishment proceeding would have been void. But the proof shows that appellant in November, 1917, filed an answer to the garnishment. It was this appearance and answer of the garnishee which operated as a waiver of the defects in the summons and gave the Tennessee court jurisdiction over the appellant. Moody & Bigelow v. Alter-Winston & Co., 12 Heiskell 142; see also Hearn v. Gruther, 4 Yerger’s, 461-74; Railway v. Brooks, 90 Tenn. 161.
The lien of the judgment in the garnishment proceeding must, therefore, date from the time of the appearance of the appellant in that proceeding, and not from the date of service of summons upon its agent.
Flynn & Bitter filed their petition in bankruptcy and were adjudicated as bankrupts on January 15, 1918. The lien of the judgment in the garnishment proceeding must run from some time in November, 1917, when appellant first appeared in that proceeding. The time when that lien was obtained was less than two and a half months prior to the adjudication in bankruptcy.
Section 67-f of the Bankruptcy Act, among other things, declares that: “All * * * liens, obtained through legal proceedings against a person who is insolvent at any time within four months prior to the filing of a petition in bankruptcy against him shall be deemed null and void in case he is adjudged a bankrupt and the property affected by the levy, judgment, attachment or other lien shall be deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt.”
In Chicago, B. & Q. R. R. Co. v. Hall, 229 U. S. 511-16, the Supreme Court of the United States, construing this section, said: “Barring exceptional cases which 'are especially provided for, the policy of the act is to fix a four-months period in which a creditor can not obtain an advantage nor a lien against a debtor’s property. ‘All liens obtained by legal proceedings within that period are declared to be null and void.’ That universal language is not restricted by the later provision that thd property affected by the * * * lien shall be released from the same and pass to the trustee as a part of the estate of the bankrupt. ’ ’ The court further said: ‘ ‘ The liens rendered void by section 67-f are those obtained by legal proceedings within four months. The section does not, however, defeat rights in the exempt property acquired by contract or by waiver of the exemption.”
Flynn & Ritter were insolvent from March 26, 1917, the day on which their stock of merchandise was destroyed by fire. It is not claimed by the appellant that the Austin Clothing Company had acquired by contract with Flynn & Ritter or by their waiver any right in the funds in controversy. Appellant only contends that the Austin Clothing Company had obtained a lien thereon by virtue of its judgment in the garnishment which appellant was bound to pay.
The lien and satisfaction of this judgment would have been a protection to the garnishee and a complete defense to an action in ordinary proceedings brought against it by Flynn & Ritter. Shinn on Attachments & Garnishments, § 707.
But since this is an action brought by the trustee in bankruptcy of Flynn & Ritter, the case is governed by the law applicable to such proceedings. This case is, therefore, ruled by the decision of the Supreme Court of the United States in Chicago, B. & Q. R. R. v. Hall, supra.
Since the date of the lien of the judgment of the garnishment proceeding was within the period of four months prior to the filing of Flynn & Ritter’s petition in bankruptcy, the judgment was void according to that case and the satisfaction thereof no defense to this suit. See, also, S. Pac. Co. v. I. X. L. Furniture Co., 140 Pac. 665, 32 Am. Br. Rep. 327; Wilson v. Van Buren F. Mutual Fire Ins. Co., 151 N. W. 752, 34 Am. Br. Rep. 678
Second. The appellant contends that the appellee is estopped from denying that the judgment in the garnishment proceeding and the satisfaction thereof is a complete defense to this action. This contention is grounded upon certain letters written by the attorney of Flynn & Ritter to the general agents of the appellant during the pendency of the garnishment proceedings and concerning those proceedings. Those letters disclosed that the attorney of Flynn & Ritter was protesting that the jus tice court of Tennessee had no jurisdiction of the appellant. The reason given in one of the letters is as follows : ‘ ‘ The question I desire to raise in this case is as to the situs of the debt, and if neither the garnishee nor the principal debtor was a resident of the State of Tennessee, or proper service has not been had on your company, it is my desire to raise the question of jurisdiction and attack this judgment on that ground.”
The appellant contends that because the attorney in this correspondence did not expressly insist on the insufficiency of the service of the writ of garnishment to give the Tennessee court jurisdiction over appellant, but urged another reason, that appellant thereby waived the right to insist on the insufficiency of that service and is estopped to deny the validity of the judgment there obtained as a defense to the present action.
In these contentions the learned counsel for appellant overlook the real merits of this controversy. This suit is not a suit by Flynn & Ritter against appellant to recover in their own right the $1,000 which appellant promised to pay in settlement of the policy of insurance! Tf this were such a suit, there might be some plausibility in appellant’s contention that Flynn & Ritter would be estopped by the conduct of their attorney. The correspondence was all had 'concerning the garnishment proceeding in the Tennessee court, and the judgment was rendered in that proceeding before the petition of Flynn & Ritter in bankruptcy was filed and before they were adjudicated bankrupt and the appointment of the appellee as trastee of their estate in bankruptcy. Therefore, whatever may have been said by the attorney of Flynn & Ritter to the general agents of the appellant concerning the garnishment proceeding could not have operated as a waiver by appellee of the right to set up the invalidity of the judgment in the garnishment proceeding nor estop appellee from setting up the invalidity of such judgment as a defense to this action.
Appellee in this action does not stand in the shoes of Flynn & Ritter individually, but he is the trustee of all their creditors and primarily represents them. He, and the bankrupt firm of Flynn & Eitter, and all their general creditors, are alike bound by the bankruptcy act, which, as we have seen, annulled the lien of the judgment in the garnishment proceedings, not because of the insufficiency of the service on the appellant, as garnishee in those proceedings, but because the lien of the judgment in those proceedings was not obtained within a period of four months prior to the adjudication in the bank-» ruptcy proceedings. It is not within the province or power of the bankrupt to waive and thus nullify the provisions of the bankruptcy law. >
The petition in bankruptcy sets in motion the provisions of that law, and the adjudication in bankruptcy operates for the benefit not only of the bankrupt but also for his general creditors as well.
Other questions are raised by counsel for the appellant which we have considered but do not find them of sufficient importance to discuss in this opinion.
We find no reversible error in the record, and the judgment is, therefore, affirmed. | [
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Hart, J.
(after stating the facts). In maintaining his plea of the statute of limitations the defendant relies upon the case of Cox v. Phelps, 65 Ark. 1. In that case it was held that payment by an administrator on an unprobated debt of his decedent which was secured by mortgage will'not arrest the running of the statute of limitations with reference thereto if there was no order of the probate court authorizing such payment, although that court subsequently allowed the administrator credit for the payment in his settlement with the estate. That case is not an authority in the case at bar. In that case there was no authority in the administrator to make the payment. The court said that, before an administrator can pay any claim against his decedent’s estate, it must be exhibited and allowed by the probate court in the manner provided by the statute. There was no order of the probate court authorizing the administrator to make the payment, and the operation of the statute of limitations could not be suspended by a payment the administrator was not authorized to make and which he could not have iegally made because the debt had not been proved or allowed against the estate as provided by the statute.
In the case at bar the facts are essentially different. The claim has been duly presented, examined and allowed in the manner provided by the statute. Of course, it was necessary to prove payment, bnt there could be no stronger proof of payment than the admission in the answer that the $100 had been paid by the administrator of the estate of John R. Aday,. deceased. This brings us to the question of whether such payment suspended the running of the statute of limitations against the defendant who signed the note as surety for John R. Aday. The parties who sign a note are jointly and severally liable. This court has held that the part payment of a debt by one joint and several debtor before the bar of the statute of limitations attaches will bind the other joint debtors. The reason is that payment by one is payment for all. Trustees R. E. Bank v. Hartfield et al., 5 Ark. 551; Hicks v. Lusk & Co., 19 Ark. 692, and Burr v. Williams, 20 Ark. 177.
In the subsequent ease of McAbee v. Wiley, 92 Ark. 245, the court held that payments endorsed on a note which were admitted by the debtor to be correct, or were impliedly assented to by him, are sufficient to stop the running of the statute of limitations. The court further held that part payment made by an agent of the debtor suspends the running of the statute of limitations as effectually as if made by the debtor himself. In other words, the rule is settled in this State that a part payment of principal or interest made by one who could be compelled by law to pay the note suspends the statute of limitations, and a payment so made fixes a new point from which the statute begins to run.
In a case note to L. R. A. 1915 B, at page 1048, it is said that part payment by a personal representative having general authority to pay debts has been held sufficient to waive or toll the statute of limitations where such a representative has authority to so relieve from the statutory bar, and in support of the rule the following cases are cited: Semmes v. Magruder, 10 Md. 242; Foster v. Starkey, 12 Cush. (Mass.) 325; Fisher v. Metcalf, 7 Allen (Mass.) 209, and McLaren v. McMartin, 36 N. Y. 88. We think this holding is in accord with the reasoning of our decisions bearing on the question. In the case at bar the note was a subsisting one at the death of John R. Aday. His administrator was bound to pay it after it had been legally exhibited and allowed. The administrator was the legal representative of his decedent, and payment by him after the claim had been allowed against his decedent’s estate was a payment for all who had signed the note. The payment having been made before the statute of limitations had run, the payment by the administrator tolled the statute as to all the parties who had signed the note.
It follows that the judgment must be affirmed. | [
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McCulloch, C. J.
Appellant is a farmer in Clark County, and in the spring of the year 1919 planted corn in a new-ground formerly used as an enclosed pasture. There was standing timber which interfered with the growth of the crop of corn, and in April appellant' was engaged in deadening this timber by using a chemical solution commonly called “tree-killer.” It is not shown by evidence what particular chemicals were embraced in the compound, further than that it contained substances which were destructive to live trees.
There is a conflict in the testimony as to whether or not the fence enclosing this particular field was such as is prescribed by statute as a lawful fence. The solution was kept in a large pot and appellant used it on a certain day in April and left the pot over night to continue the use of the tree-killer the next day. The top of the pot was covered by a wooden box. Appellee- lived in the neighborhood, and was the owner of four cows which. were permitted to run at large, and they broke into appellant’s inclosure during the night and drank of the chemical solution left there and were found dead the next morning.
Appellee instituted this suit against appellant to recover the value of the cows on the ground that appellant was guilty of negligence in failing to properly fence his premises and to protect the cattle which broke in on account of the insufficient fence from the exposed pot of chemical solution. Appellant denied the allegations of negligence, and on the trial of the issues before a jury appellee was awarded damages for the value of the cows which died from drinking of the solution.
The testimony as to the cause of death of the cows was inferentially established by the carcasses being found in close proximity to the pot of chemical solution. The jury had a right to infer from the circumstances that the cows drank of this solution and that it produced death. The testimony adduced by appellant shows beyond controversy that appellant took certain precautions by covering the pot, but it was a question for the jury to determine whether those steps were sufficient to constitute reasonable care so as to acquit appellant of the charge of negligence in failing to securely cover up the dangerous substance.
The only contentions made here as grounds for reversal relate to the rulings of the court in giving and refusing instructions. The court gave the following instructions at the request of appellee, and over appellant’s objections:
“No. 1. You are told that it was the duty of the defendant to exercise ordinary care to place and keep the poison complained of in an inclosure such as it would not be reasonably expected that cattle running on the range would become exposed to and drink of the poison'; and if you find from a preponderance of the evidence in this case that defendant’s fence, inclosing the ground where the poison was, was not reasonably sufficient to keep cattle out of the field, and you further find that de fendant failed to cover and conceal in a reasonably good condition the pot or vessel containing the poison, and that the plaintiff’s cattle became exposed to the poison and drank thereof and died from the effects thereof, you will find for the plaintiffs.”
“No. 7. If you find through and on account of negligence on the part of defendant, plaintiff’s cattle came upon defendant’s premises, and further find that defendant left exposed a pot or vessel containing poison and that plaintiff’s cattle drank some of-it and died from the effects thereof, then you will find for the plaintiffs.”
The court gave the following instruction at appellant’s request after modifying the same by striking out the concluding sentence:
• “No. 2. One who suffers his stock to go at large, takes upon himself the ordinary risks incident to it. He takes the permissive pasturage with its accompanying perils. -The land owner owes no duty to cattle owners, prior to the entry of the stock upon his premises, unless it be to refrain from unnecessarily attracting or drawing them into a place of danger. And, after cattle are upon the land owner’s premises, the land owner owes only the negative duty of avoiding any injury to them, which the exercise of ordinary care at that time would prevent. ’ ’
The court refused to give the following instruction requested by appellant:
“3. An owner of uninclosed, or insufficiently inclosed, lands is not liable for injuries to animals straying upon the land, unless he maintains or permits to remain thereon something in itself calculated to attract such animals to their injury; and in this case if you find from a preponderance of the evidence that the pots of poison were mixed by defendant for a lawful purpose, that is, to destroy useless timber upon his lands, and that he did not and had no reason to anticipate that plaintiff’s cattle would drink the poison, the defendant will not be liable in damages, and your verdict should be for the defendant.”
The contention is that the instructions given by the court at appellee’s request are in conflict with part' of instruction No. 2, which the court gave at appellant’s request, and that the court erred in refusing to give instruction No. 3. We think that this contention is sound, and that the court erred in its instructions. Instructions No. 2 and No. 7, given at the instance of appellee submitted the question of appellant’s liability solely on the ground of negligence in failing to maintain a sufficient fence around the premises and-in failing to protect and conceal the pot containing the dangerous substance, and entirely omitted the other question necessarily involved in the case whether or not there was negligence in exposing a substance which was attractive to animals. The law on this subject is well settled and is, we think, correctly stated as follows:
“The owner of uninclosed land is not in general bound to keep his premises safe for the trespassing animals of others, and if, in the ordinary use of the property, harm befalls them, their owner, by permitting them to roam at large, is held to have assumed the risk of such injury, and so is denied any right of action on that account.” * * * “While the owner of land is not ordinarily responsible for injuries occurring to trespassing cattle, he is not permitted negligently to leave on his premises poisonous substances which will attract passing animals, nor can he place thereon dangerous instrumentalities, as traps baited with strong scented meats, set so near the highway on the grounds of another that the animals of others will be lured onto his lands from the place where they rightfully are to their injury or destruction. This results from the principle that where there is invitation, enticement, allurement or attraction, a person is bound, at his peril, to use reasonable care and diligence in keeping his property in safe condition.” 1 R. C. L., §§ 74, 75.
That is the doctrine which was announced by this court in its first decision bearing on the question. Jones v. Nichols, 46 Ark. 207. In that case the proof estab lished the fact that the defendants operated a gin and maintained a pit. near the highway about which was scattered cotton seed and com, and a cow owned by the plaintiff being attracted by the food thus exposed fell into the pit and was killed. It was said that those facts made out a case of liability. That doctrine has been followed in subsequent cases and the distinction has been made in each of the cases that while the owner of premises is not ordinarily liable for injuries to trespassing animals, yet where he exposes any substance which is calculated to allure animals, he must exercise ordinary care to protect from danger the animals thus enticed upon the premises. The duty which a land owner owes to the owner of trespassing animals is merely the negative one of refraining from committing an act of negligence which would entice animals upon the premises and injure them. The rule was stated by this court in St. Louis, Iron Mountain & Southern Railway Company v. Newman, 94 Ark. 458, as follows:
“His (the land owner’s) liability arises in the use of his premises when he fails to observe for the protection of the property of another that degree of care and precaution which the circumstances demand, whereby an injury results to such other person’s property. He does owe, therefore, to the owner of straying stock the duty to refrain from attracting or drawing to a dangerous object or substance which he has placed upon his land such stock. Such act becomes one of negligence whereby, if injury result to another, a liability is incurred. The land owner has no right to thus actively draw into peril straying stock. He may not be under any duty to guard the stock from the dangers to which they ordinarily might be exposed, but if he places on his land a dangerous substance which would attract passing animals, and thereby the animals are injured, if the injury is the natural and probable result of the act which a prudent man would have foreseen, then the land owner is liable for the injury resulting therefrom. ’ ’
To the same effect is St. L., I. M. & S. Ry. Co. v. Wilson, 116 Ark. 163; Buckeye Cotton Oil Co. v. Horton, 117 Ark. 1. The same doctrine is announced in the case of St. L. & S. F. Rd. Co. v. Williams, 98 Ark. 72, with respect to the liability of a railway company for putting out a torpedo on its own premises. And such is the doctrine of this court announced in Brinkley Car Co. v. Cooper, 70 Ark. 331, in regard to liability for injuries inflicted upon children by reason of negligence in exposing them to dangerous substances or situations which are attractive to children. That is the basis of the doctrine of the so-called “Turntable Cases.” Railroad Co. v. Stout, 17 Wall. 657.
This rule is well supported by the text writers on the subject and by adjudicated cases in other jurisdictions. Prof. Thompson states the rule as follows:
“Where domestic animals are allowed to run at large, and they stray upon uninclosed lands and are injured, the owner of the lands cannot be held liable therefor. A land owner is no more obliged to prepare his land in any particular way for the protection of his neighbor’s cattle, not invited or tempted to come upon it, than for the protection of his neighbor himself. For example, land owner is under no obligation to fence his land bordering on the highway, or to keep up such fences or the gates in them, so as to prevent the animals of another, which are allowed to run at large upon the highway, from getting through his land upon a railway track and there being killed.” Thompson on Negligence, § 959. '
The same author, at another place (§ 955), states the law on this subject as follows:
“The same rule, subject to qualifications, applies in the case of injuries to domestic animals through pitfalls or other dangers upon uninclosed grounds. That rule is that the owner or occupier of land is under no legal obligation to take special care or pains to the end of keeping it safe for the protection of the animals of others which may be allowed to run at large — and this without reference to the question whether the rule of the ‘English common law’ prevails, which required the owners of domestic animals to restrain them at their peril, or whether the rule of most of the American States prevails, which allows domestic animals to run at large, and required the owners of cultivated fields to fence them.”
This subject is elaborately treated in the note to the case of Gillespie v. Wheatland Industrial Co. (Wyo.), 52 L. R. A. (N. S.) 133. The following cases are also instructive: Strong v. Brown (Idaho), 52 L. R. A. (N. S.) 140; Beinhorn v. Griswold (Mont.), 59 L. R. A. 771; Muir v. Thixton, Millett & Co., 119 Ky. 753; Morrison v. Cornelius, 63 N. C. 346; Tennessee Chemical Co. v. Henry, 114 Tenn. 152, 85 S. W. 401; Turner v. Thomas, 71 Mo. 569; Sweeney v. Old Colony & Newport Rd. Co., 10 Allen, 368.
The case of Beinhorn v. Griswold, cited above, is especially in point in view of the fact that the injury was caused by exposed chemical substance on the premises of the defendant which caused the death of plaintiff’s cow. The case of Tennessee Chemical Co. v. Henry is also in point for the same .reason.
Applying those principles to the facts of the case at bar, the error of the court in its instructions is emphasized. It cannot be assumed as a matter of law that the chemical substance was of itself alluring to cattle so that appellant was bound to anticipate the danger. The evidence in the case does not even disclose the contents of the solution except that it was designed to kill trees. The only evidence that it was dangerous to animals was that these cattle were killed by drinking it. It was an essential part of appellee’s case to show that the solution was a substance was calculated to allure trespassing animals so that the land owner was called on to anticipate the danger and provide protection against it. The two instructions given at the instance of appellee entirely ignored this element of liability on the part of appellant and permitted the jury to award damages merely upon the finding that an insufficient fence was maintained around the premises and that proper care was not observed in protecting the solution from trespassing animals.
Instruction No. 2, requested by appellant, as modified and given by the court, correctly embraced the principle of law applicable and was in conflict with the instructions given by the court at the request of appellee. Instruction No. 3, requested by appellant and refused by the court, more concisely stated the law as applicable to the case and should háve been given. It constituted prejudicial error to refuse this instruction.
For the errors indicated, the judgment is reversed and the cause remanded for a new trial.
Hart and Humphreys, JJ., dissent. | [
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McCulloch, C. J.
This is an appeal from a judgment imposing the death sentence on conviction of the crime of murder in the first degree. Appellant killed his wife. There were several eye-witnesses, and the killing is admitted. Counsel for appellant conducted the defense on the ground of appellant’s insanity, which issue was submitted to the jury on instructions to which no objections have been urged in this court.
One of the grounds urged for reversal is that the court erred in giving an instruction which told the jury that the law “presumes that every sane person intends the natural and probable consequences of his own voluntary act, unless the contrary appears from the evidence,” the contention being that this language assumes the sanity of appellant at the time he committed the homicide;
We do not think that the language is open to the interpretation that it constitutes an assumption on the part of the court that the accused was a sane person at the time of the commission of the crime. The question of appellant’s insanity was submitted to the jury, and this instruction, especially when considered in connection with the others in the case, cannot be treated as one assuming the fact of appellant’s sanity.
Next, it is contended that the court erred in a certain remark made in connection with the ruling sustaining appellant’s objection to testimony sought to be introduced by the State. This remark was made by the court in announcing a ruling on appellant’s objection to the oftered testimony and excluding it from the jury. Under the statutes of this State formal exceptions are not required in capital cases in order for errors to be reviewed in this court, but there must be an objection to the particular proceeding below, otherwise there is no erroneous ruling for this court to review. Harding v. State, 94 Ark. 65; Caughron v. State, 99 Ark. 462; McElvain v. State, 101 Ark. 443.
Counsel for appellant moved to quash the indictment on the ground that all of the grand jurors did not hear the testimony before returning the indictment, and there was an offer to prove by a member of the grand jury that one of the jurors was discharged after the testimony against appellant had been presented, and that another grand juror was impaneled, and the indictment was returned without submitting the testimony to the new juror. The indictment cannot be impeached in that way. Nash v. State, 79 Ark. 120; Worthem v. State, 88 Ark. 321.
These constitute the only grounds urged for reversal, and the testimony was sufficient to' sustain the verdict. Judgment affirmed. | [
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McCulloch, C. J.,
Appellant instituted this action against appellee to recover broker’s commission on a sale of real estate under an alleged contract whereby appellee employed appellant to procure a purchaser for the land. There was a trial of the issues before a jury, but the court directed a verdict in favor of appellee.
The only question presented, therefore, is whether or not there was sufficient evidence to warrant a submission of the issue to the jury.
Appellee was the owner of an undivided one-fifth interest in a large tract of timber land in Calhoun County, Arkansas, aggregating about 10,000 acres, and he was endeavoring on behalf of himself and his associates to sell the land. He had authority also to sell for a man named Bell another tract in the same vicinity containing about 6,000 acres. Appellant was engaged in business in the city of Little Rock, as a real estate broker, and applied to appellee for authority to sell this land. Appellee authorized appellant to sell the land at a net price of $16 per acre. Appellant introduced to appellee a man named Buzard, through whom there was an effort made to sell the land to the Belzoni Hardwood Lumber Company of Belzoni, Mississippi, who was represented by its agent, Mr. Brattan. Buzard was a real estate broker in Memphis, connected with a firm doing business in that city. The effort to make the sale just mentioned was not successful, but subsequently appellee sold the Bell land himself to another concern, and the 10,000 acres in which appellee was personally interested was later sold to the Calion Land & Lumber Company of St. Louis, the sale being made through Buzard and Brattan at the price of $15.50 per acre, and appellee paid Buzard a commission of 25 cents per acre for making the sale.
Appellant testified that he dealt with Buzard as a prospective purchaser of the land and introduced him to appellee as such. On the other hand, appellee testified that appellant introduced Buzard as his (appellant’s) associate in the effort to make the sale, and told him that whatever Buzard did would be satisfactory.
We are of the opinion that the court was correct in giving the peremptory instruction to the jury, for under neither of the two theories presented by the conflicting evidence was appellant entitled to a commission. Under the contract between the parties there was no exclusive agency for the sale of the land, nor was appellant’s authority given for any definite period of time. Under the terms of the contract, in order to earn a commission, appellant must, before the revocation of the authority or a sale of the land, have procured a purchaser ready, willing and able to purchase on the terms specified in the contract.
This is not a case like Simpson v. Blewitt, 110 Ark. 87, where the commission could be earned either by procuring a purchaser or by procuring some one to find a purchaser, but under the terms of this contract it was necessary for appellant, either himself or some one acting for him, to produce the purchaser in order to earn the commission. It is undisputed that there was no sale made to Buzard, and that the first sale in contemplation to the Belzoni Hardwood Lumber Company was never consummated. Appellant is not entitled, therefore, to recover upon his own theory that he dealt with Buzard as a purchaser, for the simple reason that'there was no sale made to Buzard. The sale finally made was through the efforts of Buzard as a broker, and appellee paid the commission to Buzard for making the sale. There having been no sale made to Buzard, nor to any one else through the procurement of appellant, he is not entitled to a commission, nor is there the slightest evidence of any collu sion between appellee and Buzard or any evasion in tbe form of tbe contract for tbe purpose of defeating appellant’s right to claim a commission. The attempted sale to the Belzoni Hardwood Lumber Company on the terms first stipulated between appellant and appellee failed, as before stated, and the sale thereafter was made several months later to the Calion Land & Lumber Company upon new terms and after an express agreement was entered into between appellee and Buzard as to the amount of commissions to be paid.
If, as contended by appellant, he introduced Buzard to appellee as a prospective purchaser, and no sale was made to Buzard, appellant would not be entitled to a commission on a sale subsequently made by Buzard under contract entered into in good faith by appellee with him as a broker. Appellee did not bind himself in his contract with appellant not to sell the land himself, or not to attempt to sell it through some other broker, and appellee was entirely within his rights in engaging with Buzard, or any other broker, to make a sale without incurring liability to appellant for a commission. '
Now, turning to the theory of appellee, under the testimony adduced by him, it was equálly plain that appellant is not entitled to recover in the action. Appellee testified that appellant had turned Buzard over to him with the statement that Buzard was appellant’s associate, and that any arrangement made with him would be satisfactory. The terms of the ■ sale to the Calion Land & Lumber Company and the agreement with reference to the commission on the sale were made with Buzard, and appellee paid the commission according to his agreement with Buzard. Under those circumstances, appellant is not entitled to recover the commission.
Judgment affirmed. | [
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McCulloch, C. J.
This is an action instituted by appellee against appellant to recover damages alleged to have been sustained to a carload of hogs shipped over appellant’s railroad from Strong, Arkansas, to East St. Louis, Illinois. It is alleged in the complaint that by reason of delay in the transportation of the car there was a shrinkage in weight of the hogs to the extent of 1,212 pounds, depreciating the market value $150; that there was a decline in market price suffered by reason of the delay in the sum of $161; and that one hog, of the value of $7.97, was killed, and two other hogs crippled, thereby diminishing the value to the extent of the sum of $18.49. There was a verdict in the trial below in favor of appellee for the sum of $176.86, and an appeal has been prosecuted from the judgment.
Appellee alleged in his complaint that he was the owner of the hogs and consigned the same over appellant’s railroad; and this was denied in the answer; in fact, the answer contains a specific denial of each and every allegation in the complaint. Appellee testified to the shipment of the hogs, but it was drawn out from him in his testimony that he had a partner in the deal, a Mr. Mitchell, who accompanied the carload of hogs on a part of the journey. Upon the development of this feature of the case appellant moved to dismiss because Mitchell was not joined as a party plaintiff, and the failure of the court to grant the motion is assigned here as the first ground for reversal.
Mitchell was present at the trial'of the case, and was introduced as a witness by appellee; in fact, the right to recover was established by Mitchell’s testimony. His presence at the trial constituted an approval of the prosecution of the action in the name of his partner alone, and he is estopped to dispute appellee’s right to maintain the action. This estoppel would prevent appellant from being subjected to another suit for the same right of action, and there is no prejudice in the court’s refusal to dismiss the action or to require Mitchell to be made a party. Appellant did not move the court to make Mitchell a party, which doubtless would have been done if asked.
The next contention is that the evidence is not sufficient to sustain the verdict, and that the court should have given a peremptory instruction in appellant’s favor.
Appellant introduced testimony tending to show that there was no unreasonable delay in the transportation of the carload of hogs. According to the testimony of appellant there was, indeed, no unreasonable delay; but there was a conflict in the testimony. Mitchell accompanied the transportation from Strong to Little Bock, and his testimony showed that that part of the journey was accomplished with reasonable dispatch; and appellee defends the judgment on the ground that there was delay in the remaining portion of the journey. The testimony adduced by appellant tended to show that the carload of hogs left Strong about 8 o’clock on the morning of January 2,1918; that it arrived at Gurdon, the junction point with the main line to Little Bock, at 8:30 p. m. the same date, and did not reach Little Bock until 6 o’clock on the morning of January 3. The testimony further shows that there was no fast train out of Little Bock to haul the car until 5:35 that afternoon, and that there was no delay after the car left Little Bock. Mitchell accompanied the, car to Little Bock, and he testified that the car left Strong at 6 o’clock on tire morning of January 2, and arrived at Little Rock the following night at 10 o’clock. This made a sharp conflict in the testimony and, if true, it showed an additional delay of about twenty hours in the transportation of the car from Little Rock to East St. Louis. Mitchell did not continue the journey further than Little Rock, and the shipment was not accompanied by the appellee or his agent on that part of the journey. The testimony was sufficient to warrant the jury in drawing the inference of unreasonable delay in this portion of the transportation and the burden of proof was, therefore, on appellant to remove the presumption of negligence in the delay which caused the damage.
Appellant introduced a professional veterinarian, who made a post mortem of the hog which was found dead in the car, and he pronounced the cause of death to be cholera. It is insisted that this testimony is undisputed, and that the court should not have allowed the issue as to the damage to that particular animal to go to the jury. There was also a conflict on this point, for the testimony adduced by appellee tended to show that the hogs were in healthy condition when loaded and had not contracted cholera.
Error is assigned in the ruling of the court in modifying an instruction requested by appellant which reads as follows:
“2. You are instructed that before you can find a verdict for the plaintiff, for shrinkage and decline in the market, you must find from a preponderance of the evidence that the shipment was carelessly and negligently delayed by the defendant company, and that by the exercise of reasonable diligence said shipment could have been delivered at point of destination in time to have been sold on the market of January 4. If, therefore, you find from the evidence that said shipment was moved with reasonable diligence, according to the schedule of the defendant company in effect at that time, and that the actual running time of the trains of the defendant company that moved such shipment, plus the time consumed in feeding and resting the hogs, was such that it would have been impossible to have delivered the shipment in time for the market of January 4, then your verdict shall be for the defendant company in so far as the claim for decline in market price and loss of weight is concerned, provided you further find from the testimony that, after the shipment was unloaded for feed and rest, it was moved towards the destination in the first available train used for such freight. ’ ’
The court modified the instruction by striking out the words, “plus the time consumed in feeding and resting the hogs,” and inserting the words, “if it was so unloaded.”
The modification would have been better framed if the court had inserted the added words without striking out the other words, as the manifest purpose of the court ’was to submit to the jury the question whether or not the hog’s had been unloaded and to direct the jury to exclude the resting time from the time chargeable against the railroad for making the transportation. However, the jury must have understood from this modification just what the court meant by it, and if the method of submitting it was not accurate particular attention ought to have been called to it in a specific objection. We are of the opinion that there was no prejudicial error in giving the instruction in the modified form. The judgment is therefore affirmed. | [
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Smith, J.
This suit was brought by appellee railway company to enjoin the collection of the taxes assessed against its railroad for the year 1918, upon the ground that the valuation had been arrived at by the Tax- Commission by adopting an illegal, unauthorized and unjust basis of assessment, and, in an amendment to the complaint, it was alleged that the assessment was arbitrary and discriminatory, and constituted a fraud in law, and further that unless relief was afforded by a reduction of said assessment it would be unable to pay the taxes upon a proper assessment without incurring penalties.
Appellee is a corporation under the laws of this State, with its principal office at Bigelow, in Perry County, and it owns and operates a line of railway from Bigelow, on the Rock Island Railroad, in a southwesterly direction to Thornburgh, a distance of 18-3/4 miles, all of which is in Perry County except .238 of a mile, which is in Pulaski County.
In June, 1918, when property of this character was being assessed by the Arkansas Tax Commission, appellee furnished the commission a schedule of its property, showing, in detail, the several items listed and the aggregate value of the whole railroad, which statement had been duly verified. According to this schedule the valuation of the whole property did not exceed $90,000, but an assessment of $152,450 was made against that part of the property in Perry County, and one of $350 for that part in Pulaski County. It was shoym that the outstanding capital of the company is $238,000, and that it has a bonded indebtedness of $100,000. That the railroad began operation in 1907, and for five years re ceived a division of the freight collected on shipments oringinating on its line, and delivered to the Rock Island Railroad, hut after 1912 it was no longer allowed to share the freight charges with the Rock Island Railroad because of a Federal decision in what was known as the Tap Line Cases. Prior to 1912 appellee paid its stockholders an average dividend of 7.6 per cent., and thereafter until 1915 it paid an average dividend of 2.9 per cent., but since 1915 no dividend has been earned or paid, and in 1917 an operating loss of $7,900 was sustained, and that loss was increased to $37,-000 in 1918. It was further shown that 95 per cent, of the operating income was derived from freight paid by the Fourche River Lumber Company on logs and lumber, and that 75 per cent, of the passenger fares collected was paid by the employees of the lumber company, and that it would be impossible to operate the road but for the income derived from the lumber company, which owned enough timber reached by the railroad to keep the mill of the lumber company in operation for from six to ten years, after which time there would probably be no freight or passenger traffic which would justify the operation of the railroad, and that its value would be only its scrapping value, and that the present value of the property if scrapped would not exceed $118,650, and that the entire original cost of the railroad was $355,000.
An assessment of $7,000 per mile was made against the main line of this railroad, and it is insisted that no such value could be arrived at from a basis of income, market value, original cost, or in any other way, and that the assessment was made arbitrarily and capriciously and amounted to a fraud in law. The chancery court granted the reduction prayed for, and this appeal has been duly prosecuted.
This order and decree was based upon a finding made by the court “that the assessment of the main track of the plaintiff in Perry County was made in disregard of undisputed facts and of conditions known to the Tax Commission, that it was arbitrary and could not be reached on any permissible basis of valuation, that a tax levied upon it would wrongfully deprive the plaintiff of its property without warrant of law, and would operate as a fraud .upon it, by reason of which this court has jurisdiction to grant relief upon the payment of a tax levied upon a proper assessment.”
In an opinion in the very recent case of Martineau v. Clear Creek Oil & Gas Co., 141 Ark. 596, we had occasion to again review, as the court had several times done before, the authorities defining- the conditions under which courts of equity would review the action of assessing boards and grant relief, and we there said that the authorities were agreed that a mere1 mistake in judgment in fixing the value of property to be taxed, by a taxing board or commission, from whose action no appeal was provided, could not be relieved against in a court óf equity; yet we there also also said that courts of equity will restrain the collection of illegal taxes assessed against property by such boards induced by fraud, mistake, discrimination, nonuniformity, or the adoption of a fundamentally erroneous method making the assessment.
Under the test stated we think the court' below did not give proper effect to the testimony of Monroe Smith, a member of the tax commission, who was called as a witness and examined and cross-examined at considerable length. This witness testified with apparent candor, and refuted the charge that appellee’s railroad had been assessed at a greater amount per mile than any other railroad in the State depending largely on some sawmill for its tonnage, by showing- that at least two other railroads were assessed a thousand dollars more per mile, and we think the testimony of the witness makes it clear that there was no conscious purpose on the part of the tax commission to discriminate against appellee. It is true the witness did not make clear the manner in which the commission arrived at the valuation which it had fixed, except that, when asked if the commission took into account the fact that the road had paid no dividends since 1915, and about other matters which should prop^ erly have been considered in arriving at the market value of the property to be assessed, the witness stated that “We took everything into consideration, as we do in all assessments, and arrived at what we believed to be a fair value for the road, taking into consideration everything we could find out or know.” In explaining that no controlling effect was given to the lack of earning capacity, witness stated that he supposed its earnings were governed by the allowance which the lumber company made the railroad company for services rendered. It was shown that the lumber company, not only owned all the stock and bonds of the railroad company, but owned practically all the tonnage carried by it. We do not know whether the assumption of the witness was correct or not, as the point was not developed in the testimony, but it is apparent that, however inaccurate the result arrived at may be, the commission did not adopt an erroneous method of making the assessment, as they had taken into account “everything we could find out or know. ’ ’
This witness testified that the commission had before it the detailed report which the railroad company had made of its property, and its value, as it was required by law to make for the usé of the commission in making the assessment, and that the sidetrack was assessed at $2,000 per mile, and that the portions of the road used only for logging purposes were assessed as sidetrack, and that the representatives of the appellee railroad appeared before the commission when the assessment was made and urged then and there the matters here presented, all of which matters were then considered in fixing the valuation which was then made.
We think, under the testimony recited, the finding of fact set out above, which was made by the court below, is contrary to the preponderance of the evidence, and that nothing more is shown than an excessive assessment, resulting from an erroneous judgment, and this error of the tax commission is one against which yre can qfford po pelief,
The tax commission valued the property at $304,000, and assessed it at 50 per cent, of that value, that being the per cent, of value assessed against all other property. So that it appears that the assessed value • was about $50,000 less than the construction cost. It is true there was testimony showing a large per cent, of depreciation in value; but there was also some testimony as to enhancement of values and increased cost of reproduction, and while it may be true that the road will be scrapped in the course of six to ten years through lack of tonnage, it is not yet ready to be scrapped, and we cannot say, therefore, that because of the limited expectancy of life of the railroad its present market value cannot exceed its value as scrapped material.
We do not think the case made is one calling for equitable relief, as any error made is one of judgment only, and the decree is, therefore, reversed with directions to collect the tax upon the valuation fixed by the tax commission. | [
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Lacy, Judge,
delivered the opinion of the court:
The proceedings in this case are partly according to the practice in courts of chancery and partly according to the practice of courts of law. They are authorized and regulated by an act of the late Territorial Government, approved Nov. 7th, 1831. Ark. Dig. p. 344, sections 89 to 93.
It is contended, in behalf of the plaintiff in error, that the court below erred in refusing to dismiss and set aside the proceedings in this case on his first motion made for that purpose. The bare statement of the ground of that motion will be sufficient to prove its futility.
It is said that the writ was unauthorized by law, and therefore illegally issued; and further that the writ of garnishment was contrary to an agreement between the creditor, by his agent, and one of the original defendants. We will barely remark that, the writ issued in conformity to law, and that the agreement as set forth, is a mere nudum pactum. And such matter constituted no foundation for a dismissal of the suit.
It is further asserted that the court below erred in not dismissing the proceedings upon the fifing of the garnishee’s answer. The record does not show that any motion was made to dismiss, and even if there had been, the court could not have sustained it. The statute gives the plaintiff the right to deny the truth of the answer, and to empannel a jury to try the issues formed. Therefore, an action of garnishment does not go off like an injunction, upon filing an answer to the interrogatories put. The answer, in the present case, is sufficient to charge the garnishee, for it shows funds and available means placed in his hands by one of the judgment debtors, for the purpose of paying off the very debt, for which he was garnisheed.
The other grounds assigned for error, present a single question, arising out of the facts appearing in the motion and affidavit of the garnishee to dismiss and set aside the rule against him to account.
The levies made upon the property of James W. Walker were no extinguishment of the judgment even as to him. Because, on each levy, the property did not remain in the hands of the Sheriff, but was redelivered to the original judgment debtor, who was never deprived of the possession or use, but for a short time. And the Sheriff in redelivering the same acted in strict conformity to his duty; and of course no action accrued to the original judgment creditor on the levy upon the slaves seized in execution. If the Sheriff was liable at all, it was for failing to make a proper levy or legal return to the writ of venditioni exponas. The levies were no extinguishment or satisfaction of the judgment as to Joshua T. Walker or Simon T. Sanders. Nothing but actual satisfaction would release them. If Joshua T. Walker was not discharged from the judgment by the levies, then undoubtedly his garnishee, who admitted in his answer that he held available funds in his hands for the purpose of paying off the judgment, could not claim to be exonerated from its liability. If Joshua T. Walker was liable because there was no actual satisfaction of the judgment, of course, his property in the hands of his garnishee was likewise liable.
It is contended that the judgment was satisfied by a payment made to the Sheriff, by the receipt of John Trigg; agent of Bradley, and by the receipt of the bank notes, some silver, and one copper coin, in discharge of the execution.
It is clear to our minds that the Sheriff had no right to make any such return. There is no proof that Trigg was the authorized agent of Bradley to receive of James W. Walker a draft on E. Myrick, payable at sight in New New-Orlcans, for the sum of $2,000, in discharge of the judgment, or that the amount was ever, paid over to Bradley in satisfaction of so much of the judgment; consequently the Sheriff’s receipt or certificate on the venditioni exponas constituted no legal satisfaction of the judgment as to the garnishee. As to the funds paid, there is no proof or allegation that the Sheriff was authorized by Bradley, his agent, or attorney, to receive such funds. But it is in proof that Bradley’s attorney positively refused to receive them.
Whether or not the reception of these funds by the Sheriff operated as a discharge of so much of the judgment against James W. Walker, we do not feel ourselves called on to determine, as that point is not legitimately now before us; nor is it necessary for us to decide whether or not the Sheriff rendered himself liable to Bradley for a failure to make a proper levy, or for a false return upon the execution. Be that as it may, the reception of the bank notes did not discharge the other defendants, nor the garnishee, as their debtor. Because the reception was not an actual satisfaction of the judgment as to them or the garnishee. The true rule upon this subject is “ that when a levy under execution is made upon personal property of sufficient value to satisfy the execution, and the property 'so seized does not again come to the possession of the debtor, the levy is a satisfaction of the execution,” “ although the property is wasted or misapplied by the Sheriff.” “ But if the debtor again receives the goods levied on, there is no such satisfaction. The satisfaction dates from the time of the levy. So long as the property remains in the hands of the Sheriff or in other words, in custodia legis, the debtor has the general property in the goods, and does not part with it until the sale, for until the sale it is possible that he may again take the property.” “ Actual satisfaction of the debt or judgment by the sale of the property of one debtor or defendant is a discharge of the other debtor and defendants.’’ “ But when satisfaction is worked by the levy without sale, only the debtor or defendant whose goods are levied on is discharged, and his co-defendants remain still liable, because the creditor hath had no actual satisfaction of his judgment.”
The application of these principles, according to the view we have taken in the present case, clearly demonstrates that the garnishee was not exonerated or discharged from his liability by the levies. And even if the facts asset out in his affidavit constituted a good discharge, it is exceedingly doubtful whether or not advantage of it could be taken by motion to dismiss the suit or quash the proceedings against him. No matter of defence arising after action brought, can properly be pleaded generally, but ought to be pleaded in bar of the further maintenance of th,e suit. And if it arise after issue joined, it must be pleaded puis darrein continuance. Howe's Prac. 431; Broome vs. Beardsley, 3 Caines, 172; 1 Ch. Pl. 532; Cobb vs. Curtiss, 8 J. R. 470.
The facts as disclosed in the affidavit upon which the motion to dismiss the suit and set aside the rule to account was founded, accrued after the issuing and service of the writ of garnishment.
Had the garnishee produced in court the goods, moneys, credits, and effects in his hands, he might, according to the requisites of the statute, have claimed to be discharged with his costs. He certainly, in his answer, has not alleged that he tendered the notes, accounts, and receipts to the court, nor has he stated that he holds them subject to its order. His answer simply states the amount of available funds that Joshua T. Walker placed in his hands for the payment of the judgment, and to it is attached a schedule of each particular claim or demand which he exhibits to the court. It admits ‡200 was collected out of the accounts. At the April term, 1837, the court made an order directing him to proceed and collect the residue of the notes, accounts, and receipts in his hands, and make report to the next term of the court. To this order he did not object, nor did he show any unwillingness to execute it. He was personally present in court when it was made, and having failed to object to his appointment, it must be presumed that he acquiesced in it, and took upon himself the trust-imposed. He did not then allege that the notes, accounts, and receipts were not due and owing from the persons who executed the same, nor did he allege their inability to pay or insolvency. At the same term, he tendered in part payment on the judgment the receipt of John Trigg, for which he was allowed a credit, by order of the court, of one thousand dollars. At the October term, 1838, his motion to dismiss was overruled, and no further order seems to have been then entered in regard to the garnishee’s accounting. At the April term, 1839, upon motion of the plaintiff’s counsel, a rule was entered against the garnishee to account forthwith, and a copy of it regularly served upon him. During all this time the garnishee never once sought to discharge himself from his liability, by alleging and, establishing the fact that he could not collect the money, or had not collected the notes, accounts, and receipts placed in his hands. By fail ing to render to the court any legal excuse for disobeying its order, which he had voluntarily assumed to execute, surely he rendered himself personally liable for the amount admitted to be due and in his hands.
At the November term, 1839, the court rendered judgment against him. He even then did not object to his liability upon the ground, that he had obeyed the previous order of the court, or that he could not execute it by reason of any inability of his own, or that of the individuals who were owing the claims put in his hands for collection. His failure then to obey the order of the court, and his express acknowledgment that the notes, accounts, and receipts, were still in his hands, was certainly sufficient to render him personally liable, and to authorize the court to decree against him.
The court proceeded to decree against him because he admitted that he possessed available means and effects, placed in his hands by Joshua T. Walker, one of the original defendants for the purpose of paying off the judgment, upon which the writ of garnishment issued. Having failed to make a legal tender to account, or to produce the notes, accounts, and receipts in his hands to the court, he of course became personally responsible for as much as he admitted to be due in his answer. Although it is true, as contended by the counsel for the plaintiff in error, that his answer was full and complete as to all the interrogatories filed, still he has no right to claim to be dismissed with his costs, if his answer shows that he has available means in his hands which he retained, belonging to the original judgment debtor; neither is it necessary for the plaintiff to put the allegations of his answer in issue, and demand a jury for determining the truth of it. As we before remarked, the proceeding in this case is partly according to the practice in courts of chancery; and in such cases the answer of a defendant will certainly charge him, if he admits a certain amount to be due in his hands, and such also we apprehend is the correct rule in the case now before us. The garnishee first rendered himself liable by his own admissions and showing — he fixed this liability personally upon himself by disobeying the order of the court to and being guilty of laches in the discharge of the duty imposed upon him. And, therefore, the court after giving him credit for all the money paid over, rightly decreed against him for the residue admitted to be in his hands unappropriated. The judgment of the court below must therefore be affirmed with costs.
The remaining cases decided at this term are necessarily postponed until the third volume.
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Ringo, Chief Justice,
delivered the opinion of the Court:
The questions arising in this case may be disposed of in the order in which they are stated. The decision upon the plea to the jurisdiction of the court, although drawn in question by the assignment of errors, was not controverted in the argument, and although not formally withdrawn or abandoned, does not appear to he relied on by the plaintiff, and the principles upon which it should have been struck •out, are so well established, and so obviously applicable to this case, that argument in support of the decision is deemed unnecessary, however, it may not be improper to state them briefly. The plea is in these words, “ and for further plea in this behalf the defendant saith that the amount of money assumed by the plaintiff to be paid to the ■plaintiff is less than one hundred dollars, and this he is ready to verify, wherefore,” &c. It appears to be well settled by the adjudication in all the courts of England, and most, if not all, of the courts in the several States of this Union, that all pleas to the jurisdiction of the Superior Courts must show, not only such facts as take the case out of the jurisdiction, but, also, that there is some other court in which effectual justice may be administered, for, if there is no other place or mode of trial, that alone will give the Superior Courts jurisdiction. 1 Chit. Plead. 479; Lawrence vs. Smith and Russell, 5 Mass. Rep., 362; Rea vs. Hayden, 3 Mass. Rep., 24; and the application of these principles to the present case is not opposed by any thing contained in the Constitution or laws of the State, because in the distribution of the judicial powers the Constitution confers on the Circuit Courts original jurisdiction of all civil cases which shall not be cognizable before Justices of the Peace, until otherwise directed by the General Assembly; and the facts of this case, as disclosed by the declaration, not only show a case within the jurisdiction of the Circuit Court, but if true, disclose a case over which no other legal tribunal in the State can exercise jurisdiction. It, therefore, devolved upon the party controverting the jurisdiction by plea, to set forth in his plea, in addition to such facts as would divest the court of its apparent right of jurisdiction, such other facts as should clearly indicate what tribunal in particular had the rightful cognizance of the case. These essential allegations are entirely omitted in the plea under consideration, and Heilman having first interposed his general demurrer to the declaration must, upon the withdrawal of his demurrer by leave of the court, be considered as undertaking to plead issuably, to the merits; beside which, there is no proposition better settled by adjudication, and supported by reason and justice, than that a parly by inverting the established order of pleading is “ precluded from pleading any matter prior in point of order.” 1 Chit. Plead., 426; Co. Lit. 303; Com. Dig. Abatement, C.; and a general demurrer being regarded by the law, as a plea in bar to the action itself, Heilman, after he had interposed his demurrer, was precluded from pleading either to the jurisdiction of the court, to the disability of the plaintiff or defendant, to the count or declaration, or to the writ; because, by pleading to the action itself in bar thereof, (which, in this cause, he had twice done when the plea under review was filed,) the law regards him as having admitted on the record, that there was no foundation for either of the defences before mentioned, and, therefore, as well as for the defect apparanfc on the face of the plea, Martin would . have been justified in disregarding it altogether, but the course pursued by him was more appropriate, and is fully authorized by the practice in England and in this country; and whatever may be the legitimate and authorized construction of our statute which provides that the plaintiff in replevin, and the defendant in all other actions may plead as many several matters, whether of law or of fact as he may think necessary for his defence; we do not, under the circumstances, consider it as'having any application to the present case.
The second question presented by the record and assignment of errors, whether viewed simply as a question of jurisdiction between the County and Probate Courts, or, as one depending upon the relative rights of the parties, if they are to be regarded as legally standing in the relation of guardian and ward, is more interesting and important in its consequences to the community generally. Heilman, on the one hand, insists that he was the guardian.of Martin, appointed and qualified according to law, when the services and labor for which he is sued in this action, were done and performed: and that an action of assumpsit cannot, if indeed any action at law therefor can, be maintained against him, which he controverts and denies, while on the contrary the defendant in error contends that the appointment of Heilman, as his guardian, was made by the County Court, instead of the Probate Court, which had the legal authority to make it, and that the County Court had no jurisdiction or power whatever over the subject, and therefore the appointment in question being coram non judice, is void, and the record thereof was properly excluded from the Ñ'7‘
In the investigation of this question we have considered. 1st. Upon what court the general jurisdiction to appoint guardians for minor orphans is conferred. 2nd. By what court the appointment or order in question was made. 3rd. Is it competent legal evidence for Heilman in the present controversy. The Constitution of this State, art. VI. sec. 9., ordains that “ there shall bo established in each county in this State, a court to be holden by the Justices of the Peace, and called the County Court, which shall have jurisdiction in all matters relating to county taxes, disbursements of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties.”
Sec. 10. There shall be elected by the Justices of the Peace of the respective counties, a presiding Judge of the County Court, to be commissioned by the Governor, and hold his office for the term of two years, and until his successor is elected and qualified. He shall, in addition to the duties that may be required of him by law as a presiding Judge of the County Court, be a Judge of the Probate Court, and have such jurisdiction in matters relative to the estate of deceased persons, executors, admistrators, and guardians, as may be prescribed by law, until otherwise directed by the General Assembly.”
The General Assembly, by a Statute approved, Nov. 7, 1836, declare that the presiding Judge of the County Court, “in addition to the duties required of him, as presiding Judge of the County Court shall be Judge of the Court of Probate, and the said Court of Probate, so constituted, shall have the following jurisdiction, to wit: the taking probate of wills, the granting letters testamentary, and administration, the appointment of guardians, and the settlement of. executors’, administrators’, and guardians’, accounts; and have the right of adjudicating all claims presented for allowance, against executors, administrators and guardians.” Acts 1836,p. 179.
The above quotations shew conclusively that the Court of Probate, organized under the Constitution, in conformity with the provisions of the Act of 1836, in force at the date of the order in question, consisted of a single Judge, and had a general jurisdiction over the appointment of guardians, which was not by any law concurrently given to the County Court, and it did not therefore possess any jurisdiction over the subject, or power to make the appointment under consideration. The caption of the record of said order, as set forth in the bill of exceptions, proves that two Justices of the Peace sat as members of the court, with the presiding Judge of the County Court, when the order appointing the plaintiff guardian of the defendant in error was made, and who, for aught that appears, may have directed the order, and must in our opinion be regarded as having at least participated in the appointment, although the record appears to have been signed by the presiding Judge alone, and this latter circumstance is relied upon by the plaintiff in error, as establishing the fact that his appointment was made by the Probate Court, instead of the County Court, as stated in the caption of the record; but it does not, in our opinion, warrant this conclusion; because it is generally known to be the uniform practice of all courts of record, to state in the caption or commencement of the record of their proceedings, the style of the court, and the name or names of the person or persons sifting in, or holding the court, with his or their official character or style, substantially, if not literally, in the manner and form observed in the record before us; and it is a fact, equally notorious, that the records are not uniformly, or generally, signed by every member of the court, when it is composed of several persons, or has, by law, one presiding officer, in which case it is not unusual for him alone to sign the record of their proceedings; and when any member of a court is once shown by the record to have taken his place on the judicial seat, upon any particular day, of any term of the court, his presence and participation in all of the business transacted in court during that day must be presumed, until the contrary is proved, which does not appear to have been even attempted in this case; we, are therefore bound to presume that Allen McLain and Richard C. Hawkins, Esqrs., were present, with David Fulton, the presiding Judge of the County Court, acting officially with him when the appointment of Heilman as guardian of the defendant in error was made. Another consideration intimately connected with this view of the question, which is inymr opinion entitled to some influence in determining the question now under consideration, is that by law as we have already shown, the Court of Probate must have been held by a single Judge; but three persons are proven to have occupied the judicial seat when the order and . appointment under consideration were made; and, therefore, they could not have been made by the Court of Probate, and must be regarded as having been made by the County Court, a tribunal possessed no jurisdiction over the subject.
If the view which we have taken of the propositions just disposed of be correct, as we are satisfied it is, there can be no doubt that the Circuit Court, from the circumstances, as shown by the record before us, properly refused to suffer the order to be read to the Jury as evidence for the plaintiff in error, upon the issue joined, because it was made by a court not possessed of jurisdiction over the subject matter, and was therefore void, and the parties never did, by virtue thereof, stand in the relation to each other, of guardian and ward; but the result would not, in our opinion, be different, if that relation had legally subsisted between them when the services were rendered, and the labor performed; for that relationship does not, according to the common law, or any law in force here, in itself, oblige the ward to labor or perform menial, or other valuable services for the benefit of his guardian, or authorize the latter to receive, for his own use,, the value of his earnings, whether they accrue under an employment in the service of his guardian, or some other person. Chancellor Kent, treating of the office of guardian, says emphatically, “ the guardian’s trust is one of obligation and duty, and not of speculation and profit.” 2 Kent's Com. 187. And the truth of his remark no one will question, who has examined the subject, and maturely considered the nature and object of the appointment; and notwithstanding the ward could not, at common law, maintain an action at law against his guardian until he come of age, he was at common law liable to an action of account after the infant came of age, and the infant, while under age, might by his next friend, call the guardian to account by bill in chancery, but the personal disability of the ward to sue his guardian must, as we apprehend, have been taken advantage of by pleading it in abatement of his suit, and.it never could have been available as a defence upon the general issue, because it is simply a matter in abatement, and could not constitute a legal bar to the right of action, after the infant came of age; which would be the effect of admitting it in evidence on the general issue, and it is therefore both irrelevant and incompetent testimony for the plaintiff in error upon this issue; consequently the court did not err in rejecting the evidence offered by the plaintiff in error.
The third and fourth questions presented by the record and assignment of errors, are based upon the assumption that the action is misconceived; and may with propriety be considered together. The former assumes that the defendant in error has a higher security in the bond executed by th.e plaintiff as his guardian, and the latter asserts that his demand is merely equitable, and no action at law can be maintained upon it. We have already decided that Heilman’s appointment as guardian of Martin is void, and that the relation of guardian and ward, never legally subsisted between them by virtue thereof, and, therefore, upon the principle decided and acted upon by this court in the case of Ashley vs. Brazil and Lindsay’s Ex’rs., 1 Ark. Rep., 144; the bond is void, and' no action whatever could be maintained upon it; in addition to which, we consider it doubtful at least, whether the defendant in error could, by an action on the bond, if it was valid, recover upon the express or implied promise of the plaintiff to pay him for his services and labor; the right of action not falling within the scope of any stipulation either expressed or implied in the condition of the bond; which simply binds the plaintiff to a due and proper performance of his duties as guardian, but does not; impose upon him any obligation to pay for the service and labor of his- ward, which is a matter in no wise connected with his trust, or the due and proper performance of his duties as guardian. But, suppose we are mistaken in this view of the subject, still the plaintiff in error cannot avail himself of this objection to the present suit, because the bond does not appear to have been offered or admitted as evidence. on the trial, nor is the existence of such bond, in any manner, legally shown by the record; such'a bond, it is true, has been transcribed by the Clerk, as part of the record returned to this court with the writ of error, yet it is not by any legal means made a part of the record of this case, and the Clerk, in so transcribing it, transcended his authority, and violated his duty, which was to make out and certify according to law, a true and complete' transcript of the record of the case; and nothing more, but this act of the Clerk, could not confer, on either party, the right to any advantage by reason of its existence, or justify the court in regarding it as legally entitled to any consideration in the case. The latter position assumed by the plaintiff in error, that the demand for which he is sued is equitable merely, is founded upon the presumption that he was legally guardian of Martin when the services were rendered, and the labor performed, for which he is sued in this action, has no foundation whatever, since he has wholly failed to prove that fact, or establish the legal existence of that relation; whatever consideration it might have been entitled to receive, if that relation had been established; we cannot, therefore, regard the action-as misconceived.
The only question remaining to be. decided is, whether the Circuit Court had jurisdiction of the case, and authority to pronounce judgment therein, for the damages assessed by the jury, and costs of suit, the action sounding in contract, and fhe damages assessed being a less sum than one hundred dollars; this question depends entirely upon what shall be considered as the sum in controversy, contemplated by the Convention when they use that language in defining and prescribing the repective jurisdiction of the Circuit Court and Justices of the Peace in matters of contract in the Constitution. On the part of the plaintiff, it is urged that the sum in controversy is ascertained by the verdict, which, being for a less sum than one hundred dollars, the Circuit Court had no jurisdiction of the case, and could not legally pronounce any judgment therein; which is denied by the defendant, who insists that the damages claimed in his declaration must be regarded as being the sum in controversy The Constitution, art. VI., sec. 3, ordains “ that the Circuit Court shall have original jurisdiction of all civil cases; which shall not be cognizable before Justices of the Peace, until otherwise directed by the General Assembly; and original jurisdiction in all matters of contract when the sum in controversy is over one hundred dollars.And the 15th sec. of the same article, amongst other things, declares that Justices of the Peace « shall have individually, or two or more of them jointly, exclusive original jurisdiction in all matters of contract, except in actions of covenant, when the sum in controversy is one hundred dollars and under.” These fundamental ordinances definitely prescribe the jurisdiction respectively, of the Circuit Court and of Justices of the Peace, in matters of contract. They confer upon the former original jurisdiction of all matters of contract when the sum in controversy is over one hundred dollars, and upon the latter, the exclusive original cognizance in all matters of contract, except in actions of covenant, when the sum in controversy is one hundred dollars and under. The line of separation between their respective jurisdictions, in this respect, is clearly-drawn and unalterably fixed, until the Constitution shall be abrogated or amended, and the only difficulty is to determine, upon satisfactory reasons, what shall be regarded as being the sum in controversy, within the spirit and meaning of the Constitution, and by what criterion it is to be ascertained; does the verdict furnish the true rule by which the sum in controversy is to be ascertained in a court of original jurisdiction? In our opinion it does not. It may determine the controversy, or ascertain the respective rights of the parties' in the subject matter of the controversy; but, it cannot, in the nature of things, indicate or decide what sum was originally in controversy between them; unless that matter be directly put in issue by a plea to the jurisdiction, setting forth, in legal form, and in a proper manner, such facts as are sufficient in law to exclude the court from exercising jurisdiction of the subject matter of the controversy; which can only be necessary in cases where the facts, as set forth by the plaintiff, present a case within the jurisdiction of the court, although the true and real subject matter of the controversy is not within its jurisdiction; and in this class of cases, if no sufficient plea to the jurisdiction is interposed, we have no doubt that the Circuit Court has a legal right to the adjudication, and is bound by law to exercise jurisdiction over the-subject, and pronounce final judgment between the parties, notwithstanding the verdict may be for a less sum than one hundred dollars, or, in favor of the defendant; in which case, if the sum in controversy must be ascertained by the verdict, no judgment conclusive upon the parties, or the subject matter of the adjudication, could ever be pronounced, nor could any valid judgmect be given even for the costs of suit, and the plaintiff would be at liberty to review the same controversy in the same, or some dther court, and harrass, and vex, and oppress the defendant according to his own pleasure, unless restrained by a court of equity, contrary to justice, and the whole spirit and genius of our laws and institutions; notwithstanding the controversy had been previously decided against him upon its merits, and no previous adjudication upon the matter, could ever be interposed as a bar to the subsequent proceeding, because, being coram non judice, it would be void. No rule, attended with consequences so unjust and absurd, can constitute the true criterion for ascertaining the jurisdiction of the court. But, independently of this, it would be a very inconvenient, uncertain, and unsatisfactory rule, because the parties would, in many cases, be subjected to all the trouble, expense, and anxiety incident to a vexatious and protracted litigation before they could, by possibility, know whether the court had jurisdiction of the controversy or not, and then, after passing through all the forms of law to a final trial of the case, be compelled to resort to a different tribunal, where similar proceedings might, and very probably would, be attended with the same result, and thus, the administration of the law would be rendered so uncertain and perplexing, and be attended with so great delay, as, in many cases, to amount virtually"to a denial of justice, the verdict depending, as it always must in the very nature of things depend, upon a great variety of circumstances and facts which are seldom, if ever, alike upon two or more occasions, must be ever subject to vary with the change of circumstances, and facts presented in combination at each trial; and, consequently, one jury might find, and be justified too in finding, a very different verdict from that which another would be warranted in finding upon another trial of the same controversy; and, therefore, we are satisfied that the verdict, when no plea to the jurisdiction is interposed, cannot be regarded as ascertaining the sum in controversy, by which the jurisdiction of the court, in matters of contract, must be determined.
By what rule then is the question of jurisdiction to be determined in matters of contract? In the investigation of this question, we have experienced considerable difficulty in coming to a just and satisfactory conclusion. "We are, however, satisfied, upon the most mature consideration of the subject, that in all actions, (except covenant,) where the law limits and especially prescribes the precise sum which may be recovered, upon the cause of action set forth in the plaintiff’s declaration, petition, or statement; and such cause of action, as therein stated, presents a liability or demand exceeding one hundred dollars, exclusive of iriterest, which if admitted or proven, the plaintiff, is legally entitled to recover. The Circuit Court has jurisdiction, and is justified in pronouncing final judgment upon the controversy, if no sufficient plea to the jurisdiction be interposed by the defendant; but if such plea he put in, and it appears upon the trial thereof, that so much of the plaintiff’s demandj as reduces it to a sum not exceeding $100, is altogether unfounded or fictitious, or has been paid, or otherwise legally discharged or satisfied; so that the real sum in controversy does not exceed the sum of $100, the suit must he abated, the Circuit Court having no jurisdiction of the matter. And this rule applies to all actions upon liquidated demands, actions.of indebitatus assumpsit, and all other actions and proceedings where the law limits and specially prescribes the sum which may be legally claimed and recovered upon the contract as set out or presented by the plaintiff, and no discretion is left with the court or jury as to the amount to be recovered, if the contract be admitted, or proved as stated; but, in every case, where the law does not limit and specially define what particular sum may he recovered upon the contract, but leaves it in the discretion of the court or jury to determine what amount the plaintiff ought to have for the non-performance of the contract, as set out, or presented by the plaintiff; as, for instance, in the action of assumpsit for the breach of contract to marry, and the like, in which the damages, or sum which may be recovered, are unliquidated and uncertain, and are not specially limited or prescribed by law, the damages claimed in the declaration or proceeding, being the, Only legal limit to the plaintiff’s right, beyond which he cannot legally recover, constitutes the sum in controversy, and, in itself, determines the question of jurisdiction, in this respect, beyond all controversy. By applying the principles, above stated, to the case under consideration, it appears manifestly, that the Circuit Court had jurisdiction of the subject; each contract, or legal liability, upon wnich the action is founded, as set forth and put in controversy by the plaintiff, and, in fact, controverted by the defendant in the court below, being for a sum exceeding one hundred dollars. Wherefore, it is the opinion of this court, that there is no error in the proceedings and judgment of the Circuit Court of Pulaski county in this case, for which they ought to be reversed, but that the same ought to be, and hereby are, in all things affirmed with costs. | [
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Dickinson, Judge,
delivered the opinion of the court:
An attorney at law cannot be held liable as for money had and collected by him, as such attorney, unless it be first proved that he either failed to prosecute the claims put into his hands for collection with due and proper diligence, and that thereby the plaintiff lost his debt or claim; or that he had collected the money, and refused to pay over on demand, or to remit it according to instructions. The attorney’s liability rests upon ■ the principle of his agency for the plaintiff, and he holds the money for his principal in that capacity. .The. plaintiff must then demand payment or request the money to be remitted, and there must be a refusal'to pay or remit before the attorney can be charged as being, guilty of laches or culpable negligence. It would be in opposition to the nature of the trust created between the parties, as well as against good faith and justice, to hold the attorney liable before demand and refusal to pay or remit the money. This principle is unquestionably settled by all the authorities. Taylor vs. Bates, 5 Cowen, 376; Rathbone vs. Ingalls, 7 Wend. 320; Ferris vs. Paris, 10 J. R. 285. The application of the rule just cited will test the question now before the court. The proof wholly fails to show that the plaintiff ever made any demand for the money of the defendant, or that he refused to pay it over according to their instructions. The proof then fails to sustain the first count in the declaration, which charges the attorney with culpable negligence. It is not shown that the money ever came to the hands of Cummins, or that he has collected it, unless his sending the claim of McKinney to Freeman to collect, and he, Freeman, receiving the money, can be regarded as a collection by Cummins, upon the ground that he had constituted Freeman his agent in the business. The evidence unquestionably shows that Cummins sent the claim to Freeman for collection, and that the claim was allowed, and that Freeman had collected and refused to pay it over to the plaintiffs. There is no evidence that the draft upon the Post Master of Chicot, was either accepted or paid, or that he was able to pay it. These facts certainly raise a strong presumption that Freeman was Cummins’ agent, which would amount to full and satisfactory proof, unless rebutted or explained away by other competent testimony. If Freeman collected the money, and refused to pay it over, Cummins would be answerable for such default or negligence upon his original implied undertaking. But then to charge him on account of such liability, as an attorney at law, a demand and refusal must be proved on the trial. The demand must be made of Cummins and not of Freeman, and a refusal on his (Cummins’) part to pay over must appear before the action can be sustained. For the law presumes he will pay over the money collected by him as attorney, until the contrary is affirmatively and satisfactorily shown. If Freeman collected the money as Cummins’ agent, it was but the act of Cummins himself; and therefore was collected in the character and capacity of an attorney, and of course Cummins cannot be held liable without proving demand and refusal on his part to pay it over.
The pioof certainly does not sustain the only remaining count in the declaration, which is indebitatus assumpsit. It is a general rule that to sustain such count, the defendant must actually have received the money. The receipt, however will, under peculiar circumstances be presumed. 1 Chitty's Pleadings 341; and cases there cited; Israel vs. Douglas, 1 H. Blackistone, 239. But such presumption arises from the special facts of the case, which carry a legal inference that the money has actually passed into the hands of the defendant, or been received by him. In the present case, no such inference can arise, because the attorney’s liability only accrues, upon demand and refusal before the institution of the suit. His contract was to collect the money as an attorney, and he can only be charged in that capacity by proving culpable negligence. It is then very questionable whether an attorney can be made liable upon an indebitatus count,unless the plaintiff first shows that the money actually came into his possession. Be that however as it may,- it is certainly clear that he is not liable unless it be first demanded of him, and he refuses to pay it over. The law presumes that the attorney, like every other officer, will do his duty, until the contrary affirmatively appears: And the presumption is fortified and strengthened by the confidence the plaintiffs have reposed in his integrity and capacity.
It necessarily follows, from the principles thus established, that the court below erred in refusing to instruct the jury as in case of non suit. The bill of exceptions contains all the evidence that was introduced upon the trial, and that wholly fails to show that the plaintiffs made a demand of the defendant before the institution of this suit, or that he refused to pay over any moneys which he may have collected as an attorney.
The judgment of the Circuit Court must therefore be reversed. | [
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PHILLIP T. WHITEAKER, Judge.
11 Appellant Michael Williams appeals his Pulaski County jury convictions on five counts of aggravated robbery and five counts of theft of property, all with firearm enhancements, for which he was sentenced to a total of fifty years in the Arkansas Department of Correction. Williams contends that the trial court erred in denying his motion for a directed verdict on all counts. Finding no error, we affirm.
The facts are as follows: on October 19, 2012, Courtney Griggs, Emily DeYmaz, Neal White, Andrew “Mack” Collins, and Brandon Bardell were robbed at gunpoint by several men at an apartment complex on Green Mountain Drive in Little Rock, Arkansas. None of 12the victims were certain how many men were involved in the robbery-the number ranged from three to five. One of the robbers held a gun to Griggs’s head during the robbery. Griggs’s purse, containing her keys, wallet, and mother’s debit card, was stolen, as were DeYmaz’s iPhone, keys, and identification. The robbers also stole wallets, keys, and cell phones from White, Collins, and Bardell. The robbers drove off in Collins’s truck and a white Chevy Impala.
After the robbers left, Griggs called the police on the cell phone she had hidden in her boot. She also called her mother. At the time of the call to her mother, Griggs was hysterical. Griggs told her mother that someone with a scar on his face had held a gun to her head and that they had been robbed.
When the police arrived, they took statements from the victims. The victims were still quite upset and taking their information was difficult. While the victims were able to provide a general description of the robbers, none of the victims informed the officers that one of the robbers suffered from facial scarring.
Officers were able to use the Find My iPhone app on one of the stolen phones to track its location. Officers tracked the phone to a location in North Little Rock and observed a white Chevy Impala matching the suspect vehicle’s description parked near the Cana Food Store on Pike Avenue. One of the officers observed Williams exit the store and open the door of the Impala. Williams was searched, and the officers located one of the stolen phones, Griggs’s keys, the stolen debit card, and a firearm on his person. The tracked phone was located inside the store.
IsWilliams was subsequently charged with five counts of aggravated robbery and five counts of theft of property, all with firearm enhancements. He was also charged with being a felon in possession of a firearm; however, that charge was severed for trial and later dismissed.
At trial, three of the victims (Griggs, DeYmaz, and White) positively identified Williams, who suffers from significant facial scarring, as the person who held a gun to Griggs’s head during the robbery. Defense counsel did not object to the in-court identifications, but did question each witness extensively about their failure to mention Williams’s scarring to the police on the night of the robbery or thereafter. Griggs admitted that her statement to police did not mention Williams’s scarring, but testified of her phone call and identification of the facial scarring of her assailant to her mother on the night of the incident. This testimony was corroborated by that of her mother. Griggs also identified the firearm taken off Williams at the time of his arrest as matching the gun used by Williams in the robbery.
At the conclusion of the State’s case, defense counsel moved for a directed ver-diet on the basis that the victims had not placed Williams at the scene of the robbery until trial, and that the only person to place him there prior to trial was Griggs’s mother. Yet, he argued, Griggs’s mother was not present at the robbery and did not identify Williams until three days before trial. Thus, the evidence necessary to prove that Williams committed the offenses was ^lacking. The trial court denied the motion. The jury ultimately convicted Williams on all counts, and Williams appeals.
Williams argues that the trial court erred by denying his motion for a directed verdict because the State failed to introduce substantial evidence that identified him as the perpetrator of the robberies and theft. He claims that the victims’ failure to report that the perpetrator had substantial scarring on his face rendered their eyewitness testimony so incredible that it was insufficient to identify him as the perpetrator.
This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence. Boyd v. State, 369 Ark. 259, 253 S.W.3d 456 (2007). In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id. On appeal, this court does not weigh the evidence presented at trial, as that is a matter for the fact-finder; nor does the appellate court assess the credibility of the -witnesses. Ridling v. State, 360 Ark. 424, 203 S.W.3d 63 (2005).
Williams’s appeal is essentially a challenge to the credibility of the eyewitnesses’ identification and the weight of this testimony. He asserts that the in-court identifications labeling him as the perpetrator were “flimsy” and insufficient to support his convictions. Unless there is an allegation of a constitutional violation in an eyewitness identification procedure, the reliability of a witness’s identification is a question for the fact-finder. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). On appeal, the fact-finder’s decision will not be disturbed when it is supported by substantial evidence. Stipes v. State, 315 Ark. 719, 870 S.W.2d 388 (1994). The Arkansas Supreme Court has repeatedly held that “unequivocal testimony identifying the appellant as the culprit is sufficient to sustain a conviction.” Id. at 721, 870 S.W.2d at 389.
Here, the victims’ in-court identifications of Williams as the perpetrator were unequivocal and provided sufficient evidence to support his convictions. Any alleged inconsistencies in eyewitness testimony became an issue of credibility for the fact-finder to determine. Accordingly, we affirm the jury’s verdicts.
Affirmed.
HIXSON and BROWN, JJ., agree.
. Williams was sentenced to fifteen years on each aggravated robbery count plus an additional ten years on each count for a firearm enhancement. He was sentenced to five years on each theft count with an additional five years as a firearm enhancement. Two of the aggravated robbery convictions were ordered to run consecutively. All other robbery and theft counts were ordered to run concurrently.
. Two other men, Antonio Bozeman and Michael Bell, were also charged with five counts of aggravated robbery and five counts of theft of property, all with firearm enhancements, as well as being habitual offenders. Williams was tried separately from Bozeman and Bell. | [
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KENNETH S. HIXSON, Judge.
_jjThis is the second appeal in this workers’ compensation case. In the first appeal, we remanded for the Commission to provide additional findings and conclusions on whether the employer was entitled to a statutory credit provided in Arkansas Code Annotated section ll-9-807(b) (Repl. 2012), and if so, the extent of the credit. See Parker v. Advanced Portable X-Ray, LLC, 2014 Ark. App. 11, 431 S.W.3d 374. Following our remand, the Commission found that the employer, appellant Advanced Portable X-Ray, LLC (“APX”) was not entitled to this credit. APX appeals. We reverse because the Commission erred in its application of section ll-9-807(b).
The chronology of events in these proceedings are set out in detail in our first opinion, so we will not restate them. We will, however, provide an abbreviated explanation. Appellee Connie Parker worked for APX, a mobile x-ray company, and in September 2011, Parker |<>sustained work-related injuries. APX continued to pay Parker her regular wages while she was healing, through January 15, 2012. APX terminated her from employment as of January 26, 2012, prior to her expected medical release.
On January 30, 2012, Parker sent a letter to the Equal Employment Opportunity Commission (“EEOC”) followed by a formal discrimination charge in March 2012, She accused APX of violating the Americans with Disabilities Act (“ADA”) when it fired her while she was disabled from working. In April 2012, Parker and APX settled the EEOC charge following a confidential mediation session wherein APX agreed to pay Parker “lost wages” of $60,000, less applicable taxes (tendering a $47,485 check), in exchange for Parker “resigning” and not instituting a lawsuit under the ADA. The settlement check referenced a one-day “pay period” of April 27, 2012, and it recited that this was “regular pay” for “earnings and hours” with a “net pay” of $47,485.
Parker’s workers’ compensation claim proceeded. APX contested her claim, arguing in part that it was entitled to a statutory credit pursuant to Arkansas Code Annotated section ll-9-807(a) or section ll-9-807(b). The statute provides:
Credit for compensation or wages paid.
(a) 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.
(b) If the injured employee receives full wages during disability, he or she shall not be entitled to compensation during the period.
After a hearing conducted in August 2012, the administrative law judge issued his opinion in September 2012. In the administrative law judge’s opinion, he awarded Parker temporary Rtotal disability (“TTD”) benefits from January 16, 2012 to a date yet to be determined and denied APX a credit under subsection (a). The Commission, in its de novo review, affirmed the TTD award but reversed the ALJ on the statutory-credit issue. The Commission awarded APX the credit pursuant to subsection (b), finding that the “lost wages” referenced in the settlement were “lump sum wages” for purposes of subsection (b). The Commission specifically noted that APX was not seeking a statutory credit pursuant to subsection (a) before the Commission. -Both parties appealed the Commission’s April 2013 decision to our court. In the first appeal, we stated that the Commission’s opinion “provides no explanation of how Parker’s EEOC mediation settlement proceeds described therein as ‘lost wages’ equates to ‘full wages’ under section ll-9-807(b).” Id. at page 5. Consequently, we remanded to the Commission “to make findings and conclusions with sufficient detail and particularity on the applicability of Arkansas Code Annotated section ll-9-807(b) and the amount of the credit, if any, available to APX under the facts of this case.” Id. at page 6.
On remand, the Commission made a finding that the “lost wages” paid in the EEOC settlement were “full wages” as contemplated in subsection (b). It recited that “wages” are defined in the Workers’ Compensation Act as “the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident,” referencing Arkan sas Code Annotated section 11-9-102(19). The Commission further found that the settlement proceeds were not “advance payments for compensation” as contemplated by subsection (a), although that was not at issue, given that APX was no longer seeking a credit |4under subsection (a) and our remand was limited to subsection (b). The Commission concluded that even though the settlement monies were “full wages,” a statutory credit would be denied after the Commission strictly applied what it perceived to be the controlling appellate authority. APX appeals, and we reverse because the Commission erred.
We review the evidence in a Workers’ Compensation appeal in the light most favorable to the decision of the Commission and affirm if it is supported by substantial evidence. Tucker v. Bank of Amer., 2013 Ark. App. 585, 2013 WL 5745033. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. On review, the issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Id.
The Commission clarified and concluded that the EEOC settlement proceeds were “full wages” for purposes of subsection (b). We do not disturb this finding of fact. APX does not argue that the Commission’s finding of fact — that the settlement monies were “full wages” — is in error. Parker did not cross appeal any findings of fact or law. In sum, there is no dispute between the parties that the money received by Parker from the EEOC settlement was “full wages.”
|sWhat APX argues, in a compelling fashion, is that the Commission erred in its application of the law to the facts it found. We are required to strictly construe workers’ compensation statutes, meaning that we are to narrowly construe the statute, nothing to be taken as intended unless clearly expressed. St. Edward Mercy Med. Ctr. v. Howard, 2012 Ark. App. 673, 424 S.W.3d 881. The correct interpretation and application of an Arkansas statute is a question of law, which we decide de novo on appeal. See Stewart v. Arkansas Glass Container, 2010 Ark. 198, 366 S.W.3d 358. While an agency’s interpretation of applicable statutes is highly persuasive, it is not binding on appellate courts and will be overturned if clearly -wrong. Brigman v. City of West Memphis, 2013 Ark. App. 66, 2013 WL 457909; Arkansas Electric Energy Consumers, Inc. v. Arkansas Public Service Comm’n, 2012 Ark. App. 264, 410 S.W.3d 47.
Arkansas Code Annotated section 11-9-807(b) provides that if the injured employee receives “full wages during disability,” then she (Parker) is not entitled to “compensation during the period.” As stated, we accept the Commission’s finding of fact that the settlement proceeds were “full wages” for purposes of subsection (b). After APX terminated her employment, Parker remained in her healing period and was entitled to TTD — a form of compensation for disability — from and after January 16, 2012 to a date to be determined. Her entitlement to TTD, and the date on which it started, has already been established by the Commission.
Arkansas Code Annotated section 11-9-102(5) defines “compensation” to include “the money allowance payable to the employee.” In this context, Parker’s entitlement to TTD “obviously refers to money benefits paid to the injured employee for disability.” Brooks v. |6Arkansas-Best Freight System, Inc., 247 Ark. 61, 64, 444 S.W.2d 246, 248 (1969). Arkansas Code Annotated section 11-9-102(8) defines “disability” as the inability to earn wages due to a compensable injury, i.e. TTD. The parties stipulated to Parker’s TTD weekly rate at the maximum of $575. The ALJ determined that Parker’s average weekly wage was $1,850.83, another finding not on appeal and now law of the case.
Applying these undisputed facts to the plain language of section ll-9-807(b), we hold that it disqualifies Parker from receiving TTD benefits during the period that she received “full wages.” To hold otherwise would nullify section 11 — 9— 807(b), and we cannot construe Arkansas statutory law in such a way as to render it meaningless. Shipley, Inc. v. Long, 359 Ark. 208, 195 S.W.3d 911 (2004).
It appears that there is some confusion regarding the scope of the relief available to the employer under subsection (b). While the title of the statute is “Credit for compensation or wages paid,” the language in the body of the statute does not mention the word “credit” and does not describe how the credit is applied, if one is available. Hence, any understanding of the credit available must be gleaned from existing case law.
There are four potential interpretations of the relief available to the employer under subsection (b). Assuming the employee receives “full wages” during her disability, then the employer could potentially be entitled to a credit for (1) the amount of the TTD rate that the employee would have received; (2) the amount received by the employee in excess of the TTD rate; (3) the amount of the TTD rate plus the amount received in excess of the TTD rate; or (4) nothing.
|7The Commission expressed inconsistent conclusions regarding the credit potentially available to APX. At least three times in the majority opinion, the Commission recited that the employer was not entitled to any credit at all. At the conclusion of the opinion, however, the Commission stated: “The respondent-employer cannot deduct the excess of wages paid over the weekly compensation award.” These two inconsistent statements must be reconciled in this appeal. The statute itself does not provide guidance, so we must look to the appellate case law interpreting this statute.
In support of its decision to deny any credit, the Commission relied primarily on three cases: Emerson Electric v. Cargile, 5 Ark.App. 123, 633 S.W.2d 389 (1982); Southwestern Bell v. Siegler, 240 Ark. 132, 398 S.W.2d 531 (1966); and Looney v. Sears, 236 Ark. 868, 371 S.W.2d 6 (1963). Upon closer examination, we hold that these cases do not support denial of the credit for payments made commensurate with the claimant’s TTD rate.
We begin with a review of Lion Oil Co. v. Reeves, 221 Ark. 5, 254 S.W.2d 450 (1952). In Lion Oil, Mr. Reeves was injured, and the employer continued to pay his full wages, which were in excess of his maximum allowable TTD rate. In a subsequent workers’ compensation claim, the employer requested credit for the excess wages it paid over the TTD rate. The employer did not request a credit for payments made commensurate with the TTD rate. The Commission allowed the credit, and on appeal to the Arkansas Supreme Court, it affirmed the allowance of a credit for the amount paid in excess of the TTD rate. However, the |Rholding in Lion Oil was limited to its own facts in a supreme court case handed down eleven years later, Looney v. Sears, supra.
In Looney, Ms. Looney was employed by Sears, and she sustained a compensable injury. The Sears manager testified that they paid Ms. Looney full wages initially because, “Under company policy we normally, when someone is injured, pay them full salary for a period to see how they get along, in excess of the statutory requirements as we would in an illness case.” Looney, 236 Ark. at 871, 371 S.W.2d 6. After it became apparent that she would be off for a significant period of time due to the workplace injury, Sears reduced Looney’s payments to the weekly TTD rate. As a result of initially paying “full wages” for several weeks during her disability, Sears alleged that it overpaid Ms. Looney a cumulative amount of $601.73 during this period. Sears requested that the TTD award be reduced by the excess overpayments and requested a credit pursuant to Arkansas Statutes Annotated section 81-1319(m) (Repl.1960). The Commission agreed with Sears and granted Sears a credit for the $601.73 in excess wages in reliance upon Lion Oil. It is of significant importance that Sears did not request credit for the “wages” paid in an amount commensurate with the TTD rate. The Looney court explained: “During said absence, Sears paid her full wages, which amounted to $601.73 more 19than her workmen’s compensation payments would have been. This excess of $601.73 is here involved.” Looney, 236 Ark. at 870, 371 S.W.2d 6. In reversing the credit given to Sears for the excess, the Looney court recognized and specifically limited Lion Oil stating that “for future guidance in such cases, we think it wise to now limit the holding of Lion Oil Company v. Reeves to its own particular facts.” Looney, 236 Ark. at 871, 371 S.W.2d 6. Pursuant to Looney, the employer is not entitled to a credit for wages paid in excess of the TTD rate:
When an employer continues to pay salary or wages to an injured employee during any time of injury, and such payments are in excess of workmen’s compensation benefits, then when a workmen’s compensation award is subsequently made, the excess of the wages paid over the weekly compensation award cannot be deducted from the award.
Looney, 236 Ark. at 872, 371 S.W.2d 6. This holding has not been disturbed by subsequent appellate court case law.
The Commission also cited Southwestern Bell v. Siegler, supra, as authority for its denial of the subsection (b) credit. A closer review of Southwestern Bell reveals that it does not support the finding of the Commission. Southwestern Bell provided its employees with a private benefit plan called the “Plan for Employees’ Pensions, Disability Benefits, and Death Benefits.” Siegler was injured on the job and made a claim under the benefit plan and received weekly benefits. Siegler subsequently filed a workers’ compensation claim seeking benefits for a ten-percent permanent-partial disability. Southwestern Bell controverted the claim and requested a credit for payments received by Siegler from the benefit plan pursuant to Arkansas Statutes Annotated section 81-1319(m) (Repl.1960). Southwestern Bell sought 11nthe credit only as “advanced payments of compensation” pursuant to what is now subsection (a), not as “full wages” received during disability pursuant to what is now subsection (b). Our supreme court held that the weekly benefits received from the employer’s benefit plan were not advanced payments of compensation for Siegler’s disability and that Southwestern Bell was not entitled to a credit pursuant to what is now subsection (a).
The next chronological case cited by the Commission was Emerson Electric v. Cargile, supra. Emerson Electric, like many employers, sponsored an elective group disability plan for its employees. The employees could elect the disability plan and if elected, the employees paid the premiums. Cargile sustained an on-the-job injury and filed a workers’ compensation claim against Emerson Electric, which Emerson controverted. Cargile also filed a claim with his group disability policy, which paid Cargile weekly disability benefits. Eventually, Cargile won his workers’ compensation claim against Emerson, and Emerson requested a credit under Arkansas Statutes Annotated section 81-1319(m) as an “advanced payment of compensation” and not as “full wages during disability.” The Commission denied the credit, and on appeal, our supreme court held: “Under this section if Emerson made advance payments of compensation to the appellee then credit should have been allowed.” Emerson, 5 Ark.App. at 125, 633 S.W.2d 389. The supreme court concluded by holding that “private insurance procured by the employee does not come within that provision of our statute.” Emerson, 5 Ark.App. at 127, 633 S.W.2d 389.
Each of the cases cited by the Commission in support of its opinion are distinguishable from the present appeal. In both Lion ■ Oil and Looney, supra, our supreme court was called to ^interpret what is now codified at subsection (b), and as held in Looney, it interpreted the statute to mean that excess wages over the TTD rate are not to be credited to the employer. Those cases do not stand for the proposition that when an employer pays an employee “full wages” during a period of disability, the employee is entitled to both full wages and TTD. To construe the statute in that manner would effectively void subsection (b).
To clarify, when an employer pays an employee “full wages” during a period of disability and the employee is subsequently awarded TTD benefits for that period, the employer is entitled to a credit under subsection (b) for the amounts paid to the employee that are commensurate with the employee’s TTD rate; the employer is not, however, entitled to a credit for amounts paid in excess of the TTD rate.
We note that in the context of disability retirement benefits, pursuant to Arkansas Code Annotated section 11-9-411, the Second Injury Fund may offset dollar-for-dollar any amounts paid to a claimant in order to prevent a claimant from receiving a double recovery. See Second Injury Fund v. Osborn, 2011 Ark. 232, 2011 WL 2062277; Mills v. Ark. State Hwy. & Transp. Dep’t, 2012 Ark. App. 395, 2012 WL 2337880; Henson v. General Electric, 99 Ark.App. 129, 257 S.W.3d 908 (2007). The Workers’ Compensation Act also provides in Arkansas Code Annotated section 11-9-410 that an insurer or an employer may pursue an action in tort against a third-party tort-feasor to ensure that the claimant is not doubly compensated to the detriment of the employer and insurer. See Vanderpool v. Fidelity & Casualty Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997). To allow an employee to receive “full wages” and weekly TTD benefits would similarly be allowing double recovery to the claimant.
|]2We hold that appellant APX requested a credit that is sanctioned by subsection (b) for the amount commensurate with Parker’s TTD rate, and the Commission clearly erred in not allowing the credit. We reverse and remand for the Commission to ascertain the period of disability that the settlement proceeds — deemed “full wages” — represented and to determine the precise credit available to APX.
Reversed and remanded for further proceedings.
PITTMAN and WALMSLEY, JJ., agree.
. The AU did not address subsection (b).
. The sole dissenting Commissioner stated that the appellate case law applicable to subsection (a) was inapplicable to subsection (b); that APX was not asserting or relying on subsection (a) as a basis to receive a credit; ' and that our court’s remand was limited to findings and conclusions on the applicability of subsection (b), not (a).
. The term "TTD rate” was not used during that time frame, and instead it was typically called the "weekly compensation rate.” For purposes of simplification and clarity, we will use the more familiar phrase "TTD rate.”
. There were actually two periods of overpayment totaling $1,291.95.
. Credit for compensation or wages paid.
"If the employer has made advance payments of compensation he shall be entitled to be reimbursed out of any unpaid instalment or instalments of compensation due.
If the injured employee receives full wages during disability he shall not be entitled to compensation during such period.” This is the same language as in our current statute; the present version divided the statute into two subsections — (a) and (b).
. See Footnote 5.
. See footnote 5. | [
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BRANDON J. HARRISON, Judge.
IvA Faulkner County jury convicted Trenton Holley for a second-degree sexual assault of his fourteen-year-old stepdaughter, K.W. He was sentenced to seventeen years in prison. The issues here are whether the circuit court erred (1) by denying Holley’s motion to suppress certain statements that he made while in police custody and (2) by admitting certain testimony during the sentencing phase. We affirm.
I. Background
In mid-March 2011, K.W. told her mother, Dusty Holley, that her stepfather, Trenton Holley, came into her room on several occasions while she was sleeping and inappropriately touched her. Dusty reported the incident to the police, and on March 17, State Police Investigator Joni Clark spoke with Dusty Holley. Investí- gator Clark scheduled an interview on March 30, and Trenton Holley attended. During that interview, Holley told Investigator Clark that he had gone into KW.’s room “to look at her” but that he “never touched her.” |2At the end of the interview, Clark arrested Holley and took him to jail. The next day, March 31, Clark recorded a second interview with Holley. During the second interview Holley admitted that he had touched KW.’s vagina through her clothes. Both interviews were recorded by Investigator Clark. The State filed criminal charges against Holley in April 2011, alleging that he had engaged in deviate sexual activity with K.W.
II.. The Suppression Issue
In June 2012, Holley filed a pretrial motion to suppress incriminating statements he made during the March 31 interview, alleging that the State had induced a confession by a false promise of reward and leniency. The court held a motion hearing and addressed Holley’s March 31 statement to Investigator Clark. Several witnesses testified about the details surrounding the March 31 confession.
Investigator Clark testified that Holley met with her voluntarily on 30 March 2011. Clark said that, at first Holley denied going inside KW.’s room, but then said he went to get his cell phone and eventually admitted to looking at his stepdaughter. Clark said that she arrested Holley after the interview and that, while taking him to jail, he asked to make a deal. Holley wanted to plead to a misdemeanor because he would lose his job if convicted of committing a felony. Clark said that she told him that she could not offer him anything “because it would be coercion” but that she could talk to the deputy prosecuting attorney. Clark later relayed to Holley that the deputy prosecuting attorney would not offer him any deal; the prosecutor did, however, offer him a $15,000 bond. Clark explained that Holley | ^normally would be held without bond until his first appearance. Clark “did not recall” Holley’s response to the bond offer.
When Investigator Clark met with Holley the next day, at his request, according to Clark, Holley signed a “Statement of Rights Miranda Warning Form”. Holley then changed his story and admitted to touching KW.’s vaginal area. Investigator Clark testified that she did not make Holley any promises if he confessed. She denied any physical intimidation, coercion, or that she had indicated that Holley could receive a lighter sentence or probation in exchange for his statement. On cross-examination, Clark said that she told Holley the message from the prosecuting attorney was: “No deal will be offered; however a $15,000 bond will be given if you make an admission.” Co-investigator Todd Mize also testified that neither he nor Clark threatened, coerced, or promised Holley leniency as a quid pro quo for an admission.
Holley testified too, telling the court that he had “no idea” that he was going to be arrested on March 30 when he spoke with Investigator Clark. As Clark was walking him to the jail, Holley said that he discussed two concerns with her. The first was that he would lose his job if he didn’t show up for work. The second concern was about whether the charge would be a misdemeanor or a felony. Holley thought he would see a judge the next day, March 31.
Holley testified that when he found out that he could be held until Monday without bond, he told Investigator Clark that he touched K.W. so that he could get a bond, get out of jail, and keep his job. According to Holley, Investigator Clark said that he could “have a $15,000 bond if I was willing to talk.” Holley’s understanding was that if he didn’t tell Clark Rthat he “did it or confess to it” he would sit in jail some more; and if he wasn’t at work by Friday he wouldn’t have a job.
On cross-examination, Holley acknowledged that after he gave the second interview, he received a $15,000 bond and got out of jail. He agreed that Clark did not lie to him or give a false promise and that he understood his Miranda rights and that he “admitted to something so he could get out of jail.” Without the promise of a bond, Clark said that he “would not have admitted to anything.”
This court reviews a circuit court’s decision denying a defendant’s motion to suppress a confession by making an independent determination based on the totality of the circumstances, and the ruling will be reversed only if it is clearly against the preponderance of the evidence. Fritts v. State, 2013 Ark. 505, 431 S.W.3d 227. Circuit courts resolve conflicting testimony that arises from suppression hearings. Id.
A statement made while in custody is presumptively involuntary, and the State must prove by a preponderance of the evidence that a custodial statement was given voluntarily. Id, A person subject to a custodial interrogation must first be informed of his right to remain silent and right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). To determine whether a waiver of Miranda rights is voluntary, this court asks if the confession was the product of free and deliberate choice or the product of intimidation, coercion, or deception. Jones v. State, 344 Ark. 682, 687, 42 S.W.3d 536, 540 (2001).
|fiA statement induced by a false promise of reward or leniency is not voluntary. Wallace v. State, 2009 Ark. 90, 302 S.W.3d 580. When a police officer makes a false promise that misleads a prisoner, and the prisoner confesses because of it, then the confession was not made voluntarily, knowingly, and intelligently. Roberts v. State, 352 Ark. 489, 102 S.W.3d 482 (2003). Because “the object of the rule is not to exclude a confession of truth, but, to avoid the possibility of a confession of guilt from one who is, in fact, innocent,” a person seeking to have a statement excluded on the basis that a false promise was made must show that the confession induced by the false promise was untrue. Fuson v. State, 2011 Ark. 374, 383 S.W.3d 848.
In determining whether there has been a misleading promise of reward, we consider the totality of the circumstances. Id. This inquiry has two main components: the officer’s statement to the defendant and the defendant’s vulnerability. Id. If this court decides that the officer’s statement is an unambiguous, false promise of leniency, then the defendant’s statement is involuntary. Id. Nor do we assess the defendant’s vulnerability if we first conclude that no false promise of reward or leniency was even made. Id. On the other hand, if the officer’s statement is too ambiguous, then we assess the defendant’s vulnerability, an analysis that considers (1) the age, education, and intelligence of the accused; (2) how long it took to obtain the statement; (3) the defendant’s experience, if any, with the criminal justice system; and (4) the delay between the Miranda warnings and the confession. Id.
| (¡Considering the totality of all the circumstances, we hold that the' circuit court did not err in finding that Holley made a voluntary and admissible statement when he told the police that he had touched K.W.’s vaginal area. We begin and end our analysis at the first step of the required analysis: because the police made no false promise, or a sufficiently ambigú ous statement that might have misled a vulnerable defendant, there is no need to delve into Holley’s vulnerability.
Investigator Clark’s report to Holley was true — he was permitted to post a $15,000 bond without a court appearance and return to his job. Holley testified that he understood his Miranda rights, and the State offered documentary proof of Holley’s acknowledgment. There was not much delay between the Miranda warnings and Holley’s confession, and the overall length of the interview was less than one hour. True, there was conflicting testimony on Investigator Clark’s alleged statement to Holley that she would “push for probation,” but the circuit court could and did seemingly resolve that conflict in the State’s favor. In any event, Holley does not argue the probation point here. Finally, there was no promise to dismiss the criminal charges.
The circuit court did not err in denying Holley’s pretrial motion to suppress statements made during his custodial interview with Investigator Clark.
III. The Sentencing Issue
We now turn to whether the circuit court mistakenly allowed testimony of alleged sexual contact between Holley and his sister, Shelly, during the sentencing phase of Holley’s trial.
17Holley filed a pretrial motion in limine asking the court to exclude testimony from any witness, other than the victim, about alleged sexual acts or sexual contact with him.' The motion was based on Ark. R. Evid. 404(b), which prohibits the State, in part, from using past bad acts as character evidence to show a defendant is a criminal or a bad person. Ark. R. Evid. 404(b) (2013); see also Hamm v. State, 365 Ark. 647, 232 S.W.3d 463 (2006). Some of the statements Holley targeted were made during a phone call that Investigator Clark had recorded between Holley and his wife, Dusty. During the call Dusty asked Holley, “What about Shelly? Did you rub her boobs under her shirt?” Holley responded that “he did not know why he did it” and said that “it was not right in the head.” Other targeted statements arose from the first recorded (March 30) interview between Investigator Clark and Holley, during which Clark asked Holley about the allegation; Holley responded, “My sister? That happened years ago, it was after she graduated high school. I did touch her.” Holley explained that Shelly was living with his family and that, on one occasion, he approached Shelly while she was in his bed and touched her breasts.
These statements were not allowed to be used against Holley during the guilt phase of Holley’s trial. But the same issue was raised again during the sentencing phase of the trial, and the court held a chambers meeting outside the jury’s hearing. The State wanted the statements admitted; Holley wanted them excluded again for a number of reasons.
The court acknowledged its prior ruling that the Shelly evidence “wasn’t relevant to the charge” during the guilt phase, but nonetheless allowed the statements to come in during the sentencing phase through Investigator Joni Clark and Dusty Holley. (Shelly never 18appeared or testified during any phase of the trial.) Clark said that Holley told her that several years ago, when he and Shelly were adults and living in the same house, he approached Shelly while she was in his bed and touched her breasts on top of her clothes and that she had laughed. Dusty Holley testified that she had “confronted Trenton about something with Shelly,” but he didn’t tell her what he did, he only confirmed that it had happened.
This brings us to Holley’s appellate argument that the court erred by letting the jury hear evidence of alleged prior sexual contact with his sister during the sentencing phase when it was excluded during the guilt phase. We review a circuit court’s decision to admit evidence in the penalty phase of a trial for an abuse of discretion. Id. The pivotal legal point, however, is that we need not decide the issue presented because Holley cannot establish prejudice from the admission of the evidence during sentencing. A defendant who is sentenced within the statutory range — and short of the maximum sentence — cannot establish prejudice. Tate v. State, 367 Ark. 576, 583, 242 S.W.3d 254, 261 (2006) (declining to decide alleged sentencing-phase error because the defendant received less than the maximum sentence and therefore could not establish a prejudicial error).
The statutory sentencing range for second-degree sexual assault is five to twenty years, Ark.Code Ann. § 5-4^t01(a)(3) (Repl.2009), and Holley received seventeen years. Because Holley cannot establish a sentencing-phase error as matter of law, we need not address whether the circuit court erred in admitting the Holley/Shelly testimony in the first place.
IV. Conclusion
We affirm Holley’s conviction and the related sentence.
IflAffirmed.
WYNNE and GLOVER, JJ., agree. | [
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Robert J. Gladwin, Judge.
The State of Arkansas appeals the Carroll County Circuit Court’s dismissal of its in rem forfeiture action as to a 1996 Toyota Canary, which was seized from Adam Hammame and Susan Hammame. The State contends on appeal that the circuit court misinterpreted Ark. Code Ann. § 5-64-505 (Repl. 2005), by concluding that the sheriffs office was a party to the forfeiture action under that statute, and therefore, could not effect service pursuant to Arkansas Rule of Civil Procedure 4(c)(1) (2006). We reverse and remand for proceedings consistent with this opinion.
An in rem complaint for forfeiture of seized items was filed on July 6, 2006, against a 1996 Toyota Camry registered to Adam Hammame and Susan Hammame. The car was seized on May 26, 2006, by the Carroll County Sheriffs Office after it had been used by Adam Hammame to transport one-quarter pound of marijuana to a residence in Carroll County, where Hammame then sold the marijuana to a confidential informant while law enforcement were present in the residence. The complaint sought forfeiture of the automobile to the State pursuant to Ark. Code Ann. § 5-64-505. The Hammames filed separate answers, each reserving the right to file objections to the service of process, venue, subject-matter jurisdiction, personal jurisdiction, or amended pleadings. After a hearing on December 11, 2006, at which the parties agreed to stipulated facts, the circuit court dismissed the forfeiture complaint, finding that the Carroll County Sheriff could not properly serve summons in this case pursuant to Ark. R. Civ. P. 4(c)(1), as the sheriff was a party to the forfeiture action under Ark. Code Ann. § 5-64-505, adhering to its decision in a related case. The State filed this appeal.
Pursuant to Ark. Code Ann. § 5-64-505(g)(1)(A), the prosecuting attorney shall initiate forfeiture proceedings by filing a complaint with the circuit clerk of the county where the property was seized and by serving the complaint on all known owners and interest holders of the seized property in accordance with the Arkansas Rules of Civil Procedure. Arkansas Civil Procedure Rule 3 provides that an action is commenced by filing a complaint with the clerk of the proper court. Forrest City Mach. Works, Inc. v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993). However, effectiveness of the commencement date is dependent upon meeting the requirements of Rule 4(i), which provides in pertinent part:
Time Limit for Service: If service of the summons is not made upon a defendant within 120 days after filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s initiative. If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause.
Rule 4(c)(1) provides that service of summons shall be made by a sheriff of the county where the service is to be made, or his or her deputy, unless the sheriff is a party to the action. Under Ark. Code Ann. § 5-64-505(h), final disposition offorfeited property is described in pertinent part as follows:
(1) When the circuit court having jurisdiction over the seized property finds upon a hearing by a preponderance of the evidence that grounds for a forfeiture exist under this chapter, the circuit court shall enter an order:
(A) To permit the law enforcement agency or prosecuting attorney to retain the seized property for law enforcement or prosecutorial purposes, subject to the following provisions:
(i) (a) Seized property may not be retained for official use for more than two (2) years, unless the circuit court finds that the seized property has been used for law enforcement or prosecutorial purposes and authorizes continued use for those purposes on an annual basis.
(b) At the end of the retention period, the seized property shall be sold as provided in subdivision (h)(1)(B) of this section and:
(1) Eighty percent (80%) of the proceeds shall be deposited into the drug control fund of the retaining law enforcement agency or prosecuting attorney; and
(2) Twenty percent (20%) of the proceeds shall be deposited into the State Treasury as special revenues to be credited to the Crime Lab Equipment Fund.
(c)(1) Nothing prohibits the retaining law enforcement agency or prosecuting attorney from selling the retained seized property at any time during the time allowed for retention.
The interpretation of statutes and court rules on appeal is de novo. E.g., Ligon v. Stewart, 369 Ark. 380, 255 S.W.3d 435 (2007). A circuit court’s findings of fact will not be set aside unless they are clearly erroneous. In re One 1995 Ford, 76 Ark. App. 522, 69 S.W.3d 442 (2002). We do not defer to a trial court’s ruling on questions of law, and will simply reverse if it rules erroneously on a legal issue. See id.
The State contends that the circuit court’s conclusion that the sheriff s office was a party to the State’s forfeiture action in this case was erroneous. Arkansas Code Annotated section 5-64-505(h) allows a circuit court to permit a law-enforcement agency to retain and use forfeited seized property. The trial court concluded that “the language of the statute makes it clear that the seizing agency is a party to this type of action, and has an interest in the outcome.” The State argues however, that the statute does not purport to make seizing agencies, as was the sheriffs office here, parties to in rem proceedings, or even to contemplate service upon them. See Ark. Code Ann. § 5-64-505(g)(1). We agree.
Prosecuting attorneys are authorized to bring actions in which the State is interested in the State’s name and behalf, not in the sheriffs’ name and behalf. See Ark. Code Ann. § 16-106-101(a) (Repl. 2006). Therefore, pursuant to Ark. Code Ann. § 5-64-505(g)(l), a prosecuting attorney is authorized to initiate forfeiture proceedings and is required to serve known owners and interest holders, but not seizing agencies. The seizing agency is responsible for custody and inventory of the seized property, but may not dispose of it except as authorized by a court. See Ark. Code Ann. § 5-64-505(e), (f), (h), (i). The plain language of the statute dictates that a seizing agency has no claim to property unless it is forfeited, and even then the interest is statutorily conditioned, and that known owners or interest holders are entitled to seized property if it is not forfeited. Ark. Code Ann. § 5-64-505(g)(3)(C), (g)(5)(A)(iii)(6). Therefore, the circuit court’s reliance on paragraph (h), concerning disposition of seized property, to conclude that the sheriffs office here was a party to the forfeiture action was in error.
The trial court was apparently persuaded by Hammame’s argument that In re $3,166,199, 337 Ark. 74, 987 S.W.2d 663 (1999), stands for the proposition that the seizing agency cannot serve process because it is an interested party. In that case there was a dispute between state and local authorities over the proper jurisdiction for forfeiture proceedings because at stake was over $3.1 million found in the course of a random search of a tractor-trailer truck on an Arkansas highway. The trial court held that the Crittenden County Prosecuting Attorney was the seizing law-enforcement agent. On appeal, the Arkansas Highway Police (AHP) was held to be the “seizing agency” under the statute. The Arkansas Supreme Court ruled that AHP had standing to appeal the circuit court’s order, even though it acknowledged that AHP would not ordinarily have standing to bring the appeal. The court stated:
However, we have recognized two other circumstances [besides by initiating an action through filing a complaint or responding to a complaint by answer, by intervention under Rule 24, or by joinder under Rule 19] in which a nonparty may gain standing to pursue appellate review of a trial court’s orders. The first occurs when a nonparty seeks relief under Rule 60 (k), which provides that an independent action may be filed to relieve a person from judgment who was not actually served with process. Ark. Dep’t of Human Servs. v. Bailey, 318 Ark. 374, 885 S.W.2d 677 (1994). AHP has not sought such relief so it is inapplicable. The other circumstance is the unique set of facts where any appellant, though not a party, has a pecuniary interest affected by the court’s disposition of the matter below. In [Matter of Allen, 304 Ark. 222, 800 S.W.2d 715 (1990)], this court noted that it has long recognized an exception to the general rule for one pecuniarily affected by a judgment. Ark. State Hwy. Comm’n v. Perrin, 240 Ark. 302, 399 S.W.2d 287 (1966).
Id., 337 Ark. at 79, 987 S.W.2d at 666 (1999). In re $3,166,199 stands only for the proposition that a seizing law-enforcement agency had standing to file an appeal to protect its pecuniary interest in a seized res, despite being a nonparty.
Finally, Rule 4’s prohibition on service by the sheriff when he is a party has no application in this case. The former statutory prohibition on a sheriff s service power was broader, as the statute included actions “wherein the sheriff is a party or is interested.” Ark. Code Ann. § 16-58-112 (1987). However, that statute was superseded by Ark. R. Civ. P. 4(c)(1), which states that service shall be made by a sheriff unless the sheriff is a party to the action, leaving out the “or is interested” language. The sheriff was not a party, and service by him was not deficient under Rule 4(c)(1).
Therefore, we reverse the circuit court’s order and remand for proceedings consistent with this opinion.
Reversed and remanded.
Glover and Vaught, JJ., agree.
See State of Arkansas v. Neal, CA 07-165 (Ark. Ct. App. Apr. 9, 2008), where the Carroll County Circuit Court dismissed the forfeiture action after finding that, pursuant to Ark. Code Ann. § 5-64-505 andArk. R. Civ. P. 4(c)(1), the Carroll County Sheriffs office was a party, and thus could not properly serve summons. | [
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John Mauzy Pittman, Chief Judge.
Appellant, a man in Judge. and sexual assault of a twelve-year-old girl. On appeal, he asserts that the trial judge erred in denying his motion for a mistrial. We affirm.
During appellant’s jury trial, the victim testified that she was raped and sexually assaulted by appellant at her home when appellant was her mother’s live-in boyfriend. Although appellant was being tried only for crimes committed against the twelve-year-old victim, another girl testified without objection that she, too, was raped by appellant under similar circumstances when she was fifteen years old. The jury found appellant guilty of raping and sexually assaulting the victim, and then heard evidence and argument relating to sentencing. During the sentencing phase, the prosecutor addressed the jury and argued that justice required a sentence of at least twenty years, “ten for each girl.” Appellant objected and moved for a mistrial on the ground that the present trial was only for his offenses against one victim, not two. The trial court denied a mistrial but gave the following curative instruction to the jury:
I apologize, ladies and gendemen. There was an objection made as you were leaving the courtroom to the Court about the last comment or argument [the prosecutor] made about asking for a longer sentence because of allegedly two victims. I’m going to instruct you to disregard that argument, and here’s the reason why just so you know where, why I’m sustaining the objection:
We’re only having one trial here today, and he should be punished based on that, not because there are two victims in this case. Now, in considering the seriousness of the punishment, you may consider the fact that there’s an allegation that he has commit ted another offense. Whether or not you find that to be true is a matter for your determination. It’s an appropriate consideration if you should find it to be true, but not because there are two victims is what I’m saying. That’s another trial to be had in this case.
After deliberating, the jury fixed appellant’s sentences at ten years’ imprisonment for rape and ten years’ imprisonment for sexual assault. The trial court ordered that the sentences mn consecutively, as the jury recommended.
Appellant argues that the prejudicial effect of the prosecutor’s argument was not removed by the trial court’s instruction. We do not agree. Mistrial is an extreme remedy that should be used only when the error is beyond repair and cannot be corrected by any curative relief. Meadows v. State, 360 Ark. 5, 199 S.W.3d 634 (2004). A circuit court’s decision to grant or deny a mistrial will not be disturbed absent a showing of an abuse of discretion. Id. An admonition is the proper remedy where the assertion of prejudice is highly speculative. Wilkins v. State, 324 Ark. 60, 918 S.W.2d 702 (1996).
Appellant suffered no prejudice that would warrant a mistrial. The fifteen-year-old girl’s testimony that she had also been raped by appellant was admitted in the guilt phase of the trial without objection, and it was clearly admissible during the penalty phase as relevant evidence of appellant’s character. See MacKool v. State, 365 Ark. 416, 231 S.W.3d 676 (2006); Ark. Code Ann. § 16-97-103 (Repl. 2006). Therefore, the prosecutor’s argument did not present the jury with any new allegations or facts, but simply contained an erroneous statement of law regarding the manner in which that evidence could be considered for purposes of sentencing. The trial court’s admonition was even-handed and clear, and we hold that it was sufficient to remove any possible prejudice resulting from the argument.
Affirmed.
Bird and Griffen, JJ., agree.
Ten years was the minimum permissible penalty for the Class Y felony of rape; appellant could have been sentenced to life imprisonment for that offense. The permissible penalty range for the Class B felony of sexual assault was not less than five years nor more than twenty years. See Ark. Code Ann. § 5-4-401 (Repl. 2006). | [
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John B. Robbins, Judge.
This is an appeal by appellant Greenwood School District contesting the Sebastian County Circuit Court’s order filed September 5, 2007, entering judgment for appellee, former school employee Barbara Leonard, in her suit for breach of contract. Appellant contends that appellee’s sole recourse for any grievance against the district was through the Teacher Fair Dismissal Act (TFDA), under which she had no right of appeal, and that she did not have any actionable breach of contract claim. Appellant also contends that the trial court erred in finding that appellee met her burden of proof to sustain an award of damages for breach of contract. We disagree with appellant and affirm the trial court.
Appellee entered into a written employment contract with the district for the term of July 1, 2006, through June 30, 2007, for a total salary of $39,831, wherein appellee would provide teaching services. The termination provision stated that it would be “according to the Board ofEducation Policy.” The district informed her of its intentions to terminate her contract in a letter sent to appellee in August 2006. A full hearing on this issue was conducted before the school board in October 2006, after which the board voted to accept the district’s recommendation to terminate her contract. Thereafter, appellee filed a complaint in circuit court pursuing two remedies: an appeal under the TFDA, and alternatively seeking damages for breach of contract.
Appellant resisted the lawsuit and specifically asserted that appellee was a probationary teacher with the district who had no statutory right to appeal the decision of the school board pursuant to the TFDA. It is clear that a probationary teacher has no statutory right to appeal from a decision of the school board, but a non-probationary teacher does. See Ark. Code Ann. § 6-17-1510(d) (Repl. 2007). The trial court granted appellant’s motion to dismiss the part of the complaint that purported to pursue an appeal under the TFDA. Appellee does not contest that ruling. However, the contract claim was allowed to proceed.
A bench trial was conducted, wherein the trial judge received stipulated exhibits. Those included the transcript of the school board hearing, the contract for employment between appellant and appellee, the letter sent to appellee stating the district’s reasons for terminating her service, and cell phone records.
In summary, appellee had received two months of her twelve months’ salary agreement with the school district when a complaint was made to the school. Harassing and inappropriate cellular telephone calls were being made to the home of Jay and Terri Weaver, also school-district employees. The calls were ultimately traced to a phone owned by appellee. Appellee determined that the person making the calls was her seventeen-year-old niece, Lacee, who was living with appellee during that time. The repeated phone calls were annoying and sometimes lewd, and sometimes the caller or callers left voice-mail messages. The voices in those phone calls were always identified as female.
Appellee testified that once she was made aware that this was happening, she punished Lacee and ensured that this stopped. Appellee vehemently denied that she personally took part in any of those calls. Lacee testified, admitting to having made those cell phone calls, always accompanied by appellee’s teenage daughter. Lacee admitted that it was incredibly poor judgment on her part.
The existence and terms of the probationary-teacher contract are not in dispute. Appellee prevailed for having a contracted term of employment for a certain term and for certain remuneration. The trial court determined that appellant breached the agreement and awarded appellee damages for the agreed-salary remaining to be paid to her. This appeal followed.
Appellant asserts that appellee’s sole recourse was through the TFDA procedures and that she was not entitled to pursue an independent, alternative cause of action for breach of contract absent an established violation of the TFDA. Appellee contends that regardless of the TFDA, as a probationary teacher she was entitled to pursue her remedies at common law, which include an action for breach of contract. She cites to McGee v. Armorel Public Schs., 309 Ark. 59, 827 S.W.2d 137 (1992), and Head v. Caddo Hills Sch. Dist, 277 Ark. 482, 644 S.W.2d 246 (1982).
The TFDA addresses rights of redress regarding termination and non-renewal of teacher contracts in Ark. Code Ann. § 6-17-1510, which states in relevant part:
(a) Upon conclusion of its hearing with respect to the termination or nonrenewal of a contract of a teacher who has been employed as a full-time teacher by the school district for less than three (3) continuous years, the board of directors shall take action on the recommendations by the superintendent with respect to the termination or nonrenewal of such contract. The board of director’s decision with regard to nonrenewal of a probationary teacher shall be final.
(b) Any certified teacher who has been employed continuously by the school district three (3) or more years or who may have achieved nonprobationary status pursuant to § 6-17-1502 may only be terminated or the board of directors may refuse to renew the contract of the teacher when there is a reduction in force created by districtwide reduction in certified staff, for incompetent performance, conduct which materially interferes with the continued performance of the teacher’s duties, repeated or material neglect of duty, or other just and reasonable cause.
(c) Subsequent to any hearing granted a teacher by this subchapter, the board of directors, by majority vote, shall make specific written conclusions with regard to the truth of each reason given the teacher in support of the recommended termination or nonre-newal.
(d) The exclusive remedy for any nonprobationary teacher aggrieved by the decision made by the board of directors shall be an appeal therefrom to the circuit court of the county in which the school district is located, within seventy-five (75) days of the date of written notice of the action of the board of directors. Additional testimony and evidence may be introduced on appeal to show facts and circumstances showing that the termination or nonrenewal was lawful or unlawful.
As the foregoing text demonstrates, non-probationary teachers have a statutory right of review via appeal to circuit court, whereas probationary teachers do not. Undoubtedly, all employees must receive due process, which requires that the TFDA procedures be substantially complied with in any termination or nonrenewal situation. See Head, supra. Therefore, where the termination or nonrenewal is illegal, i.e., not substantially compliant with the procedures of the TFDA, then a teacher’s remedy is to file suit for a breach of contract. See id. This would apply to probationary teachers and non-probationary teachers alike where the procedures are not followed, rendering any TFDA act void, and opening the grievance to any remedy available at law.
This is not the allegation before us. We are faced with deciding whether a probationary teacher may pursue a cause of action for breach of contract independently of the TFDA. Appel-lee contends that the TFDA does not prohibit her from seeking other remedies at law, including breach of contract. Arkansas Code Annotated section 6-17-1510(a) mandates that any decision on non-renewal of a probationary teacher is final, but it does not include “termination.” In addition, the supreme court held in McGee, supra, that where a probationary teacher had no right to appeal from the school board’s decision, McGee “must therefore pursue any common law remedies he may have.” Id. at 64. A person may be liable for breach of contract if the complaining party can prove the existence of an agreement, breach of the agreement, and resulting damages. Ultracuts Ltd. v. Wal-Mart Stores, Inc., 343 Ark. 224, 231-232, 33 S.W.3d 128 (2000); Sexton Law Firm, P.A. v. Milligan, 329 Ark. 285, 298, 948 S.W.2d 388, 395 (1997); Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985).
Based upon the specific language, or lack thereof, in the relevant statute, and based upon our supreme court’s interpretation of the rights and remedies available to teachers in our state, we cannot say that the trial court erred as a matter of law in declining to dismiss this breach-of-contract action.
This brings us to the second part of appellant’s argument on appeal, which is that the trial court’s finding, that appellee met her burden of proof, was in error. The employment contract provided for a certain pay for a year’s work as a probationary teacher. The contract was subject to the personnel policy of the school district, which outlined the procedures for termination by referring to the TFDA. However, the handbook specifically stated that it did not adopt the TFDA as part of the personnel policy. The handbook does not set forth reasons for termination. Therefore, it was incumbent upon appellee to prove by a preponderance of the evidence that she was terminated without good cause.
A contract for a definite term may not be terminated before the end of the term, except for cause or by mutual agreement, unless the right to do so is reserved in the contract. See Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 308 (1982). Whether justification exists for termination of the contract under the facts and circumstances of a particular case is usually a question of fact. Joshua v. McBride, 19 Ark. App. 31, 716 S.W.2d 215 (1986). This determination was left to the finder of fact, which in this case was the trial judge. The trial judge found that appellee had met her burden of proof. This determination was essentially left to a credibility finding. The standard of review of a circuit court’s findings of fact after a bench trial is whether those findings are clearly erroneous. First Nat’l Bank v. Garner, 86 Ark. App. 213, 167 S.W.3d 664 (2004). 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 deferring as we must to those findings made by the trial court, we cannot say that the trial court’s findings are clearly erroneous.
Thus, the order on appeal is affirmed.
Vaught and Baker, JJ., agree. | [
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Annabelle Clinton Imber, Justice.
The appellant, Andrew Ross, Jr., was charged with aggravated robbery and capital murder. He was convicted of capital murder and sentenced to life imprisonment without parole. For his only point on appeal, Mr. Ross claims that the State failed to present substantial evidence to support his conviction. We disagree and affirm.
In the early morning hours of September 4, 1999, Robert Branscum, owner and operator of the Quality Liquor Store in Blytheville, was killed in the parking lot of that store. A nearby business owner testified that he heard about five gunshots around 1:30 a.m. on September 4. Officers arrived on the scene at approximately 6:00 a.m. and found Mr. Branscum’s body. He had been shot several times, and a later autopsy by the State Medical Examiner indicated that Mr. Branscum died as a result of gunshot wounds.
Around 2:30 a.m. on September 4, 1999, the Osceola police were called to the hospital in Osceola to investigate a patient suffering from a gunshot wound. The patient was Andrew Ross, Jr. When the police arrived, Mr. Ross was unclothed from the waist down due to the fact that he had been shot in the groin area. No one else in the room had similar wounds. A police officer found a pair of orange parachute pants only a few feet from Mr. Ross’s body. The orange pants had two holes in the front groin area that tested positive for trace elements indicating a bullet hole. The officer also discovered a ski mask inside the pants. Later, a t-shirt with a hole in the “front shirttail area” was found in Mr. Ross’s home. The trace-evidence examiner for the State Crime Laboratory found lead vapor residue around the hole in the t-shirt and testified that this finding would be consistent with the t-shirt being in “close proximity,” or “within a matter of feet,” of a firearm at the time of discharge.
Mr. Ross was arrested on September 26, 1999, at around 9:30 p.m. After being advised of his Miranda rights and waiving them, he gave two statements in which he admitted being present at the crime scene. In his first statement, Mr. Ross indicated that he did not know anything about the robbery until he drove by the liquor store and saw Carlos McFerrin run out in the street and flag him down. In a subsequent statement given later that same night, he admitted that he had seen Carlos McFerrin and Bernard Johnson less than an hour prior to the incident and that he knew they were planning to “hit” Quality Liquor. He also acknowledged he had been “hanging around” with Mr. McFerrin prior to the robbery.
According to his second statement, Mr. Ross knew the robbery was in progress and decided to drive by the liquor store because he “got worried about Carlos [McFerrin].” When he arrived at the liquor store, Mr. McFerrin flagged him down and asked for a ride. At that point, Mr. Ross put his car in park and got out of the car “to see what’s going on.” Mr. Ross explained that, after he got out of his car at the crime scene, the victim came out of the liquor store and “proceeded to shoot.” He then saw both Mr. McFerrin and Mr. Johnson shoot the victim several times.
During both statements, Mr. Ross conceded that he had been shot in the groin by the victim. He told the police that the victim fired at him from the front of the liquor store and he “fell against [his] car,” which was parked out on the road. This account, however, was contrary to the evidence of lead vapor residue on his t-shirt that indicated a close-range discharge of the firearm. He also claimed that, after he had been shot in the groin and after the victim had been shot, Mr. McFerrin tried to give his gun and mask to Mr. Ross: “I told him I wouldn’t take the gun but I’d take the mask and I put it in my sweats and I drove off in the car.” Furthermore, Mr. Ross stated that, after the incident, he asked his aunt to take him to the Osceola hospital, rather than the Blytheville hospital, because he did not want anyone to “think I had something to do with the shooting that’s over there by the liquor store.” His aunt, Rosetta Ross, testified at trial that Mr. McFerrin rode in the car with her, her daughter, and Mr. Ross as she drove to the hospital in Osceola. Her testimony, however, was contradicted by Mr. Ross, who told the police that Mr. McFerrin did not go with them to Osceola.
The evidence also indicated that Mr. McFerrin was arrested on the morning of the murder, and $1,400 in cash was found on his person. In addition, a -search of Mr. McFerrin’s sister’s residence revealed another $1,200 cash in a mattress. The two sets of bills were sequentially numbered. After Mr. McFerrin’s arrest, he directed officers to 1201 Ferrell Street in Blytheville, where two handguns were recovered in a floor furnace of an abandoned home. One of the guns, a 9-millimeter Ruger, was identified by Mrs. Branscum as belonging to her husband. That gun had one expended round and one round jammed in the chamber. The other gun was a Ruger P89, or .357, which had five expended rounds. A DNA specialist at the State Crime Laboratory testified that Mr. Branscum’s blood was found on both guns.
I. Sufficiency of the Evidence
For his only point on appeal, Mr. Ross claims that the State failed to present substantial evidence to support his conviction for capital murder. During his trial, Mr. Ross made a motion for directed verdict at the end of the State’s case and renewed that motion at the close of trial. Both motions were denied. A motion for directed verdict is a challenge to the sufficiency of the evidence. Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001). The test for determining sufficiency of the evidence is whether substantial evidence, direct or circumstantial, supports the verdict. 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.
Circumstantial evidence may constitute substantial evidence to support a conviction. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000). Guilt can be established without eyewitness testimony and evidence of guilt is not less because it is circumstantial. Id. The longstanding rule in the use of circumstantial evidence is that, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide. Id. Upon review, this court must determine whether the jury resorted to speculation and conjecture in reaching its verdict. Id. Overwhelming evidence of guilt is not required in cases based on circumstantial evidence; the test is one of substantiality. Id.
Mr. Ross was convicted of capital murder pursuant to the felony-murder provision of the capital-murder statute. Under that statute, a person commits capital murder if:
(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit. . . robbery . . . and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life.
Ark. Code Ann. § 5-10-101 (a) (Repl. 1997). The underlying felony is an essential element of a capital-felony murder charge. Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000). To prove capital-felony murder, the State must first prove the felony. Id. Nevertheless, the prosecution is not required to prove that a robbery occurred in order for a defendant to be convicted of capital-felony murder. Id. The prosecution only needs to prove that a defendant, acting alone or with his accomplices, attempted to commit a robbery and that, in the course of or in furtherance of the attempted robbery, he or an accomplice caused a death under circumstances manifesting an extreme indifference to the value of human life. See Ark. Code Ann. § 5-10-101(a)(1). An attempted robbery is established by proof that the defendant purposely engaged in conduct that constituted a substantial step in a course of conduct intended to culminate in the commission of a robbery. Ark. Code Ann. § 5-3-201(a)(2) (Repl. 1997).
In this case, Mr. Ross challenges the sufficiency of the evidence on grounds that the State failed to present substantial evidence that he committed or participated in the robbery. Specifically, he contends that there is no evidence that he ever owned, fired, or handled any of the weapons involved, and there is no evidence to connect him with any stolen property. His sufficiency challenge is without merit.
We have held that the presence of an accused in the proximity of a crime in a manner suggestive of joint participation is a relevant factor in determining an accomplice’s connection to a crime. Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999). Relevant factors include: (1) the presence of the accused in the proximity of a crime, (2) the opportunity to commit the crime, and (3) an association with a person involved in the crime in a manner suggestive of joint participation. Id. We have also said, where a defendant admitted he had been hiding from the police, that “[e]vidence of flight to avoid arrest may be considered by the jury as corroborative of guilt.” Flowers v. State, 342 Ark. at 51, 25 S.W.3d at 427.
In Stewart, this court concluded there was sufficient evidence to uphold a conviction for aggravated robbery “[g]iven appellant’s knowledge that his associates contemplated a robbery, his admission that he arrived at the rest stop armed and loitered for about thirty minutes, his acknowledgment that he was in the bathroom [at the time the shooting took place], and testimony that appellant . . . fled with the group, and was later seen with a weapon.” 338 Ark. at 616-617, 999 S.W.2d at 689-90. Likewise, the evidence in this case, viewed in the light most favorable to the State, demonstrated that Mr. Ross was present at the scene of the crime, knew that a robbery of the liquor store was planned, and had been “hanging around” with Mr. McFerrin. In addition, there was evidence indicating (1) that he was shot by the victim at close range; (2) that he had a ski mask in his possession; (3) that he or an accomplice shot Mr. Branscum repeatedly; (4) that Mr. Branscum died as a result of multiple gunshot wounds; and (5) that Mr. Ross and his accomplices fled from the crime scene.
As previously set out above, Mr. Ross gave two statements that were not only internally inconsistent with each other, but were also inconsistent with other evidence and testimony offered by the State. It is well-settled that the credibility of witnesses is an issue for the jury and not this court. Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998); Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). The jury 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. Bell v. State, 334 Ark. 285, 973 S.W.2d 806. We have also stated that a defendant’s improbable explanations of suspicious circumstances may be admissible as proof of guilt. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997); Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993).
There was also evidence that, on at least one and possibly two occasions, Mr. Ross attempted to evade police. The police conducted a search of Mr. Ross’s home on September 7, 1999. No one was in the home at the time of the search, but an officer testified that a videotape of the movie Independence Day was playing when he and another officer entered the home. The officer who was familiar with the movie testified that the movie had not been playing very long, thereby suggesting that someone had been in the home and left quickly when the police arrived. The police visited Mr. Ross’s home a second time on September 26, 1999. On that occasion, an officer found Mr. Ross “hiding” in a bedroom. The officer testified that the lights in the room were off, and he noticed Mr. Ross’s legs “sticking out from a closet.” This evidence of an attempt to avoid detection and arrest could be considered by the jury as corroborative of guilt. Flowers v. State, 342 Ark. 45, 25 S.W.3d 422. Based upon the foregoing, we conclude that the State presented substantial evidence that Mr. Ross participated in an attempted robbery and that, in the course of or in furtherance of the attempted robbery, he or an accomplice killed the victim. Flowers v. State, 342 Ark. 45, 25 S.W.3d 422; Stewart v. State, 338 Ark. 608, 999 S.W.2d 684.
Finally, Mr. Ross asserts that the State failed to prove that a robbery occurred. Specifically, he contends there was no evidence that any property was taken from Mr. Branscum and thus, his capital-murder conviction must fail. Once again, his argument is without merit. A defendant may be convicted of robbery even if no property is actually taken — the emphasis is on the express or implied threat of physical harm to the victim. Harris v. State, 308 Ark. 150, 823 S.W.2d 860 (1992). See Ark. Code Ann. § 5-12-102(a) (Repl. 1997). Moreover, the capital-felony murder statute does not require that an actual robbery take place; rather, an attempt to commit robbery is sufficient. See Ark. Code Ann. § 5-10-101(a)(1). We have already concluded that there was substantial evidence of Mr. Ross’s participation in an attempt to rob Mr. Branscum. In any event, the evidence was undisputed that Mr. Branscum’s gun was taken during the attack, and it was subsequently recovered at an abandoned house identified by Mr. McFerrin. Thus, there was sufficient evidence for the jury to find that a robbery occurred.
II. Arkansas Supreme Court Rule 4-3(h)
The transcript of the record in this case has been reviewed in accordance with our Rule 4-3 (h) which requires, in cases in which there is a sentence to fife imprisonment or death, that we review all prejudicial errors in accordance with Ark. Code Ann. § 16-91-113(a). None have been found.
Affirmed.
According to Mr. Ross’s first statement, he and his girlfriend and his sister were in the car when Mr. McFerrin flagged him down. Later, he claimed they were not in the car.
In his first statement, Mr. Ross denied having a ski mask in his pants even though one had been found inside his pants while he was a patient at the Osceola hospital.
Mr. McFerrin was also charged with Mr. Branscum’s murder and tried separately. This court recently affirmed his capital-murder conviction and fife sentence. McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001). | [
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Donald L. Corbin, Justice.
This is an appeal from the order of the Desha County Circuit Court dismissing with prejudice a personal-injury claim filed by Appellant Maxine Kangas against Appellee Gary Neely. The reason for the dismissal was Kangas’s failure to comply with the service requirements of Ark. R. Civ. P. 4(i). The dismissal was with prejudice because the trial court found that the three-year statute of limitations had already run. For reversal, Appellant argues that the order extending the time for service is valid under Ark. R. Civ. P. 6(b)(2), which allows the trial court to enter an order extending a prescribed period for just cause, even after the period has expired. This case was certified to us from the Arkansas Court of Appeals as presenting an issue of first impression. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1-2(b)(1). We affirm.
The facts of this case are not in dispute. On December 27, 1995, Appellant was injured in an automobile accident when the car in which she was riding collided with a car driven by Appellee. Appellant filed a negligence suit against Appellee on December 21, 1998. Appellant did not complete service of process on Appellee within the 120-day period set out in Rule 4(i), which ended on April 20, 1999. However, on the 121st day, April 21, 1999, Appellant obtained an order from the circuit court extending the time for service to May 15, 1999. Appellant completed service within the extended time period. Appellee filed a motion for summary judgment, arguing that because the order granting extension was not entered before the 120-day period expired, it was of no effect. Appellee argued further that the three-year statute of limitations expired on April 20, 1999, thus barring the suit altogether. The trial court agreed with Appellee and dismissed the suit with prejudice.
For reversal, Appellant contends that service was timely under Rule 4(i) because the order extending the time for service was valid under Rule 6(b)(2). Rule 4(i) provides in pertinent part:
Time Limit for Service. If service of the summons is not made upon a defendant within 120 days after the fifing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s initiative. If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause. [Emphasis added.]
This court has consistently held that service requirements under this rule must be strictly construed and compliance with them must be exact. Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001); Southeast Foods, Inc. v. Keener, 335 Ark. 209, 979 S.W.2d 885 (1998). Thus, service of process under this rule must be accomplished within 120 days after the fifing of the complaint unless the plaintiff has timely filed a motion to extend. Id. If service is not obtained within that time and no timely motion to extend is made, dismissal of the action is mandatory. Id.
The plain language of Rule 4(i) demonstrates that a motion to extend the 120-day period for service must be filed within that time. The record in this case reflects that ho timely motion for extension was made. Notwithstanding, Appellant argues that the order granting extension, entered one day after the 120-day period expired, was valid under Rule 6(b)(2). We cannot reach the merits of this issue because Appellant failed to obtain a ruling from the trial court. The order of dismissal is based solely on an application of Rule 4(i). It was Appellant’s burden to obtain a ruling on the Rule 6 argument, and her failure to do so is a procedural bar to our consideration of the issue on appeal. See Barker v. Clark, 343 Ark. 8, 33 S.W.3d 476 (2000); St. Paul Fire & Marine Ins. Co. v. First Bank of Ark., 341 Ark. 851, 20 S.W.3d 372 (2000).
Because Appellant failed to serve Appellee within the 120-day period set out in Rule 4(i) and failed to file a motion for extension prior to the expiration of that period, there was no valid service of process. The order of extension issued on the 121st day was of no legal effect. We thus affirm the trial court’s dismissal of the complaint. Ordinarily, a dismissal under Rule 4(i) is without prejudice; however, if the suit is otherwise barred by the applicable statute of limitations, the dismissal is with prejudice. Keener, 335 Ark. 209, 979 S.W.2d 885; Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991). Here, the three-year statute of limitations expired on the 120th day for service. Accordingly, we affirm the trial court’s finding that the dismissal is with prejudice. | [
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Robert L. Brown, Justice.
Appellant Debra Wilburn advances one point in her appeal from a judgment of conviction for solicitation to commit capital murder and from her sentence of fifteen years. She contends that the circuit court erred in denying her motion for substitution of counsel. We hold that her appeal has no merit, and we affirm.
In June 1999, Roy Lamproe and Eddie Sterling contacted the Van Burén Police Department and reported that Debra Wilburn had solicited them to kill a man who was the victim of an aggravated robbery allegedly committed by Wilburn’s daughter, Angel Wilburn, for $1,500. After being wired with surveillance equipment, Lamproe and Sterling met with Wilburn at her place of employment, The Branding Iron in Van Burén, where she worked as a bartender. Wilburn told them she wanted to meet at the Shamrock Liquor Store in Fort Smith after she got off work. At that meeting which occurred around 1:00 a.m., Wilburn gave Lamproe and Sterling a guitar as “good faith money.” They then drove back to the Van Burén Travel Center, where Wilburn gave the two men a list of names of other witnesses in her daughter’s case and requested that they write threatening letters to them. She also told them that there was only a week to commit the murder and that they should make it look like a “dope deal.” She further directed them to wear wigs and to use shoe polish on their skin to make them look black. Later that day at a meeting at The Branding Iron, she gave them a bag containing a wig and $5.00 for bullets. She also gave them her telephone number and told them to call her when the job was done. At the direction of the Van Burén police officers, the two men called Wilburn at 11:20 p.m. and told her that the murder had been committed. She told Lamproe that after he left town, she would wire him the $1,500 pursuant to their agreement. After that telephone conversation, Van Burén police officers arrested Wilburn at The Branding Iron.
On June 8, 1999, Wilburn was charged with conspiracy to commit capital murder. The State later filed an amended information, charging Wilburn with solicitation to commit capital murder. Prior to trial, her attorney, John Van Winkle, moved to withdraw as counsel because Wilburn had refused to stay in contact and to cooperate with counsel. The motion was granted, and public defender Robert C. Marquette was appointed as Wilburn’s attorney.
On September 1, 2000, Marquette moved for appointment of substitute counsel. In that motion, he claimed that Wilburn and Lamproe, the State’s key prospective witness, were Public Defender clients “who have exchanged confidential information -with this attorney.” That same day, Marquette wrote to the circuit court and advised the court that Lamproe was a client who had revealed certain information to him which could be used against Lamproe at Wilburn’s trial. He added that he had spoken with the prosecutors in the case and they agreed that Marquette had a conflict of interest. Hence, they did not oppose the motion.
On September 11, 2000, the circuit court held a hearing on the motion to substitute and questioned Lamproe, whom Marquette had represented in two previous cases. The court determined that Marquette had not discussed Wilburn’s case with Lamproe and further observed that, in any event, Marquette could only question Lamproe on cross-examination regarding matters that were of public record. The circuit court then denied the motion to substitute. Marquette renewed the motion at the conclusion of the state’s case, the conclusion of the defendant’s case, and at the close of all the evidence. The motions were denied.
The gravamen of Wilburn’s appeal is that Marquette was limited in cross-examining Lamproe because he could not delve into certain confidential information learned in his earlier representation of Lamproe. This information, according to Wilburn, could have been used to attack Lamproe’s credibility. Thus, she contends, she was denied the right to confront the State’s key witness against her and was denied due process.
There is no previous Arkansas case directly on point where a defense attorney seeks to disqualify himself from representing a criminal defendant due to a conflict of interest caused by the prior representation of a state witness. We do have authority, however, for the situation where a party, opposing counsel, or the circuit court seeks to disqualify an attorney because of a conflict of interest. In Craig v. Carrigo, 340 Ark. 624, 633, 12 S.W.3d 229, 235 (2000), we set out the standard of review for the disqualification of trial counsel:
We review a trial court’s decision to disqualify an attorney under the abuse-of-discretion standard. Seeco, Inc. v. Hales, 334 Ark. 134, 969 S.W.2d 193 (1993); Berry v. Saline Memorial Hosp., 322 Ark. 182, 907 S.W.2d 736 (1995). An abuse of discretion may be manifested by an erroneous interpretation of the law. Seeco, supra. We have held that the Model Rules of Professional Conduct are applicable in disqualification proceedings. Berry, supra; See also, Saline Memorial Hosp. v. Berry, 321 Ark. 588, 906 S.W.2d 297 (1995); Norman v. Norman, 333 Ark. 644, 970 S.W.2d 270 (1998).
Although it is true that the cases enunciating this standard are civil, we see no reason why the same standard should not apply in the criminal context.
The United States Supreme Court has held that where a constitutional right to counsel exists, there is a correlative right to representation that is free from conflicts of interest. See Wood v. Georgia, 450 U.S. 261 (1981). In United States v. Agosto, 675 F.2d 965 (8th Cir. 1982) (abrogated on other grounds by Flanagan v. United States, 465 U.S. 259 (1984)), the Eighth Circuit Court of Appeals reviewed an interlocutory appeal from a pretrial order disqualifying several defense attorneys due to a . conflict of interest. In its analysis, the Eighth Circuit defined “successive representation” as a situation “where an attorney representing a defendant has previously represented codefendants or trial witnesses.” Id. at 970. According to the court, there are two types of conflicts that may arise in these cases: (1) an attorney may be tempted to use confidential information to impeach a former client, or he may fail to conduct a rigorous cross-examination for fear of misusing confidential information, where privileged information is obtained that might be relevant to cross-examination; and (2) an attorney’s pecuniary interest in possible future business may cause him to make trial decisions with a goal of avoiding prejudice to the client he formerly represented. See id. at 971. Wilburn does not cite us to United States v. Agosto, supra, but the problem of successive representation appears to be the issue in the case at hand.
At the pretrial hearing on Marquette’s motion to substitute, this colloquy transpired between Marquette and the court:
MARQUETTE: Judge, the reason for the letter was I had represented Roy [Lamproe] before. Roy, I don’t even know if you understand what all is going on here, but I’d represented Roy before and during the process of my representing Roy, he and I have talked and discussed different things . . .
THE COURT: . . . you haven’t talked about this case, though?
MARQUETTE: No, sir, not about this case, but the problem would be and one of my concerns would be if there was something Roy had told me in confidence expecting an attorney/client privilege that I would . . .
The COURT: . . . well, you wouldn’t have anything, Bob, if you haven’t talked to him about this case. What would you have in confidence with him about this case?
MARQUETTE: If I learned things that he had done in his fife, or things regarding his character. And I use that to attack his credibility as a witness, that’s what I’m concerned with. But, no, as far as discussing this case . . .
THE Court: ... I think you can only ask him things that are public record, felonies — conviction of felonies, you’d be permitted to do that, that wouldn’t be in confidence. The Court’s going to deny your motion, you need to get ready to try this case.
Although Marquette properly brought the possibility of a conflict of interest to the circuit court’s attention, no real or concrete conflict of interest was ever demonstrated to that court; nor was any real impediment to his representation of Wilburn. In his motion to substitute, Marquette merely stated that both Wilburn and Lamproe were public defender clients who had exchanged confidential information with him. In his letter to the circuit court, Marquette again stated that the “problem is that the individual in question [Lamproe] is a client and has revealed certain information to me which could be used against him at trial[.]” Finally, at the hearing on the motion, Marquette stated that “the problem would be and one of my concerns would be if there was something Roy had told me in confidence expecting an attorney/client privilege that I would. . . .” (Emphasis added.) When questioned by the court as to specifics, Marquette merely replied, “If I learned things that he had done in his fife, or things regarding his character. And I use that to attack his credibility as a witness, that’s what I’m concerned with.”
The cornerstone principle in all conflict cases is whether prejudice will result to the client as a result of the conflict of interest. See Sheridan v. State, 331 Ark. 1, 959 S.W.2d 29 (1998). That prejudice must be real and have some demonstrable detrimental effect on the client and not merely be abstract or theoretical. See Simmons v. Lockhart, 915 F.2d 372 (8th Cir. 1990); Sheridan v. State, supra. In the case before us there is no demonstrable detrimental effect shown. Rather, we are left to rank speculation about whether Wilburn’s counsel was hampered or impaired in any respect by the prior representation of Lamproe. Certainly, he never stopped the trial to advise the circuit court that his cross-examination of Lamproe was impeded. And a review of the record of Marquette’s cross-examination of Lamproe shows that he did a thorough and exact job.
As a final point, we are not convinced that Model Rules of Professional Conduct 1.7 and 1.9 require Marquette’s disqualification as Wilburn contends. The court determined that Lamproe had told Marquette nothing about the Wilburn matter and that Marquette, as would be the case with any other defense counsel, could cross-examine Lamproe on matters of public record. We have held that the Model Rules of Professional Conduct are applicable to the issue of whether counsel should be disqualified. See Norman v. Norman, 333 Ark. 644, 970 S.W.2d 270 (1998). However, we are at a loss to see the pertinence of the Model Rules or the Norman case, where Marquette’s representation of Lamproe, and the character information allegedly obtained, had nothing to do with Wilburn’s case. In short, Wilburn is simply not convincing as to why this alleged confidential information should equate to automatic disqualification.
We are cognizant of the fact that Wilburn was not privy to what bothered her counsel about his prior representation of Lampree because the information was confidential. Nonetheless, we are convinced that Marquette had to show more to the circuit court to support disqualification. That was not done, and this court will not presume that Wilburn was prejudiced as a result. See Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995) (stating that the court does not presume prejudice when error is alleged). We cannot say that under these facts the circuit court abused its discretion in failing to disqualify Marquette.
Affirmed. | [
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Tom Glaze, Justice.
James Haynes appeals from his first-degree murder conviction and life sentence, raising three points for reversal. We find that none of them has merit, and we affirm.
Malvern police responded to a call at 430 Oak Street during the late afternoon of June 29, 1999, and found two bodies in a back bedroom. One person, eighteen-year-old Shamone Haynes, was unresponsive and was pronounced dead at the scene, but the other person, James Haynes, was still breathing. As emergency medical personnel worked to stabilize him, he stated that he had shot himself and wanted to die. He also said he had shot Shamone, his niece, because he did not want Shamone “to go through all the trouble in life.” Haynes was taken to the hospital in Hot Spring County and later transported to UAMS in Little Rock.
After Haynes was arrested and charged with capital murder, the Hot Spring County Circuit Court ordered him to undergo a mental evaluation. Dr. Paul Deyoub conducted the evaluation on September 17, 1999, and concluded that Haynes was competent to stand trial and, at the time of the shootings, had been able to conform his conduct to the requirements of the law. Dr. Deyoub diagnosed Haynes with “major depressive disorder, recurrent, moderate,” and noted that he had borderline intellectual functioning, but he was never psychotic and knew right from wrong.
After Dr. Deyoub filed his report, Haynes filed a motion requesting a second, independent mental evaluation. The court ordered the second evaluation on December 10, 1999, and on February 4, 2000, Haynes was examined by Dr. Mary Wetherby. Haynes filed a notice on August 24, 2000, pursuant to Ark. Code Ann. § 5-2-304 (Repl. 1997), asserting that he intended to rely on the affirmative defense of mental disease or defect.
The trial court held a competency hearing on August 31, 2000, at the end of which, the judge ruled both sides had presented compelling evidence, and when he weighed both arguments, he could not “find one balancing any heavier than the other in favor of incompetency.” The judge ruled that Haynes was competent, and noted that the question of Haynes’ sanity at the time of the commission of the crime would be a question for the jury. Haynes was tried and convicted of first-degree murder by a jury on September 1, 2000.
Of his three points on appeal, we first consider Haynes’s argument that there was insufficient evidence to convict him of first-degree murder, since double-jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence prior to the others. See Cox v. State, 345 Ark. 391, 47 S.W.3d 244 (2001). A motion for a directed verdict is a challenge to the sufficiency of the evidence, and the test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id.
At trial, Haynes moved for a directed verdict at the close of the State’s case, stating as follows:
First of all, we move for a directed verdict of acquittal. The law first requires that the State prove premeditation, deliberation. And the State has failed to introduce any evidence whatsoever to establish the premeditation necessary for a conviction of capital murder. And without that having been proven this case shouldn’t go to the jury. . . . Not only on capital murder but any lesser included offenses. There has not been necessary elements to prove the offense. There is insufficient evidence totally.
Haynes again moved for a directed verdict at the close of his own case, asserting once more that the State had “failed to meet their burden to show the specific elements of capital murder or any lesser included elements.” The trial court denied the motion.
This court has held that, in order to preserve challenges to the sufficiency of the evidence supporting convictions for lesser-included offenses, defendants are required to address the lesser-included offenses either by name or by apprising trial courts of the elements of the lesser-included offenses questioned by their motions for directed verdict. See Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001). In Ramaker, the defendant had been charged with capital murder but convicted of first-degree murder. Because Ramaker had failed to move for a directed verdict on the lesser-included offense of first-degree murder, this court held he was procedurally barred from challenging the sufficiency of the evidence on appeal. See also Webb v. State, 328 Ark. 12, 941 S.W.2d 417 (1997); Jordan v. State, 232 Ark. 628, 917 S.W.2d 164 (1996). In Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992), this court noted that the mens rea for first-degree murder does not require premeditation and deliberation; rather, the State need only prove that the defendant purposefully caused the death of another. Thus, the elements of capital murder and first-degree murder are different. Here, Haynes did not mention first-degree murder by name, nor did he apprise the trial court of any of the elements of first-degree murder; instead, he simply moved for directed verdict because the State had not met its burden as to “any lesser-included offenses.” In accordance with the reasoning set out in Ramaker, we hold Haynes is procedurally barred from challenging the sufficiency of the evidence.
For his second point, Haynes argues that the trial court erred in determining that he was competent to stand trial. Ark. Code Ann. § 5-2-302 (Repl. 1997) provides that “[n]o person who, as a result of mental disease or defect, lacks capacity to understand the proceedings against him or to assist effectively in his own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures.” A criminal defendant is presumed to be competent, and the burden of proving incompetence is on the accused. Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994). The test of competency to stand trial is whether a defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational, as well as factual, understanding of the proceedings against him. Id. On appellate review of a finding of fitness to stand trial, we affirm if there is substantial evidence to support the trial court’s finding. Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996).
On this issue, the trial court was presented with conflicting expert testimony at the competency hearing. Dr. Mary Wetherby, a neuropsychologist, examined Haynes in February of 2000. From her evaluation and from interviews with Haynes’s family members and co-workers, Dr. Wetherby concluded that Haynes suffered from various deficits, including impaired memory and impaired expressive language functioning. Dr. Wetherby also noted that Haynes had been experiencing a change in personality over the two years after his son’s death, which caused Haynes to suffer from extreme depression. Her overall conclusion was that Haynes’s intelligence was in the borderline range (he scored a full-scale 73 on the Wechsler Adult Intelligence Scale), and that he had global neurological deficits that would impair his ability to assist his lawyer in his own defense. Wetherby further stated that Haynes had difficulty describing the “players” in the courtroom, and she asserted that his reasoning and expressive language deficits would affect his ability to stand trial. In conclusion, Dr. Wetherby announced her opinion that Haynes was neither competent to stand trial nor able to assist his attorney in his defense.
Dr. Paul Deyoub, who evaluated Haynes in September of 1999, three months after the murder, testified for the State. Dr. Deyoub testified that he conducted a clinical interview with Haynes in order to determine his competency to stand trial, and that although he diagnosed Haynes with having major depressive disorder and borderline intellectual functioning, Haynes was still competent to stand trial and had the ability to appreciate the criminality of his conduct. After pointing out that Haynes had not previously had any experience with the legal system, Deyoub noted that Haynes was “educable” regarding the system, and was able to relate to his attorney and to understand the participants of the legal system. Dr. Deyoub also rebutted some of Dr. Wetherby’s testimony by stating that one could “have all kinds of deficits and still be competent to proceed.”
Dr. Deyoub testified that he found no evidence of psychosis in Haynes. He noted that there was a report from a UAMS physician who consulted briefly on the case when Haynes was brought to the hospital for treatment of his self-inflicted gunshot wound, and that physician stated Haynes suffered from a “psychotic disorder, not otherwise specified.” However, Deyoub pointed out that the UAMS physician opined he was “not sure of the validity of [the] psychosis.” Further, Dr. Deyoub said that he found some indication that Haynes was malingering, or at the very least amplifying his symptoms in order to communicate how depressed he was. Deyoub’s conclusion, based in part on the Competency to Strand Trial Assessment Instrument, was that Haynes could participate in legal proceedings and help his lawyer assist in his defense. He also opined that, at the time of the offense, Haynes was able to conform his conduct to the requirements of the law.
At the conclusion of the hearing, the trial judge stated that he was impressed by Dr. Wetherby’s testing, and said that, while he had some concern about Haynes’s ability to stand trial, the judge was convinced that Haynes knew that he was being tried for the unlawful killing of Shamone. The judge said, “I’m convinced from the reports that have been introduced and the other testimony that he knows that he will be. punished if he’s found guilty.” He concluded his ruling as follows:
When I try to weigh these . . . things, I can’t find one balancing any heavier than the other in favor of incompetency. Consequently, the court’s decision is that the defendant is competent and that he will stand trial. Now, of course, the issue of insanity at the time of the commission of the offense, the legal issue, will be presented to the jury for determination of the facts. I can’t say so I must rule in favor of the State. In other words, I must rule against the defense because the burden of proof is on the defense. And I find the evidence to be pretty equally balanced with some very positive things both ways. But the greater weight of the aspects are in favor of competency.
Thus, faced with conflicting expert testimony, the trial court decided Haynes had not met his burden of proof.
This court will affirm a trial court’s finding of competency if there is substantial evidence to support that finding; here, Dr. Deyoub testified that Haynes was able to identify the charges against him and understand the basic functioning of the court system. The law does not require an accused to identify with specificity the charges filed against him. Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996). Rather, § 5-2-302 requires that an accused have the capacity to “understand the proceedings against him.” Id. That threshold was met here, as Dr. Deyoub rendered his opinion that Haynes understood the fundamental nature of the proceedings. Therefore, the trial court’s finding that Haynes was competent to stand trial is supported by substantial evidence.
For his last point, Haynes argues that the trial court erred in denying his motion for a directed verdict of acquittal on his affirmative defense of mental disease or defect. At the close of his case, Haynes moved for directed verdict, asserting that he had “met [his] burden of proof by a preponderance of the evidence as to the mental disease or defect.” The trial court denied the motion both times.
Ark. Code Ann. § 5-2-312(a) (Repl. 1997) provides that “[i]t is an affirmative defense to a prosecution that at the time the defendant engaged in the conduct charged, he lacked capacity, as a result of mental disease or defect, to conform his conduct to the requirement of law or to appreciate the criminality of his conduct.” Further, Ark. Code Ann. § 5-1-111(d) (Repl. 1997) provides that a defendant must prove an affirmative defense by a preponderance of the evidence. See also Mask v. State, 314 Ark. 25, 86 S.W.2d 91 (1993) (once the State meets its burden of proving the elements of an offense beyond a reasonable doubt, the burden shifts to the defendant to prove an affirmative defense by a preponderance of the evidence).
On appeal, our standard of review of a jury verdict rejecting the insanity defense is whether there was any substantial evidence to support the verdict. Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998). 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. Moreover, this court will affirm the jury’s verdict if there is any substantial evidence to support the verdict. Id.
Haynes recites the evidence adduced at trial and then merely asserts that he met his burden of proof by a preponderance of the evidence. That evidence consisted of Dr. Wetherby’s essential repetition of the testimony she gave at the pretrial competency hearing. She noted that Haynes had been diagnosed at UAMS as having “psychotic disorder, not otherwise specified,” and she pointed out that Haynes had been having aural and visual hallucinations at the time of the shooting. Dr. Wetherby also testified that Haynes was not fully oriented when she interviewed him, i.e., that although he was aware of who he was and generally where he was, he did not know the season, date, day, state, country, town or specific location. She also testified as to the battery of tests she conducted on Haynes and concluded again that he suffered from numerous severe neuropsychological deficits, and thus could not appreciate the criminality of his conduct and could not appreciate the wrongfulness of what he was doing when he shot Shamone.
Haynes’s mother, Pearline Murdock, also testified at trial. She averred that Haynes had undergone a personality change after his son was murdered and that he was extremely depressed and nervous. Murdock asserted that Haynes would not have shot Shamone “unless he snapped or something. This was totally out of control.”
The State called Dr. Deyoub on rebuttal, and he reiterated much of his earlier testimony given at pretrial and during the State’s case-in-chief. He testified that he had conducted a forensic evaluation on Haynes, and he concluded that, although Haynes was depressed, he was not psychotic, and he could conform his conduct to the requirements of the law at the time of the shooting.
This court has upheld a trial court’s denial of a motion for directed verdict on the affirmative defense of mental disease or defect, even where the medical testimony was uncontroverted that the defendant was a paranoid schizophrenic. See, e.g., Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). In that case, this court wrote that it recognized that the medical evidence on the issue of insanity was highly persuasive; however, the court continued as follows:
It has consistendy been held . . . that a jury is not bound to accept opinion testimony of experts as conclusive, and it is not compelled to believe their testimony any more than the testimony of other witnesses. Even when several competent experts concur in their opinions, and no opposing expert evidence is offered, the jury is bound to decide the issue upon its own judgment. Testimony by expert witnesses is to be considered by the jury in the same manner as other testimony and in light of other testimony and circumstances in the case. The jury alone determines what weight to give the evidence, and may reject it or accept all or any part of it they it believes to be true. Robertson v. State, 304 Ark. 332, 802 S.W.2d 448 (1991); Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979).
Davasher, 308 Ark. at 170. See also Burns v. State, 323 Ark. 206, 913 789 (1996); Williams v. State, 320 Ark. 67, 894 S.W.2d 923 (1995).
Because there was conflicting testimony on the question of Haynes’s mental state at the time of the offense, the trial court properly permitted the factual question to go to the jury. See, e.g., Franks v. State, 306 Ark. 75, 811 S.W.2d 301 (1991). Here, the jury apparently gave more weight and credibility to the testimony offered by Dr. Deyoub; it was entirely within its province to do so. See Davasher, supra.
The record has been examined for other error pursuant to Ark. Sup. Ct. R. 4-3 (h) and none was found. Therefore, we affirm.
BROWN, J., concurs. | [
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Per Curiam.
Appellant Steven Wertz, by and through his attorney, Gregory E. Bryant, moves this court to file a belated brief. Wertz’s brief, after a forty-five day final extension, was due on January 31, 2008. On January 28, 2008, Wertz timely filed a motion to extend the time in which to file his brief, which we denied on February 1, 2008. He then tendered his brief to this court’s clerk on February 19, 2008, at which time he filed the instant motion.
We will accept a criminal appellant’s belated brief to prevent an appeal from being aborted. See Stewart v. State, 319 Ark. 242, 889 S.W.2d 771 (1995). However, good cause must be shown to grant the motion. See, e.g., Strom v. State, 356 Ark. 224, 147 S.W.3d 689 (2004) (per curiam) (holding that appellate counsel’s admitted failure to timely file the brief constituted good cause to grant motion for belated brief); Brown v. State, 347 Ark. 362, 64 S.W.3d 274 (2002) (per curiam) (holding that attorney’s admitted error was good cause to grant the motion); James v. State, 329 Ark. 58, 945 S.W.2d 941 (1997) (per curiam).
Here, Mr. Bryant states in the motion that Wertz was sentenced to death. In his motion for extension of time that was previously filed, he stated that the murder for which Wertz was convicted occurred twenty years prior to his conviction. He further stated that one of the issues on appeal is the sufficiency of the evidence involving accomplice corroboration, which is fact intensive and difficult. Finally, he stated that the appeal includes novel issues involving trial error on the admission of evidence.
We have been resolute that criminal cases involving the death penalty will be treated with unique attention. See, e.g., Robbins v. State, 353 Ark. 556, 561, 114 S.W.3d 217, 220 (2003) (“There is no question but that the death penalty is a unique punishment that demands unique attention to procedural safeguards.”). To that end, we have established specific criteria for the appointment of qualified and competent counsel to represent indigent defendants under a sentence of death in postconviction matters. See Ark. R. Crim. P. 37.5; Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006).
The instant appeal is a direct appeal of Wertz’s conviction and death sentence, which too should be paid unique attention. For the reasons set forth by Mr. Bryant and because this case is one involving the death penalty, we hold that good cause to grant the motion has been shown. We, therefore, grant Wertz’s motion to file belated brief.
Motion granted.
Hannah, C.J., Glaze and Corbin, JJ., concur in part and dissent in part.
Tom Glaze, Justice.
Steven Wertz appealed his capital murder convictions and sentence on July 19, 2007. His original brief was due to be filed on December 17, 2007, but he received a forty-five day final extension, making his initial brief due on January 31, 2008. On January 28, 2008, he sought another extension, which this court denied. Because counsel had received two settings for filing his brief, he was instructed that the second setting was his FINAL EXTENSION. In total he had been given 196 days to file his appeal. Counsel nonetheless filed a motion three days before the deadline for another extension, giving as his reasons that the murders with which he was charged occurred twenty years prior to Wertz’s arrest for the crimes, causing counsel to have to work ten hours per week from November to mid-January 2007, then up to forty hours for the past four weeks in January and February 2008. Wertz did not tender even a partial brief.
This court exercises its discretion in granting extensions to file briefs, but it has repeatedly referred counsel to the Professional Conduct Committee if he or she failed to file a brief when given a “final extension” in life-sentence cases. See, e.g., Randle v. State, 370 Ark. 528, 262 S.W.3d 138 (2007) (per curiam) (motion granted with attorney Ronald Nichols referred to Committee); Strong v. State, 370 Ark. 479, 261 S.W.3d 453 (2007) (per curiam) (motion granted with attorney Randy Miller referred to Committee); Navarro v. State, 368 Ark. 681, 249 S.W.3d 811 (2007) (per curiam) (motion granted with attorney Susan Lusky referred to Committee); Terry v. State, 366 Ark. 441, 236 S.W.3d 495 (2006) (per curiam) (motion granted with attorney Ronald Nichols referred to Committee); Smith v. State, 363 Ark. 251, 213 S.W.3d 2 (1995) (per curiam) (motion granted with attorney Jesse Kearney referred to Committee); Jackson v. State, 361 Ark. 144, 205 S.W.3d 137 (2005) (per curiam) (motion granted with attorney William Howard referred to Committee); Strom v. State, 356 Ark. 224, 147 S.W.3d 689 (2004) (per curiam) (motion granted with attorney Kathy Hall referred to committee).
While I am aware of this court’s granting of additional time after the attorney was given a “final extension,” it has done so only when an extraordinary event occurred, such as a health condition, inclement weather, or other similar reason. No such reason has been offered here. Of even more importance, our Clerk’s records reflect that in the death cases filed since 1998, nineteen had been given final extensions, but in each of the cases the attorneys tendered a brief no later than the deadline.
I am also quite aware of Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003), and this court’s rule that a death sentence is a unique punishment that demands unique attention to procedural safeguards. Our court’s criminal appellate rules ensure that death cases receive the special attention they deserve. See Ark. R. App. P. — Crim. 10. However, the per curiam misses the point. Mr. Wertz’s motion for belated appeal will be granted whether his attorney did or did not meet this court’s final extension and deadline. All members of this court are well aware of the court’s procedures in criminal cases.
The sole issue is limited to whether the attorney had good cause for the pending delay or admits he was at fault in failing to meet the deadline. In order to move its docket, this court must have the discretion to decide whether the attorney was at fault or had shown good cause, which I submit should be more reason than “the attorney has been appointed to a death case.” As pointed out above, an extraordinary event must have caused the delay in filing, not merely that the case involves sufficiency-of-the-evidence and accomplice-liability issues that are “fact intensive and difficult.”
Fortunately, most attorneys are compliant in filing briefs, but on a few occasions, an attorney has simply failed to meet a final deadline, requiring this court to grant a motion to file a belated brief, but also requiring us to send the attorney’s name to the Professional Conduct Committee. This referral action was adopted by the court so it could enforce compliance with our criminal appellate rules. This procedure is a bright-line rule that assures all attorneys will be treated the same regarding requests for extensions in criminal cases after a final extension had been given. The rule adopted by the majority per curiam will simply mean that attorneys appointed to death cases will not be subject to referral to the Committee when other attorneys may be.
Over the past years, this court has tried its best to be sure all attorneys are treated fairly and consistently in these matters. These procedures were adopted and implemented by this court to achieve the goals set out above. In this case, the court’s majority per curiam ignores the court’s own rules of law. To be consistent with prior precedent, I would grant Mr. Gregory Bryant’s motion to file a belated brief, but I would refer him to the Committee.
Hannah, C.J., and Corbin, J., join.
The notice was in capital letters.
In a few instances, attorneys stated that documents in the record were missing that were necessary to complete his or her brief. | [
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PER CURIAM.
On June 6, 2007, Petitioner M.H. was found guilty of rape and adjudicated delinquent in the Circuit Court of Franklin County, Arkansas. Petitioner was represented at trial by Franklin County Public Defender, William M. Pearson. No appeal was taken from the judgment. Petitioner subsequently retained private counsel and filed a motion for belated appeal and motion for anonymity. See M.H. v. State, 373 Ark. 112, 281 S.W.3d 747 (per curiam). Petitioner also brings this motion requesting that James Edwards and Craig L. Cook be entered as attorneys of record.
Rule 16 of the Arkansas Rules of Appellate Procedure-Criminal provides in pertinent part that trial 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.
Because there is no order in the record relieving Mr. Pearson as counsel, Petitioner’s motion to enter Mr. Edwards and Mr. Cook as attorneys of record is denied without prejudice.
Motion denied without prejudice. | [
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Annabelle Clinton Imber, Justice.
The City of Pine Bluff appeals from an order of the Jefferson County Circuit Court granting a permanent injunction in favor of Appellees, the Southern States Police Benevolent Association, Inc., and Robert Henderson. The circuit court found that the Pine Bluff City Council had passed an ordinance removing all members of the civil service commission by less than a two-thirds vote and without cause, in violation of Ark. Code Ann. § 14-50-210 (Repl. 1998). The city alleges that the circuit court’s ruling was in error for three reasons: 1) Arkansas law allows a city to abolish its civil service commission by majority vote; 2) the city council’s abolishment of the civil service commission complies with the due-process requirements of the United States Constitution; 3) Appellees’ claim of a contractual right in the conditions of employment is irrelevant to the city’s ability to abolish its civil service commission. Because this appeal involves a substantial question of law concerning the interpretation of an act of the General Assembly and an ordinance of a municipality, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(6) (2007). We agree with the city’s argument as to the first point; accordingly, we reverse and remand for decision on the remaining points.
On August 16, 1949, the Pine Bluff City Council passed Ordinance No. 2994 by majority vote. The ordinance established the city’s civil service commission and was deemed “necessary for the preservation of the public health, peace and safety and for the proper administration of the Police and Fire Departments” of the city. At that time, Act 28 of 1933 required the city council or other governing body of all cities having an organized fire department and all cities of the first class having a police department to establish a civil service commission for the police and fire departments. Act of Feb. 13, 1933, No. 28, 1933 Ark. Acts 65. Civil service commissions were to “prescribe, amend and enforce rules and regulations governing the fire and police departments of their respective cities.” 1933 Ark. Acts at 68. The “Rules and Regulations” ultimately adopted by the Pine Bluff Civil Service Commission defined the purpose of the commission and its rules as follows:
It is the purpose of these rules to establish procedures for handling personnel activities and transactions provided for in the Civil Service Law and in such manner as to insure that the primary and controlling factor in making appointments and dismissals, in determining promotions and demotions, and in doing all other things which may in any way affect any employee or prospective employee coming within the purview of the Act will always be the merit and fitness of the individual concerned without regard to race, color, national origin, religion, sex, political opinions or affiliations.
Act 166 of 1971 removed the requirement of the establishment of a civil service commission, stating instead that cities of the first class “may establish a Board of Civil Service Commissioners for the Police and Fire Departments of such cities.” Act of Feb. 26, 1971, No. 166, § 1, 1971 Ark. Acts 412, 412 (emphasis added). Act 166 is currently codified in part at Ark. Code Ann. § 14-51-102 (Repl. 1998). In accordance with section 14-51-102, the Pine Bluff City Council enacted Ordinance No. 6221 by majority vote on April 16, 2007. Ordinance No. 6221 purports to repeal Ordinance No. 2994 and abolish the civil service commission and the entire civil service system for uniformed employees of the city. The ordinance passed with five votes in favor and three against.
On April 17, 2007, the Southern States Police Benevolent Association and Henderson, as a representative of a class consisting of Pine Bluff police officers, filed a complaint against the city in the circuit court. The complaint alleged that the city council acted contrary to Arkansas law in passing the ordinance by less than the required two-thirds vote, that the civil service statutes do not provide for the abolishment of a civil service commission, that the council’s actions deprived class members of property and contract rights in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and that the council acted in bad faith bypassing Ordinance No. 6221 for personal reasons. Accordingly, the Association and Henderson requested a declaratory judgment declaring Ordinance No. 6221 null and void, ordering that it have no effect, and reinstating the civil service commission. They also requested that the court temporarily and permanently enjoin the city from abolishing the civil service commission.
The circuit court issued a temporary restraining order on the same date, enjoining the enforcement of Ordinance No. 6221 until the matter could be heard. The city filed an answer as well as a counterclaim for declaratory judgment, seeking a declaration that the enactment of Ordinance No. 6221 was lawful and effective and that the city had the right to abolish and had in fact abolished the civil service commission. Following a hearing on the complaint and counterclaim, the circuit court entered an order making permanent the previously entered temporary restraining order. Specifically, the court found that the city council had removed all members of the civil service commission by less than a two-thirds vote and without cause, in violation of Ark. Code Ann. § 14-50-210 (Repl. 1998). Thus, the court declared Ordinance No. 6221 to be “null, void, and of no effect.” The city filed a timely notice of appeal.
The first issue before us involves the interpretation of Ark. Code Ann. § 14-51-210. We review issues of statutory interpretation de novo. Maddox v. City of Fort Smith, 369 Ark. 143, 251 S.W.3d 281 (2007). It is for this court to decide what a statute means. Id. In this respect, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id. When reviewing issues of statutory interpretation, we are mindful that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Id. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure and doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Id. When a statute is clear, however, it is given its plain meaning, and we will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Id. We are very hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent. Id.
Section 14-51-210, titled “Removal of commissioner,” reads as follows, in its entirety:
(a) The city council or governing body of the city, by a two-thirds (2/3) vote, may remove any of the commissioners during their term of office for cause.
(b) In the event of the removal of one (1) or more of the commissioners, the council or governing body shall fill the vacancy created by the removal.
Ark. Code Ann. § 14-51-210 (Repl. 1998). We have interpreted this language, as it originally appeared in Act 28 of 1933, and stated that “the meaning here is plain that the city council, by a two-thirds vote, could remove for cause one, or all, of the civil service commissioners by the resolution . . . and that it had the right to determine what would be a sufficient cause, the statute being silent as to the method of removal or the specific cause for which the commissioners may be removed.” McAllister v. McAllister, 200 Ark. 171, 178, 138 S.W.2d 1040, 1044 (1940). However, as the City of Pine Bluff notes, the resolution at issue in McAllister attempted to remove individual commissioners from office; it did not attempt to abolish the commission altogether. We agree that McAllister is inapposite.
We have, more recently, addressed the abolishment of commissions by city councils. In City of Ward v. Ward Water & Sewer System by Pehosh, 280 Ark. 177, 655 S.W.2d 454 (1983), the Ward City Council, by majority vote, enacted an ordinance providing for the abolishment of the Ward Water and Sewer Commission, which the council had previously created by ordinance. At issue was the predecessor to Ark. Code Ann. § 14-234-305 (Repl. 1998), which provides that any commissioner on a waterworks commission may be removed for cause upon a two-thirds vote of the duly elected and qualified members of the city council. Id. In addressing the argument that the Water and Sewer Commission could only be abolished by a two-thirds vote and with cause, we held that “[t]he removal of one or more commissioners for cause cannot be equated with the abolishment of the commission itself, although it has the obvious effect of separating the commissioner from the office he holds. But he has not been removed, the office itself has been terminated.” Id. at 178, 655 S.W.2d at 455. We observed that no statute expressly permitted the abolishment of the commission but also that no statute restricted the power of the city to do so. Id. We held that the city council thus had the power to abolish the water and sewer commission, noting that the question of whether the abolishment would be in the city’s best interest was not before us. Id.
In accordance with this precedent and with our standard of review for statutory interpretation, we hold that the circuit court erred in determining that Ark. Code Ann. § 14-51-210 is applicable to the abolishment of a civil service commission. Under the plain language of the statute, it applies only to the removal of individual commissioners, and not to the abolishment of a commission altogether. Pursuant to subsection (b) of section 14-51— 210, which provides that the council shall fill a vacancy created by the removal of one or more commissioners, replacement of commissioners subject to removal is mandatory; thus, the commission could never be abolished pursuant to the terms of this statute, by a two-thirds vote or otherwise. Moreover, as we stated in City of Ward, supra, the removal of commissioners cannot be equated with the abolishment of a commission. City of Ward, like the instant case, involved a commission created by the city council, the establishment of which was not legislatively required. See Ark. Code Ann. § 14-234-303 (Supp. 2007). The removal statute for waterworks commissions imposes the same requirements as the statute at issue here. See Ark. Code Ann. § 14-234-305 and § 14-51-210. It is well settled that any interpretation of a statute by this court becomes a part of the statute itself. Combs v. City of Springdale, 366 Ark. 31, 233 S.W.3d 130 (2006). Since our 1983 decision in City of Ward, wherein we held that the city was not deprived of the power to abolish its water and sewer commission, the legislature has not chosen to apply the removal requirements to the abolishment of waterworks commissions. Accordingly, we hold that the removal requirements of Ark. Code Ann. § 14-51-210 do not apply in the case of abolishment of a commission. The Pine Bluff City Council was free to abolish its civil service commission by majority vote.
The Association and Henderson argue that the legislature’s intent to insulate civil service commissions from political influence requires that the bar to abolishment be higher. We hold that the statute is unambiguous, meaning there is no need to infer legislative intent. We also note, however, that we disposed of the same concern in City of Ward:
The requirement.. . that a commissioner can be removed only for cause by a two-thirds vote is doubdess intended to promote the autonomy of the commission and to insure its independence, but the provision cannot be construed by implication to curtail the power of a legislative body to undo by majority vote what it is empowered to do by majority vote.
City of Ward, 280 Ark. at 178-79, 655 S.W.2d at 455. The wisdom of the city council’s decision to abolish the civil service commission is not for us to decide. We merely hold that it is within its authority to do so.
In City of Ward, we reversed the lower court’s ruling that the city council had not legally abolished the commission on the basis of “the settled rule of law that whatever a municipal government may do by a majority vote, it may undo by majority vote, absent constitutional or statutory restrictions.” Id. at 179, 655 S.W.2d at 456. The general rule is similarly operable in the instant case. Because Ark. Code Ann. § 14-51-210 is not applicable in this situation, and because the Pine Bluff City Council was free to establish its civil service commission by majority vote, it is free to abolish its civil service commission by majority vote as well.
Other arguments for reversal are propounded by the city, namely, that the due-process and contractual-rights claims alleged by the Association and Henderson below are without merit. In addition, the Association and Henderson assert that the actions of the city council were taken in bad faith, thus precluding their right to repeal Ordinance No. 2994. These arguments were not properly preserved for our review, as the circuit court did not provide a ruling on them. It is well settled that to preserve arguments for appeal, even constitutional ones, the party making the argument must obtain a ruling below. City of Barling v. Fort Chaffee Redevelopment Auth., 347 Ark. 105, 60 S.W.3d 443 (2001). Therefore, we remand for decision on these points.
Reversed and remanded.
Section 14-50-210, which provides that a city council, by a two-thirds vote, may remove a civil service commissioner during his or her term of office for cause, is part of the chapter governing civil service systems for nonuniformed employees of cities with populations between 20,000 and 75,000. See Ark. Code Ann. § 14-50-101 (Repl. 1998). Section 14-51-210, which is part of the chapter governing civil service systems for police and fire departments, and which is actually at issue here, is essentially identical to section 14-50-210. See Ark. Code Ann. §§ 14-51-101 to -102 (Repl. 1998) and Ark. Code Ann. § 14-51-210 (Repl. 1998).
The parties in the case at bar agreed that Pine Bluff is a city of the first class. | [
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Per Curiam.
On November 30, 2007, petitioner Billy Joe Henson filed a pleading styled as a petition for writ of habeas corpus in Jefferson County Circuit Court. The trial court apparently dismissed the petition, although no order so indicating appears in the partial record before us. In any event, petitioner filed a “motion for reconsideration” on January 2, 2008, in which he requested the circuit court consider changing or reversing an order of December 19, 2007. On March 3, 2008, petitioner filed a petition for writ of mandamus in this court, requesting that we issue the writ to compel the circuit court judge to issue a ruling on the motion for reconsideration.
The Attorney General has filed a response on behalf of the respondent that asserts that the motion for reconsideration was deemed denied under Ark. R. App. P.-Civil 4(b)(1), on or about February 2, 2008, and that the petition for writ of mandamus should therefore be moot. We hold that, whether Rule 4(b)(1) was or was not applicable here to provide a ruling by the circuit court, the petition is moot.
The petition in circuit court was presented as a petition for writ of habeas corpus under Ark. Code Ann. §§ 16-112-101 to -123 (Repl. 2006). The relief sought, however, was not the release of a prisoner, but the vacation of an administrative decision by the Arkansas Department of Correction and amendment of petitioner’s prison records. The petition was therefore clearly a civil matter.
Assuming petitioner’s asserted date of December 19, 2007, or a later date, for the judgment, Rule 4(b)(1) is the applicable rule concerning the motion for reconsideration because the motion was filed within the ten-day period stated in the rule. See Murchison v. Safeco Ins. Co. of Ill., 367 Ark. 166, 238 S.W.3d 11 (2006). Under the computation rules in Ark. R. Civ. P. 6(a), the ten-day period would have expired on January 7, 2008, if the judgment was entered on December 19, 2007.
Under Rule 4(b)(1), petitioner’s motion for reconsideration would have been deemed denied on the thirtieth day after it was filed, which was Friday, February 1, 2008. In that case, petitioner has received the relief he requests, that is a ruling on his motion for reconsideration, albeit through operation of law rather than a written order. The issue is therefore moot. See Honeycutt v. Foster, 371 Ark. 545, 268 S.W.3d 875 (2007).
If the judgment was actually entered on an earlier date, Rule 4(b)(1) may not, under the reasoning in Murchison, be applicable. If, instead, Ark. R. Civ. P. 60 were applicable, the circuit court has now lost jurisdiction to provide the requested relief. The trial court loses jurisdiction to set aside or modify an order under Rule 60 if it does not do so within ninety days of the entry of the original order, even though petitioner’s motion may have been filed prior to expiration of that period. Jordan v. Circuit Court of Lee County, 366 Ark. 326, 235 S.W.3d 487 (2006); City of Little Rock v. Ragan, 297 Ark. 525, 763 S.W.2d 87 (1989). Petitioner pleaded no basis for any of the exceptions to the ninety-day limitation in Rule 60. Because the circuit court would have no jurisdiction to provide the relief petitioner requested, even were Rule 60 the applicable provision, the issues in his motion are now moot.
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Hart, J.
(after stating the facts). The chancery court was right in holding that appellees, who were the plaintiffs below, were not barred by the seven-year statute of limitations. The land in question was the homestead of Thomas Reeves, and he lived on it with his wife and minor children until his death. The adult heirs had no right to the possession of the homestead until th¿ youngest child became twenty-one years of age and the statute of limitations did not begin to run against them until the termination of the homestead of the youngest child. Mrs. Mamie Harp was the youngest child and did not become twenty-one years old until July 31,1914. This suit was commenced on December 1, 1917. Hence the suit was not barred by the statute of limitations. Smith v. Scott, 92 Ark. 146.
This is conceded .by counsel for appellants. They invoke the doctrine of laches as a bar to appellees ’ right of action, but we can not agree with their contention under the facts as disclosed by the record. The doctrine of laches has no application where the plaintiffs are not seeking equitable relief, but to enforce a legal title and where their action is not barred by the statute of limitations in reference thereto. Davis v. Neil, 100 Ark. 399; Fourche River Lbr. Co. v. Walker, 96 Ark. 540; Ward v. Sturdivant, 96 Ark. 434, and Waits v. Moore, 89 Ark. 19. The facts of this case do not bring it within the principles announced in Ayers v. McRae, 71 Ark. 209, and Jackson v. Becktold Printing & Book Mfg. Co., 86 Ark. 591.
In the first mentioned case, there was a foreclosure sale under a mortgage, but the mortgagor knew of the sale, was present at it and purchased a portion of the property included in the mortgage. He was presented with an account of his indebtedness before the sale and made no objection to its correctness. After the sale he made propositions to buy the land back and knew that the mortgagee who purchased at the sale was cutting timber from the land and raised no objection to him doing so. The court held that under the circumstances he was guilty of laches, whether his defense to the irregularity of the foreclosure sale was substantial or merely technical.
In the last mentioned case there was a foreclosure in equity, and the heirs of the mortgagor were duly served with process. Their attorney and their agent agreed that the decree of foreclosure might be entered in vacation. The court held that the decree was invalid on that account, but that the plaintiffs were guilty of laches which proved fatal to the relief asked for by them. There the mortgagees became the purchasers of the land and were placed in possession of it after the sale had been confirmed. They sold large quantities of timber from the land, changed the fences and in every respect used it as their own. The plaintiffs had been advised that they could set the sale aside because the decree had been rendered in vacation, yet they made no objection to the confirmation of the sale or the entry into possession by the purchasers under the deeds executed to them pursuant to the decree of foreclosure. They knew that the land was being sold off by the purchasers at the foreclosure sale and they did not move to set aside the decree until nearly five years after it was rendered. They did not claim to have been misled by any act of the parties to the suit and no excuse was given for the delay which was attributable to their own negligence. Hence the court held they were guilty of laches in not sooner bringing their suit.
Without a breach of duty there can be no laches. In Tatum v. Arkansas Lumber Co., 103 Ark. 251, and in numerous other cases this court has said that there must be some supervening equity calling for the application of the doctrine of laches. In that case we recognized that laches is negligence by which another has been led into changing his condition with respect to the property in question, so that it would be inequitable to allow the negligent party to be preferred upon his legal rights to the one whom his negligence has misled.
Again in the case of Reaves v. Davidson, 129 Ark. 88, it was contended that the plaintiffs were barred by laches, and the court said there was nothing in the evidence in the case to show that the defendants had been led into changing their condition with respect to the land, so that it would be inequitable to allow the plaintiffs to be preferred upon their legal rights. Hence the relief was denied.
No misleading conduct can be attributed to appellees in the present case. It can not be said that there was inexcusable delay on their part in ascertaining or asserting their rights, or that their failure to bring the suit sooner was due to culpable negligence and inattention to their rights. The deed of trust in question contained a power of sale, and our statute imposes conditions upon the exercise of the power of sale contained in a mortgage. The statute requires that the property shall first be appraised and that at the sale it shall bring two-thirds of the appraised value. In Craig v. Meriwether, 84 Ark. 298, it was held that a sale under the power in a mortgage without complying with the statute is invalid, and that no title can be vested thereunder.
In the case at bar, while Lesser testified that there was a sale under the power contained in the mortgage, his testimony is very vague and uncertain. It is not shown that the property was advertised for sale or that it was appraised as required by the statute. The mortgagees became the purchasers at the sale, and no deed was executed to them. Lesser testified that he went into possession of the land after this pursuant to the sale. Mrs. Reeves testified tliat she made two crops on the land after her husband’s death and then left it because she thought she could not pay off the mortgage indebtedness. She lived in Lee County for two years and then moved with her minor children to Woodruff County, where they have since resided. She was not present at the sale under the mortgage and did not know that appellants claimed that a sale had been made thereunder until some time in 1916 when her children went back to Lee County on a visit to some relatives and ascei'tained that fact.
According to Lesser the sale was had in 1896. At that time the children were minors, the oldest being only about twelve years old. After they became of age they did nothing whatever to mislead appellants and moved with reasonable diligence in bringing the suit after they discovered that they had an interest in the land. They found this out in 1916 and brought this suit in the latter part of 1917. There was no change in the condition of the parties after they ascertained their rights. Appellants were not misled to their prejudice by any conduct of appellees and the appellees were not guilty of laches. The mortgage indebtedness was due at the time Mrs. Reeves left the land, and the mortgagees had the right to take possession of the land and rent it out for the purpose of paying that indebtedness or to foreclose the mortgage.
As we have already seen, the foreclosure was invalid, and under the circumstances their possession of the land will be attributable to their rights under the mortgage, and they were properly treated by the chancellor as mortgagees in possession. It is true that the mortgagees executed a. deed to A. OB. Smedley to the land, but of course he could acquire no greater title or interest in the land than they possessed. It is not shown that appellees knew of-his purchase or that he was misled to his prejudice by their action in the matter.
The court properly charged the mortgagees with the rental value of the land for each year after they went in possession of it, and allowed them credit for taxes and necessary repairs. Indeed, the proof shows that the houses on the place had been allowed to run down greatly. We do not deem it necessary to set out in detail the evidence with regard to the rents, taxes, etc. This is set out in the decree of the chancellor and an examination of the record leads us to the conclusion that the chancellor’s finding is correct. The chancellor held the mort gagee liable for a reasonable rent after he took possession of the mortgaged property. It is true that Smedley purchased the land from Lesser and entered into possession under his deed. He made certain payments thereunder which the chancellor credited on the mortgage indebtedness. Smedley acquired no greater rights than Lesser. He entered into possession under the direction of Lesser, and became his tenant. When he purchased from Lesser he only succeeded to his rights. The amounts charged against Lesser, including the payments on the purchase price by Smedley, only amounted to a reasonable annual rent for the property, and the evidence warranted the chancellor in finding that Lesser was indebted to appellees in the sum of $51.48.
It is further contended by counsel for appellant that after the sale by Lesser to Smedley, section 2754 of Kirby’s Digest, our betterment statute, applies, and they invoke the rule laid down in Green v. Maddox, 98 Ark. 397. We do not deem it necessary to decide this proposition. The rights of Smedley under the betterment statute are not before the court. The question is as to the rights of Lesser, and that case has no application to his rights.
It follows that the decree must be affirmed. | [
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Hart, J.
(after stating the facts). It is earnestly insisted by counsel for the defendant that the evidence is not sufficient to warrant the verdict.
According to the testimony of the plaintiff, May-field, he took out the policies sued on in November and December, 1915, and since that time has kept the premiums paid. He admitted that his eyesight had been weak for fifteen or twenty years, but stated that he told this fact to the agent when he made his application for insurance. The trial was had in July, 1919, and May-field said that his eyes continued to be about the same until about a year ago, at which time sharp pains began to shoot through his left eye and that he soon afterwards lost the sight of it.
It is contended by counsel for the defendant that this testimony is not sufficient to support the verdict for the reason that the policy did not insure the plaintiff against any disease of the eye which existed at any time prior to the date of the application, but only from such diseases as might occur after the execution of the policy. Counsel insists that under the testimony the jury could not tell whether or not the disease which caused the -loss of plaintiff’s left eye existed at the date the policy was written or whether it occurred after the policy was executed.
We do not agree to the construction placed upon the policy by counsel for the defendant. So much of the clause in question as is applicable to the present case may be stated as follows: “It is specially provided that in case of disease resulting hereafter by or because of which the applicant shall suffer the total loss of one or both eyes,” etc. It is true that it is well settled in this State that policies of insurance should be interpreted by the rules governing other written contracts where the meaning of the language used is clear and explicit. It is equally well settled that in cases where there is doubt as to the meaning of the language used the policy should be construed strictly against the insurer and favorably to the insured. The reason is that policies of insurance are made on printed forms carefully prepared by experts employed by the insurer. The insured has no option as to the form of the contract and no voice in its preparation. The object óf the contract is to afford indemnity against loss, and the policy should be so construed as to effectuate this purpose rather than in a way which would defeat it. One of the dictionary meanings of the word “result” is to terminate, or to end. When given this meaning, the clause would read: It is expressly provided that in case of disease terminating or ending hereafter by or because of which the applicant shall suffer the total loss of one or both eyes, etc. In other words, the policy was intended to insure the applicant against the loss of his eyes from disease, regardless of the fact of whether the disease existed at the date of the policy or first began afterwards. The intention was that the loss of the eye, or the result from the disease should happen after the policy was executed. This is borne out by the application. By the terms of the policy the application was expressly made a part of the contract of insurance. The applicant was asked if he had a certain specified disease, and was then asked if both of his eyes were good and healthy. He answered, yes. Then follows a clause that these statements are true and correct, and that they are made to enable the applicant to obtain a membership certificate in the defendant association. The object of the question was to ascertain if the applicant’s eyes were in such a healthy condition as to warrant the association in insuring him against the loss of them from disease. Of course the loss of the eye must result after the execution of the policy. The company would be equally liable whether the disease originated before or after the execution of the policy, provided the loss of the eye was the result of the disease and happened after the execution of the policy, and there was no fraud perpetrated by the applicant in obtaining the insurance. The association was interested in knowing the condition of the applicant’s eyes in order to determine whether he was a fit subject for insurance against the loss of his eyes. If the applicant perpetrated a fraud in this respect, it would avoid the insurance..
In Mutual Aid Union v. Blacknall, 129 Ark. 450, the court held that a life insurance company will be bound under a policy of. life insurance, where the applicant and insured made false statements concerning his physical condition, where the agent soliciting the insurance was also charged with the duty of writing the data concerning the applicant’s physical condition, and where the agent, in course of the examination, learned the applicant’s true condition. The court further held that if an agent, in collusion with the applicant, even though acting within the apparent scope of his authority, perpetrates a fraud upon the insurance company by making false and fraudulent representations upon which the insurance is obtained, such fraud will vitiate the policy. See also Walker v. Illinois Bankers’ Life Ass’n, 140 Ark. 192.
The court instructed the jury on the question of fraud in procuring the policy in accordance with the principles of law just announced. The finding of the jury on this question was in favor of the applicant, and it can not be said that there is no evidence to support it. The insured testified that he made a full and fair disclosure of the condition of his eyes to the agent, and his testimony was corroborated by other witnesses who were present when the application for insurance was made.
Counsel for the defendant also assigns as error the action of the court in refusing to give an instruction asked by the defendant. We need not set out this instruction, for the object of it was to tell the jury that if it should find that the disease which resulted in the loss of plaintiff’s eye was in existence at the time the policy was executed, the company would not be liable. We have already discussed the meaning of that clause of the policy upon which the instruction in question was predicated, and for the reason there given we think that the policy was not susceptible of the meaning placed upon it by the association and that the court did not err in refusing the instruction.
It follows that the judgment must be affirmed. | [
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McCulloch, C. J.
The judgment below was one for the recovery of damages sustained by reason of negligent delay in the transmission and delivery of a telegraphic message from Little Bock to Van Burén. The recovery of damages was based on a statute of this State which declares that telegraph companies doing business in the State “shall be liable in damages for mental anguish or suffering, even in the absence of bodily injury or pecuniary' loss, for negligence in receiving, transmitting or delivering messages.” Kirby’s Digest, sec. 7947.
The message was sent and the negligent act with respect thereto was committed on November 17,1918, while the telegraph lines were under control and operation of the Government of the United States, acting through the Postmaster General. The authority of the Government to assume such control and operation of the telegraph lines is found in a joint resolution of Congress adopted on July 16, 1918 (40 Stat. 904, c. 154, [Comp. St. 1918, sec. 31153/4x, appendix]), which provides that during the continuance of the war the President “is authorized and empowered, whenever he shall deem it necessary for the national security and defense, to supervise or to take possession and assume control of any telegraph, telephone, marine cable, or radio system of systems, or any part thereof, and to operate the same in such manner as may be needful or desirable for the duration of the war.” The resolution contained the further provision: “Provided further that nothing in this act shall be construed to amend, repeal, impair, or affect existing laws or powers of the States in relation to taxation or the lawful police regulations of the several States, except wherein such laws, powers, or regulations may affect the transmission of Government communications, or the issue of stocks and bonds by such system or systems.”
On July 2, 1918, the President issued á proclamation assuming control and operation of the telegraph and tel ephone lines pursuant to the authority conferred -as above, the proclamation following substantially the language of the joint resolution. The proclamation reads that the President does “hereby take possession and assume control and supervision of each and every telegraph and telephone system, and every part thereof, within the jurisdiction of the United States, including all equipment thereof and appurtenances thereto whatsoever and all materials and supplies.”
The Postmaster General took control and proceeded to operate the lines after July 31, 1918.
Appellant pleaded the complete control of the Government over the physical properties of the company in the operation of the telegraph business as a defense against any liability which .accrued by reason of negligence during such Government control and operation.
The question presented by this plea is the sole question involved in the case, and the contention now is' that the telegraph company is not liable for damages caused by the servants of the Government in operating the lines, and that there is no authority under the Federal law for maintaining an action against the telegraph company for a cause of action which arose under Government control.
We are of the opinion that this contention is sound, and must be sustained.
Learned counsel for appellee defend the judgment below under authority of the proviso in the Federal statute which preserves the authority to the States in the exercise of “lawful police regulations.” The argument is that the liability imposed on telegraph companies for damages by way of mental anguish resulting from negligence in the transmission of messages is in the nature of a police regulation, the vitality of which is preserved in the Federal statute.
This -contention overlooks, however, the decision of the Supreme Court of the United States in the recent case of Dakota Central Telephone Co. v. State of South Dakota, 250 U. S. 163, 39 S. C. R. 507, which interprets the language of the joint resolution of Congress and gives a definition to the term “police regulations,” that it means the exercise of the police power of the State in a restricted sense, limiting it to that phase of the power which deals with “health, safety and morals,” and not in the comprehensive sense which embraces the substance of the whole field of State authority. The assumption of control by the Postmaster General was complete, and constituted a substitution of the Government for the owners of the telegraph lines in the operation of the same. The possession and control of the owners was entirely displaced, and the act of negligence complained of was committed, not by the servants and employees of the telegraph company, but by the servants and agents of the Government. There was no liability resting upon the telegraph company for the act of the Government, and no such liability was created by statute.
The decision of this court in the recent case of Missouri Pacific Railway Co. v. Ault, 140 Ark. 572, is cited by counsel as supporting the judgment of the lower court, but that case was a suit against a railway company for liability which arose under Federal control authorized under an entirely different statute, which according to our interpretation, preserved as against the owners of railroads liability which arose during Federal control, and expressly authorized an action against the transportation companies themsélves. The most serious question in that case was as to the constitutionality of the Fed-' eral statute, it being contended that the statute constituted the taking of property without compensation and without due process of law, but we answered that contention by showing that the statute itself provided for ample compensation, to be paid by the Government to the transportation companies, and that there was no taking of property without just compensation in violation of constitutional rights. The statute, or rather the joint resolution, now under consideration does not contain a word which would justify us in holding that it preserved the liability of the telegraph companies, nor does it authorize a suit against the telegraph companies. Compen sation is to be paid by the Government for the use of the property, but no authority is conferred to hold the owners of the respective lines responsible for injuries which occur under Government control.
We see no escape from the conclusion that there is no liability in this case for the injury complained of. The judgment is therefore reversed, and the action dismissed. | [
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Hart, J.
(after statixxg the facts). Although the statute calls roads of-this kind private roads because the costs of opening and keeping them in repair are to be borne by the individuals who petition for their establishment, yet they are in a sense public roads. That is to say, although they may be only a branch tci the main public road, yet any one who has occasion to do so may travel them. Pippin v. May, 78 Ark. 18. In that case in discussing whether the petition for the establishment of such a road should be graxxted the court said: “In determining whether such a road is necessary, the court must, of course, take into consideration, not only the convenience and benefit it will be to the limited number of people it serves, but the injury and inconvenience it will occasion the defendant through whose place it is proposed to extend it. After, considering all these matters, it is for the court to determine whether the road is, within the meaning of the law, necessary or not.”
Tested by this rule, we think the circuit court erred in holding that the road should be established. The undisputed evidence shows that appellants have a very valuable farm over which it is proposed to establish the road, and that it is tile drained; that the establishment of the road in question and travel over it will cause ruts to be formed, so that wagons will break the tiling; and that the tiling is so constructed that when one section is broken this will obstruct the drainage and cause the whole field to overflow with water. As we have airead} seen, any one who has occasion to do so may travel this road, if established. The injurious consequences which will inevitably result to- appellants from the establishment of the road in comparison to the service it will be to appellee and others who may have occasion to travel it, are so great that the court was not justified in ordering the road opened. It is true that appellee showed that the only other route was longer and more expensive to her, but she does not show that the cost of it was prohibitive, and the court, under the circumstances as disclosed by the uncontradicted testimony, was not justified in ordering the road opened because of the great injury and inconvenience to the appellants, when compared with the benefits to appellee.
It follows that the judgment must be reversed, and the cause will he remanded for further proceedings according to law and not inconsistent with this opinion. | [
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Wood, J.
This is a consolidation of two separate causes of action begun by the appellants against the appellees.
The purpose of the action, as set forth in the complaint, was to recover from the appellee bank the sum of $1,070.67, which it was alleged had been delivered to the cashier of the bank to be placed to the credit of Mrs. Mary E. Evans, as guardian; that the cashier, knowing that the money belonged to appellants, wrongfully placed the same to the credit of Mrs. Mary E. Evans, individually, instead of to her credit as guardian, and allowed her to check it out for her personal use.
Appellee Rolfe was president of the appellee bank, and judgment against him was asked because it was alleged that he had failed to file the statement required by section 848 of Kirby’s Digest. This is the second appeal in this case.
On the first appeal we held that the facts alleged in the complaint stated a cause of action, and the cause was reversed and remanded with directions to overrule the demurrer to the complaint. Blanton v. Nat. Bank, 136 Ark. 441.
In holding that the facts alleged in the complaint constituted a cause of action, in the course of the opinion we quoted from 12 R. C. L. (p. 1172) as follows: “On the same principle the ward can follow any other property wrongfully disposed of by the guardian into the hands of third parties, if they had knowledge of such facts as should have put them on inquiry; if, for instance, they had received in payment of a debt of the guardian funds standing in the name of the ward. * * * It is beyond the power of a guardian or other trustee to bind the estate he represents to any use of its funds by contract with third persons who have knowledge of the character of the property transferred, except in the ordinary and usual course of administration of the trust, and in furtherance of its object. This particularly applies to banks in which funds have been deposited, which by the form of the deposit or otherwise they know to be trust funds, but permit to be transferred to the guardian’s personal account or applied to his individual debt. ’ ’
■ We further said, “If the funds so received were, notwithstanding the conversion to the individual account of the guardian, used by the latter for the benefit of the respective wards, or if the funds so misappropriated were subsequently accounted for by the guardian and reappropriated and held to the use of the wards, that would be a matter of defense which can be shown in this action by the appellees, but the parties are not bound to go first to the probate court for the adjustment of the accounts, inasmuch as all of the defenses can be heard in the present action. ’ ’
Upon a remand of the cause the appellees answered, denying specifically all the material allegations of the complaint. They alleged that the funds in controversy were derived from the estate of James P. Blanton, deceased, the father of appellants; that, under the terms of his will, Mary E. Blanton acquired one-half of his entire estate and the appellants one-half, or one-fourth each; that the will of Blanton contained the following provisions: “It is expressly understood that my said wife, Mary E. Blanton, shall have the use of and control of said portions of said estate that I have hereinbefore bequeathed to my said son, John Cecil, and my daughter, Annie Mabel, until the said son and daughter become of age, respectively, at which time my said wife shall pay to my said son his portion of my said estate and to mv said daughter her portion of said estate.”
The funds in controversy were a part of the proceeds of a debt which the attorney for the Blanton estate had collected from the Davis estate. The amount collected was $1,606.
W. W. Hughes, the attorney for the Blanton estate, paid to Mrs. Mary Blanton.Evans the sum of $535.33, as representing her one-third interest and paid to her as guardian the remaining two-thirds, $1,070.67. These amounts were paid by checks. The check for the interest of appellants recited: “Pay to the order of Mrs. Mary E. Blanton Evans,, guardian, etc.” The checks were drawn on the Bank of Eastern Arkansas of Forrest City and on the back of each of them was a cancellation stamp showing that they were paid by the Bank of Forrest City, March 24, 1913.
Mrs. Evans testified, in part, as follows: That the checks drawn in her favor by Mr. Hughes were delivered by him in his office to Mr. Williams, cashier of the Bank of Forrest City; that they were delivered to be deposited in the Bank of Forrest City. She did not endorse the checks before they were handed to Mr. Williams. She further testified that the money was deposited in the Bank oí Forrest City in March, 1913; that her checks drawn against her account shortly after the deposit of this fund were refused with the statement by the cashier that she had no money there.
She further testified that neither she nor the appellants had received any money from the Bank of Forrest City or the First National Bank (its successor) since the deposit was made in March, 1913; that the living for herself and children had been provided by her husband, Mr. Evans, and her son, Cecil; that no settlement had ever been had by her with her wards for this fund or for any other property that went into her hands as guardian.
It was proved that the indorsement of “Mrs. Mary E. Blanton Evans, guardian,”* on the back of the check was made by Eugene Williams, the cashier of the Bank of Forrest City. It was also proved that no proceedings were had in the guardianship of Mrs. Mary Blanton Evans after the grant of letters in May, 1909.
The testimony in the whole record is exceedingly voluminous, and we will, therefore, not undertake to set it out in detail, but the above is the essential testimony upon which the appellants rely. On the other hand, the testimony for the appellees tends to prove that after the death of James P. Blanton, Mrs. Blanton, his executrix, took charge of his estate and handled the same, collecting the rents and other personal assets, and opened up a general account in her individual name with the Bank of Forrest City.
The itemized statement of the account which is in evidence shows that during the time there were many debits and credits. The final balance showing that a sum total of $17,110.19 was deposited and that this sum was drawn out by checks. One of the items on the statement is March 24, 1913, $1,606 deposited, with the word “Davis” written in pencil opposite the entry.
The account shows that at the time the above deposit was made the account of Mrs. Evans was overdrawn $710.88. After the deposit there was a balance in her favor of $895.12. Mrs. Evans continued to check on her account, drawing out the full amount of this deposit and the sum of $718.65, later deposits, showing that on September 22, 1913, as above stated, the checks and deposits balanced.
By the terms of the will of J. P. Blanton, Mrs. Mary E. Blanton was given in her own right one-half of his entire estate and the right to use and control the portions of the estate that were bequeathed to her children.
Mrs. Blanton had taken charge of the estate under the terms of the will so that in reality when the attorney came to pay over to Mrs. Evans the amount collected by him for the Blanton estate from the Davis estate, he made the checks to read that Mrs. Mary Blanton Evans was entitled to only the sum of $535.33, whereas under the terms of the will she was entitled at that time to $803 of such fund, whereas, the amount to be paid her as guard ian of the children would have been a like sum. So it is manifest when the provision's of the will are taken into consideration that the attorney made out these checks without reference to the will, supposing that Mrs. Evans was only entitled to one-third.
So the making of the checks to read as above set forth could not have given the appellants any greater rights in the estate than they really had under the term_s of the will. At the time, therefore, when Mrs. Evans deposited the full sum of $1,606 in the Bank of Forrest City she in her individual right was entitled to the sum of $803, or half of the deposit.. Her account was overdrawn at that time in the sum of $710.88. Now, although the bank had knowledge, through the knowledge of its cashier, Williams, that a part of the funds deposited were trust funds, nevertheless, the bank did not, as the proof shows, permit her to convert a portion of this fund to her own use in the payment of her overdraft in the bank. If the bank was put upon inquiry and was bound by the knowledge that an inquiry would have obtained, then it would have ascertained that Mrs. Evans had possession of the funds as executrix of the estate of her deceased husband, Blanton, and that she was entitled to one-half of these funds in her own right, and.that after paying out of her half the overdraft she still would have had the sum of $93.12 of the funds which belonged to her.
Furthermore, the bank would have ascertained that the will of Blanton provided that his wife, Mary E. Blanton, should have the “use of and the control” of such portions of his estate as were bequeathed to appellants. “Where a trustee has full control over the funds deposited in a bank, he may draw them out of the bank ad libitum, and the bank incurs no liability in permitting this to be done, so long as it does not participate in the breach of trust, resulting in the misapplication of the funds.” Bank of Hartford v. McDonald, 107 Ark. 232-40.
The law announced in our former opinion is the law of this case as applicable to the facts set forth in the complaint, but the facts developed by the testimony at the hearing on the merits were as we have set forth above.
These facts clearly show that there was no misappropriation of the funds by Mrs. Blanton. Although the funds were deposited in the bank in her own name, since she had absolute dominion over the same by the terms of the will until her children became, of age, and as that period had not arrived at the time of the deposit, the bank incurred no liability in allowing them to be deposited to her individual credit.
While under the will Mrs. Blanton did not have the absolute title to the funds, yet she did have the right to avail herself of the funds and to enjoy the use of them for her own purposes according to her pleasure and necessities. Such right was bestowed by the words “use” and “control,” giving the same their plain and ordinary meaning. See Webster’s Dict.; 39 Cyc. 845; Words & Phrases, p. 7228.
The language of the will did not place any restrictions upon Mrs. Blanton in the use of the property and the bank would not be chargeable with knowledge of any improper use that she might make of -it. But aside from all this, the testimony tends to prove that Mrs. Evans did not make any illegal or improper use of the appellants’ estate. On the contrary, the testimony shows that the appellants lived with their mother and that they all drew their support and maintenance from the same fund.
The appellants failed to prove their cause of action. Therefore, the decree of the court dismissing their complaint for want of equity is correct.
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McCulloch, C. J.
Appellee instituted this action against appellant in the circuit court of Sebastian County to recover the value of thirty-three bales of cotton destroyed by fire alleged to have been communicated by sparks from one of appellant’s locomotives while the cotton was situated on a platform near the railroad at the station of Cameron, State of Oklahoma. There was recovery in the trial below for the full value of the cotton as alleged and proved.
Appellee based his right to recover on a statute of Oklahoma which reads as follows:
“Any railroad company operating any line in this State shall be liable for all damages sustained by fire originating from operating its-road.” Revised Laws of Oklahoma, 1910, § 114.
It is alleg’ed in the complaint that ‘ ‘ defendant owns and operates a line of railway through the States of Arkr ansas and Oklahoma, and at Cameron, Oklahoma, on its said railway line it erected a platform upon which it received and stored baled cotton intended for shipment over its said railway line;” that on October 11,1917, “plaintiff had upon said platform fifty-five bales of cotton placed there for shipment over said defendant’s railway; and that on the date named “one of defendant’s freight trains going south passed the platform upon which said cotton was located and when said train passed said platform the locomotive engine drawing said train emitted great showers of sparks and live coals, some of which fell upon plaintiff’s cotton and ignited it,” and that thirty-three bales of said cotton of the aggregate value of $4,807.77 were destroyed by the fire thus communicated.
The answer contained specific denials of each allegation of the complaint and also contained an allegation that the cotton was not destroyed through any negligence of the defendant. It was specifically denied in the answer that said cotton was placed on the platform “for the purpose of being shipped over defendant’s line of railroad. ’ ’
Appellee testified that he had fifty-seven bales of cotton at a gin and hauled fifty-five bales of it to the railroad platform and placed it thereon for the purpose of shipping it over appellant’s road; that the bales had his own tags on it, and that he intended to haul the other two bales and ship it all at one time. The cotton was destroyed by fire that night while on the platform. The other testimony adduced by appellee tended to show that a passing engine drawing a freight train emitted showers of live sparks, large and small, which were borne by the wind toward the cotton platform and that a short time thereafter the cotton was found to be on fire. The testimony adduced in the case did not tend to show any origin of the fire other than by communication from the engine. Appellant’s testimony tended to show that the engine did not and could not emit sparks of sufficient size to reach the cotton platform. The watchman, who was introduced as a witness by appellant, testified that he patrolled the cotton platform between the times the train passed and the fire became flagrant, and that he did not discover any fire in the cotton. There was conflict in the testimony as to the precise time the train passed and as to the time the cotton was discovered to be afire.
Appellee’s right of action, if any exists, arose in the State of Oklahoma, arid the laws of that State control.
It is contended, in the first place, that the evidence is not sufficient to sustain the finding that the fire was communicated from the engine.
In the case of Railway Company v. Dodd, 59 Ark. 317, the rule was announced that where inflammable property situated near a railroad track was discovered to be on fire soon after tbe passing of an engine emitting sparks, these were “facts from which the jury might have inferred that the fire originated in sparks from the engine of the train which had just passed, there being no evidence to explain its origin on any other theory.” That rule has been adhered to in all later cases. St. L., I. M. & S. Ry. Co. v. Coombs, 76 Ark. 132; Monte Ne Ry. Co. v. Phillips, 80 Ark. 292; St. L., I. M. & S. Ry. Co. v. Clements, 82 Ark. 3; St. L. S. W. Ry. Co. v. Trotter, 89 Ark. 273; St. L. & S. F. Rd. Co. v. Shore, 89 Ark. 418; Central Arkansas & Eastern Ry. Co. v. Goelzer, 92 Ark. 569; Missouri & North Arkansas Rd. Co. v. Phillips, 97 Ark. 54; Bush v. Taylor, 130 Ark. 522.
The Oklahoma Supreme Court has adopted a different rule in weighing the sufficiency of evidence, but we are not bound by the rule of that court, even though the cause of action arose in that State. The cause of action does not rest on the rules of evidence in the State where it arose, nor on a statute of that State on the subject which enters into the cause of action, and the law of the forum governs. St. L. & S. F. Rd. Co. v. Coy, 113 Ark. 265; St. L., I. M. & S. Ry. Co. v. Steel, 129 Ark. 520.
The next and last contention of appellant is that, according to the construction placed by the Supreme Court of Oklahoma on the statute in question to the effect that the statute is not applicable where a contractual relation as bailee and bailor subsists between the owner of the destroyed property and the railroad company (Walker v. Eikelberry, 7 Okla. 599, 54 Pac. 553), there is no liability in the present case, for the reason that the proof shows that appellant held the cotton as warehouseman, and that negligence was not proved and that the court refused to submit the question of negligence to the jury.
The question appears to be raised here for the first time, for the case was not tried below on the theory of any contractual relationship between the parties. The issue was not raised below, either in the pleadings, the proof or the instructions.
Appellee based his right of recovery on the statute, and alleged the purpose for which the cotton was placed on the platform to show that he had rightfully placed it there. The answer presented an issue on that subject by the denial that the cotton was placed there for shipment. The complaint contained no allegation as to negligence on the part of appellant with respect to the loss of the cotton. Appellee adduced, in support of his plea, proof that he placed the cotton on the platform for the purpose of shipping it. He did not prove that he gave notice to the agent of the company, nor that the cotton was formally received by the company’s agent, but the circumstances proved were such as to warrant the finding that the cotton was on the platform with the consent of appellant and that question was submitted to the jury in the charge of the court. The purpose of appellee was manifestly, as before stated, to show that his property was rightfully on the platform. St. Louis, I. M. & So. Ry. Co. v. Cooper & Ross, 120 Ark. 595. Appellant made no effort at all to prove that it had received the cotton and held it as warehouseman. Nor was there any request to have that issue submitted to the jury. The refused instructions requested by appellant were confined to the question' of negligence and contained nothing concerning the relationship of the parties with respect to the possession of the cotton.
Instruction No. 5, requested by appellant, is a fair sample of the refused instructions. It reads as follows:
“Before the plaintiff can recover in this case he must establish by a preponderance of the evidence that the fire which destroyed his cotton was set out, or caused, by sparks emitted from the engine of a southbound freight train passing Cameron on the evening of October 11, 1917, at about 6 o’clock and also that said fire was set out, or caused, by the negligence of the defendant, and if he fails in either of these your verdict should be for the defendant in this cause. ’ ’
The court gave, at appellant’s request, the following instruction:
“You are instructed that it is alleged by plaintiff that thirty-three bales of cotton belonging to him, which was situated upon the defendant’s cotton platform at Cameron, Oklahoma, was destroyed by fire set out by one of defendant’s southbound freight trains on the night of October 11, 1917, about 8 o’clock. Now the court instructs you that the burden is upon the plaintiff to show these facts by a preponderance of the testimony, and if he fails to do so you should return your verdict for the defendant. ’ ’
The submission of the question of negligence would not necessarily have carried with it a submission of the relationship of the parties. On the contrary, the giving of appellant’s requested instruction would have constituted an assumption that the cotton was held by appellant as warehouseman. The inference to be drawn from the testimony as to the relationship of the parties with respect to the cotton was not undisputed, and it would not have been proper for the court to give instructions assuming that appellant had possession of the cotton and held it as warehouseman. The jury could have found from the testimony that appellee put the cotton on the platform at appellant’s implied invitation, and merely for his own convenience, and that it was not held by appellant as warehouseman. The question should not, if the issue was raised, have been taken away from the jury by a peremptory instruction, or one assuming that the relationship of warehouseman subsisted.
If this question had been appropriately raised so as to direct the court and adverse party to its presence in the case, the testimony on the point might have been fully developed by additional testimony. It would not be fair to appellee to allow it to be raised here on appeal for the first time. The reports abound in decisions of this court holding that such practice is not permitted. Radcliffe v. Scruggs, 46 Ark. 96; Martin v. McDiarmid, 55 Ark. 213; Greenwich Ins. Co. v. State, 74 Ark. 72; James v. Mallory, 76 Ark. 509.
Upon the record presented we do not think that there was any prejudicial error committed which appellant is in position to take advantage of now. The judgment is, therefore, affirmed.
Smith, J., dissents. | [
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Humphreys, J.
Appellant was indicted by the Cleburne Circuit Court jointly with Bliss Adkisson and Hardy Adkisson for the crime of murder in the first degree for killing Porter Hazelwood on the 10th day of July, 1918. It appears from the transcript that at the following spring or March term of the court a motion for change of venue was filed, in manner and form required by law, which was granted, and the cause transferred to the Boone Circuit Court for trial; that, on the same day, by an agreement between the State and appellant, the order granting the change of venue to the Boone Circuit Court was set aside, the motion for change of venue withdrawn and the cause continued and set for the second day of the September, 1919, term of the Cleburne Circuit Court. It also appears from the transcript that, on the day to which the cause had been continued, appellant with Bliss and Hardy Adkisson filed a motion for continuance on account of the absence of Bill Bice, a former deputy sheriff, who was a member of"the sheriff’s posse at the time Porter Hazelwood was killed; that the motion for continuance was overruled, to which ruling appellant at the time objected and excepted; that thereafter on the joint motion of appellant, Hardy and Bliss Adkisson, the cause was severed; that, prior to the trial, to-wit, on the 25th day of September, 1919, appellant, in manner and form required by law, filed a motion for change of venue, which was overruled by the court over the objection and exception of appellant. The motion for continuance and change of venue, the overruling of each by the court and the objections and exceptions óf appellant to the rulings of the court in respect to the motions were not brought into the record by the bill of, exceptions filed and certified.
The cause then proceeded to a trial, which resulted in a verdict and judgment against appellant for voluntary manslaughter and the imposition of a punishment in the State penitentiary for two and one-half years. From the verdict and judgment an appeal has been duly prosecuted to this court.
The evidence in the instant case is not materially different from that adduced in the kindred case of Bliss Adkisson v. State, ante, p. 15, which was submitted to this court for decision upon the same date as this. For a general history and statement of the facts in the instant case, reference is made to that case.
It is insisted that the court erred in overruling the motion for a continuance on account of the absence of the witness Bill Bice. It has been repeatedly held by this court that a motion for continuance and the overruling thereof and the objection and exception to such ruling must be brought into the record by bill of exceptions, else it is no part of the record which can be considered by this court. Phillips v. Reardon & Son, 7 Ark. 256; Ward v. Worthington, 33 Ark. 830; Evans & Shinn v. Rudy, 34 Ark. 383; Quertermous v. State, 114 Ark. 452; Empire Carbon Works v. Barker, 132 Ark. 1.
It is insisted that the judgment should be reversed because the court refused to grant appellant a change of venue. For the same reason announced above, this court can not consider that question. Stearns v. St. L. & San Francisco Railway Co., 94 Mo. 317; Estes v. Chesney, 54 Ark. 463.
The matters complained of in assignments numbers 7, 8, 9, 10, 11, 12, 13 and 14 seem to have been based apon statements made by the prosecuting attorney either in the opening statement or arguments of the case, which statements, with the objections and exceptions thereo, do not appear in the bill of exceptions. These assignments of error should have been brought into the record by the bill of exceptions, and, because of that failure, can not be considered and decided by the court in a review of the cause.
It is contended in assignment of error No. 33 that Leo Martin was forced by the prosecuting attorney to admit that he stood indicted for the crime of assault with intent to kill and murder, and in assignment No. 34, he was permitted to make such inquiry of Leo Martin. Appellant has not abstracted any evidence upon which to base these assignments of error, and we have been unable to find in the bill of exceptions where such permission was granted to the prosecuting attorney by the court.
It is insisted that the court erred in refusing to give appellant’s requests Nos. 1, 2, 4 and 5. We have read these instructions and each casts the burden upon the State to show beyond a reasonable doubt that appellant either fired the shot that killed Porter Hazelwood or that, prior to the killing, he had entered into a conspiracy with others and was engaged with them in carrying out the conspiracy to fight men lawfully trying to arrest his son, Bliss Adkisson. This was error. Appellant was present at the time of the killing, so the only burden cast upon the State was to prove that appellant either fired the shot that killed Porter Hazelwood unlawfully, wilfully, feloniously, with malice aforethought and after premeditation and deliberation to kill him, or that he aided or abetted others in killing him with such intent, premeditation and deliberation. It was proper to refuse to give instructions carrying this erroneous declaration of law.
Appellant insists that the court committed reversible error in refusing to give his request No. 3, which is as follows: “If you find from all the evidence, beyond all reasonable doubt that the defendant was engaged in a conspiracy with two or more other parties to resist a lawful arrest of his son Bliss, and that he fought with them to resist said lawful arrest, and that Porter Hazel-wood was thereby killed, without fault on the part of his posse, then, in that event, defendant cannot plead self-defense and is guilty of murder in the first degree, and you would not be warranted in finding him guilty of a lesser grade of homicide. But, before you believe him guilty of such conspiracy, you must believe from the evidence introduced in open court, and not by rumor or passion, that the defendant himself had agreed with other conspirators to fight any lawful posse or men trying to make a lawful arrest.”
This instruction excludes from the jury the question of whether appellant, was guilty, under the facts, of a lesser grade of homicide than murder in the first degree. In other words, it said that, unless the facts warranted a conviction of murder in the first degree, it would be the duty of the jury to acquit. We think the evidence justified the court in submitting the question to the jury as to the guilt or innocence of appellant on all the grades of homicide. For that reason, the request was erroneous and should have been denied.
Appellant insists that the court committed reversible error in refusing to give his request No. 9, which is as follows: “If you believe the posse was the aggressor and fired on the home containing the defendant, his wife, and family, then, in law, he was justified in returning the fire, and you must acquit him.”
This request was tantamount to instructing an acquittal if the appellant fired the shot that killed Porter Hazelwood, even if, at the time, appellant or some member of his family were not in imminent danger. He could only kill another in necessary self-defense of himself and family.
Appellant insists that the court erred in refusing to give his request No. 11, which appellant contends only laid down rules of guidance for the jury in the consideration of the dying declaration. The instruction, however, does more than this. It laid down the rules governing the admissibility of a dying declaration, which were questions for the court and not for the jury. For that reason, the request was properly denied.
It is insisted that the court committed reversible error in giving instruction No. 27a, which is as follows: “If you find the deceased, Porter Hazelwood, was a member of the sheriff’s posse that was endeavoring to arrest and capture Bliss Adkisson or Tom Adkisson or Hardy Adkisson, and that defendant knew that deceased was there in that capacity, or by the exercise of reasonable care could have known it, and if you further find that defendant, or Bliss Adkisson or Hardy Adkisson, were acting in conjunction with the defendant, shot the deceased in a spirit of resistance or defiance of said sheriff’s posse, then.you are instructed that defendant could not plead self-defense or the defense of person or property as an excuse for the killing, and that said plea would not avail him.”
This instruction was under consideration in Adkisson v. State, ante, p. 15, and the court disposed of appellant’s objection thereto by saying the error complained of could have been reached by a specific objection only. No specific objection was interposed by appellant to the instruction when given by the trial court.
Lastly, it is insisted that the court erred in giving instruction No. 31a, which is as follows: “In ordinary cases of one person killing another in self-defense, it must appear that the danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily harm, the killing of the other was necessary, and must also appear that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further contest before the mortal blow or injury was given. To be justified, however, in acting on the facts as they appear to him, the defendant must honestly believe without fault or carelessness on his part, that the danger is so urgent and pressing that it is necessary to kill his assailant in order to save his life, or to prevent his receiving great bodily injury. He must act with due circumspection. If there was no danger, and his belief of the exist ence thereof be imputable to negligence, he is not excused, however honest his belief may be.”
The supposed vice contained in this instruction consists in the impossibility of one being honest in his belief if he were negligent in reaching the opinion. We see no reason why a man could not honestly believe a thing, though he reached the conclusion through his own negligence. One cannot justify against a charge of criminal homicide, however, on the ground that he was under the honest belief that he was in imminent danger, if he reached that belief through fault or carelessness. The only belief upon which he can justify would be a belief not founded on his own fault or carelessness. The instruction complained of clearlv carried this idea and was not erroneous.
No error appearing in the record, the judgment is affirmed. | [
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ROBERT J. GLADWIN, Judge.
| ¶ Michael Boyd appeals the Pulaski County Circuit Court’s order denying his Rule 37, petition for postconviction relief. Ark. R. Crim. P. 37.1 (2016). We assumed jurisdiction of this appeal pursuant to footnote 1 in Barnes v. State, 2017 Ark. 76, 511 S.W.3d 845 (per curiam). Boyd contends that (1) the circuit court erred in denying his petition because it failed to-appoint him counsel for his Rule 37 proceeding, (2) trial counsel was ineffective for allowing the redaction of his taped confession to be played for the jury, (3) trial counsel was ineffective for failing to present evidence to establish his innocence, and (4)' trial counsel was ineffective for failing'to call multiple witnesses to prove his innocence.
Boyd was convicted'by a Pulaski County jury on charges of aggravated robbery and theft of property and was sentenced to thirty and ten years of imprisonment, respectively, to be served consecutively. On appeal, he contended that the circuit court committed | ¿reversible error by .denying (1) his motion' for a directed verdict, (2) his motion i to suppress statements made by him in a police interview, and (3) his motion to suppress a photo identification' of him made by a bank teller.
The incident that led to these charges allegedly occurred at approximately 4:15 p,m. on September 13, 2013. A man entered a North Little Rock branch of Bank of the- Ozarks with what .appeared to be a handgun tucked into his waistband, demanded money, took $4,000 of the bank’s money, and left in a car that was described by bank tellers. Boyd was stopped in his vehicle approximately an hour after the armed robbery. He had a similar appearance to the suspect, both as described by bank tellers and'as seen in the bank-surveillance video. Boyd agreed to an interview at the police station and waived his Miranda rights. During the interview,- he made several incriminating statements, including admitting (1) having visited three banks that day,' (2) having been at the bank that was robbed, (3) having what he described as a “fake”, gun, and (4) having taken money from a bank teller. Boyd’s attorney filed a pretrial motion to suppress his statements asserting in part that they should be suppressed because the officer promised leniency to obtain Boyd’s custodial statements, thereby rendering them involuntary.
At the hearing on Boyd’s motion to suppress, Detective Michael Gibbons testified that he was the officer who interviewed Boyd. He explained that he read Boyd his Miranda rights, that Boyd told him that he understood his rights, and that Boyd said that he wanted to waive his -rights to give a statement. Detective Gibbons stated that the interview lasted more than an hour. Detective Gibbons testified that although Boyd repeatedly asked whether he could receive a bond on the charges, he never promised Boyd a bond, explaining Isthat Boyd had not yet been charged. Detective Gibbons testified that he told Boyd that if a gun was not used or if it was not real, then the crime would- be considered robbery, á charge where a bond was possible, but that a bond was not possible for aggravated robbery. Detective Gibbons stressed that Boyd was “all about getting a bond, no matter what the charge was,” but he reiterated that he told Boyd that he would not lie and tell him he could go home. Detective Gibbons acknowledged that he falsely told Boyd that seven people had identified him as the robber and that traffic cameras had footage of his vehicle at the scene. Detective Gibbons explained that he did not threaten Boyd in order to obtain his confession. Additionally, he'testified that Boyd had numerous prior offenses and extensive experience with the criminal justice' system—including having his Miranda rights read to him—and had been to prison numerous times for felony convictions. Detective Gibbons pointed out that Boyd confessed during the interview that he .went into the three banks that day (two Metropolitan Bank branches and the one Bank of the. Ozarks branch), that he had a mask on, that he had a fake gun with him, and that although he denied pulling the gun out, a bank teller gave him the money.
Boyd’s counsel argued that this confession was involuntary because it was the product of Detective Gibbons’s false promise of leniency. The State argued that there was no promise, much less a clear promise, of obtaining a bond for Boyd, and that Detective Gibbons repeated that he could not make such a promise. The State argued that, under the totality of circumstances with this criminally experienced defendant, suppression of the statement was not warranted. The circuit court denied Boyd’s motion to suppress, and a written- order to that effect' was subsequently filed.
I ¿Boyd also filed a pretrial motion to suppress the evidence of a photo identification made by witness Kathryn Pannell, alleging that the lineup shown to her was unduly suggestive. There were two written orders filed prior to trial denying this motion, but the circuit court agreed to consider the motion again during the trial.
At trial, the State presented proof that a man matching Boyd’s description had entered two Metropolitan Bank locations that day before entering the nearby Bank of the Ozarks branch, where the robbery in question took place. North Little Rock police. officer Kasey Knight responded to the report from a Metropolitan Bank of a “suspicious male” who came in wearing a dust mask, sunglasses, and a hat,-and who was acting “kind of odd.” Officer Knight viewed bank-surveillance video, which led him to broadcast to other officers that they should be on the lookout for an approximately thirty-yearTold black male.
Sholanda Jenkins, a bank manager at that Metropolitan Bank branch, testified as to her description of the suspicious male. She explained that she had asked him to take off the dust mask, but he refused, stating that he had the flu. She verified a still photo of the man who had been in the bank that day as shown on bank-surveillance footage.
A bank teller from that same Metropolitan Bank branch, Kathryn Pannell, testified that, while she was on a break, she observed Boyd, without his mask on just before he entered the bank. She also observed his vehicle and license plate and reported to police that it was a black Toyota with license-plate number 198 SRG. She confirmed that Boyd became - agitated when he was unable to persuade the bank tellers to provide him a cash advance on a card that did not bear his name. She testified that employees locked the bank door after Boyd left, that Boyd attempted to reenter the bank, but that he left instead. Ms. Pannell Instated that she then called the police. Ms. Pannell identified Boyd in the courtroom, stating that she was “100% sure” that Boyd was the man in the still photographs that showed a full-length col- or picture of Boyd in the bank lobby. She said that he had the mask in his hand before he put it on and that he. told her that he had the flu as he walked into the bank. Ms. Pannell said that when he was inside the bank, the mask kept slipping down and that Boyd would have to put it back up.
Ms. Pannell had previously identified Boyd out of a six-person' photo lineup when presented with it about four months after the robbery. She explained that the detective never suggested whom she should pick out, and she stated that she did not have any doubts about her recognition of Boyd in the photos. She testified that her job is in customer service and that she remembers people. Boyd renewed his motion to suppress the photo-lineup identification made by Ms. Pannell. His counsel complained that Ms. Pannell did not identify Boyd until months after the robbery; that her identification- was based on her brief observation of Boyd; and that the lineup was unconstitutionally suggestive. The State responded that this was a “very good lineup” of similar-looking men and that there was nothing suggestive about it. The circuit court rejected the motion, standing by its earlier ruling.
The State called employees of the robbed Bank of the Ozarks branch, located on Camp Robinson Road. Sharon Erwin, one of the bank tellers, testified that the perpetrator had entered the bank wearing a black shirt, a black hat, dark sunglasses, and a white surgical mask. Ms. Erwin said that she knew something was not right. She testified that she overheard the man demand $10,000 from another teller, Pam Buzbee, who was in the window next |fito her. After Ms. Buzbee refused and told the man to take off his mask, the man told Ms. Buzbee that he had the flu, called Ms. Buzbee “a bitch,” lifted his shirt, showed the gun, and finally pulled the gun out and waved it around. Ms. Erwin testified that Ms. Buzbee was hesitant to give the man money, so she pulled out two straps of $100 bills that contained a total of $4,000 and tossed them in the window. Ms. Erwin said that she saw the man’s face as he pulled his mask back and put it back on; the man then took the money and left. Ms. Erwin explained the bank-surveillance video footage as part of her testimony. She did not positively identify Boyd in court as the man in the bank that day, but she verified that the surveillance video was accurate.
Another bank employee, Greg Smith, was working the drive-through window that day. He testified that he heard the interaction and someone say, “He has a gun,” but he did not observe the robbery. Mr. Smith saw the perpetrator get into his car to leave, and he could describe the license plate. Another bank employee, Chris Abbot, testified about observing the robbery, specifically hearing the man call Ms. Buzbee a “stupid bitch,” and seeing Ms. Erwin throw the money toward the man before he left.
Detective Cody Brown detained Boyd after he had been stopped, approximately an hour after the robbery driving a vehicle matching the description given—a black 2012 Toyota Corolla, license-plate number 198 SRG. When he was pulled over, Boyd specifically volunteered that he had not been on Camp Robinson Road that day, although Detective .Brown had not mentioned that road.
Detective Gibbons testified at trial that he conducted Boyd’s interview and explained a summary of events similar to his description at the suppression hearing. Detective Gibbons ^testified that Boyd did not immediately confess to the robbery but spent most of the conversation asking whether he could get a bond and go home. Detective Gibbons said he told Boyd “over and over” that he could not promise anything—including a bond—if he made a statement and explained that this was being investigated as an aggravated robbery. A portion of the audio-recorded interview was played, and transcripts of that portion were provided to the jury.
Detective Gibbons stated that Boyd had gone that day to the Metropolitan Bank on McCain Boulevard at 11:30 a.m. and at 3:29 p.m.; to the Metropolitan Bank on JFK Boulevard at 4:02 p.m.; and then to the Bank of the Ozarks on Camp Robinson Road at 4:11 p.m. All three banks branches were near one another^ and Boyd was stopped approximately five miles away from the bank that had been robbed. He was found with more than $2,700 on his person.- Detective Gibbons explained the process of putting the photo lineup together and showing it to Ms. Pannell, who identified Boyd “in about three seconds.”
After the State rested, Boyd’s counsel moved for directed verdict, arguing that the State had failed to prove that Boyd was the man who had robbed the bank and further failed to prove that he was armed with a deadly weapon dr represented by words dr conduct that he was so armed. The State argued in response that Boyd admitted that he had a fake gun; that he went to this bank; that he took the money; that bank surveillance video showed him committing the robbery; and that one bank teller he saw that afternoon positively identified Boyd. The circuit court denied Boyd’s motion for directed verdict. Boyd rested without presenting additional evidence and renewed all his motions, which were all denied by the ^circuit court. The jury found Boyd guilty of aggravated robbery and theft of property on December 11, 2014. He appealed those convictions, and we affirmed the circuit court on September 14, 2016. See Boyd v. State, 2016 Ark. App. 407, 500 S.W.3d 772 (Boyd I).
On October 18, 2016, Boyd filed a properly verified petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. In his petition, he raised the following claims: (1) his trial counsel was ineffective for failing to argue that his confession was coerced; (2) he was denied actual and constructive counsel at trial because his attorney failed to introduce “material fact evidence and witnesses readily available”; and (3) his trial counsel was ineffective for failing to use his affirmative defense.
On February 1, 2017, without holding an evidentiary hearing, the circuit couit denied Boyd’s petition in a three-page written opinion. The circuit court denied relief on his first claim that, his confession was coerced by Detective Gibbons, stating that Boyd failed to demonstrate how his attorney was ineffective because his confession was not coerced. The circuit court noted that Boyd asserted that trial counsel was “unreasonable to not seek out the facts of what led to any statement had, but deliberately so the record will reveal just how counsel based his motions and actions in favor of the state!” Regarding this allegation, the circuit court pointed out that it was specifically rejected by this court in Boyd I, supra. Boyd previously had moved to suppress the statements given to Detective Gibbons, but the circuit court noted that this court held that, based on the totality of the circumstances, the circuit court did not err in refusing to suppress the confession, that any alleged misrepresentation by Detective Gibbons would not make his .confession inadmissible, and that there was no evidence that Detective Gibbons was attempting to procure an untrúe InStatement from Boyd. 'The circuit court found that Boyd failed to allege how trial counsel should have approached this issue differently. Referencing the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the circuit court reiterated that a defendant must allege both ineffective assistance of counsel and prejudice -in the result of the trial. Because Boyd failed to allege how his attorney, who argued that his confession .was involuntary and preserved the issue on appeal, was ineffective, and considering the ruling by this court, the circuit court found this allegation to be without merit.
For his second claim, Boyd asserted a denial of effective counsel when his attorney failed to “adversarially [sic] challenge the State’s case with the material fact evidence and witnesses readily available and pointed out” to counsel by Boyd. He asserted that this would have resulted in a directed verdict in his favor. Boyd did not allege in his petition what these facts are or who the witnesses were. He. merely presented several conclusory arguments about the evidence and. contended that if his counsel had argued,them, the circuit court, would have granted .his -motion for a directed verdict. These were found by the circuit court to be nothing more- than an argument regarding the sufficiency of the evidence—direct attacks, on the verdict and not cognizable in a petition for post-conviction relief. See McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983).
Boyd’s third claim and final allegation was that he was denied a fair and impartial trial because instead of asserting his “affirmative defense,” his counsel committed a “ruse.” Boyd did not explain what this “ruse” consisted of, and he did not identify which affirmative defense was available to him. He also made a passing comment about his counsel having a “conflict of interest” but failed to explain anything about the alleged conflict. The circuit |incourt rejected Boyd’s third ■ claim because he failed to identify which “affirmative defense” he was attempting to invoke.
Boyd filed a timely notice of appeal on February 9, 2017, in which he argued that the circuit court erred by (1) failing to appoint him counsel for his Rule 37 proceeding, (2) denying his claim that trial counsel was ineffective for allowing the redaction of his taped confession to be played for the jury,' (3) denying his claim that trial counsel was ineffective for failing to present evidence to establish his innocence, and (4) denying his claim that trial counsel was ineffective for failing to call multiple witnesses to prove his innocence.
We do not reverse the denial of postconviction relief unless, the.- circuit court’s findings are clearly erroneous. Conley v. State, 2014, Ark. 172, 433 S.W.3d 234. A finding is clearly erroneous when, although there is evidence to support it, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been committed. Id. In making a determination on a claim of ineffective assistance .of counsel, this court considers the totality of the evidence. Id. Our standard of review also requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland, supra, and Conley, supra. In asserting ineffective assistance of counsel under Strickland, the. petitioner must first demonstrate that counsel’s performance was deficient. Rose v. State, 2017 Ark. App. 355, 526 S.W.3d 11. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Id. The reviewing court must indulge in.a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. The defendant claiming ineffective assistance of I ¶1 counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.
Second, the petitioner must show that the deficient performance prejudiced the defense, which requires a demonstration that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Conley, supra. This requires the petitioner to show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Id. A reasonable probability is a probability sufficient, to .undermine confidence in the outcome of the trial. Id.
Unless a, petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. We also recognize that “there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the- defendant makes an insufficient showing on one.” Anderson v. State, 2011, Ark. 488, at 3-4, 385 S.W.3d 783, 787 (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052). The concept of cumulative error is not recognized in Rule 37.1 proceedings when assessing whether a petitioner was afforded effective assistance of counsel. Bryant v. State, 2013 Ark. 305, 429 S.W.3d 193 (per curiam); State v. Hardin, 347 Ark. 62, 60 S.W.3d 397 (2001) (holding that it was reversible error for the trial court to consider cumulative error in assessing claims of ineffective assistance of counsel).
If the circuit court determines that the petitioner is entitled to no relief based on the petition, files, and records, then the petitioner is not entitled to an evidentiary hearing. Ark. R. Crim. P. 37.3(a). In such cases, the circuit- court should provide sufficient written findings l^of fact to illustrate that the petitioner’s claims are meritless. Id. Our review indicates that the petition, files, and records conclusively show that Boyd is not entitled to postcon-viction relief. As such, we. can hold that the circuit’ court was not obligated to hold an 'evidentiary hearing before dénying Boyd’s petition as wholly without merit. See Mancia v. State, 2015 Ark. 115, 459 S.W.3d 259.
For the first time on appeal, Boyd claims that he is entitled to an attorney pursuant to Trevino v. Thaler, 569 U.S. 413, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), and Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and that the circuit court erred by failing to appoint counsel to represent him for his Rule 37 proceedings. We note that he failed to file a motion at the circuit court level requesting the appointment of counsel; - accordingly, the circuit court never had an opportunity to rule on such a request. Moreover, Boyd failed to argue that he was entitled to counsel in his Rule 37 petition. Accordingly, we hold that his argument is not preserved for appellate review. On appeal, this court considers only those arguments that were raised below and considered by the circuit court in rendering its decision. E.g., Anderson v. State, 2015 Ark. 18, 454 S.W.3d 212 (holding the claim was not preserved where the circuit court neither provided a clear ruling on the request nor did the appellant clearly object).
Upon the review of a circuit court’s denial of postconviction relief on an ineffective-assistance-of-counsel claim, this court determines, under the standards set forth in Strickland, supra, whether the circuit court clearly erred in holding that counsel’s performance was effective. Arnett v. State, 2010 Ark. 28, 358 S.W.3d 874. To prove that counsel was | ^ineffective, Boyd must show that (1) his counsel’s conduct fell below an objective standard of reasonableness under prevailing professional norms, and (2) that the “professionally unreasonable” conduct of counsel prejudiced the defense. See Strickland, supra. There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. E.g., Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895.
In order to demonstrate prejudice, Boyd must show that a reasonable probability exists that the fact-finder’s decision would have been different absent counsel’s errors. See, e.g., Robertson v. State, 2010 Ark. 300, 367 S.W.3d 538. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless Boyd can satisfy both prongs of the Strickland standard, he cannot prevail on his ineffective-assistance-of counsel claim. See Feuget v. State, 2015 Ark. 43, 454 S.W.3d 734. Boyd bears the burden to provide sufficient facts that affirmatively support his claim of ineffective assistance of counsel. Id. Concluso-ry statements, without more, cannot form the basis of postconviction relief. See Hooks v. State, 2015 Ark. 258, 465 S.W.3d 416. Accordingly, we hold that Boyd did not present sufficient facts in his petition or in his brief oh appeal to support the three ineffective-assistance-of-counsel claims for postconviction relief raised on appeal. See Watson v. State, 2012 Ark. 27.
Regarding Boyd’s allegation that the circuit court erred in allowing the redacted video. of Boyd’s confession to be played for the jury, we reiterate that for his claim to be properly before this court, he must have raised the issue below and obtained a ruling on it. See, e.g., Cowan v. State, 2011 Ark. 537, 2011 WL 6275694. Boyd’s failure to obtain a ruling in the circuit court bars, review of the issue on appeal. See, e.g., State v. Rainer, 2014 Ark. 306, 440 S.W.3d 315. The circuit court’s order contains no ruling on Boyd’s argument regarding a redacted videotape; rather, the circuit ’court seems to have understood Boyd’s claim as a challenge to the introduction of an allegedly coerced confession. Additionally, after the circuit court denied his Rule 37 petition, Boyd failed to file a motion requesting a modification of the ruling. See Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (explaining that if the circuit court neglects to rule on an issue raised in a Rule 37 petition, a petitioner may request the court to modify its order to include any omitted issue notwithstanding the prohibition against motions for reconsideration pursuant to Arkansas Rule of Criminal Procedure 37.2(d)). Because Boyd failed to obtain a ruling on this ineffective-assistance-of-counsel claim, we hold that it is not'preserved for review.
Boyd next argues that his trial counsel was ineffective for failing to introduce DNA evidence found on a water bottle recovered from the parking lot of the bank where the robbery occurred. To the extent that Boyd is challenging the sufficiency of the evidence or arguing his innocence, such claims are not cognizable in a Rule 37 proceeding. See Smith, supra. The circuit court found that Boyd’s ineffective-assistance-of-counsel claim was a challenge to the sufficiency of the evidence, and as such, it considered only a sufficiency claim, which it found was not cognizable, rather than an ineffective-assistance-of-counsel claim. As previously stated, without obtaining a ruling on the specific ineffective-assistance-of-counsel argument by the circuit court, Boyd’s claim is not preserved for our review. See, e.g., Rainer, supra.
Alternatively, even if it had been preserved, Boyd’s claim is meritless because his counsel was not deficient in failing to introduce nonexistent DNA evidence. On appeal, he | ^alleged that his trial counsel was ineffective for not introducing a DNA report into evidence. But the record indicates that no such DNA evidence exists. During trial, Boyd’s trial counsel questioned Detective Gibbons about DNA evidence allegedly discovered on the water bottle that officers recovered from the front parking lot of the bank— one that appeared to be the same size and type of bottle that the suspect had been carrying. Detective Gibbons explained that no DNA evidence was recovered from the bottle. Accordingly, there was no DNA evidence that trial counsel could have introduced, and counsel’s performance cannot be found to be .deficient for failing to introduce evidence that did not exist. Likewise, Boyd cannot show prejudice from the failure to introduce DNA evidence because trial counsel appropriately questioned Detective Gibbons about the lack of DNA evidence and confirmed that the jury understood that there was .no DNA evidence connecting Boyd to the bottle. As a result, Boyd has failed to demonstrate that the outcome of the trial would have been different.
Finally, Boyd appears to argue that trial counsel was ineffective for failing to call Lee Saulsberry to testify and “[l]ike six eyewitnesses who could not identify [Boyd] as the assailant.” The circuit court analyzed this claim as a challenge to the sufficiency of the evidence and held that such a claim was not cognizable in Rule 37 proceedings. See Smith, supra. But even if Boyd’s ineffective-assistance-of-counsel claim had been preserved and appropriate for review, his argument is conclusory and cannot be the basis for Rule 37 relief. See, e.g., Smith, supra.
An ineffective-assistance-of-counsel claim based on trial counsel’s failure to call a witness requires that a petitioner name the witness, provide a summary of the testimony, |1fiand establish that the testimony would have been admissible. E.g., Bond v. State, 2013 Ark. 298, at 6, 429 S.W.3d 185, 191. If a petitioner fails to provide the circuit court with the necessary information, “the allegation [is] conclusory and [does] not merit further consideration.” Id. Boyd has failed (1) to provide a summary of the witnesses’ testi mony that he claims trial counsel failed to present and (2) to show that the testimony would have been admissible. Boyd' also fails to provide the names of these alleged six eyewitnesses who “could not identify [him] as the. assailant.” Accordingly, we hold that his claim is conclusoryand does not merit further consideration.
Affirmed.
Abramson and Whiteaker, JJ., agree.
. Boyd was also charged with possession of firearms by certain persons, but that charge was nolle prossed by the State,
. Boyd does not argue that the circuit court erred in not holding an evidentiary hearing in this case. | [
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Lacy, Judge,
delivered the opinion of the Court:
Before we proceed to examine the questions presented by the record, we will briefly notice an objection that was taken at the bar to the writ of error in this case. It is said the writ will not lie, because there has been no final judgment given in the cause. The facts as they appear on the record certainly do not warrant any such conclusion. The entry contains the decision of the court, recites a former judgment which it shows to be final, and it states the exact amount of the debt, interest, and costs, due, and it then gives leave to re-instatc the judgment on the records of the court, and finally it orders an execution to issue for the sum thus ascertained and computed. This, though an informal, is nevertheless a final judgment, for it clearly concludes the matter in dispute between the parties. When the entry was once made, and the term at which it had been enrolled had expired, and the court adjourned, it is certain that the defendant was /or ever precluded from again agitating the matter. Admitting it to be questionable, whether or not the first part of the entry of the court amounts in itself to an absolute judgment in the cause, still, however, it cannot be denied that the latter part of the order, which directs an execution to issue, is a final decision, and that being the case, a writ of error will well lie to reach it. Revised Statutes 230, section I. The assignment of errors presents two questions for our consideration and decision. First, that the pleadings and proof in the cause, as appears from the face of the record, laid no valid foundation for th'e court below to pronounce any judgment whatever in the case. Secondly, that the judgment attempted to be entered quoad the defendant below, was illegal and absolutely void, he having no notice of •such proceeding, and being no party to the record. Our first inquiry then is, in what manner can a lost judicial record, or one that has been destroyed, be proved or verified.
Blackstone defines a judicial record to be where the acts and judicial proceedings are enrolled on parchment or paper, for a perpetua memorial and testimony, which rolls are called the records of the court, and are of such high and supereminent authority, that their truth is not to be questioned. For it is a settled rule and maxim of the common law, that nothing shall be averred against the record. - 3 Thomas’ Coke Littleton 485; 2 Chitty’s Blackstone 264.
If the existence of the record is denied, it shall be tried' by nothing but the record itself, that is, upon a bare inspection of the record, whether there be any such record orno; else there would be no end of disputes. For Sir Edward Coke observes, “ a record or enrolment' is a monument of so high a nature, and importeth in itself such absolute veriety, if it be pleaded there is no such record, it shall not receive any trial by witness, jury, or otherwise, but by itself.” , 6 Co. 53. , If the question be as to the existence of a record of tlie same court, the trial shall be by the inspection of the record itself. When the record of an inferior court is disputed in a superior tribunal, to-which is given jurisdiction to revise and correct the proceedings below, the trial is then by examination of the transcript or copy of the record that is sent up, to see whether it be properly authenticated or verified under the signature or seal of office, of the lawfully accredited agent who has the records in charge. 1st Starkie 188, 234; Gilbert’s Evidence 45, 87; Burk’s executors v. Tregg’s executors, 2 Wash. Rep. 215; 1 Starkie 285; Bacon’s Abridgment, Evidence F. A record may then be proved by mere production and inspection, or by a properly authenticated copy. As long as the record is supposed to-be in existence, its production is indispensable, and its existence can alone be proved by inspection. If its existence be lost or destroyed, and that fact is established by competent evidence, then it may be proved by a regularly authenticated or sworn copy. The production and inspection of a record proves itself and the facts it contains, because it is a public judicial document, in which the law places an extraordinary degree of confidence, from the known credit and ingenuity of its lawfully appointed and constituted officers, in whose custody it is always supposed to remain. So long as a record is known to exist, it, is the very best and highest evidence of itself, or of its contents, that can possibly be adduced. When its loss or destruction is,, satisfactorily established, there is a legal ground laid for the introduction of secondary evidence, which is never admissable, so long as a higher grade of testimony is supposed to exist, or can be produced. The principle that the best evidence must be adduced which the nature of the case will admit Of, is too familiar and important to be overlooked in any legal investigation. It lies at the very foundation of all the law on the subject of evidence, and in no instance can it be dispensed with.
In the case now under consideration, if the record had been first shown, by proper evidence, tobe lost or destroyed, it was then competent to prove its existence by a sworn or an authenticated copy. But to warrant such evidence, it is said the document must be, accordant to the rule of the civil law, veiustaíe temporis aut judiciaria cognilione robórala, 1 Stark. 194. Upon this principle, it has been held, a copy of a decree may be given in evidence when the original is lost. So when it appeared that the records of the city of Bristol had been burnt, an exemplification of a recovery, under the town seal, was allowed in evidence. 1 Mod. 117; and in Knight v. Dauler, Hard. 323; 1 Salk. 285, it has been held that a record of a conviction which had been burnt, might be proved by estreats in the exchequer, and an inquisition of the recusant’s lands found returned into the office. 1 Stark. 194; 1 Vent. 257; 2 Starkie 1129; 2 Burr 1072; 4 T. R. 514. In Dillingham v. Snow et al., 5 Mass. 547; Stockbridge v. West Stockbridge, 12 Mass. 400, it is laid down that the facts which have become matter of record may be proved by secondary evidence after proof is given of the existence and loss of the record. In Cook v. Wood, 1st McCord 139, and in Lyons v. Gregory, 3 Hen. & Mun. 237, it has been held that the journals of the court might be read in evidence to prove the existence of the lost of destroyed record, when it was first satisfactorily established that the récords of the court had been previously burnt, or so defaced by fire as to be no longer legible. It will be seen by reference to the cases here cited, that the question in regard to the proof of a lost record, arose incidentally on the trial, and in no one instance did the lost record itself constitute the sole foundation or cause of the proceeding. We have not been able to find in our researches any case of that sort, and in the total absence of all direct authority upon the point,' we do not feel ourselves war- - ranted in extending the doctrine, without the aid or assistance of some legislative provision on the subject. Without some such provision or authority, given by the Legislature, we certainly would be exceedingly unwilling to take upon ourselves to decide that a lost judicial record, which constitutes the sole foundation of the proceeding or cause of action, could be proved or verified by parol. Such a proposition can derive no support or countenance from the principles of the common law, and surely cannot be said to have any átatutory regulation in regard to the matter. This being the case, it necessarily follows, that a lost judicial record can only be proved or verified in the manner pointed out, and designated by the authorities quoted. We take the principle to be clear and well settled, that any judgment, or other judicial proceeding, to be obligatory, must unquestionably show such a state of case as will give jurisdiction to the court that made the record, and conclusively prove that the party recovering had a good cause of action. Should the record fail to establish these facts, the defects must be considered fatal in every stage of the proceedings. Unless the jurisdiction be shown, and the cause of action proved, no legal presumption can attach in favor of the judgment and opinion below; for if the court is not rightly invested with jurisdiction, it can pronounce no valid judgment in the cause; and the party having the recovery, is certainly not entitled to the benefit of it, unless he establishes a good cause of action.
The moment the jurisdiction is properly shown, and a good cause of action well laid, the judgment then draws to. itself all the legal presumption in its favor, which of course stands, until overthrown by other affirmative matter in the record.
The application of these principles, will readily test the validity of the judgment and proceedings now under consideration. Upon the mere motion of the plaintiff’s counsel, the Circuit Court ordered that leave be granted to him to re-instate his lost or destroyed judgment on the rolls or records of the court, and that an execution issue thereon, for debt, interest, and costs of suit. The record wholly fails to show how or in what manner the lost judgment, entered and enrolled at the previous term, was proved or verified. It certainly was not established by an inspection or production of the record itself, for the entry conclusively proves that the judgment had been lost and destroyed; and of course it could not then have been produced or examined. Was it then proved by a regularly authenticated copy from the rolls?
If it was, the record fails to state that fact, or to exhibit the copy used upon the trial; and as no legal presumption can attach in favor of the judgment, until the court is shown to possess power to enter up such a judgment, therefore we cannot presume that the lost or destroyed judgment was proved by an enrolled and properly authenticated copy.
When a final judgment has once been pronounced in a cause, and the term at which it is given has finally expired, neither the court nor the parties to the record have any longer any power or control over it. It then becomes a public judicial record, carrying with it the seal and sanctity of truth, which cannot be impeached or set aside, except upon the ground of mistake or fraud. It may, however, be examined before a superior and higher tribunal, having jurisdiction of the case, when its errors, if any exist, may be corrected and reversed. We know-of no rule of law or practice, that will authorize a court to re-instate upon the rolls a final judgment, which had been previously given and enrolled at a former term of the same court, and which subsequently has been lost or destroyed, and that, too, in a case where the lost judgment constitutes the sole foundation of the proceedings. The common law certainly authorizes no such summary proceeding, nor have we any legislative provision conferring any such power on the courts of record of this state. Besides, it is a legal solicism, in thought as well as in expression, to declare, that which is finally lost and destroyed can again be re-instated and brought to light. If these positions be true, then the Circuit Court unquestionably erred in pronouncing any judgment whatever in the cause. It is equally clear, that the judgment and proceedings in this case, quoad the defendants below, are not only invalid, but absolutely void. He had no notice of the pendency of the plaintiff’s motion. The record does not show that he voluntarily came in, and made himself a party to the proceedings, or that he waived his right to the notice. The whole proceeding was ex parte, and there was no one present, except the court and plaintiffs in the action. It is a maxim of the common law. that there can be no suit, unless there be three constituted parties: the actor, reus judex, that is, the plaintiff, who complains of the injury-done; the defendant, who is called on to make reparation; and the judicial power, to examine the truth of the fact, and determine the law of the case. Another maxim of the common law is, that no one can be bound by any judicial proceeding to which he is not a party,, and that he cannot be made a party, unless an opportunity has been offered of defending himself. In the present instance, the defendant below had no notice, either actual or constructive, of the pendency of the plaintiff’s motion; and that being the case, as he did not voluntarily make himself a party to the proceeding, the judgment as to him is therefore null and void. The decision and judgment of the Circuit Court must therefore be reversed, with costs, and the cause remanded, to be proceeded in agreeably to the opinion here expressed. | [
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Lacv, Judge,
delivered the opinion of the court:
Upon the first contract, which was partly express and partly implied, it is perfectly evident that the defendant was not bound, because the law raised no assumption on his part, by reason of the plaintiff’s entire failure to perform his part of the agreement. .Had the proof ended here, it is manifest that the defendant would have been exonerated from all liability whatever. But the testimony further shows that the first contract being cancelled, the parties subsequently entered into a second implied agreement, by which each became liable according to its terms or legal effect. The plaintiff again undertook to rebuild the saw and grist mills, and upon their completion and delivery the defendant, by an implied promise, as- j sumed to pay a fair valuation for the work and labor done. The acts ' done and performed by both parties unquestionably demonstrate this 1 to be the case.
It appears from the record that the plaintiff, at his own individual cost and expense, employed other millwrights to rebuild the saw and grist mills, and upon their completion they were delivered to and accepted by the defendant. By permitting their rebuilding the defendant agreed that the work might be done for him, and by receiving them after they were finished, he tacitly waived whatever objection he might have made to the sufficiency of the work. He thus ratified V and confirmed the second implied contract by allowing the defendant l to do the 'work for him, (for it is a maxim well settled that he who does j a thing by another does it by himself,) and by receiving the mills after j their completion, the law raises an implied promise on his part to pay j a fair and reasonable compensation for the labor and services performed.
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Dickinson, Judge,
delivered the opinion of the court:
At the January term, 1837, an opinion was delivered in this case, reversing the judgment of the court below, and remanding the cause for further proceedings to be had therein according to law. At the same term the counsel for the defendant in error filed a written argument for a rehearing, which was subsequently granted, and the case now stands in the same attitude as if no opinion had ever been given. The points in controversy have been elaborately and ably argued on-both sides. And after a careful review of the whole subject, we can not perceive any sufficient ground for a reversal of the opinion heretofore given.
That opinion proceeded upon the principle, and was based upon the fact, that the defendant in error is not entitled to recover, because he failed to show that he possessed any interest whatever in the subject matter of the suit. And that the receipt adduced upon the trial, so far from proving a privity of contract, expressly estabished a legal interest in another, and therefore defeated the plaintiff’s right of action. In order to understand the points that are raised by the assignment of errors, it is necessary to consider the nature and character of the action brought, and the proof that the plaintiff below adduced on the trial, to entitle him to a recovery. The action is in case, and the declaration contains three counts.
The first count alleges, that “ Holliday caused to be delivered to Sevier, and Sevier accepted and received from him a certain note of hand, made by one Joshua J. Henness, calling for one hundred and thirty-three dollars, to bring suit on, recover and collect from the said Joshua J. Henness, for the use and benefit of Holliday, for certain fees and rewards to him the said Sevier in that behalf.” The second count state's that “ Holliday caused to be delivered to Sevier, attorney as aforesaid, a certain other note for one hundred and thirty-three dollars, to him the said Ambrose H. Sevier, being such attorney as aforesaid, in a reasonable time then next following suit brought on it, and the said debt of one hundred and thirty-three dollars as aforesaid to be recovered and collected of and from the said Joshua J. Henness, for the use and benefit of said Peter Holliday, for certain fees and reward to the said Ambrose H. Sevier in that behalf.” That Sevier received the note, and undertook to sue, recover and collect it, but did not bring suit, so that the debt was lost. The third count is in trover, for a certain other note for $133, made by Joshua J. Henness, the proper goods and chattels of Peter Holliday.
The defendant filed a general demurrer to the declaration, which was overruled, and an interlocutory judgment was then entered, and a writ of inquiry awarded, returnable to the next term of the court. At the July term thereof, 1828, on a motion and affidavit filed by the plaintiff in error, the judgment previously rendered was set aside, and he, by leave of the court, put in a plea of not guilty, upon which issue was taken. And, on the trial of the case, the plaintiff offered in evidence the following receipt: “Received of Peter Holliday one note of one hundred and thirty-three dollars, against Joshua J. Henness, drawn in favor of William English, this the 14th of December, 1825.
A. H. Sevier.”
To the introduction of this receipt, as evidence, the defendant objected, but the court overruled the objection, and it was permitted to go to the jury. To this the defendant excepted; and thereupon a verdict and judgment were given for the plaintiff; and the case is now brought here by error to reverse the judgment of the court below. The counsel in the case having differed in regard to the opinion expressed by the court as to the receipt, the court then slated the receipt was evidence conducing to prove a privity of contract between the plaintiff and defendant; to which opinion there was also an exception taken by the defendant. He then moved-in arrest of judgment, which motion was overruled.
The defendant below is charged, as an attorney at law, upon a breach of contract in the discharge of his official duty. Before the plaintiff can fix his liability, he must allege and prove a valid contract or cause of action, and its breach and violation on the part of the defendant, by which he was damnified. These facts must appear upon the record, or necessarily arise by presumption or intendment of law. An attorney is not liable, in the discharge of his official duty, for claims put into his hands to collect, as such attorney, unless it be shown that he is guilty of culpable negligence in the prosecution of the suit, whereby the plaintiff has lost his debt. Nor can he be held liable for money, collected by him as an attorney, unless a demand be made upon him and he refuses to pay it over, or remit it, according to the instructions of his client. Demand and refusal are indispensable to the plaintiff’s right of recovery. And so it has been ruled in this court, in the case of Cummins vs. McLain and Badgett, decided during the present term. To entitle the plaintiff to recover upon the two first counts of his declaration, it was, therefore, necessary for him to prove, upon the trial culpable negligence by the attorney, in failing to collect the-note put into his hands, or in refusing to pay it over, upon demand, after collection. These facts the plaintiff was bound to prove, or the jury were not warranted in finding a verdict in his favor They may arise in the evidence adduced upon the trial, or they may be inferable from the verdict and judgment rendered in the court below, provided the plaintiff has set out in his declaration a good and valid cause of action.
It is contended, in behalf of the plaintiff below, that all the defects in the declaration are cured by the defendant’s pleading over to the action, or that the defects are of such a character as are remedied by the verdict, or by the statute of jeofails and amendments, and that the court below rightly admitted the receipt in evidence. These propositions are denied by the plaintiff in error. And it is alleged that the declaration contains no valid cause of action; and therefore the defects of the declaration cannot be aided by a verdict, or by the statute of jeofails and amendments.
The whole doctrine upon the subject, as well in regard to what defects are cured at common law, and what by the statute of jeofails, is discussed with much ability and learning by Sergeant Williams, in his note to Stennel vs. Hogg, I Saund. R. 228, A. B. and C. The principle there laid down is, “ that where there is any defect, imperfection or omission, in any pleading, whether in substance or form, which would have been a fatal objection on demurrer, yet if the issue joined be such as necessarily requires, on the trial, proof of the facts so defectively or imperfectly stated, or omitted, and without which it is not to be presumed that either the Judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection or omission, is cured by the verdict.”
In Speares vs. Parker, 1 T. R. 145, Buller, Judge, said “ after verdict nothing is to be presumed but what is expressly stated in the declaration, or what is necessarily implied from those facts which are stated;” that is, where the whole is stated to exist the existence of the parts is implied, or where the chain is alleged to exist, the existence of the component links will be implied after verdict. And this doctrine is fully sustained by all the authorities upon the point.
In Addington vs. Allen, in the Court of Errors in New-.York, the Chancellor said, i( if the plaintiff wholly omits to state a good title or cause of action, even by implication, matters which are neither stated or implied need not be proved at the trial, and there is no room for intendment or presumption; as the intendment must arise from the verdict, when considered in connection with the issue upon which it was given.”
The rule laid down by Chief Justice Baron Gilbert, and reiterated by Lord Mansfield, and approved by Chancellor Kent, in 17 J. R. 448, is, “ if any thing essential to the plaintiff’s action be not set forth, though the verdict be for him, he cannot have judgment, because, if the essential parts of the declaration be not put in issue, the verdict can have no relation to it; and if it had been put in issue, it might have been found false.” 11 Wend. R. 415. And Ld. Mansfield has said,t£ that a verdict cures a title defectively stated, but not a defective title.”
We will now proceed to test the first and second counts in the declaration by the authorities and principles above cited and laid down. The first count does not state that Henness was liable on the note, or that it contained any promise, by him, to pay any given sum of money. It omits to state to whom the note was payable, and it does not show any title in Holliday to the note, inasmuch as it neither stated that it was made payable to him, or endorsed over to him, or delivered to him in any way whatever. And it is questionable whether it contains any promise or undertaking, by Sevier, to sue of collect the note, either expressed or implied. It fails to state, in legal language, by whom the fee or reward was to be paid to Sevier for the collection and prosecution of the suit. As to the allegation “ that Holliday caused the note to be delivered to Sevier, and Sevier received it to collect for the use and benefit of Holliday,” it certainly does not amount to a substantive averment that Henness was liable to pay, or that Holliday was authorized to receive the money when collected. It may, and probably does show the object of the parties in giving and receiving the note, which was to bring suit upon it; but it is not justly inferable, from the object and intention of the parties, that the suit, when brought, would be for the benefit and use of Holliday; because, in law, he is not entitled to the proceeds of the note, unless he is shown to be the legal or equitable owner of the note. The same averment might, with equal truth, be made if Holliday possessed him self of the note by a fraud or by a tort. There is no title to the note stated in Holliday, nor is it necessarily implied in any other allegation arising upon the pleadings or verdict. There are, in our opinion, no facts stated which could not be proven, without, at the same lime, establishing Holliday’s title to the note, or to the proceeds of it. The count does not show that Holliday was payee, endorsee, or even that he ever had possession of the note; and,therefore, there is a total omission of a material fact, which has no connection with any other fact alleged or found. Is there not, then, something essential to the plaintiff's right of action which is not set forth? or in other words, does not the count contain a statement of a defective title which is not aided by verdict? There is no allegation in the count that the note was due at the time of bringing the suit, or at the time that Holliday caused the same to be delivered to Sevier for collection; and, consequently, it does not appear, either by any allegation, or by any inference from the verdict, that Henness had ever become liable to pay the note, at all, to any body. And, therefore, a failure upon the part of Sevier, to prosecute the claim, or to collect the money, would not make him responsible, if the individual who executed the note was not legally bound to pay it. The allegation that Henness made the note, calling for $¡133, certainly does not show for whose benefit the note was executed; nor does it contain any express or implied promise to pay the same; for there can be no promise, unless there be some person to whom that promise was made. The expression, “ calling for so muchf means that the amount mentioned is the sum appearing upon the face of the note, hut it is not an allegation that such sum was then due on the note. Nor does it show to whom due; or that the party making the note was legally bound to pay it. The second count is still more radically defective than the first; in fact, it scarcely has the form or substance of a count; and all the objections that lie to the first apply with increased force and effect to the second count, and show it to be totally defective in stating a good cause of action. The question then recurs, are these defects aided or cured by the legal presumptions in favor of the verdict and judgment, or by the statute of jeofails and amendment? If the view we have taken of the subject be correct, they certainly are not; for they are not such defects, imperfections or omissions as may be supplied by a verdict, or by the statute, because they shew a defective title, and not a title defectively stated. No proof, at the trial, can make good a declaration which contains no ground or cause of action. The defects, contained in the two counts, are not implied in, or inferable from the finding of the jury, or from any allegation contained in the declaration; consequently, they are destructive of the plaintiff’s right of action.
The receipt, that was offered in evidence, if it proves any thing, certainly tends to disprove the allegations in the first and second counts. The legal inference drawn from the counts, if they warrant any conclusion at all, is, that the note was executed by Henness to Holliday, or assigned over by the holder to him, for his use and benefit. The receipt, adduced upon the trial, justifies no such conclusion. It merely shows that Sevier received of Holliday a note, of $133, for collection, against Joshua J. Henness, drawn in favor of William English. It does not show that Holliday was. the owner or holder of the note. It clearly establishes the fact, that the note was executed by Henness, and was made payable to English, and, of course, he was the legal owner thereof, and entitled to the proceeds on its recovery. It proves possession and interest in another, and not in Holliday, because, English being the legal owner of the note, the presumption is, that he had the possession of it, and was entitled to the proceeds after recovery. Then, so far from establishing the allegations in the first and second counts, it tends to disprove and contradict them. For it shows that Holliday had no interest whatever in the note; and if that be the case, Sevier could not be held answerable to him for a breach of contract, in failing to collect it, as an attorney. The introduction of the receipt, as evidence to sustain Holliday’s right of action, was, therefore, improperly admitted by the court.
The second bill of exceptions has, in our opinion, nothing to do with the question now before this court. If the receipt was evidence for any purpose at all, to sustain the plaintiff’s declaration, it ought and should have been permitted to go to the jury. The- reason assigned by the court for admitting it cannot be called in question, or have any bearing upon the case. It is certainly not an instruction given to the jury, nor does it appear that the jury heard it. It is merely the assigning of the reason for a decision, about which the counsel differed. The admission or rejection of the testimony offered, is the fact to which the court-look, and not the reason upon which it is predicated.
The party will not be allowed to prove more than he has alleged in his declaration, and where he omits to allege a fact essential to the gist of the action, and which is not involved in the pleadings, or inferable from the finding, he- fails to show a good cause of action; and, consequently, no valid judgment can be pronounced in the premises. The court below, in the second bill of exceptions, in the opinion which they have given, state that “ the receipt was evidence conducing to prove a privity of contract between the plaintiff and defendant.” No privity of contract was alleged in the declaration, nor is there any interest averred, which raises a privity of contract. For it was certainly competent for Holliday to contract with Sevier as the agent of English; and in such case, it cannot be pretended that there could be any privity of contract.
The two counts attempt to set forth a contract, but wholly fail to do so in legal form or effect, and they do not disclose any privity of interest which makes such an agreement.
The counsel of the defendant in error is mistaken in supposing that the court, in their previous opinion given-in this case went upon the supposition that the action was founded upon the receipt. They certainly intended to convey no such idea. The opinion proceeded upon the principle, that the plaintiff below, having failed to show any legal or equitable interest in the note or its proceeds, he, of course, could not be injured or damnified by a breach of contract on the part of the defendant. Having no interest in the note, made by Henness, he could sustain no injury by Sevier’s failure to prosecute the suit or collect the money. Whatever might be Sevier’s liability on the receipt, still, Holliday could claim no benefit from it, as he was not legally or equitably interested in its proceeds. The argument for a rehearing assumes, as its basis, that Sevier made a legal and valid contract with Holliday for the collection of the note, and the breach of this contract constitutes the gist of the plaintiff’s action. This contract, it asserts that the declaration discloses, and that it is legally inferable from the facts alleged, and from the finding of the jury and judgment of the court below. The argument assumes that to be true which constitutes the question in issue between the parties. If its premises bé once granted, its conclusions unquestionably follow. We have endeavored to controvert the position that there is any legal or valid contract disclosed by the declaration, or upheld by the proof, or inferable from the verdict and judgment. If the authorities we have cited, and the reason adduced in support of them, be correct, then the two first counts in the declaration wholly fail to establish a good cause of action; and, therefore, the plaintiff had no right to succeed upon them. The third count is in trover for a certain other note, for $133, made by Joshua J. Henness, the proper goods and chattels of Peter Holliday. In form, trover is a fiction, says Lord Mansfield, but in substance, it is a remedy to recover the value of a personal chattel wrongfully converted by another to his own use. The injury lies in the conversion, which is the gist of the action; and it is for the recovery of damages to the value of the thing converted. To entitle the plaintiff to recover, two things are necessary: First, property, either general or special, in the plaintiff; and, secondly, wrongful conversion by the defendant. The conversion may be, first, by a wrongful taking of the thing converted, or by an illegal assumption over it, or by a wrongful detention. Bacon Ab. Trover, B; 2 Saunders 47, c. n. 1.; Payne vs. Doe, 1 T. R. 5G; 1 Chit. Plead. 148, 51 52, 53. Title in another is a good defence to defeat the action of trover. Whatever shows either a want of title in the plaintiff, upon general issue, or disproves conversion by the defendant, will defeat the action; and this position is sustained by all the authorities. Kennedy vs. Strong, 14 J. R. 128; Schumerhorn vs. Van Vecklenburg, 11 J. R. 529; 3 Starkie 1487; 2 Saund. 47, 873, and 9; 7 T. R. 12. The declaration, in trover, should state that the plaintiff was possessed of the goods as his own property, and that they came to the possession of the defendant by finding. The omission of the former words is not material after verdict, and the finding is not traversable. The count, in the declaration now under consideration, would certainly be fatally defective upon a general de murrer, for it wholly fails to state that the plaintiff was possessed of the note, as of his own property, or that it came to the possession of the defendant by finding. It is probable, however, that these defects are cured after verdict. And so we have regarded them in the present instance. The plaintiff, in the action, has wholly failed to support this count, because the evidence introduced upon the trial disproves his title to the note, and clearly establishes the interest in another.
It is certainly true, as has been argued by the counsel, that every legal inference and presumption will be indulged in by this court which the pleadings and proof will warrant in favor of the verdict and judgment below. But where there is no basis to rest such presumptions upon, they are wholly inadmissible. For where the averments, in the declaration, do not, in themselves, show a sufficient title in the plaintiff, no proof adduced upon the-trial will supply such omissions, nor can they be aided or supplied by verdict and judgment. In such cases there is no room for the indulgence of presumptions. In the case before us, the defendant below was certainly not guilty of a conversion, because he has not assumed to exercise any illegal ownership over the note. Nor has the plaintiff been injured in the slightest degree, by his conduct in regard to that matter, whatever it may be. The introduction of the receipt, by the plaintiff, according to our construction of it, clearly proves possession and title in another; which unquestionably defeats his own right of action. Where the plaintiff possesses no title, the defendant cannot be held bound to him for an unlawful conversion. This being the case, it necessarily follows that the plaintiff, by his own showing, has no right to recover on his count in trover. The judgment of the court below must therefore be reversed; and leave given the parties to amend their pleadings, if asked for. | [
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Dickinson, Judge,
delivered the opinion of the court:
The only question presented on the part of the plaintiff in error, for our consideration, is as to the correctness of the instructions to the jkhird, its application to the particular debt. 2 Starkie, 594; Harlan vs. Wingate's Alm'r, 2 J. J. Marshall, 138; 3 Starkie, 1084. Wo do not deem it necessary to comment upon the cases to which this plea can be applied; for that payment can in numerous instances be given in evidence under the plea of non assumpsit, there is no doubt; and this principle is fully sustained in the case of Dale vs. Tollett, Burrows R. 2221. Where the same plea had been put in, and Lord Mansfield in delivering the opinion of the court, said, “the plaintiff could recover no more than he was justly entitled to in equity and conscience, which could be no more than what remains after deducting all just allowances which the defendant has a right to retain in his hands.”
Do the facts in this case, as spread upon the record, show that there was a payment of money or its equivalent? So far as regards the money payments, it appears that credit was given to the defendant, and what stronger evidence can be presented or offered, that the residue of the account was equivalent to money, and that it was considered and accepted of as such, than the acknowledgment of Faulkner himself, who, the witness testifies, examined the account, made some corrections therein, and then assented to its correctness, and agreed with the other party that it should be taken and considered as a credit and payment. That it was accepted as such by Faulkner there can be no question or doubt. Cases in which bills of exchange, bank notes, and negotiable notes on individuals have been held as equivalent to money, where there was an agreement to accept them as such, are numerous.
In general very slight evidence of acquiescence will show assent to any particular mode of payment. From the whole state of the case as presented to us in the plaintiff’s bill of exceptions, we aie of opinion that the Circuit Court erred in their instructions to the jury, “ that only so much of the accounts of the plaintiffs in error should be allowed as purported to be money payments, and that the rest should be excluded as inadmissible.”
The defendant in error, after the trial and the plaintiff’s exceptions had been allowed, also tendered his bill, which is signed by bystanders, in conformity with the statute, and made a part of the record, protesting against the signing of the defendant’s exceptions, upon the ground that “ no minutes or memoranda in writing of the evidence or instructions of the court had been taken at the trial, or had at any time been preserved.”
The defendant in error contends that the plaintiff’s exceptions ought to be disregarded, from the fact of eleven days intervening between the trial and the signing of the exceptions, no note or memoranda having been taken, and that the subsequent motion for a new trial is a waiver of any alleged cnor in the instructions of the court. It appears from the record that the case was tried on the 10th of Sept., 1839, — on the 12th the motion for a new trial was made — on the 16th the court refused the application — and on the 21st day of the same month the bill of exceptions was signed and allowed. The result of the investigation which we have made upon this objection, leads us to the conclusion that the courts have uniformly, where jusiice or circumstances required it, indulged the parties in preparing bills of exceptions. To deprive the courts of this discretion, or attempt to limit them in its exercise, where time is necessary or important to enable Suitors or the courts to prepare a full and proper statement of facts, would often tend to subvert the purposes of justice, and deprive parties of the means of redress. It is not to be presumed that courts will so far forget the high and solemn obligation under which they are acting, as to give credence to a state of facts of the truth and correctness of which there are any doubts.
It is an indulgence often allowed to parties, and sometimes necessary, where great labor is required in the preparation of their cases. In the present instance, we do not conceive that the lapse of time intervening between the several steps taken in the progress of this case, after the rendering of the verdict, so unreasonable as to create a doubt of the truth of the statements in the plaintiff’s bill of exceptions.
The defendant also insists that the plaintiff’s bill of exceptions ought to be excluded, and relies upon the cases of Gray and Hinkston vs. Nations, and Lenox vs. Pike and wife, and Smith and zoije, in support of his argument. But neither of these cases, in our opinion, bears him out. In the first, this court rejected that part of the record which purported to contain two bills of exceptions, because there was no evidence that the exceptions were taken during the trial, and they were not filed in the Circuit Court until after an appeal had been allowed, and that court had lost its power and control over the cause. In this case, however, it does affirmatively appear, not only by the record on the part of the plaintiff in error, but also by the defendant’s statements, that the plaintiff’s exceptions were taken during the trial, and immediately upon the overruling of the defendant’s motion for a new trial, and subsequently reduced to writing, and signed and sealed by the court, whereby it became a part of the record.
Nor is the defendant better sustained by the case of Lenox vs. Pike and wife, and Smith and wife, in which a paper purporting to be a statement of evidence, but not purporting on its face to be a bill of exceptions to any opinion of the court, had been included in the trans-script of the record, signed it is true by the Judge, but neither sealed nor ordered to be placed on file or on record, nor was there any agreement of the parlies that it should be placed on the record, nor did it appear whether such statement of evidence was a mere memorandum of the Judge’s for his own use, or for the information of this court.
From the views entertained of this case, we are clearly of opinion, that the Circuit Court erred in the instructions given to the jury, and for this reason, the defendant’s motion for a new trial ought to have been sustained. Judgment reversed.
Whereupon, Ashley & Watkins, for the defendant in error, filed the following petition for a rehearing:
The defendant in error in presenting his petition fora rehearing in this case is conscious that lie labors 'under great embarrassment. To seek, by force of argument, to induce the highest judicial tribunal in the land to reverse their own solemn adjudication, is to assume that the court have erred — an implied censure, revolting to that subtle pride of opinion and official station which pervades the breasts of humbler men.
But if it be the lot of humanity to err, it is'not the part of wise men to persist in error. In view of those embarrassments, the defendant respectfully and earnestly shows to the court here, the grounds upon which he asks for a rehearing.
Two preliminary questions are presented by the record in this case, which he deems entitled to the serious consideration of this court.
First: Whether, according to the ancient and the later and better received opinions and practice of pleading, payment or any special matter in bar or avoidance of the action ought not to be pleaded specially. On this subject the attention of the court is called to Stephen on Pleading, (3d Am. Ed., 1837, p. 158.) Appendix, note 44, p. 57, p. 60, et seq; and Chitty's Plead. 472. in Appendix.
Second: Can the account attempted to be established by McDonald, the defendant below, be construed to be a payment, according to the legal understanding of the term, or does it not show a mutual indebtedness or cross account, contemplated by our statute concerning set off, and as such required to be specially pleaded, or given in evidence under the general issue with notice? Rev. Stat., title, Setoff.
The defendant in error might also claim that the motion of the defendant in the court below tor a new trial was a waiver of any alleged error in the instructions of the court, and was an application to the sound and equitable discretion of the court, the overruling of which is not a ground of error. But on these points the authorities are numerous and contradictory.
The ground on which the petitioner mainly relies for a rehearing. is that the opinion of the court, however correct on Us face, is founded on a mistaken view of the facts, as they appear upon the record, and it establishes a precedent contrary to all authority, and dangerous in practice.
The court, in their opinion, throughout distinctly assume it as true that the bill of exceptions was not signed and filed until eleven days after the trial — that he excepted at the trial and saved the point— whereas no such state of fact appears on the record.
This is, perhaps, the point upon which this whole case must turn. If the exceptions of McDonald were not properly taken, and in apt time, they do not form a part of the record, and are not entitled to that consideration which the’court has given them.
The facts, as they appear upon the record, are these: On the 4th of May, 1839, Faulkner filed his declaration, also a bill of particulars of his account, and process was executed on the same day. On the 10th of September the defendant pleaded non-assumpsit, to which issue was joined, and the court rendered judgment for the plaintiff for $¡127, damages assessed by the jury. Two days afterwards the defendant filed his motion for a new trial. Four days afterwards, on the sixteenth of September, the court overruled the motion for a new trial, and thereupon, the defendant, by his counsel, excepted, and asked and obtained leave to prepare said bill of exceptions, and also a statement of the testimony in the case. On the 21st day of September, the defendant filed his bill of exceptions, purporting to be filed on that day, and purporting on their face to be an exception to the opinion of the court in overruling his motion for a new tria!, and’ not to any thing which took place at the trial. That such a proceeding, in suffering that paper to be filed, under all the circumstances, was considered asan outrage, is evidenced by the bill of exception of Faulkner, which the court admitted to be true, but'refused to sign, and was thereupon signed by bystanders who had witnessed the whole progress of the cause, and who knew that no memoranda or note in writing of any such instructions or testimony had been taken at the trial, or preserved either by the court or the parties.
In a petition for a rehearing it would not, perhaps, be proper to go into a minute examination of all the tases on this subject. Suffice it to say that the universal doctrine is, that an exception to the opinion of the court, in admitting or rejecting testimony, must be taken and presented before the jury have retired from the bar of the court; and an exception to the instruction of the court must be taken and presented before the jury return into court with their verdict. In the English practice, when a bill of exceptions does not form a part of the judgment roll, but is afterwards tacked on to it, and much more length and more formality is used in reciting the proceedings, it is allowable to draw up the bill of exceptions in form, and present it to the Judge for his signature, after the trial, but it is indispensable that the matter of exception itself should be reduced to writing at the trial. And the petitioner invites the attention of the court to the following authorities. Petersdorf Ab. Vol. 9, p. 217, title Exceptions, Bill of; 2 Leigh's Nisi Prius, Appendix p. 1543, forms, &c.; Stephen on Pleading, 89; 1 Saunders on Plead, and Ev. p. 318; 1 Starkie Evidence p. 464; 2 Tidd's practice, (1 Am. Ed. 1807,)p. 788; 3 Black. Com. Chap. 24, p. 393; Wright vs. Sharp, Salk. p. 288; Jones, et al., vs. the Insurance Co. of North America, 4 Dallas p. 249; Morris vs. Buckley, and others, 8 Serg. and Rawle, p. 218; Stewart, and another, vs. the Huntington Bank, 11 Serg, and Rawle, p. 270; Sykes vs. Hanson, 6 J. R. 279; Milberry vs. Collins, 9 J. R. 445; Law vs. Merril, 6 Wend. 268; Shepherd and Stows vs. White, 3 Cowen 32; Launce vs. Barker, 10 J. R. 312; Holloway vs. Holloway, 1 Monroe 131; Givens vs. Bradley, 3 Bibb. 195; Riggs vs. McIlvain, 3 Mars. 360; Davis vs. Burns, et al. Missouri Rep. 264.
The only solitary case where a different practice was allowed, is the case of Gordon vs. Ryan, J. J. Marshall, p. 58, where the court indulged the party until the next term to prepare his bili of exceptions. I have not seen that case, but from the note of it given in Pirtle's Dig., title Bill of Exceptions, it seems that the indulgence was granted upon the express ground that the substance of the exceptions had been taken and reduced to writing at the trial.
To suffer a party to come in at any time after the trial and except or draw up a statement of the,testimony, would be utterly subversive of the ends of all legal proceedings.
The petitioner does not mean to say that the opposing counsel would prepare, or the Judge of the couú below certify to an ex-parte and untrue bill of exceptions or statement of evidence, but the irresistible presumption of law is, that they may be and are untrue.
Let any one come into our Circuit Court, in the midst of a three weeks session, criminal, common law and chancery cases all progressing on the same day, and observe the course of proceedings in that court, and he will then be. qualified to judge whether the ends of justice will ever be answered by allowing a party to take and prepare his exceptions and an cx-parte statement of testimony eleven days after the trial has elapsed, and when no exception was taken at the trial, nor any note in writing of any such instructions or testimony taken or preserved by any person whatever.
All of which is respectfully submitted.
Lacy, J.,
delivered the opinon of the court on said petition:
The court has carefully examined the grounds taken in the argument for re-hearing, and do not deem them tenable. All the positions assumed in the argument have been fully answered, except one, which wc will now proceed to dispose of. It is said that the opinion distinctly assumes the fact, that the bill of exceptions was taken at the trial, although it was not tiled or signed until eleven days afterwards. The opinion certainly proceeds upon this assumption, and the record fully warrants the conclusion.
There were two bills taken in the case. The first bill was taken by the defendant, in which he excepted to the opinion of the court overruling his motion for a new trial upon the following grounds: First, that the instructions of the court, excluding part of the evidence of the defendant was erroneous: Second, that the verdict of the jury was contrary to law and evidence. This bill of exceptions sets out the testimony excluded upon the the trial, and the record expressly states “ that upon the overruling of the motion for a new trial, the defendant thereupon excepted to the opinion of the court, and placed his opinion upon the record.” The Judge has certified under his hand and seal, the evidence to this court, and has declared that the exceptions were taken at the time he overruled the motion for a new trial. This fact can therefore be neither controverted nor denied, for it is a judicial record which cannot be disputed.
This bill of exceptions was filed on the 20th September, and although it was eleven days after the rendition of the verdict and judgment entered, still it has express reference to the time of the trial, so far as regards the introduction or rejection of the evidence. The fact that the evidence was given at, or on the trial, is fully demonstrated by the plaintiff’s bill of exceptions, taken and signed by the bystanders on the 25th of September, in which he controverts the competency of the court to sign a bill of exceptions after the lapse of time spoken of. His bill of exceptions admits that the instructions and evidence upon which they were based were a part of the proceedings upon the trial. Having admitted this fact by his own bill of exceptions, and thereby makes that certain which might be regarded as * somewhat doubtful before, he is estopped from saying that the in-instructions and evidence were not had and given upon the trial of the cause. Besides, the record being a judicial document, and alleging the fact to be so, the truth of it cannot afterwards be put in issue in any manner whatever. The motion for rehearing must therefore be overruled. | [
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Dickinson, Judge,
delivered the opinion of the court:
It is assigned for error that the court below erred in refusing to charge the jury as required by counsel, and in refusing to grant a new trial upon the newly discovered testimony. We will consider these objections in the order in which they are presented. We understand it to be a rule well settled, and supported by all the authorities, that a court is not bound to instruct the jury as to the law arising upon the abstract principle which may be presented. How far the instructions might have been applicable to the case before the jury, it is impossible for this court to determine; for to enable us to form a conclusion whether such instructions were proper or not, and calculated to have an influence upon the finding of the jury, it was unquestionably necessary that the whole or a sufficient portion of the evidence should have been included in the bill of exceptions to have shown their applicability. It is a principle that cannot be controverted, that to sustain a writ of error on the ground that the court neglected to charge the jury upon any question of law which arose out of the facts of the case, it must • appear upon the record, not only that the facts • upon which such question of law arose were in evidence in the cause, but also that the court was distinctly called upon to instruct the jury as to the law on that point. As then we have nothing in the record before us to the contrary, we must presume that the court below considered the instructions asked for as improper, or inapplicable to the state of the case before them, and rightfully overruled the party’s motion. The application for a new trial is deserving of more consideration.' Although it is usual for a party to combine all his reasons in a motion for a new trial, yet when as in this instance, after the rejection of the first application, the plaintiff in error believed he could rest his case upon other and better grounds, of which he was not before privy, we can discover no good reason why he should not be permitted to-avail himself of any advantage he possessed, when he presents in proper time. The Circuit Court having on the first motion already solemnly determined that the evidence was sufficiently clear and explicit to justify the verdict, and that it conformed to' the law, we will consider the reason, to wit; newly discovered testimony, upon which the-plaintiff in error evidently relies in his second application. There are certain principles upon this subject which must be considered settled. 1st. The testimony must have been discovered since the trial. 2nd. It must appear that the new testimony could not have been obtained with reasonable diligence on the former trial. 3d. It must be material to the issue. 4th. It must go to the merits of the case, and not impeach the character of a former witness. 5th. It must not be cumulative. People vs. Sup. Ct. of N. York. 10 Wend. 292; 4 Johns. Rep. 425.
It cannot Be denied but that the evidence was discovered since the former trial, and its materiality is proved by the record. Whether it goes to the merits of the case, or impeaches the character of a former witness, is impracticable for this court to determine, as the evidence given upon the trial is not before us. It is not clearly perceived in what manner the evidence of Bass was expected to be material to the defendant. That it might however have been material, and its bearing perceived by the court before whom the cause was tried, is by no means improbable; and while we are willing that every reasonable and probable inference favorable to the opinion of the court below should be indulged, it must be conceded that unless the proof made before the jury is stated on the record it will be impossible for us to perceive whether the testimony which the applicant expects to prove is relevant and will furnish proper matter for the consideration of a jury. The party does not show that he made any effort to, discover testimony of a character similar to that which he expects to prove, nor that he could not have substantiated the same fact by some other witness. It only remains for us to consider whether the new testimony is cumulative. And that it is so is clearly shown in the bill of exceptions, in which the court below say that it conduces to prove, thereby indicating, as we understand, contributing or tending to prove certain facts in relation to which some testimony had already been produced on the trial. Cumulative means additional evidence to support the same point, and which is of the same character with evidence already produced. See Price vs. Brown, 1st Strange, 691. We are strengthened in this view of the subject, because the exceptions do not state whether this new testimony establishes facts which bear directly upon the issue, and were not in proof before, and which are in themselves so material to the question that they might vary the result, or whether this further evidence merely tends to confirm the former testimony, or goes to discredit the plaintiff ’s witness without disclosing any new fact materially tending of itself to vary the defence. The court below, it is true, say that the testimony is material to the issue, but do not say that it related to any new fact. The whole of the evidence adduced before the jury, with that proposed to be produced, has been also before the court'below; that court has thought propel’, in the exercise of that legal discretion with which it is vested, to refuse the application. No doctrine is better settled than that which regulates applications of this sort, addressed as they are to sound discretion of the court. That discretion is to be exercised, it is true, not arbitrarily, but in consonance with the rules and usages of law, in furtherance of the justice of the cause. From any thing apparent on the record, we are totally at a loss to perceive upon what fact it was expected this court could predicate an opinion. The bills of exception contains no statement of the evidence given on the trial,. and the record furnishes nothing from which we can infer either the nature or weight of evidence upon which the parties thought proper to rest the decision of their cause. As the party excepting to the decision of the court has not thought proper to make the evidence produced on the trial part of the record, every intendment should be indulged against him, and in revising that decision the court is bound to presume every fact, susceptible of proof and not repugnant to the statements contained in the bill of exceptions, to have been fully established; and these views are fully sustained in the ease of Wise vs. Heurd, decided at the last term of this court. Thus proceeding, the principle is not perceived upon which the decision of the Circuit Court ought to be disturbed upon the errors assigned. This case,, from its original commencement to its final termination in the Circuit Court, seems in its progress to have been conducted with an object in view and upon principles difficult for this court to perceive; and it has given us some labor to see distinctly into its merits, and to free it from the almost inexplicable confusion by which it is obscured. It will be recollected this is an action for breach of contract, and that there is a material distinction between actions ex contractu and ex delicto. In 1 Chit. Plead, p. 28, and in 1 Saund. 153 n., it is laid down, “ that where there arc several parties, if the contract is joint, they should all be made defendants, and that an omission of one can be taken advantage of by plea in abatement, unless it appears on the face of the declaration, or some other pleading of the plaintiff, that the party omitted is still living as well'as that he jointly contracted, in which case the defendant may demur or move in arrest of judgment or support a writ of error-; or it will be good .ground of non-suit if, upon the trial, the plaintiff fails to prove a joint contract; for although in actions of tort one defendant may be'found guilty and the other acquitted, yet in action for the breach of contract, whether it be framed in assumpsit, covenant, debt or case, a verdict could not in general be given against one defendant in a joint action without the other, unless there was some personal inability in point of law which would not render the contract obligatory, as infancy or coverture or the like.” We are led to these remarks from the fact that previous to the first trial and issue joined, the plaintiff in the court below entered a nolle prosequi as to iwo of the defendants Tate and Rogers. At common ¡aw, where there are several defendants, a plaintiff may in tort enter a nolle prosequi as to apart of the defendants and proceed against the others; but the rule is different in actions upon joint contract; for a discontinuance as to one operates as a discontinuance as to all, unless in cases where, as previously remarked, one of the defendants pleads matter which goes to his present discharge. Such as bankruptcy, infancy, and such other pleas'as go to the action of the writ; and this doctrine is fully sustained in the case of Noke and Chiswell vs. Ingham, 1 Wilson, 89; Gibb vs. Morrill, 3 Taun. 307; Chandler vs. Parker, 3 Esp. Rep. 77; Tidds Prac, 632; also in Hartness vs. Thompson, 5 Johns. Rep., 160; and Hale vs. Rochester, 3 Cow. 374. The. rule of the common law, however, upon this subject was changed and modified by the act of the General Assembly, passed 10th January, 1816. See Steele and McCamp. Dig., 312 and 313, in which it was .provided that “ in all cases where there shall be several defendants to any suit or action, some of whom are summoned or taken, and others not taken, the plaintiff shall be at liberty to proceed against those summoned or taken, or may continue his cause and award alias writs till another term, at which time he shall proceed against those appearing.” It is upon this statute, we presume, the plaintiff below proceeded when he entered a nolle prosequi against such of the defendants as were not .summoned or taken and elected, to proceed against Robins alone.
We are not prepared to say, nor do we deem it necessary to express any opinion, as to what might have been the result if there had been any objections made to the filing of the second, or, as it is termed, amended declaration, in which Tate and Rogers are again introduced as defendants, as to whom, after the filing of a plea to the merits by Rogers, the plaintiff below again entered a nolle prosequi. The plaintiff in error, by his appearance, clearly waived any advantage which he might have possessed, and precluded himself from making any objection to the further proceeding on the part of the defendant in error. We deem it however proper here to remark that though in modern times great latitude has been allowed as regards amendments, yet they are always limited by due consideration for the rights of the other party. The discretion which j;r allowed to the courts in grant ing amendments has certainly in this instance been liberally exercised; for if a plaintiff can be permitted to introduce new parties (as Tate and Rogers must, in this case), be considered, he can upon the same principle introduce a new and distinct cause of action, wholly changing the defendant’s liability as well as the nature of his defence. It is unnecessary to comment further upon the proceedings in this case for the errors, if there are any, are waived by the act of the plaintiff in error, or cured by the 118th and 119th sections of the Rev. Ark. Code, 635, 636; which provide “ that when a verdict shall have been rendered in any cause not the judgment thereon shall, be arrested or stayed for any mispleading, discontinuance, insufficient pleading, or misjoinder,” but “ that such omissions, imperfections, defects and variances, and all others of a like nature not being against the right and justice of the matter of the suit, and not altering the issue between the parties on the trial, shall be supplied and amended by the court when the judgment shall be given, or by the court into which such judgment may be removed by writ of error.”
We are therefore of opinion that the judgment of the Circuit Court ought to be affirmed with costs. | [
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Dickinson, Judge,
delivered the opinion of the court:
The first question has been so repeatedly ruled in this court, that we deem it unnecessary to add any thing further upon it; that where a party has made his motion to dismiss the cause, and after that is decided against him by the court, pleads over; he waives all advantage which he could have had upon his motion, and puts himself upon the issue formed. This brings us to the second and only remaining question to be determined. It was not shown in evidence that the defendant was part owner, captain, or agent of the steamer Tecumseh. The note simply is “ that the steamer Tecumseh and owners promise to pay,” and Kendall signs it. Whose promise is it? If the steamer and owners are hound by it, Kendall surely is not, and if Kendall be personally liable, the steamer Tecumseh, and owners are discharged from all responsibility.
In Leadbitter vs. Farrow, 5 M. & S. 349, Ld. Eelenborou&h said, £‘it is a universal rule, that a man who puts his name to a bill of exchange thereby makes himself personally liable, unless he states upon the face of the bill that he subscribed it for another, or by procuration of another, which words are words of exclusion, or unless he says£ I am the mere scribe,’ he becomes liable.” In that case Farrow had drawn a bill upon certain bankers, by which they were requested to pay and place the same to the account of the Durham bank as advised, and merely signed his name to it. The proof showed that Farrow had been the agent of the bank for a considerable time, and yet he was held upon this bill to be personally liable, and Bayeey, J. said, £S though the plaintiff in the action might know the defendant was an agent, he might also know he had given his own pledge by affixing his signature to the bill.” The principle is well settled, that if a person undertakes to contract as an agent for an individual or corporation, and contracts in a manner which is not legally binding upon his principal, he is personally responsible. White vs. Skinner, 13 J. R. 307; Randall vs. Van Vechten, 19 J. R. 60; Taft vs. Brewster, 9 J. R. 334; Tippetts vs. Walker, 4 Mass. R. 596; and Molt vs. Hicks, 1 Cowen 536. The agent, when sued upon a contract, can only exonerate himself from responsibility by showing his authority to bind those for whom he is undertaking to act. It is not for the plaintiff to show that he has not authority. The application of this principle to the case now under consideration clearly proves that Kendall is personally responsible, and not the steamboat owners. He was bound to show that he had authority to contract for the steamer Tecumseh and owners, and to prove this affirmatively, and in failing so to do, hé becomes himself personally liable upon his undertaking. The note upon its face declares no facts which could raise a presumption that he was either part owner, captain, or agent. He signs it in neither of these capacities, and having no lawful authority to contract for them, he has made himself personally responsible by affixing his own signature to the instrument; consequently, the court erred in instructing the jury to find as in a ease of non suit. The judgment of the court below must therefore be reversed. | [
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Lacy, Judge,
delivered the opinion of the court:
Before we proceed to examine the instructions, we must ascertain whether or not the proof shows a joint tenancy, or tenancy in common, or whether or not it establishes a partnership; for if it tends to establish none of these facts then we can look upon the instructions refused in no other light than as mere abstract propositions, which, whether right or wrong, were rightfully overruled by the court below. The object of instructions is to inform the jury .upon some point either of law or evidence that is applicable to the case upon trial, and to guide and govern their verdict. Upon mere abstract propositions, a court is not bound to instruct the jury. If the instructions asked for be irrelevant, they should be refused, as tending to mislead instead of to enlighten the minds of the jury; and to encumber the record with foreign and useless matter that distracts and obscures the issue to be tried.
The proof, in the present case, as spread out in the bill of exceptions, is meagre and every way unsatisfactory. It does not define with accuracy or precision how, or in what manner the parties rented the premises, or whether they were jointly seized or not, neither do we think that inquiry a matter of any moment in deciding the question now before this court. The testimony itself, when taken separately, and considered in connection with the whole transaction, conclusively shows that the contract between the landlord and his co-tenants for the rent was a parol agreement. For the record fails to state that it was a written acknowledgment of the parties under seal, or to produce it to the court, so that it could be seen what kind of instrument it was. And even if it were doubtful whether it was a parol agreement, or one under seal; still the presumptions in favor of the verdict would amount to full proof on the point, and clearly demonstrate the facts to be as we have before stated them. It being a parol agreement, and not a contiact under seal, the moment the defendant, Webb, executed his deed to the landlord for the rent, and it was delivered to, and accepted by him for that purpose, that instant it operated by intendment of law, as a merger or extinguishment of the joint liabilities of the co-tenants for the rent, and the plaintiff in the action was for ever discharged from all responsibility upon his parol promise or original undertaking. This principle is too familiar and self evident to require either argument or authority to support or illustrate it. It rests upon the known and universally admitted rule that the higher grade or dignity of instruments completely supercedes and destroys a less or subordinate one; because it furnishes the best and most conclusive evidence of the intention and rights of the parties; and consequently the inferior remedy is held to be merged or extinguished in the superior obligation. The execution of Webb’s deed under seal, was not only an extinguishment of the parol promise of himself and his co-tenants, but it was a payment of the rent, and it thereby raised a legal liability on the part of his co-lessee to refund or pay his portion of the rent to the defendant, upon ' which an action at law or a plea of set-off would lie, provided it was shown upon the trial, that the plaintiff had agreed to the change of the contract, either by express promise, or by tacit acquiescence. In the present case, the plaintiff, so far as appears from the record, consented to the change of the contract: first, by acquiescing in it, or not objecting to it; and secondly, by expressly admitting that he was willing to pay the rent in the defendant’s own paper. Here then is an express promise or undertaking to pay the defendant the rent; and of course the jury were fully warranted in their finding. Granting however that the evidence was uncertain on this point, (which is by no means conceded,) still this court would not be authorized in setting aside a verdict and awarding a new trial, merely on the ground that the jury had found contrary to the preponderance of the testimony. To authorize a new trial, the verdict must have been against the weight of evidence: so much so that on the first blush of it, it should shock our sense of justice and right. In regard to the questions of joint tenancy, or tenancy in'common, or of partners in trade, we would barely remark, that they do not enter into or constitute any part of the inquiry now before this court; for in no reasonable aspect of the case, do they, in the most remote degree, affect the consideration of the express contract of the plaintiff to pay to the defendant the rent. The defendant’s right of action accrued on his paying, by his deed, all the rent for the premises, and upon the plaintiff’s promise to to account to him for the same. Both of these facts are unquestionably established by the record; and they carry with them the legal inference of the plaintiff ’s liability. If this position be true, then it necessarily follows that all the instructions asked for by the plaintiff were mere naked abstract propositions, having no connection with or bearing on the evidence adduced; and consequently there is no error in the proceedings; and the judgment of the court below must be affirmed with costs. | [
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Hart, J.
(after stating the facts). In the first place, it may be said that a preponderance of the evidence shows that the deed under which appellants claim title to the land in controversy was never delivered. The question of delivery is one of fact to be determined by the intent of the grantor, as manifested by his acts or words or both.
In order to constitute a delivery, there must be an intention to pass the title immediately to the land conveyed, and that the grantor shall lose dominion over the deed. Battle v. Anders, 100 Ark. 427, and Bray v. Bray, 132 Ark. 438. Tested by this rule, it is manifest there was no delivery. The deed was never filed for record. It never really left the possession of the grantor. It is true that W. A. Davis testified that his brother, W. E. Davis, handed the deed to R. M. Davis and that the latter kept it a little while before he handed it back; but the accompanying facts show that this was all a mere pretense, and was not intended for an actual delivery of the deed. The uncontradicted evidence shows that W. E. Davis continued in possession of the land, collected the rents and profits therefrom, had them assessed in his own name, and paid the taxes thereon until the date of his death. R. M. Davis never claimed any title to the lands, but on the contrary told various persons that he was renting them from his brother and regularly paid the rent thereon. He had no money with which to pay for the lands and was indebted to.his brother at that time. A similar transaction was had between W. E. Davis and W. A. Davis upon the same occasion. W. A. Davis said he found the money in the barnyard of W. E. Davis with which he paid for his land. It is a significant fact that he did not know that he would find the money and that just after he found it he met his brother, W. E. Davis, and showed him the pocket book and the money. W. E. Davis, after counting it, said there was $12,000 in the pocket book and at once tendered him a deed which had already been executed. Neither W. A. Davis nor R. M. Davis had any money at the time. The record shows that W. E. Davis was a wealthy man for that section of the country, and the only reasonable hypothesis ig that he furnished the brothers the money with which to carry out the pretended sale so that in the event a large judgment was obtained against him in the damage suit then pending his brothers could hold the lands and protect him. R. M. Davis and W. A. Davis only held the deeds in their hands for a little while in the barnyard when they handed them1 back to W. E. Davis. He told them that he would put them in his safe and for them to say nothing about the transaction. No- claim was ever made by W. A. Dávis or R. M. Davis to the lands until after the death of W. E. Davis. The retention of the deed by W. E. Davis under the circumstances as disclosed by the record shows there was no delivery of the deed by him to R. M. Davis with the intention of passing the title to the lands and appellants therefore are not entitled to recover the lands in this action.
For another reason appellants are not entitled to recover. The evidence which we have just recounted as well as the other evidence in the case shows that W. E. Davis executed the deed for the sole purpose of protecting the property from a legal liability. In other words, there was a damage suit for a large amount pending against him at the time and the practically undisputed evidence shows that the deed in question was executed for the fraudulent purpose of placing the property beyond the reach of his creditors and for that reason it is void. But it is contended that,appellees are not entitled to bring suit to set aside this conveyance as being made in fraud of his creditors. Counsel are mistaken in this contention. Section 81 of Kirby’s Digest provides that an administrator of a fraudulent grantor may bring a suit in chancery to have the deed so executed set aside for the use and benefit of the heirs at law of the fraudulent grantor saving the rights of creditors and purchasers without notice. In construing this statute the court has held that where the executor of an alleged fraudulent grantor was the grantee and refused to bring a suit to set the deed aside, the heirs at law of the grantor have the right to bring it, making him a defendant. Moore v. Waldstein, 74 Ark. 273.
The administrator joined with the heirs at law of W. E. Davis, deceased, in their cross-complaint to the present action; bnt, even if he had not done so, nnder the case jnst cited, the heirs at law might have proceeded without him. If under the statute the' administrator and heirs at law could bring a suit to set aside the deed of their grantor as having been executed in fraud of his creditors, it follows that they could defend a suit brought against them for the possession of the lands.
Therefore, the decree will be affirmed. | [
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McCulloch, C. J.
This is an action to- recover damages for libel, alleged to have been published by appellee in an answer and cross-complaint filed by him in a certain action instituted by appellants in the chancery court of Pike County to cancel a contract for the lease of certain lands to be used in the operation of a diamond mine. The complaint in the present action sets forth all of the pleadings in the proceedings in which the alleged libelous matter was published, and the particular matter charged to be libelous was set forth as one of the allegations of appellee’s cross-complaint as follows:
“On the 13th day of January, 1918, as defendants believe by the instigation and procurement of the plaintiffs, the plant that had been erected for the washing of the diamond-bearing dirt as well as another plant belonging to defendants on what is known as the Ozark property, and an eight-room house, the two plants being one mile apart, were burned on the same night.”
The court sustained a demurrer to the complaint,, and, as appellants declined to plead further, a judgment was entered dismissing the action.
It is alleged in the -complaint that the libelous charge was published with malice, and that it was false. All of the facts, including the whole of the pleadings in the original action, having been set forth in the complaint, a demurrer properly raises the question of the sufficiency of the allegations of the complaint to constitute a cause of action. The inquiry narrows down to the question whether or not the publication of the alleged libelous matter was absolutely privileged.
There are two classes of privileged communications recognized in the law governing the publication of alleged libelous matter: One of these classes constitutes an absolute privilege, and the other a qualified privilege, and, according to the great weight of authority, pertinent and relevant statements in pleadings in judicial pro ceedings are held to he withih the'first class mentioned, and are absolutely privileged. The 'authorities are not entirely free from conflict. There are a few cases holding that statements in pleadings, whether pertinent and relevant to the issues involved, are absolutely privileged, and there are also a few cases which hold that pertinent and relevant statements in pleadings are privileged on condition that they are made without malice, but, according to the great weight of authority, as before stated, pertinent and relevant statements in pleadings are absolutely privileged. The test as to absolute privilege is relevancy and pertinency to the issue involved, regardless of the truth of the statements or of the existence of actual malice. 17 R. C. L., p. 335; case note to Kemper v. Fort, 12 Am. & Eng. Ann. Cas. 1022; 13 L. R. A. (N. S.) 821; Myers v. Hodges, 53 Fla. 197; Gaines v. Aetna Ins. Co., 104 Ky. 695; Abbott v. National Bank of Commerce, 20 Wash. 552, 56 Pac. 376; Gardemal v. McWilliams, 43 La. Ann. 454, 9 So. 106; McGehee v. Insurance Co., 112 Fed. 853.
The following statement of law as to the liberality of the courts in determining what is or what is not pertinent is made in Ruling Case Law, volume 17, p. 336, as follows: “As to the degree of relevancy or pertinency necessary to make alleged defamatory matter privileged the courts favor a liberal rule. The matter to which the privilege does not extend must be so palpably wanting in relation to. the subject-matter of the controversy that no reasonable man can doubt its irrelevancy and impropriety. In order that matter alleged in a pleading may be privileged, it need not be in every ease material to the issues presented by the pleadings. It must, however, be legitimately related thereto, or so pertinent to the subject of the controversy that it may become the subject of inquiry in the course of the trial. ” .
The complaint in the present case discloses the relevancy and pertinency of the alleged libelous statements. The purpose of the original action was to cancel a lease on account of a breach or breaches of contract alleged to have been committed by appellee. In the answer appellee, as the defendant in 'that action, denied the breach of the contract on his part and alleged that the delay in the performance of the contract had been caused by acts of appellant, among other things, the burning of the plant erected for the purpose of washing of diamond bearing dirt. The allegations of the answer, including the allegation now under consideration, presented issues in defense to that action, and were pertinent and relevant to the issues involved.
The alleged statement was, therefore, absolutely privileged, and the court was correct in sustaining the demurrer to the complaint. Affirmed. | [
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Smith, J.
Appellant brought this suit for the purpose of having a resulting trust declared, in her favor. In h.er complaint she alleged that she was the only child of her mother, Mrs. Myrtle May Claridy, who, on August 17, 1897, owned a forty-acre tract of land in the Eastern District of Clay County. Her father, T. C. Claridy, at the same time also owned a forty-acre tract of land, and it was agreed by her father and mother that they would each sell their forty-acre tract and buy the south half northwest quarter, section 3, and southwest quarter northeast quarter, section 3, township 18 north, range 8 east, Clay County, Arkansas, and that her mother should have the west eighty, which is the south half, northwest-quarter, and that her father should have the other forty, and that pursuant to this understanding Mrs. Claridy sold her land and delivered the proceeds of the sale to Mr. Claridy, who bought the land above described and used Mrs. Claridy’s money in so doing, pursuant to the agreement to that effect. The answer denied these alie gations. Claridy sold his own forty-acre tract and used the proceeds of that sale in meeting the payments on the larger tract.
The court below denied the relief prayed, but found the fact to be that Mrs. Claridy had advanced the sum of $400 which was .used in the purchase of the land sought to be charged with the trust, and awarded appellant a lien on all the land for that sum, with interest thereon, and both parties have appealed.
In support of the allegations of the complaint, it was shown that Mrs. Claridy executed a deed to her land on November 10, 1897, for the consideration of $550, and that she died soon thereafter, at which time appellant was a baby. That Mr. Claridy obtained only a bond for title for the land, when he made the contract for its purchase, and that he did not complete his payments until January 17, 1902, at which time he received his deed and took title to all the land in his own name. Thereafter Mr. Claridy married again, and had other children, and resided on the land until Ms death, which occurred December 24, 1917.
The matter of the sale of the two forty-acre tracts of land and the purchase of the one hundred and twenty acre tract appears to have been known to the neighbors generally, and to have furnished subject-matter for numerous conversations among them, and much of the testimony is objected to on the ground that it was mere gossip. There was a witness, however, who was in a position to know the facts. This witness was Luther Claridy, a brother of T. C. Claridy, and, therefore, an uncle of all the children of T. C. Claridy, involved in this litigation. This witness appears to be disinterested, and his testimony was evidently accepted as true by the court below, as the finding of fact made by the court conformed thereto. This witness stated' that as a young man he lived with Ms brother- during the lifetime of Mrs. Myrtle May Claridy, who had been dead about eighteen years, and that his brother died December 24, 1917, and that appellant, Yerdie Claridy Gordon, was the only child born to his brother and Mrs. Myrtle May Claridy. That Mrs. Claridy owned forty acres of land when she married, which was sold about the time the larger tract was purchased, and that his brother told him about the money he received for the land belonging to his wife, and that his brother told him “he was putting $400 down on that land,” and that he helped his brother clear a part of the 120-acre tract soon after its purchase, and that his brother built a barn thereon which cost about $150. That he had never heard his brother say anything about conveying any land to Mrs. Claridy, but had heard her speak of it, and that “she talked like she was to get eighty.” That his brother told him that he was going to put his wife’s money into the land, and Mrs. Claridy told him afterwards this had been done.
In opposition to granting appellant any relief, it is insisted by cross-appellants that the 120-acre tract was purchased before Mrs. Claridy’s forty-acre tract was sold, and that most of the purchase money was represented by the promissory notes of Claridy, the larger portion of which were paid after the death of his wife, and that, even though the entire proceeds of the sale of Mrs. Claridy’s forty had gone into the purchase of the larger tract, that sum was only about one-third of the purchase price of the larger tract. In answer to this it may be said that while the larger tract was purchased before Mrs. Claridy’s land was sold those transactions were practically contemporaneous, and it is certain that one was sold to raise money with which to purchase the other, and that $400 of this money was used for that purpose; and while it is possible that even more of the purchase money derived from the sale of Mrs. Claridy’s land was thus applied, that fact does not sufficiently appear to warrant us in disturbing the chancellor’s finding of fact on that subject.
The ease of Long v. Scott, decided by the Court of Appeals of the District of Columbia, 24 App. D. C. 1, announced the principle which controls here, and which was applied by the court below". It was there said,;. “* * * We are of opinion that neither the bill of complaint, nor the testimony taken in support of it, shows sufficient ground for the declaration of a resulting trust in this case in favor of the complainant for the portion of the purchase money of the property in controversy shown to have been paid by her. For the establishment of such a resulting trust, it must be clearly shown that the whole purchase money was paid by the person seeking to have such interest declared, or that the purchase was of some definite interest or determinate aliquot part of the property. In the absence of any satisfactory proof of the amount of the purchase money in this case, and therefore of proof as to the proportion of the sum of $400 advanced by the complainant to the whole purchase money, it is impossible to establish a resulting trust in any part or share of the property in favor of the complainant.
“But, while the bill of complaint and the testimony are insufficient to establish a resulting trust, we are likewise of the opinion that there is sufficient allegation and ample proof of facts in 'this case to show an equitable lien on this property in favor of this complainant to the amount of $400. * * * Here an express agreement is shown, although not in writing, whereby, in consideration of the contribution by the complainant of the sum of $400 to the purchase money of a certain piece of property, she was promised by the purchaser that she should have practically a life estate in the premises, in common with the purchaser; and, upon that inducement and with that agreement between herself and her son, the purchaser, she paid her share of the money and entered into the possession of the property, and retained that possession until she was evicted under what she would seem to regard as false representations.” See, also, section 1178, Jones on Liens (3 Ed.).
In the case of Remshard v. Renshaw, 102 Ark. 309, a wife allowed her husband to use her money in improving his property and in discharging a mortgage lien thereon on the faith of the lnisband’s false representation, tfiaf the property would come back to her at his death because of there being no other heirs. The court below refused to vest title in the widow, but decreed a lien in her favor to the extent of-her advances, and in approving that decree this court there said: “The result is the same as if she has entrusted the money to him as her agent, and he had wrongfully used it in improving his own property and in discharging liens thereon. In that case he would be held to be a trustee for her, and a lien in her favor for the money wrongfully used would be declared on the property into which the money could be traced. Atkinson v. Ward, 47 Ark. 533. She is entitled to subrogation to the extent of the amount of her money used in discharging the mortgage lien. Spurlock v. Spurlock, 80 Ark. 37.”
So here we conclude that, while the testimony does not warrant us in decreeing the existence of a resulting trust in favor of Mrs. Claridy’s heir-at-law, we do think it supports the action of the court below in awarding her a lien on the land for the sum of money shown to have been used in purchasing the land, and the decree of the court below is, therefore, affirmed both on the appeal and on the cross-appeal. | [
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Wood, J.
Tbis action was instituted in Chicot Circuit Court by tbe appellee against the appellant to recover on a certificate of insurance issued by tbe appellant to tbe husband of tbe appellee, in which certificate tbe appellee was tbe beneficiary.
The appellant is a mutual benefit secret fraternal association. Tbe appellee alleged in substance that tbe appellant was authorized to do a life insurance business among its members in tbe State of Arkansas; that in July, 1908, her husband, Asa J. Newsom, became a member of tbe appellant, and that it issued to him a certificate insuring bis life in tbe sum of $1,000 to be paid to tbe appellee in case of bis death; that on tbe 4th day of April, 1918, Newsom died, and that at tbe time of bis death all dues and assessments due tbe appellee bad been paid; that appellant bad been duly notified of Newsom’s death and refused upon demand to pay tbe appellee tbe amount of tbe sum due her under tbe certificate.
Tbe appellant answered admitting tbe issuance of tbe certificate and that tbe appellee was tbe beneficiary named therein and admitting tbe death of Newsom. But tbe appellant denied that Newsom bad complied with tbe constitution and by-laws of tbe appellant in that be failed to pay tbe dues of tbe Sovereign Camp for tbe month of March, 1918, and that on account of such failure under the by-laws Newsom became suspended and remained so at tbe time of bis death, whereby his contract of insurance was rendered void.
Tbe material facts upon which tbe issue thus joined was beard are undisputed, and they are as follows: On the 29th of June, 1908, Asa J. Newsom made written application for membership and participation in tbe benefi ciary fund of the appellant. He was received as a member and on July 10, 1908, tbe appellant issued to him a certificate in the sum of $1,000 in which the appellee was named as the beneficiary.
The certificate among other things, recited that it was issued and accepted subject to all the laws, rules and regulations of the fraternity then in force or that might thereafter be enacted; that the certificate should be null and void if the insured did not comply with all such laws, rules, and regulations of the Sovereign Camp of the Woodmen of the World, and with the by-laws of the camp of which he was a member.
•There were these further.recitals: “This certificate is issued in consideration of the representations, agreements and warranties made by the person named herein in his application to become a member and in consideration of the payment made when introduced in prescribed form, also his agreement to pay all assessment and dues that may be levied during the time he shall remain a member of the order.
“If the admission fees, dues and Sovereign Camp fund assessments levied against the person named in this certificate are not paid to the clerk of his camp as required by the constitution and laws of the order, this certificate shall be null and void and continue so until payment is made in accordance therewith.”
The application contained among other things the following recitals: “I hereby consent and agree that this application, consisting of two pages, to each of which I have attached my signature, and all the provisions of the constitution and laws of the order, now in force or that may hereafter be adopted, shall constitute the basis for and form a part of any beneficiary certificate that may be issued to me by the Sovereign Camp of the Woodmen of the World, whether printed or referred to therein or not.
“I agree that, if I fail to comply with the laws, rules and usages of the order now in force or hereafter adopted, my beneficiary certificate shall become void and all rights of any person or persons thereunder shall be forfeited. ’ ’
“I agree to pay all assessments and dues for which I may become liable while a member of the order, as required by its constitution and laws.”
The pertinent provisions of the constitution and laws of appellant are as follows:
“Section 3. The object of the society is to combine white male persons of sound bodily health, etc., into a secret, fraternal beneficiary and benevolent society; to create a fund from which, on the death of members who have complied with all the requirements, the beneficiaries of said members may be paid according to the agreements; that a monument shall be erected at the grave of such member who dies in good standing and according to the contract and agreement with the society.”
“Section 56. In order to pay death losses, disability benefits, monument obligations, emergency fund and Sovereign Camp general fund dues, every applicant admitted to membership to the Sovereign Camp, Woodmen of the World, on or after September 1,1901, and to whom a beneficiary certificate is issued, shall annually pay to the Sovereign Clerk, in advance, an assessment based on their ages at nearest birthday at a date of entry (except as otherwise provided in sections 42 and 43 of the constitution and laws) as specified in the following table of rates.”
Then follows the table of rates showing that for the age of 40 the annual assessment on $1,000 is $15.84. Then follows the provision that members should they so’ elect may pay the same in 12 monthly installments to the clerk of their camp on or before the first day of each month based on a table of payments. Then follows the table showing that at the age of 40 on a certificate of $1,000 the monthly payment is $1.32.
“In the event the insured has not paid his annual assessment in advance, but has paid installments of his assessment and dues up to and including the month of his death, the Sovereign Camp shall deduct from the amount of his certificate the-balance due for the installments to cover the entire annual assessment.”
‘ ‘ Section 60.' The following conditions shall be made a part of every beneficiary certificate, and shall be binding on both member and.this society:
“First. This certificate is issued in consideration of the representations, warranties and agreements made by the person named herein in his application to become a member, and in consideration of the payment made when introduced in prescribed form; also his agreements to pay all assessments and dues that may be levied during the time he shall remain a member of this society.
“Second. If the admission fees, dues and Sovereign Camp fund assessments levied against the person named in this certificate are not paid to the clerk of his camp as required by the constitution and laws of this society, this certificate shall be null and void and continue so until payment is made in accordance herewith.
“Waivers.< Section 69 (a). No officer, employee or agent of the Sovereign Camp or of any camp has the power, right or authority to waive any of the conditions upon which beneficiary certificates are issued or to change, vary or waive any of the provisions of this constitution or these laws, nor shall any custom on the part of any camp or any number of camps — with or without the knowledge of the Sovereign officer — have the effect of so changing, modifying, waiving, or foregoing such laws or requirements. Each and every beneficiary certificate is issued only upon the conditions stated in and subject to the constitution and laws then in force or hereafter enacted.
“(b) The constitution and laws of the Sovereign Camp of the Woodmen of the World now in force, or which may hereafter be enacted, by-laws of the camp now in force or which may be hereafter enacted, the application and certificate shall constitute a part of the beneficiary contract between this society and the member.
“Section 110. Every member of this society shall pay to the clerk of his camp one annual assessment or one monthly installment of assessment as required in section 56. * * *
“ (h) If he fails to make any such payments on or before the first day of the month following, he shall stand suspended, and during such suspension his beneficiary certificate shall be void. ’ ’
“Section 113. On or before the fifth day of every month the clerk of each camp shall cause a warrant to be drawn on the banker of his camp, signed by himself and the consul commander, for all the Sovereign Camp dues in the hand of the banker then due the Sovereign Camp, and forward said funds and all other funds due the Sovereign Camp to the Sovereign Clerk. Such amounts shall be remitted in money order, or bank draft with exchange, payable to the order of the Sovereign banker. Accompanying such remittances, the clerk shall also forward such detailed statement of the standing of the members in the camp as shall be required for the information of the Sovereign Clerk, upon blanks furnished for that purpose.”
‘ ‘ Section 94. He shall deliver or forward to the last known postoffice address of the person paying the same, a receipt for all moneys paid due the camp, pay the same to the banker, taking his receipt therefor, attest all warrants drawn on the banker; also beneficiary certificates and other official documents, and attach the camp seal.
“(e) He shall remit all funds due and belonging to the Sovereign Camp to the Sovereign Clerk as by law provided. In case of failure of the clerk of the camp to comply herewith, the Sovereign Commander shall have the right to declare his office vacant and require the election and installation of his successor.”
“Section 119 (b). Should any clerk knowingly violate this section, he shall on proof thereof be suspended from his office by the Sovereign Commander and expelled from this society by his camp.”
The clerk of the Lakeside Camp of the appellant, the camp of which Newsom was a member, testified that Newsom resided at Portland; that he paid his assessments up to March 1, 1918, by draft which witness drew on the Portland Bank with his receipt attached. Newsom had an agreement with witness by which a draft was to be drawn each month on the Portland Bank with witness’ receipt attached, and this had been done since witness went into the office of clerk of the local camp, a period of about a year and a half and up to but not including the installment for March, 1918; that on March 1st witness drew a draft on the Bank of Portland with receipt attached for $1.35, which was to cover the following amounts: Sovereign Camp fund $1, camp monthly dues 25 cents, specials ten cents. All assessments had been paid by Newsom prior to that time in that manner. Newsom died the 4th of April. Witness notified the head camp of the fact and asked them to send the necessary papers to be filed to constitute proof of the death and also a statement for the unpaid premium to be deducted from the policy. Witness received in response a statement from the Sovereign Camp showing a balance due by Newsom at the time of his death on account of the difference between old and new rate since September 1, 1915, and unpaid installments to complete annual assessment in the sum of $4.40. With this statement was an order for the deduction of the above amount to be signed by the beneficiary. In the statement was a recital that the appellant “does not admit a liability in said certificate until proofs of death have been duly executed and approved.” The receipt for the February assessment was made on the 24th of March and shows that Newsom was paid up to and including February dues. The March report was made on the 24th day of April. That report shows that Newsom was dead. Under the regulations of appellant the report should have been made on or before the 5th of each month. In witness’ report for March it shows that the draft was not drawn the first of April for the March report. In making up the statement witness took the statement from the head camp of the amount of the deduction to be made from the certificate which was to be signed by Mrs. Newsom, the beneficiary, as the amount due the head camp and he did not, therefore, draw for the. March assessment. Witness did not draw the draft for the monthly assessment the first of each month but drew when he went to the bank to collect for the different ones at the bank. Newsom relied on witness to draw the draft to pay his monthly dues and attach the receipt of witness thereto and witness had always done that. It had been the custom of witness to go to the bank and draw drafts for the installments due by other members. Witness notified appellant of the death of Newsom by post card previous to the time he sent in his regular report. The reason witness didn’t draw a draft for the March dues was because he was under the impression from the deduction statement Mrs. Newsom had sent the money and paid the March dues, by reason of the deduction.
Witness further testified that it had been his custom to send in his monthly report after the time prescribed by the by-laws, and that the Sovereign Camp or Parent Lodge had made no complaints and urged no objection to his reports because of the fact that they were not made within the time prescribed by the by-laws. He testified that other members of the Lakeside Camp besides Newsom paid their installments in the same manner.
It was shown that Newsom kept a deposit with the Portland Bank and instructed its cashier to pay the monthly draft with receipt attached of the clerk of the Lakeside Camp, and that the cashier had uniformly and without intermission paid these drafts when presented. That this agreement had extended over a period of two years; that during that time and until the death of Newsom he had on deposit with the Portland Bank a sum sufficient to pay the monthly installment or draft. That other members of the camp paid their monthly dues in the same manner.
The appellee requested the court to instruct the jury to return a verdict in her favor for the sum of $1,000 with 6 per cent, interest from July 4,1918, which instruction the court granted. The court refused the prayer of the appellant for instruction to return a verdict in its favor. From the judgment in favor of appellee is this appeal.
The application for membership in appellant order and the certificate issued thereon both expressly refer to the laws, rules, and regulations of appellant and make the certificate null and void if the holder thereof fails to comply with such laws, rules, and regulations.
It is well settled by our own cases, as well as the authorities generally, that the constitution and laws of a mutual benefit fraternal society, such as that of appellant, form the basis of and constitute a part of the contract of insurance. This contract measures the obligations of the members and the liability of the association or governing body. Block v. Valley Mutual Ins. Assoc., 52 Ark. 201; W. O. W. v. Jackson, 80 Ark. 419; Supreme Lodge K. & L. of H. v. Jackson, 81 Ark. 512; W. O. W. v. Hall, 104 Ark. 538; Supreme Royal Circle v. Morrison, 105 Ark. 140-43; Grand Lodge A. O. U. W. v. Davidson, 127 Ark. 133; see also W. O. W. v. Anderson, 133 Ark. 411; United Assurance Assn. v. Frederick, 130 Ark. 12-15; Baker v. Mosaic Templars of America, 135 Ark. 65; Sovereign Camp W. O. W. v. Compton, 140 Ark. 313. In 1st Bacon on Benefit Societies, section 80, it is said: ‘‘ The constitution, rules, and by-laws of a voluntary association is a contract between the members.”
Therefore, if Newsom failed to pay the dues for the month of March to the clerk of the Lakeside Camp, the local camp of appellant, as provided in its constitution and laws, he thereby automatically became suspended from the order and his policy or certificate was rendered null and void. See Patterson v. Equitable Life Assn., 112 Ark. 171-9 and cases cited. Hence the appellant is not liable thereon unless it waived, or is estopped by its conduct from relying on, the forfeiture.
The first question then is, were the dues paid for the month of March so.far as the insured Newsom was concerned, or, to state the question in another form, was the appellant estopped by its conduct to deny that New-sum’s dues were paid?
Under the laws of the association it was the duty of the clerk of the local camp to collect the monthly assessments or dues and to forward these and all other funds to the clerk of the Sovereign Camp on or before the fifth day of every month. This he could do by money order or bank draft with exchange payable to the order of the Sovereign Banker. It was the duty of the clerk of the local camp to forward with his remittances, upon blanks furnished him for that purpose by the Sovereign Camp, a detailed statement of the standing of the members for the information of the Sovereign Clerk. Upon the failure of the local clerk to thus remit the funds, the Sovereign Commander had the right to declare the office vacant and to require the election of his successor. ■ If the clerk knowingly failed to discharge his duty in this respect, the Sovereign Commander also had the power to suspend him from office. Trotter v. Grand Lodge of Iowa of Honor, 132 Iowa 513; Amer. & Eng. Ann. Cas., vol. 11, p. 533, is a case quite similar in its facts to the case under consideration. The opinion contains a thorough discussion of issues like the ones here involved. The opinion and the case note are an elaborate review of the authorities. The reasoning of the opinion and the .conclusions there reached meet'with our unqualified approval. In the course of the opinion in that case we find the following: “The authorities are substantially unanimous that in schemes of cooperative life insurance in which the authority to issue benefit certificates, prescribe terms of membership and levy assessments, is vested in a grand or supreme lodge or council or other central governing bodv. which central body exercises jurisdiction over local lodges or societies through which the membership is recruited and bv the officers of which assessments are collected and remitted, the local organization and its officers to whom the duty of making such collection is committed are to be considered the agents of the governing body. That this agency is subject to the operation of the ordinary rules applicable to agencies of the same general character in the business of ordinary life insurance is also well settled. ’ ’
In Supreme Lodge K. of H. v. Davis, 26 Colo. 252, it is held:- “In a mutual benevolent order composed of a supreme lodge and subordinate lodges, an officer of a subordinate lodge charged with the duty of notifying the members of assessments made by the supreme lodge for the purpose of paying insurance certificates of deceased members, and of collecting and forwarding to the supreme lodge such assessments, is an agent of the supreme lodge, notwithstanding a rule or by-law of the order recites that such officer in collecting or forwarding assessments shall be the agent of the members of the subordinate lodge, and the supreme lodge is charged with all knowledge possessed by the agent in making the collection. ’ ’
This is a sound doctrine and according to it the clerk of the local camp of appellant, under the laws of its order, was, in the manner of making collection of assessments and remittances and reports to the Sovereign Clerk, the agent of appellant.
For about ten years Newsom was a member of Lakeside Camp of appellant. He resided at Portland and arranged with the clerk of the local camp to pay his dues in the following manner: The clerk was to make a monthly draft on the Bank of Portland, with receipt attached, for the amount of Newsom’s dues. Newsom kept on deposit with said bank a sum sufficient to pay these drafts and instructed its cashier to honor the drafts made by the clerk of Lakeside Camp for these dues,.which the cashier invariably did. It was the custom of the clerk under this arrangement to collect the monthly dues of Newsom and other members in this manner, but the clerk failed to collect the dues for March for the reason, as he states, that before he made his monthly collection and report for that month Newsom died, and he was under the impression that Mrs. Newsom, after the death of Newsom, had sent the money and had received credit for the dues by the Sovereign Camp in the deduction statement which they rendered him for her to sign.
There is no law of appellant making the clerk of the local camp the agent of the members in the matter of complying with the regulations of appellant relating to the collection of the assessments for the benefit fund.
It will be observed, too, that the clerk of the local camp in making his monthly remittances had something more to do than merely state the amount collected from the members. He had also to report the standing of the members for the information of the Sovereign .Clerk.
Since the clerk of the local camp must be regarded as the agent of the Sovereign Camp in the matter of collecting assessments and reporting the standing of the .members to the Sovereign Clerk, the knowledge of the agent acquired in the discharge of his duties was the knowledge of appellant. Appellant, therefore, must be held to have known that when the time came for the payment of Newsom’s dues for the month of March he had on deposit in the Bank of Portland funds with which to pay such dues and that such assessment would have been promptly paid at the time same was due but for the neglect and fault of appellant’s own clerk and agent, in collecting the same according to the method and custom which the agent had adopted in collecting or receiving the payment of dues and making his reports.
It appears from the undisputed facts of this record A at money was on deposit in the Bank of Portland for the purpose of paying the assessments of Newsom at the time when they became due under the laws of appellant. The laws of the order nowhere prescribe the' method which the clerk should pursue in collecting the assessments. That was left entirely with him, and he adopted the method of collecting same, as we have shown, by draft, with his receipt attached, on the bank where the money was deposited to pay the same. He also adopted (for his own convenience, not Newsom’s) the custom of making his remittances and report after the fifth of each month. It occurs to us that the case is precisely the same in legal effect as if Newsom had tendered to the agent of the appellant, duly authorized to collect monthly assessments, the amount of such assessment at the time the same was due. and that the agent failed or refused, for some reason, no matter what, to receive the same and report to his principal, as was his duty to do on the fifth of each month.
In Royal Circle of Friends of the World v. Paine, 103 Ark. 171, we held that, “Where a member of a mutual benefit association tenders his dues or assessment to the proper officer of the association and the tender is refused there can be no forfeiture of his rights for non-payment of his dues or assessments.”
As we view the facts, it must be held as a matter of law that so far as Newsom was concerned he had paid his March dues, which is but another way of saying that the appellant is estopped by the conduct of its duly authorized agent acting within the scope of his authority from asserting that such assessment was not paid.
Counsel for appellant quote in their brief from Woodmen of the World v. Hall, 104 Ark. 538-44, as follows : “But it is well settled by the weight of authority that the officers and subordinate lodges of a mutual benefit association have no authority to waive the provisions of its by-laws and constitution relating to the substance of the contract between the applicant and the association.” This language has since also been quoted with approval in Clinton v. Modern Woodmen of America, 125 Ark. 115-19, and in Pate v. Modern Woodmen of America, 129 Ark. 159-62.
Counsel for appellant contend that under the doctrine of these cases the subordinate lodges and the officers thereof have no authority to waive the forfeiture of an insurance policy held by a member of a benefit association where such forfeiture is caused by a failure of the' member to pay his monthly assessments as provided by the by-laws and constitution of the association; that the association is not estopped by the conduct of the subor dinate lodges and the officers thereof from setting up the forfeiture in defense of an. action on the policy.
In Woodmen of the World v. Hall, and Modern Woodmen of America v. Clinton, supra, the element of estoppel by a settled course of conduct on the part of the local clerk to collect and remit assessments after they were due did not enter into the consideration and determination of those cases. They are easily distinguished from the present case on the facts, and the language above quoted was not necessary to the conclusion there reached. However, in Pate v. Modern Woodmen of America, the decision was bottomed squarely upon the language above quoted from Woodmen of the World v. Hall.
It has never been the policy of this court to intentionally overrule its former decisions by indirection. Therefore it is certain that this court did not intend by the language above quoted to overrule the doctrine announced before, and many times since, the decision in Woodmen of the World v. Hall, supra, was rendered, to the effect that, in the absence of some statute making a distinction between them, the insurance certificate issued by benefit societies to their members, so far as the insurance features are concerned, must be regarded the same as any other ordinary policy or contract of insurance issued by companies engaged in that business. Such companies, whether they be fraternal and benevolent benefit societies or “old line” insurance companies, can only transact the business of insurance- th;rough agents. The duties, obligations, and liabilities growing out of these contracts must be governed by the general laws of principal and agent as relating to such contracts. See Block v. V. M. Ins. Assoc., 52 Ark. 201; Johnson v. Hall, 55 Ark. 210-12; Carruth v. Clawson, 97 Ark. 50; Peebles v. Columbian Woodmen, 111 Ark. 435; Grand Lodge A. O. U. W. v. Davidson, 127 Ark. 133.
In Peebles v. Columbian Woodmen, supra, we said: “For the reason that an insurance corporation can only act through its officers and agents, the company and its officers and agents are in law one and the same as to all transactions within the scope of the authority of its officers and agents. Therefore, it has been generally held in this State that the. knowledge acquired by the agent when in the discharge of his duties as to matters within the scope of his agency will be imputed to the principal.”
In Grand Lodge A. O. U. W. v. Davidson, supra, we said: “There is no difference between this contract and any other contract. Individuals and business corporations can waive favorable provisions in their contracts, and there is no reason-why fraternal organizations should not be permitted to waive forfeiture in their contracts.”
But the language above quoted from Woodmen of the World v. Hall is susceptible of the construction that in no casej and under no circumstances, can the officers and subordinate lodges of a mutual benefit association waive a forfeiture of a certificate or policy that has accrued under the by-laws and constitution of the association. Such, indeed, as we have seen, was the construction given it in Pate v. Modern Woodmen of America, supra. When thus construed, the language is too broad and brings our decisions into conflict. It commits this court to what we now conceive to be an unsound doctrine, and therefore we hereby expressly disapprove it, and the cases in which the above language is quoted and relied on are to that extent overruled. The language should be qualified by saying that the officers and subordinate lodges of a mutual benefit association have no authority to waive the provisions of its by-laws and constitution which relate to the substance of the contract between the insured member and the association unless, in those matters pertaining to the contract, they are the authorized agents of the association and, in what they do, are acting within the scope of their authority.
Two reasons áre usually given for holding that subordinate lodges and officers of a fraternal benefit society cannot waive a forfeiture, or by their conduct estop the association from claiming a forfeiture in defense to an action based on a policy of the association where snch forfeiture was caused by a failure of the insured to pay the monthly dues or assessments in accordance with the constitution and laws of the association. These reasons are as follows: First, because the members of the association are conclusively presumed to have knowledge of the constitution and laws of the association which enter into the contract. Second, because a strict compliance by the members with the laws of the association with reference to the prompt payment of dues is essential to the life of the association. These reasons do not appeal to us as sufficient to differentiate insurance contracts of fraternal societies from the ordinary contracts of insurance issued by stock (old line) companies, or to subject the former to different rules from the latter concerning the doctrine of agency and of waiver and estoppel.
In the first place all ordinary policies of insurance issued by “old line” companies usually contain provisions expressly prohibiting certain agents from waiving a forfeiture and providing that those companies shall not be estopped by the conduct of their agents from setting up a forfeiture caused by; failure of the insured to pay the premiums or to comply with other conditions precedent to a binding contract of insurance. Where these provisions are embraced in ordinary policies of insurance, the insured must take notice of them. They are a part of the contract, and the insured is conclusively presumed to have knowledge of them the same as the holders of certificates in a mutual benefit society are conclusively presumed to have knowledge of its by-laws. So the contention that the forfeiture should be declared in the one case and not in the other, for the reason stated, is unsound. There is in reality no distinction between them. •
In the second place, as a matter of policy, looking to the preservation and perpetuity of the association, if there is to be any difference between “old line” and benefit companies in the strictness required in the payment of premiums and assessments in order to keep alive the contract of insurance, the latter companies should be less strict. It seems to us that it would be far wiser for fraternal and benevolent societies, in cases where the principles of right, justice and good conscience demand it, to exercise more leniency in the enforcement of the assessment payments than would be required or expected, under the same circumstances, of strictly financial companies in the enforcement of premium payments. Such a course would certainly be more in harmony with the object and purpose of the society as expressly declared in section 3 of its constitution and laws. Such purpose should not be overlooked or ignored by the supreme officers in the interpretation and enforcement of the laws of the society.
Forfeitures are not favored. If circumstances exist, such as here revealed, which would render it unconscionable or a legal fraud upon the rights of the insured for an old line company to declare a forfeiture, a fortiori would it be a fraud and unconscionable for a fraternal society under the same circumstnaces to declare a forfeiture.
If fraternal organizations cannot be kept alive without perpetrating hardships upon their members which the law does not tolerate in the case of a policy holder in an ordinary insurance company, then fraternal organizations, in so far as their insurance business is concerned, should die. They should not be permitted under the guise of fraternity and benevolence to inveigle unwary members into insurance contracts which are not governed by the same rules of law as any other ordinary contract of insurance.
The question then recurs as to whether or not the clerk of the local camp under the facts of this case was the agent of the Sovereign Camp in the duty of making collections and remittances and making the report of the standing of the members. If he was not the agent of the Sovereign body in' these matters, whose agent was he? The Sovereign Camp had the power to suspend or remove him for the derelictions of which he was here shown to be guilty. The individual member had no such power. Where the interest of the Sovereign body and the individual member conflict, certainly the local clerk could not be considered the agent of both.
We have already determined the question in the affirmative, and we believe there is no other correct solution of it. Being the agent of the Sovereign Camp, and, as we have seen, acting within the scope of his authority and in the line of his duty, the law applicable to agents, and of waiver and estoppel as in other ordinary cases of insurance must apply in this case.
Counsel for appellant contend that the case is ruled on the question of waiver and estoppel not only by Woodmen of the World v. Hall, supra, and other cases of our own court cited by them, but they earnestly invite our attention to the case of Modern Woodmen of America v. Tevis, 117 Fed. 368. That case in its essential facts is precisely similar to the facts in the case at bar except that in the Tevis case there was a provision in the bylaws making the clerk of the local camp the agent of that camp and not of the head camp.
The Tevis case first came before the Circuit Court of Appeals of the 8th Circuit when that court was composed of Judges Caldwell, Thayer, and Sanborn. That court then decided, Mr. Justice Sanborn delivering the opinion of the court, that the clerk of the local camp was the agent of the governing body to collect and remit assessments and to report the collections, delinquencies, etc., and that the society was estopped by the conduct of its agent from enforcing a forfeiture for default in prompt payment of dues. The exact question we now have under consideration was decided by that court as we are now deciding it. See M. W. O. A. v. Tevis et al., 111 Fed. 113-19, 49 C. C. A. 256.
A rehearing was asked and while same was pending the Supreme Court of the United States in Northern Assurance Company v. Grand View Bldg. Assoc., 183 U. S. 308, 46 L. Ed. 313, decided, among other things, that the written contracts of insurance, if unambiguous, must speak for themselves and cannot be altered or contra- dieted by parol evidence unless in tbe case of fraud or mutual mistake of facts; that “it is competent and reasonable for tbe insurance companies to make it a matter of condition in their policies that their agents shall not be deemed to have authority to alter or contradict the express terms of the policies as executed and delivered. ’ ’
After the decision of the United States Supreme Court, the Circuit Court of Appeals of the i8th Circuit, composed of the same judges who made the former decision in the Tevis case, supra, granted a rehearing and decided that the decision of the United States Supreme Court in Northern Assurance Co. v. Grand V. Bldg. Assn., was an authoritative determination of the question at issue in the Tevis case and that they were bound by that decision. Therefore, the Circuit Court of Appeals, through Judge Sanborn, held in effect that benefit societies may limit the authority of their agents, and that when they do so the latter cannot bind their principal by contract, estoppel or waiver, to those who know the limitations upon their power and that the insured and their beneficiaries under contracts with benefit societies are charged with knowledge of the limitations upon the power of the agents which are found in the policies or certificates and in the by-laws or applications which are a part of their contracts, and are bound by those limitations.
But this court, except where Federal questions are involved, is not bound by the decisions of the Supreme Court of the United States. Therefore, after the decision of that court in Northern Assurance Company v. Grand View Bldg Assn., supra, this court, in People’s Fire Ins. Assn. v. Goyne, 79 Ark. 315, after an elaborate review of our own decisions in the light of the above decision of the Supreme Court of the United States and other authorities, deliberately repudiated the doctrine of the Supreme Court of the United States as announced in Northern Assurance Co. v. Grand View Bldg. Assn., and held that the doctrine on the subject which had been pre viously announced by this court in Insurance Company v. Brodie, 52 Ark. 11, was sound.
In the 'Brodie case we held that an insurance company “may, at any time it sees fit, give authority to any agent to make agreements or to waive forfeitures;” that “it is not bound to act upon the declaration in its policy that they had not such authority;” that “the waiver is provable by either written or oral evidence, notwithstanding a declaration in the policy to the contrary.”
In the case of Fire Ins. Co. v. Goyne, supra, we held that an insurance company may be estopped by the conduct of its agent acting in the apparent or real scope of his authority, notwithstanding clauses in the application or policy providing that it shall not be bound by any such conduct of its agent. That “when an agent does anything within the real or apparent scope of his authority, it is as much the act of the principal as if done by the principal himself.”
The doctrine as to waiver and estoppel as announced .by the Circuit Court of Appeals in the first opinion in Modern Woodmen of America v. Tevis, 111 Fed., supra, is correct and in conformity with our own decisions on the subject, whereas the doctrine announced in the same case, 117 Fed., supra, is not the law on that subject, and is contrary to numerous decisions of this court. An examination of the last case will discover that the court correctly held under the facts that the clerk of the local camp was the agent of the sovereign body and not of the local camp, and-in this respect did not change its former holding.
The doctrine of the Brodie and Goyne cases, supra, has been reiterated in numerous cases since they were rendered and has never been overruled or impaired, except by the language used in W. O. W. v. Hall, supra, and that language, as we have already stated, as to waiver and estoppel under facts similar to those here presented, we expressly disapprove and overrule.
Having reached the conclusion that the clerk of the local camp was the agent of appellant and acting within the scope of his authority in mailing collections, remit tances, and reports to the sovereign clerk, it is manifest that appellant is estopped by the conduct of the local clerk from claiming a forfeiture of Newsom’s policy or certificate under the undisputed facts above set forth. The law applicable to such a state of facts is accurately stated in case note to Trotter v. Grand Lodge, 132 Ark. 541: “Where a mutual benefit association has in repeated instances received from a member the payment of overdue assessments so as to establish a custom or course of dealing between the parties and lead the member to' believe that a strict observance of a requirement as to the time of payment is not required, it is held that the certificate of insurance is not forfeited by failure to pay an assessment at the time when the by-laws of the society or a stip- , ulation in the certificate requires it to be paid and that a provision for forfeiture for non-payment at such time is waived within the customary period of extension of the time of payment.” Numerous cases are cited to support the text. Other strong cases to the same effect are Edmiston v. The Homesteaders, 93 Kan. 485, Ann. Cases 1916 D 588; Head Camp v. Bohanna, 59 Col. 545, 151 Pac. App. 1. The above doctrine in substance has been also repeatedly announced by this court. See German Ins. Co. v. Gibson, 53 Ark. 499; Pac. Mutual Life Ins. Co. v. Walker, 67 Ark. 147-53; Peebles v. Columbian Woodmen, 111 Ark. 431, supra; Grand Lodge A. O. U. W. v. Davidson, 127 Ark. 133-38; Interstate B. M. A. Assn. v. Greene, 132 Ark. 546-49, and cases cited.
The judgment, therefore, is correct and it is affirmed.
McCulloch, C. J., and Smith, J., dissent. | [
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Humphreys, J.
Appellant, and others similarly situated, instituted suit against appellee in the Lonoke Chancery Court to enjoin the ¡Board of Commissioners of the appellee district, and the assessors of said board, from proceeding to build, or attempting to build, any road within the proposed district, upon the ground that Act 669 of the Acts of 1919 of the Legislature of Arkansas, under which said district was created, is void, for the alleged reasons, first, that the bill was not presented to the Governor for approval within the time required by law; second, that the enrolled bill signed by the Governor was different from the engrossed bill passed by the Legislature, in this, that nineteen sections of land in township four north, range nine west, included in the engrossed bill, were omitted from the enrolled bill signed by the Governor.
Appellee filed answer, joining issue upon the material allegation set out in the complaint.
The cause was submitted to the court upon the merits, and, by decree, the act was upheld as valid'; where - upon the court dismissed appellant’s bill for the want of equity, from which dismissal an appeal has been dulv prosecuted to this court.
The undisputed facts are that Senate Bill No. 509 which is the bill in question, passed both houses of the Legislature in the words and form as originally intro duced, without modification or change in any respect: that the enrolled act of said Senate bill was approved by the Governor on April 3, 1919, on the twenty-first day after the adjournment of the Legislature, and was numbered Act 669 of the Acts of 1919; that the enrolled bill omitted from the engrossed bill, or the bill passed by both houses of the General Assembly, nineteen sections Of land in township four north, range nine west, which appeared in the engrossed bill as one of seven paragraphs describing the lands within the district; that the road to be improved runs from the town of Cabot, which .is in township four north, range nine west, to the public road in Improvement District No. 4; that the lands omitted from the enrolled bill were adjacent to the towns of Austin and Cabot, included in the bill, and to the road to be improved in said township and range; that the original, as well as the enrolled, bill is in the official archives of the Secretary of State, and was published by the Secretary of State as the law, including the omitted nineteen sections of land; that there is nothing on the journal records of either the House or Senate showing when the enrolled bill was presented to the Governor; that, under the rules, it was the duty of the Senate Enrolling Committee to present the bill to the Governor for approval.
The first question to be determined is whether the bill was presented to the Governor for approval within the time required by section 15, article 6 of the Constitution. That section requires that bills must be presented to the Governor within twenty days after adjournment of the session at which passed. Monroe v. Green, 71 Ark. 527. The record in the case just cited showed that the bill was presented to the Governor twenty-three days after the Legislature adjourned. In the instant case, the record is entirely silent as to when the bill was presented to the Governor for approval. This court will indulge the presumption, where the contrary does not affirmatively appear from the records of the General Assembly, that the Senate enrolling committee performed the duty imposed upon it to present the bill to the Governor within the time required by law for his consideration and approval or rejection. This rule of presumptions in favor of the validity of legislative enactments can not be more clearly stated than was done in the case of Harrington v. White, 131 Ark. 291. The rule formulated there is as follows: “An act of the Legislature signed by the Governor and deposited with the Secretary of State raises the presumption that every requirement was complied with, unless the-contrary affirmatively appears from the record of the General Assembly.” The rule thus announced is sustained by the cases of Chicot County v. Davies, 40 Ark. 200; Glidewell v. Martin, 51 Ark. 559; State v. Corbett, 61 Ark. 226; State v. Bowman, 90 Ark. 174; Mechanics Building & Loan Association v. Coffman, 110 Ark. 269; and has been reannounced and sustained in the recent cases of Perry v. State, 139 Ark. 227, and Helena Water Co. v. Helena, 140 Ark. 597. The reason of this rule of presumptions is grounded in public policy and respect of a co-ordinate department of government, so said Mr. Justice Sanders in the case of Glidewell v. Martin, 51 Ark. 559. The reasons for the rule are so clearly and ably expressed by that profound master of law, the writer can not refrain from indulging in the following quotation ‘from him:
“From considerations of public policy and because of the respect due the action of a co-ordinate department of government, the courts, long since, began to supply the omissions of journal clerks by presumptions as to the regularity of the proceedings of the General Assembly. This has been found most salutary, and the attitude assumed by the judiciary in this regard, has gone far toward establishing and maintaining public confidence in the stability of legislative action. Many cases of flagrant hardship are thus prevented, while by the operation of the rule, few, if any, have sustained substantial injury. The courts are gravitating toward the English rule so thoroughly discussed by Mr. Justice Smith, in Chicot County v. Davies, 40 Ark. 200; for while they say that the enrolled bill is not conclusive of the valid enactment of the law, and that we may look beyond it to the journals, they supply by presumption everything necessary to its validity, save where the journal affirmatively shows a violation of the Constitution.”
It is suggested that the presumption must be indulged that the bill was presented to the Governor more than twenty days after the sine die adjournment of the Legislature because approved by the Governor more than twenty days thereafter. The approval of the bill by the Governor after the time fixed by law was unauthorized and in no wise affected the bill. Presumptions should not be founded on the unauthorized acts of officials. Presumptions are not indulged to strike down laws, but the validity of laws may be upheld by them. We think the only effect resulting from the unauthorized approval of the bill by the Governor was to corroborate the presumption that it was presented to him. In other words, the approval of the bill by the Governor lends credence to the presumption that the enrolling committee performed its duty by presenting the bill to him within the time required by law. It will be presumed therefore that the bill in question was presented to the Governor within twenty days after the sine die adjournment of the Legislature, and, not having been vetoed, became a law twenty days after said adjournment without his signature.
The chief insistence for reversal is that the bill approved by the Governor was a different bill from the bill passed by the Legislature. An enrolled bill, in legislative parlance, is a reproduction or copy of the identical bill passed by both houses of the General Assembly. The enrolling clerk, or committee, has no power or authority to modify a bill passed by the General Assembly in any respect. It follows that the purpose and intention of the Governor in signing an enrolled bill, or in allowing an enrolled bill to become a law without his signature, is to approve the bill passed by both branches of the Legislature, or to acquiesce in such bill becoming a law. In approving an enrolled bill, therefore, it may aptly be said that the Governor intends to, and does, approve the original or identical bill passed by the General Assembly. For this reason, additions, omissions or misprisions of the enrolling clerk in copying the bill to be signed by the Speaker of the House and President of the Senate and to be presented to the Governor, do not impair or invalidate the act. Otherwise, legislation would depend entirely upon the accuracy of the enrolling clerk and care of the enrolling committee. No rule of law is better established in this State than the rule to the effect that an enrolled bill is not conclusive of what bill was enacted. An enrolled bill may be impeached by an inspection of the original bill, indorsements thereon, journals and other official records of the Legislature and official records in the office of the Secretary of State. Arkansas State Fair Association v. Hodges, 190 Ark. 131; Helena Water Company v. Helena 140 Ark. 597; Booe v. Road Improvement District No. 4, 141 Ark. 140. If an enrolled bill signed by the President of the Senate and Speaker of the House is not conclusive and determinative of what bill was enacted by the General Assembly, no sound reason can be assigned why it should be conclusive and determinative of what bill the Governor approved. In other words, the additions, omissions or misprisions contained in an enrolled bill should not bind the Governor to the letter of the copy by reason of his approval any more than the Senate and House whose President and Speaker signed it. In the case of Haney v. State, 34 Ark. 263, this court corrected a manifest and material error in an enrolled bill which had been signed by the President of the Senate and Speaker of the House and the Governor, by inserting the word “fourth” for the word “fifth” so as to make the act conform to the intention of the Legislature in enacting, and the Governor in approving, it. The correction made to conform to the intention of the Legislature and Governor was material, because, unless made, the act was void. In making the correction, the court took occasion to say: “A mistake of this nature may be corrected by the courts, upon as sound principle as' a •mistake in a deed. It is not judicial legislation, nor judicial interference with the legislative will. It is in support of the legislative will, and wholly distinct from the reprehensible practice of warping legislation to suit the views of the courts as to correct policy.” The court, however, in making this correction threw out the warning that before correcting a bill so as to conform to the intention of the Legislature, “courts should be thoroughly and honestly satisfied of the legislative intent, irrespective of the policy of the act.”
It is apparent from the face of the enrolled bill that lands in township four north, range nine west, are intended to be included but were omitted in copying from the original bill. This is evidenced by the fact that the town of Cabot, in said township and range, is included in the district. Certainly, the town would not have been included in the district and the adjacent lands omitted. It is also evidenced by the fact that the road to be improved runs from Cabot to Lonoke, and, in doing so, passes through said township and range. It could not have been the intention to exclude lands adjacent to the proposed road in said township and range. By reference to the original bill published by the Legislature, it is apparent that the enrolling clerk omitted to incorporate in the enrolled bill the paragraph in the original bill describing nineteen sections of land traversed by the proposed road. The paragraph was in the -original bill and rendered the district symmetrical in form. It is true the omission from the enrolled bill constituted a material discrepancy between the enrolled and the original bill, but, nevertheless, the omission was a clerical error, apparent from the face of the bill, and what should have been incorporated in the enrolled bill is ascertainable from an inspection of the original bill in the office of the Secretary of State. Concerning just such an omission from an enrolled bill, or perhaps of one more material than in the instant case, this court used the following language in the case of Athletic Mining & Smelting Co. v. Sharp, 135 Ark. 330: “It is said that the words included in brackets in the fourth and fifth lines of section 2, Act 175, Acts 1913, were placed in the act by the Secretary of State without authority, and -that when the section is read eliminating those words, it is clear that the Legislature intended to take away the defense of contributory negligence only in death cases brought against corporations for damages. Eliminating those words from the section, appellant is perhaps correct in his contention that the act' would apply only in death cases, but upon examination of the original act in the office of the Secretary of State, we find that those words inserted by the Secretary of State were a part of the act, and were inadvertently omitted from the enrolled bill by the enrolling clerk. Without the use of the words inclosed in brackets, the section is almost meaningless or at least quite ambiguous. The failure to insert the words was an obvious omission or misprision of the enrolling clerk. The Secretary of State therefore properly inserted them in the printed act.”
The case last cited is directly in point and rules the instant case in this regard.
The judgment is affirmed.
McCulloch, C. J., and Hast, J., dissenting. | [
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Humphreys, J.
Appellant instituted suit against appellee in the Southern District of the Prairie Circuit Court to recover $812.50 damages for failure to ship him thirteen cars of No. 1 hay at $13.50 per ton. f. o. b. appellee’s loading track at Screeton, Arkansas, as per an alleged contract of date July 5, 1917.
Appellee answered, denying all the material allegations of the complaint and filed a cross-complaint, alleging that, on June 26,1917, he entered into a contract with appellant to sell him ten car loads of No. 1 hay at $13.50 per ton, f. o. b. Screeton, Arkansas, and on July 2, 1917, sold him an additional five cars on like terms; that appellant ordered out two cars, but failed and refused to order out or accept the other thirteen until after the expiration of the contract, to appellee’s damage in the sum of $455, for which he asked judgment against appellant.
Appellant answered the cross-bill, admitting the execution of the contract at the time alleged by appellee, but denying that more than two cars were to be shipped immediately, and affirming that thirteen cars were to be held subject to his order; that he thereafter ordered them shipped before the expiration of the contract, but shipment was refused; and denied that appellee was damaged in any sum by reason of his failure to order or accept the hay, as alleged in the cross-bill.
The cause was submitted to a jury upon the pleadings, evidence and instructions of the court, which resulted in a verdict and judgment against appellant in the sum of $195, from which judgment an appeal has been duly prosecuted to this court.
The negotiations for the sale and purchase of the hay in question began by telephonic communication, which was confirmed and completed by letters of date June 26, July 2, July 5, July 9, all in the year 1917. The contract, as disclosed by the letters, constituted a sale and purchase at $13.50 per ton of fifteen ears of hay f. o. b. Screeton, Arkansas — -two for immediate shipment and thirteen for shipment subject to the order of appellant, which, according to the construction of this court, meant, to be shipped under the order of appellant within a reasonable time from the date of the contract, otherwise the contract would lack mutuality to support it.
There was a gradual decline in the value of hay after the execution of the contract until some time in September, after which time the value increased gradually until it reached a maximum value of $28.50 in November or December of the same year.
The additional evidence of appellee tended to show that he urged appellant to order the hay shipped from time to time until October, both over the telephone and by correspondence, but was unable to prevail upon him to take it; that from thirty days to six weeks was a reasonable time to hold hay subject to shipping orders; that appellant, when pressed, refused to accept the hay, and advised him to sell it at Screeton.
The additional evidence of appellant tended to show that no request was made for him to accept or order the hay shipped at any time after the execution of the contract ; that he never consented for, nor directed, appellee to sell the hay at Screeton; that in October and November he ordered the hay shipped from time to time, but failed to secure any shipments or receive any explanation for a failure to ship.
The court instructed the jury upon its own motion, without numbering the several instructions, but, according to the subject-matter covered, the parties have divided and discussed them as three separate instructions. The objections and exceptions to the instructions, as shown by the perfected bill of exceptions, are severally and separately to each instruction.
It is insisted that the court committed reversible error in giving the first instruction, because it placed the burden upon appellant to establish the execution of the contract, when the execution thereof was admitted under the pleadings. No prejudice could have resulted to appellant on this account, because the court further on in the same instruction advised the jury that appellee, in his answer and cross-bill, admitted the execution of the contract. This was tantamount to instructing that the burden imposed upon the appellant had been met by the admission of appellee.
Again, it is insisted that the court took one of the vital issues of fact from the jury in the wording of the second instruction given for which the cause should be reversed. The instruction is as follows: “If you find from the evidence that the defendant (referring to appellee) did not violate this contract, that he was ready and willing at all times to meet its terras and conditions, and was prevented from doing so by the failure on the part of Mr. Rogers to order out the cars; and that hay declined in the market below the price for which the hay was sold with the time within which plaintiff Rogers had to order out the hay, then your verdict should be for the defendant. ’ ’
We think a fair construction of the language challenged as erroneous is that if the jury should find that Mr. Rogers failed to order out the cars under the terms and conditions of the contract and appellee himself was ready and willing to ship the hay at all times and had not violated the contract, then they should find for appellee. The most that can be contended for is that there is a slight ambiguity in the instruction which should have been pointed out to the court by a specific objection, which was not done. Only a general objection was made to the instruction.
Lastly, it is insisted that the court committed reversible error in giving the third instruction to the jury, which is as follows: “I will say further, gentlemen of the jury, if you find by a preponderance of the testimony that these parties made any changes in the written contract by telephone communication, then it is your duty to say as to what changes, if any there be made, and then apply the rules of law as given you 'by the court to any such changed condition of the contract made over the telephone, if you find such changes made. The burden of proving any changes of the 'contract made over the tele phone is upon the defendant, and that by a preponderance of the testimony. ’ ’
The alleged error contended for in the instruction is that it was abstract; that there was no evidence offered on either side tending to show a change in the written contract by telephonic communications. Under the terms of the original contract, no time being specified for the shipment of the hay, appellant had a reasonable time in which to order it shipped. There was evidence tending to show that, after the execution of the contract, appellee called appellant over the phone several times, insisting, that he take the hay; that appellant answered on one occasion that his customers were building a warehouse and not yet in shape to take it, and on another occasion that he did not know whether he would take the hay. By the use of the word “change” in the instruction, the court evidently had in mind the issue of when and whether the contract was breached by appellant in failing to order the hay shipped, as relating to the amount of damages in case the contract was breached. It appeared from the evidence that hay varied in price at different times subsequent to the execution of the contract. So the time of breach, if one occurred, was material in determining the amount of damages occasioned on account of such breach. In this sense, the instruction was not abstract. If the word “change” was inaptly used by the court, attention should have been called to the fact by a specific, and not a general, objection.
No error appearing in the record, the judgment is affirmed. | [
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Wood, J.
This action was begun by the appellant against the appellee for the specific performance of a contract for the sale of a tract of land containing 120 acres in Mississippi County.
The appellant set out the contract, which was dated October 31, 1917. After describing the lands and reciting that appellee agreed to sell and- appellant to buy same, the contract provides as follows: “It is herein stipulated and agreed that a copy of 'this contract shall this day be deposited in the Bank of Manila, with a certified check for $500, executed by said Dr. V. R. Fox, payable to' the order of J. M. Hutton, attached thereto as an earnest to witness and bind this contract. It is further stipulated and agreed that said J. M. Hutton is to deliver peaceable possession of said lands to said Y. R. Fox or his order, together with a good and merchantable title to all of said lands and execute to said V. R. Fox, his heirs or assigns, a warranty deed to said lands, on or before January 1, 1918, upon thé said V. R. Fox paying to said J. M. Hutton or order the sum of twelve thousand dollars in addition to the aforesaid certified check for five hundred dollars.”
The appellant alleged that it was understood at the time of the execution of the contract that it would be necessary for appellant to borrow all or the greater part of the purchase money, and that if appellant did not succeed in procuring a loan by January 1, 1918, appellee would allow appellant such additional time as might be necessary to complete his negotiations for the loan; that a few days after the contract was executed appellant was notified by a loan company that the loan would be made to him upon approval of title; that he employed an abstractor to bring down the abstract of title to date; that after considerable delay appellant succeeded in obtaining abstracts from the loan companies who held liens upon the land; that the last abstract was received February 18, 1918; that appellant placed' these abstracts in the hands of the loan company from whom he expected to borrow the money; that this company furnished appellant with the list of requirements necessary in regard to the title before the loan company would furnish the money; that one of these requirements was that appellant should discharge the liens which two loan companies held and to make a correction in the entry made by the clerk showing the satisfaction of a trust deed on the record; that the appellee did not aid the appellant in meeting the requirements of the loan company in perfecting the abstract of title which the loan company exacted before it would make the loan; that appellant worked diligently to perfect this abstract until March 11, when appellee arbitrarily declared that appellant must pay him and close the deal by March 15; that while negotiations were pending the loan company delivered appellee a statement of the amount of interest it would be necesary for appellee to pay before he could discharge their loan; that appellee refused to pay this amount which in itself was sufficient to prevent the making of the loan; that appellee approached appellant and insisted that it was appellant’s duty to pay the interest accruing on the loan from the date of the making of the contract, which appellant agreed to do; that appellant» also offered at one time during the negotiations to pay the appellee the sum of $3,000 of the purchase price, which appellee refused; that after the making of the contract with appellee and while appellant was negotiating with the loan company to procure the necessary loan the lands greatly enhanced in value, being worth some $1,500 more at the time the appellee finally repudiated the contract than they were when the contract was executed; that while appellant was negotiating with a loan company the appellee interfered and prevented the loan company from making the loan by telling the agent of such company that he (appellee) was not going to comply with the contract.
Appellant further set up that there was an oral agreement between the appellant and the appellee by which the appellee was to hold the lands during the year 1918 and pay appellant, as rent therefor, one-fourth of all cotton and cotton seed and one-third of all corn raised on the land.
Appellant alleged that he had duly performed the contract on his part and that appellee refused to perform. Appellant, therefore, prayed that the appellee be required to perform his contract upon the payment to him of the purchase money and that appellant have judgment against the appellee in the sum of $2,650 for rent of the lands during the year 1918.
The appellee answered, admitting that he entered into the written contract set up in the complaint, but denied specifically the other allegations and alleged that appellant had never at any time offered to comply therewith, although repeatedly requested to do so. Appellee averred that until the expiration of the time allowed in the contract for the payment of the purchase money he was at all times ready, able and anxious to carry out the terms of the contract; that on account of the refusal of the appellant to comply with the terms of the contract the circumstances had so altered and changed" as to render it inequitable and unjust to require the appellee to convey the lands which circumstances were well known to the appellant during the life of the contract.
The appellant, among other things, testified that the reason that the contract was not carried out on or before January 1, 1918, as specified therein, was that he did not have the abstracts to eighty acres of the land; that it was appellee’s place to fumish'these abstracts.
Appellant was asked if he requested the appellee to furnish the abstracts and answered that he did after January 1 but not before; that on two different times he requested one Suggatt, who was acting as the agent for both of them in conducting the negotiations, to furnish him the abstract. The abstract of this particular eighty acres, it appears, was in the possession of a loan company. The appellant testified that Suggatt wrote this company for the abstract; that, after appellant realized that he was not going to be able to consummate the deal on or before January 1, 1918, he asked the appellee for an extension of time.
Appellant further testified as follows: “I said, ‘Mr. Hutton, I want to ask you in the presence of these witnesses for an extension of time if it takes longer than January 1 to get my loan through.’ I also said, ‘It may just be a few days and it may be longer, ’ and he answered, ‘Certainly that will be all right.’ That was all that was said in regard to the extension of time.”
Appellant testified that he. got the loan approved a f-ew days after the contract was made, but could not get the money until the Missouri State Loan Company, from which company he expected to borrow, had the abstracts examined. He did not secure the abstracts and send them to said loan company until February 11, 1918. The money was sent here direct, and appellant was ready to close the loan somewhere just after the middle of March. The loan company did not send the money earlier because it had heard through its agent that Hutton had backed out, and they would not send the money until it was settled. The appellee did not say anything to appellant indicating that he did not intend to comply with the contract until March 11, and then he called appellant to one side and asked him if he was about ready to close the loan and at that time informed appellant that he (appellee) would not wait any longer than March 15. In the course of the conversation the appellee further stated that he agreed to give the extension of time, but did not aim for it to be so long; that he owed the banks the sum of $6,000. Appellant also told the appellee that the delay was on account of the abstracts that he (appellee) was to furnish, and that he (appellant) would pay the appellee then the sum of $3,000; that the appellee replied that would not do any good, as he owed $6,000 to the banks that he would have to pay.
The appellant, in answer to a question, stated that he was never ready at any time to close up the deal as per the terms of the written contract before Hutton backed out, the reason being that he was getting money from the Missouri State Loan Company and that company made certain requirements with regard to the abstracts, which it was appellee’s duty to fulfill; that the failure to furnish the abstracts and perfect the loan and close the deal was not through any negligence of appellant.
The appellee testified that appellant never at any time after the contract was executed said that he was ready and willing to comply with the terms of the contract; that he (appellee), in order to make the sale, extended the time to March 15, in order to be able to buy Manila Bank stock which he (appellee) desired to purchase ; that he gave appellant the statement of the indebtedness against his land and testified that if appellant had paid or tendered him the purchase price of the lands within the original or extended time he could and would have conveyed a good and merchantable title by warranty deed; that after appellant failed to get the money it was necessary for appellee to raise the money which he did from the Missouri State Loan Company; that appel lee had an abstract to all his lands besides the one held by the loan company (referred to by the appellant), and appellee would have been glad to furnish those abstracts to appellant, had he known that appellant wanted them; that neither appellant, Suggatt, his- agent, nor Ashabranner, the agent of the Missouri' State Loan Company, ever said anything to the appellee about an abstract or called upon him to do anything about the loan.
The appellee filed as an. exhibit to his testimony the requirements made of the appellant by the loan company. These show that the abstracts were certified by the abstractor on January 5, 1918. These requirements also show that the only requirements affecting the lands of the appellee were concerning, the paying off of the existing indebtedness, and the other requirements affected the lands of appellant. The exhibit shows that practically all the requirements exacted by the loan company pertained to the lands of the appellant which were also to be included in the mortgage to secure the loan.
The trial court found the issues of fact and law in favor of the appellee and dismissed appellant’s complaint for want of equity, from which is this appeal.
The appellee did not set up in his answer, nor claim in his testimony, that the appellant had forfeited his rights under the contract by not paying the purchase money according to the time limit specified in the contract. On the contrary, the appellee extended the time twice. The failure of the parties, however, to consummate the contract on the day specified in the contract is important in determining at whose door the fault lies for not completing it on that day, and the other days to which the time was extended. \ •
There is a decided and irreconcilable conflict in the evidence on that issue. The burden was upon the appellant to show as a condition precedent to the relief sought by him that he had complied or offered to comply with the terms of the contract, or that he was then ready and willing to do so, and that if there had been any failure upon his part such failure was caused by some de fault or neglect on the part of the appellee to comply with the duties which he was obliged to perform under the contract. Henley v. Hengler, 118 Ark. 283.
We are convinced that a preponderance of the evidence shows that the appellant had not done or offered to do all that the contract required of him before the appellee announced his purpose to treat the obligation of the contract as at an end. While the testimony of the appellant tends to prove that appellee was to furnish the appellant with abstracts of title to enable the appellant to borrow the purchase money, yet his testimony does not show that he ever made any request of the appellee to furnish these abstracts or notified appellee that it would be necessary for him to furnish same before the day specified in the contract when it should be fully performed. On the other hand, the testimony of the appellee shows that he had an abstract of all the lands, and that he would have been glad to have furnished the same to appellant if he had known that appellant wanted same. The testimony of the appellee shows that there was no defect in his title, that he readily borrowed money on the strength of his title from the same loan company with which the appellant was negotiating. The testimony of the appellee to this effect is corroborated by the agent of the loan company.
The contract carried mutual obligations, and we have reached the conclusion that the appellant has not shown a full compliance on his part with the terms of the contract so as to entitle him to a specific performance thereof on the part of the appellee.
The findings and decree of the chancery court are, therefore, correct.
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Smith, J.
The Board of Directors of Red River Levee District No. 1 brought this suit against appellant, and alleged the organization of the levee district by Act No. 97 of the Acts of 1905, and that by section 32 of this act all the lands of the State lying within the district, except school lands, had been conveyed to it; that it accepted the title to said lands and has complied with all the requirements of the act and is the owner of all lands that belonged to the State at the time the act was passed, and that the lands here sued for were included among them. That the State acquired its title under the Swamp Land Grant, and thereafter conveyed the lands in suit to C. S. Itner on January 16, 1873, but later the lands forfeited to the State for the non-payment of the taxes due thereon for the years 1896 and 1897, and that on April 4, 1918, appellant procured a deed to said lands from the State Land Commissioner, the same being conveyed as lands which had forfeited for the non-payment of the taxes dne thereon.
The answer admitted that the land was included in the legislative grant to the levee district, but alleged that the grant was not absolute, but was conditional, and that the conditions there imposed constituted conditions subsequent for the non-performance of which the lands had reverted to the State, and had again become subject to sale by the State, and that the deed to him from the State Land Commissioner had effectively conveyed the title.
The decision of this question proves decisive of the case and renders it unnecessary for us to review the testimony upon which the court below found the fact to be that the restrictions and limitations contained in the act had been complied with.
The grant of the land, together with the restrictions and limitations there imposed, are found in section 32 of the act and reads as follows: “Section 32. That, for the purpose of assisting the citizens of the State to build and maintain a levee herein provided for, and in consideration of the general good of the State, all of the lands of this State lying within said levee district, except the sixteenth section school lands not subject to taxation, and all the right or interest the State has or may have within the next six years, by reason of forfeiture for taxes, to any lands within said levee district, except said sixteenth section school lands not subject to taxation, is hereby conveyed to said levee district under the following restrictions and limitations. Said levee district, represented by its board of directors, shall make a descriptive map of said lands, showing the location and character of the same. That said lands shall be graded into first, second and third grades, with reference to their relative elevation and timber, and a description of the land and timber given. The said levee district may sell said lands for the minimum price of five dollars ($5), three dollars ($3), and two dollars ($2) per acre as to grade, or may issue the bonds of said levee district secured by a mort gage on said lands or any part thereof, and payable as the board of directors may determine. The treasurer of the levee board of said district, upon receipt of payment of any part or parcel of said lands, shall certify the same to the president of said board, who shall execute a deed in the name of said corporation to the purchaser of said lands, the money arising from such sales or issuance of bonds to be applied solely to the construction and maintenance of the levee of said levee district. That said lands shall be exempt from State and county taxes for ten years, if not sooner sold by said district, and at the expiration of the term of said ten years from passage of this act, all of said lands not previously sold by said district shall be assessed in the name of said district for said State and county taxes. That the levee district shall have the same power to confirm the tax sales to lands in said district in a court of equity as is now conferred upon individuals who purchase lands at tax sales, and the proceedings shall be the same as is provided by law for individuals, providing that the president of said levee board shall make bond to the Governor, payable to the State of Arkansas, in the sum of five thousand dollars ($5,000), conditioned upon the faithful and honest appropriation of the proceeds of the aforesaid lands to the building and maintaining the levee of said district. The president of said levee board shall on the second Tuesday of May in each year make a report to the Governor of this State, showing the lands confirmed to said levee district by the courts of chancery, as provided for in this act, and all other lands hereby conveyed, showing the disposition, if any, made of those lands during the preceding year, the funds realized and where and how expended.”
We think the restrictions and limitations contained in the act are not conditions subsequent, the nonperformance of which would operate to defeat the deed. The act is a grant in praesenti, and the title to the land there referred to passed to the levee district, when the act was approved and became a law, and we think it contains no recital evidencing an intent that the land should revert upon the non-performance of these conditions. If the restrictions and limitations there referred to are conditions subsequent, then each of them is a condition subsequent, and a failure to perform any one of them would be as fatal as a failure to perform all of them. These conditions are too numerous, and some of them so comparatively unimportant, that we can not give this construction to the grant in the absence of any language indicating an intent that the land should revert upon the nonperformance of all, or any, of these restrictions and limitations. If the act were construed otherwise, a single failure to report annually to the Governor would determine the grant, as would a single failure to pay taxes.
The beneficiaries of this act are not the officers of the board who are charged with the performance of the duties there enumerated, but the act was passed “for the purpose of assisting the citizens of the State to build and maintain a levee. ’ ’ The act authorized the issuance of bonds to construct this levee, and the testimony shows that bonds in the sum of $215,000 have been issued and the proceeds of these bonds, together with the revenues collected from local taxation, have been expended in the construction of the levee to the proportionate benefit, no doubt, of the lands in suit as well as all the other lands lying in the district. It was contemplated that these lands would furnish, pro tanto, the security upon which the bonded indebtedness of the district would be based, and that the proceeds of the sale of these lands would be applied to the discharge of the burden arising from the construction and maintenance of the levee and, as a matter of grace, and to promote the State’s development, these lands were donated. The Legislature prescribed the manner of the disposition of the lands, and no doubt, by an appropriate action, any party in interest might enforce the discharge of the duties there enjoined. But that question is not before us, and it suffices to say that, in our opinion, an absolute title was granted to the levee district, and the limitations and restrictions set out above are not conditions subsequent.
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Hart, J.
(after stating the facts). Counsel for the plaintiffs claim that the defendants were bailees for hire and that the court erred in instructing a verdict for the defendants. They rely on the case of Phoenix Cotton Oil Co. v. Pettus & Buford, 134 Ark. 76, in which the court held that a bailee for hire in exclusive possession of the property must explain its loss before it devolves upon the bailor to show that it was lost through the bailee’s negligence. "We cannot agree with counsel in this conten* tion, and think that the receipts are essentially different in .the two cases. In that case the bale of cotton contained the number and the gin weight for identification as in the present case, but it also contained the followings “On return of this ticket properly endorsed we will deliver one bale of cotton ginned for P. & B. & 8. Hunt.” This receipt was signed by the manager of the gin company. It will be observed that the holder of the receipt or ticket was required to present it to the gin company before he could obtain possession of the bale of cotton. Because the customer could not acquire possession of the cotton without presenting the receipt, the court held that the receipt was contractual in its nature and established the relationship of bailor and bailee for hire between the parties.
In the case at bar there is nothing in the receipt itself to show that it constituted a contract between the parties. The evidence for the defendants shows-that it was given to the customer for his benefit solely in order that he might identify his cotton and take it away from the gin without any demand or notice to the'defendants. It is true that the customers were permitted to leave the cotton on the gin yards of the defendants, but this was done for their sole benefit so that they would not have to haul the cotton back home, or find a storage place for it until they were ready to sell it. Under this state of the record the defendants were gratuitous bailees. The liability of a bailee without reward for lost goods intrusted to him depends upon whether he was guilty of gross negligence. Gulledge v. Howard, 23 Ark. 61; Wear v. Gleason, 52 Ark. 364, and Baker v. Bailey, 103 Ark. 12.
The evidence shows that the cotton was left on the gin yards of the defendants solely for the accommodation of the plaintiff, and the jury would have been warranted, under the evidence as disclosed by the record, in finding that the defendants were not guilty of gross negligence in regard to keeping the cotton. Both parties asked for peremptory instructions and did not ask for any other instructions. Where both parties ask the court for a peremptory verdict and request no other instruction, the finding of the court is final and has the same effect as the verdict of a jury. Hill v. Kavanaugh, 118 Ark. 134; Ozark D. M. Corp. v. Townes & Garanflo, 117 Ark. 552; Nutt v. Fry, 119 Ark. 450, and St. L. S. W. Ry. Co. v. Mulkey, 110 Ark 71.
It follows that the judgment must be affirmed. | [
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Smith, J.
This is the second appeal in this cause, the opinion on the former appeal being found in 126 Ark. 31.
The law of the case was declared on this former appeal, where the contract out of which this litigation arises was set out, so it remains only to determine whether the law as there declared was properly applied at the trial from which this appeal comes, and we restate here only such facts as must be recited in the decision of that question.
We said, in construing the contract under which the parties operated, that the district was not required to take the entire output of the plant, but that the engineer of the district had the right to order the rock in such proportions as the district needed. We, therefore, held against Wiegel’s contention that he had only agreed to furnish the output of his plant, and that it was not the duty of the district to take the entire output, but that the district had the right to order rock in such proportions as it pleased.
Notwithstanding this construction of the contract, it is contended that Wiegel was performing the contract when the district breached it by refusing to furnish cars to haul the rock, or to pay for the rock already delivered.
The parties agree that the law is that he who commits the first breach of a contract cannot maintain an action against the other for a subsequent failure to perform, and that the decisive question in the case is, who committed the first breach?
The briefs contain an interesting discussion of the duty to furnish cars to haul the rock as between the parties. But we find it unnecessary to decide that question of law to dispose of the question of fact involved.
To begin with, it is undisputed that Wiegel’s contract only permitted him to charge the district 62 cents per yard for the rock, whether it was No. 1, 2, 3 or 4, whereas, because of the advance in the price, No. 1 rock was then worth $1 per yard and No. 3 rock $1.35 per yard, and could not be obtained at a less price. It is, therefore, apparent that it was greatly to the district’s advantage to have the contract performed, and the repeated and insistent, letters written to Wiegel, calling on him to ship the rock, and assuring him that money to pay for it was lying idle in the bank, leaves no doubt that the district desired its execution.
An order for five cars a day was placed, it being explained to Wiegel that a larger quantity could not be distributed over the road to be improved, and if more was shipped demurrage would have to be paid on unloaded cars, but that the contractor had the necessary teams to distribute that quantity of rock, and if it were not furnished, the district would be required to pay for the services of unemployed teams with their drivers.
A general order to ship the rock in the proportion of two cars of No. 1 to one car of No. 3 was given; yet it appears that only on five days were shipments made in the quantity ordered, and an even less effort was made to ship it in the proportions ordered.
The contractor and the engineer testified that the original plan for the construction of the road, which was made and approved before the contract with Wiegel was entered into, and which was never afterward changed, was to build the first course four inches thick with No. 1 rock, and the second course two inches, thick with No. 3 rock, and that it was better for the road for not more than a thousand feet to a quarter of a mile of the first course to be put down before the second course was put on top of it. That the hauling and traffic over the No. 1 course cuts up and jars the large rock loose and the course will not be compact and smoth to receive the finishing course of No. 3 rock, and the road would not, therefore, be as' good as it would be if the No. 3 rock was put on promptly. The commissioners testified that oh. June 10th they went to Wiegel’s plant, and found the crushed rock bins empty, and the plant idle, and unloaded cars standing on the sidetrack, and that thereafter they frequently wrote Wiegel and ’phoned him and made several trips to see him urging him to ship No. 3 rock, during all of which time Wiegel insisted that he was shipping all the No. 3 rock his plant produced, and that this condition continued until July 16th, when the course of No. 1 rock was 13,400 feet ahead of the course of No. 3 rock. Wiegel admits that at this time No. 1 rock was worth $1 per yard and No. 3 rock $1.35 per yard.
The contract called for payments by the district on or about the first and fifteenth of each month, and payments in full for all rock shipped prior to June 1st were made, but no payment was made subsequent to that date. Wiegel now insists that the failure to make the payments on June 15th and July 1st constituted a breach of the contract on the part of the district, and excused him from further performance. We do hot think so. Wiegel was already in default, and, in our opinion, a letter written by his attorney on July 9th explains Wiegel’s failure to continue shipments. This' letter reads as follows: “You are laboring under a misapprehension as to the amount of No. 3 rock you are entitled to receive. The contract called for 1, 2, 3 and 4, and this is the character or numbers of the stone produced by the crusher. The Is form about 50 per cent, of the output, 2s 25 per cent., 3s 15 per cent., and 4s 10 per cent. The contract price is such a low figure that it cannot be presumed for a moment that any one of these grades was intended to form the whole, or a large part, of the contract, leaving the remainder of the output unused by you. Under the contract you are to use the four different grades, and there is no reason to believe that they were to be furnished in different proportions than that of the output. This I think is the chief fault that you seem-to find with what you have received.”
It is apparent from this letter that Wiegel construéd the contract as requiring the district to take the entire output of the plant, mill run, and that he was not willing to continue shipments unless the district did so. The answer to this letter, as well as the entire correspondence, makes it plain that the district was willing and able to pay for the rock, if it could he furnished in the proportions ordered, and we, therefore, think the testimony warranted the court in' finding that Wiegel was the party who first made default.
It appears that Wiegel was given credit for the rock shipped after June 1st at the contract price, and was charged with the excess over the contract price on the rock which the district had to buy elsewhere. This the contract expressly authorized, and the judgment to that effect is therefore affirmed. | [
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SHAWN A. WOMACK, Associate Justice
11 Appellant Michael Lee Garrison filed in the circuit court of the county where he was incarcerated a pro se petition for writ of habeas corpus pursuant to Arkansas Code Annotated sections 16-112-101 to -123 (Repl. 2016), alleging the judgment-and-eommitment order entered in his criminal case was facially invalid because the trial court gave an erroneous jury instruction regarding parole eligibility. The circuit court dismissed Garrison’s habeas petition, finding that Garrison had failed to establish probable cause that he was being held illegally, that the trial court lacked jurisdiction, or that the commitment was invalid on its face. Now before the court is Garrison’s motion for extension of brief time, access to the record on appeal, and duplication of appellant’s brief. An appeal from an order' that denied a petition for postconviction relief, including an appeal from an order that denied a petition for a writ of habeas corpus, will not be permitted to go forward where it is clear that the appellant could not prevail. Williams v. Kelley, 2017 Ark. 198, 2017 WL 2378187. Because it is clear from the I ¿record that Garrison failed to establish probable cause for the writ to issue, we dismiss the appeal, and .the motion is therefore moot.
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. Philyaw v, Kelley, 2015 Ark. 465, 477 S.W.3d 503. Under our statute, a petitioner for the writ who does not allege his or her actual innocence and proceeds under Act 1780 of 2001 must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he or' she is being’ illegally detained. Ark. Code Ann. § 16—112— 103(a)(1) (Repl. 2016); see Barber v. Kelley, 2017 Ark. 214, at 3-4, 2017 WL 2473267. A habeas proceeding does not afford a prisoner an opportunity to retry his or her case, and 'it is not a substitute for direct appeal or postconviction relief. See Noble v. Norris, 368 Ark. 69, 243 S.W.3d 260 (2006). A circuit court’s decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, at 5, 434 S.W.3d 364, 367. A decision 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 made. Id. Unless the petitioner can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of- habeas corpus should issue. Fields v. Hobbs, 2013 Ark. 416, 2013 WL 5775566.
In his petition for writ of habeas corpus, Garrison argued that" the judgment-and-commitment order was rendered facially illegal, invalid, and unconstitutional. Specifically, Garrison contended that, when the trial court told the jury that he “could be eligible for | ¿parole- after serving one- third, or one-sixth, pursuant to a ‘New Law’ it told the jury an outright lie.... Simply put, the jury didn’t want Petitioner to only serve one-sixth or less and therefore imposed a life sentence.” Garrison further argued that the error in instructions given by the trial court was an error that should be corrected and that the trial court gave instructions on a Class C or D felony, which made his judgment-and commitment order “facially flawed” because the jury could, not impose a life sentence for a Class C or D felony. Garrison also requested an evidentiary hearing..
.-The-circuit'court, found that Garrison’s claim .that the trial court erred by “reading incorrect instructions to the jury” should have been addressed during the trial, on direct appeal, or in a timely Rule 37 petition. The circuit court further found that Garrison’s life sentence for aggravated robbery was,within the statutory range of punishment for the offense and that his judgment-and-commitment order was not facially invalid. The circuit court dismissed Garrison’s habeas petition, finding that he had failed to, state a claim on which relief could be granted; we agree.
None of Garrison’s claims establish the facial invalidity of the judgment in his case or the lack of jurisdiction by the trial court. See Philyaw, 2015 Ark. 465, 477 S.W.3d 503. Garrison’s assertions of defective jury instructions are allegations of trial error that do not implicate the facial validity of the judgment or the jurisdiction of the trial court. See Williams v. Kelley,.2017 Ark. 200, at 3, 521 S.W.3d 104, 107; Mackey v. Lockhart, 307 Ark. 321, 322, 819 S.W.2d 702, 703-04. (199.1). (A ha-beas corpus proceeding does not afford a prisoner an opportunity to retry his case, and a writ of habeas corpus will not be issued to correct errors or irregularities that, occurred at trial.). The remedy in such a case is a direct appeal. Birchett v. State, 303 Ark. 220, 795 S.W.2d 53.(1990). Moreover, habeas proceedings do not extend to issues of parole eligibility and are limited to the questions of whether the petitioner is in custody pursuant to a valid judgment of conviction or whether the convicting court had proper jurisdiction. See Blevins v. Norris, 291 Ark. 70, 71, 722 S.W.2d 573, 574 (1987).
Garrison was convicted of aggravated robbery pursuant to Arkansas Code Annotated section 5—12—103 (Repl. 1993), a Class Y felony, and sentenced to life imprisonment, which was affirmed by this court. Garrison v. State, 319 Ark. 617, 893 S.W.2d 763 (1995). The trial court instructed the jury that “[ajggravated robbery is punishable by life imprisonment, or a term of years ... Persons under sentence of life imprisonment are not eligible for parole.” The trial court then proceeded to state the terms for parole eligibility if the jury sought to sentence Garrison to a term of years.
At the time Garrison committed the offense on or about November 1, 1993, Arkansas Code Annotated section 16-93-607 (1987) set forth the parole-eligibility requirements for felonies committed on or after April 1,1993. Notwithstanding Garrison’s claim that the trial court erred by giving an erroneous instruction on parole eligibility, Garrison was and is sentenced to life imprisonment, a sentence for which he, is not eligible for parole, and his sentence has not been commuted to a term of years.
Garrison’s sentence of life imprisonment was neither illegal nor unauthorized. Garrison was not sentenced to a term of years, and a question regarding parole eligibility is |f¡not properly raised in a habeas petition. Blevins, 291 Ark. at 71, 722 S.W.2d at 574. Arkansas Code Annotated section 5-4-401(a)(l) authorized a term of imprisonment for a Class Y felony of ten to forty years or life, and Garrison did not dispute the sentencing range or that his sentence was outside the statutory limits. Philyaw, 2015 Ark. 465, 477 S.W.3d 503. Furthermore, he makes no challenge regarding his sentence except to argue that the trial court erred regarding its instructions to the jury, which, „ as, stated previously, should have been a challenge he raised at trial or on direct appeal. See Birchett, 303 Ark. 220, 795 S.W.2d 53.
Regarding Garrison’s claim that the trial court instructed the jury on a Class C or D felony and that the jury could, not impose a life sentence for a Class C or D felony, , a claim of trial error does not implicate the facial validity of the judgment or the -jurisdiction of the trial court. See Mackey, 307 Ark. 321, 819 S.W.2d 702. From the record before this, court, the colloquy Garrison relies on to make this claim was outside the hearing of the jury, and no such error occurred because the jury received no instructions regarding a Class C or D felony as demonstrated by the record. Garrison failed to establish probable cause for the writ to issue because he did not plead either the facial invalidity of -the judgment or the lack of jurisdiction by -the trial court and failed to make a showing by affidavit or other evidence of probable. cause to believe that he is being illegally detained. See Philyaw, 2015 Ark. 465, 477 S.W.3d 503. Because Garrison failed to state a cognizable claim for the writ to issue, the circuit court did not err by not holding an evidentiary hearing on Garrison’s habeas petition. .See Mackey, 307 Ark. 321, 819 S.W.2d 702.
Appeal dismissed; motion moot.
Hart, J., dissents.
. Section 16-93-607(c)(l) stated that “[i]n-mates sentenced to life imprisonment shall ■ not be eligible for release on parole unless the sentence is commuted to a term of years by executive clemency. Upon commutation, the inmate shall be eligible for release on parole as provided for in this section." | [
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BART F. VIRDEN, Judge
hA Drew County jury found Willie Ronay Payne guilty of being a felon in possession of a firearm, aggravated residential burglary, and aggravated robbery and sentenced him to 420 months in the Arkansas Department of Correction (ADC). On appeal, Payne argues that his convictions must be overturned because he was not allowed to ask leading questions during the cross-examination of witness Jeremiah Noel. We are barred from reviewing his argument and affirm.
An information was filed on May 6, 2016, charging Willie Ronay Payne and two accomplices, Demarius P. Blanks and Jessica B. Dodson, with aggravated residential burglary, aggravated robbery, and theft of property. Payne was separately charged with being a felon in possession of a firearm. Eventually,. Payne’s case was severed from the other two individuals charged.
| gPayne’s trial was held on October 4, 2016. At the trial, Payne’s attorney asked leading questions during the cross-examination of Jessica Dodson, Shirley Amber Ridgell, and Lamichael Wigfall without objection from the State or the trial court; however, during the cross-examination of Jeremiah Noel, the trial court sua sponte objected to defense counsel leading the witness. The following exchange occurred:
The Court: Mr. Best, he objected when you led the witness. He’s been leading the witness for five minutes now, and I haven’t heard an objection.
Defense Counsel: I’m on cross, Judge.
Prosecutor: He’s on cross.
The Court: It does not matter.
Defense Counsel: I—
The Court: It does not matter. Under the rules of evidence, it depends on the attitude of the witness and how the witness is. aligned in the case. That’s what determines whether or not leading questions are permissible.
Defense counsel ceased asking leading questions and did not proffer Noel’s expected testimony. Payne was convicted of being a felon in possession of a firearm, aggravated residential burglary, and aggravated robbery. He was sentenced to 420 months’ imprisonment in the ADC. Payne filed a timely notice of appeal.
On appeal, Payne does not challenge the sufficiency of the evidence convicting him. Instead, Payne argues that the trial court erred when it sua sponte ordered defense counsel to refrain from asking leading questions of witness Jeremiah Noel. Because Payne failed to proffer Noel’s expected testimony, we are left with nothing to review, and we must affirm.
|sWhen evidence is excluded by the trial court, the party challenging that decision must make a proffer of the excluded evidence at trial so that the reviewing court can review the decision unless the substance of the evidence is apparent from the context. Griffin v. State, 2015 Ark. 340, 470 S.W.3d 676. This court cannot address the issue Payne raises regarding the merits because the substance of the expected testimony is not apparent from the context, and there was no proffer of Noel’s expected testimony. Without such a proffer, this court cannot say whether an error occurred or whether any such error was prejudicial. See Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003).
Payne also argues that not only was he not allowed to ask leading questions of Noel, he was also prevented from doing so during the cross-examinations of Jessica Dodson, Shirley Amber Ridgell, and Lami-chael Wigfall. The record does not bear out Payne’s assertion. All three of the above-named witnesses were asked leading questions during cross-examination without objection by the State or the trial court.
Affirmed.
Klappenbach and Brown, JJ., agree. | [
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