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McCulloch, C. J.
This action involves an attack on the validity of a tax sale under which appellee asserts title to the tract of land in controversy. There were numerous grounds for the attack stated in the complaint, but all of them appear to have been abandoned except the one that the sale was void for the reason that the school taxes were not properly levied by the county court.
The record of the proceedings in the county court showing the levy of the school taxes for the year mentioned was introduced, and it appears from the face of that record that in one of the school districts the tax was not voted for the full amount which the court levied. This, of course, would render void the sale of lands covered by that levy, but appellee calls attention in the brief to the fact that it does not appear in the record now before the court that the tract of land in controversy was situated within the school district mentioned, and it is positively asserted that as a matter of fact the tract is not ip that district, It is true that there is nothing in this record, as abstracted, to show that the land in controversy is in school district No. 54, the one to which the record of the county court relates. If we could take judicial knowledge of the location of particular tracts within the boundaries of a school district (which we do not decide), it is unnecessary for us to attempt to make our theoretical knowledge real by proper investigation since appellant has not challenged the statement of appellee in his brief that the tract of land in controversy is not within that school district. We should assume, therefore, without investigation, even if we could take judicial knowledge of the fact, that appellee’s statement is correct, for it devolves on appellant to show that the decree is erroneous.
It is further contended, however, that the record of the county court introduced in evidence in this case shows that there was no valid levy of school taxes in any of the districts of the county, and. that the sale of the tract of land in controversy was void, whether it was situated in School District No. 54 or in some other district.
The statute (Kirby’s Digest, § 1498) provides, with respect to the records of county court proceedings, that “the names of those members of the court voting in the affirmative and of those voting in the negative on all propositions or motions to levy a tax or appropriate money shall be entered at large on said record.”
We have decided that this provision of the statute is mandatory, and that a levy of taxes or the appropriation of funds by the quorum court is void unless the record shows affirmatively the names of the members of the court voting on the question. Hilliard v. Bunker, 68 Ark. 340; Alexander v. Capps, 100 Ark. 488; Morris v. Levy Lumber Co., 103 Ark. 579.
The record in this case discloses an opening order of the quorum court on the day the tax levies were made, reciting the names of the justices of the peace present, and that those present constituted a majority of the jus tices of the peace of the county. Under the heading of “School Tax Levy” there was a recital that the court took up “the matter of levy of school tax for the various school districts” voted on at the district school meetings, that the “same are presented to the court and all of the justices and are by them examined, and the result of said election held in each is by the court and justices ascertained, and from which the court and justices finds that said school districts have voted the following levy for the purposes hereinafter set forth as follows:” Then follows a list of the several school districts, giving the amount of tax voted at the school meetings. Then follows the order relating to levy of tax in district No. 54, and the concluding sentence of the order of the court on this subject is as follows:
“It is further considered, ordered and adjudged by the court, all of the justices concurring, that a levy of special tax on all school districts in the county other than School District No. 54, be and the same is hereby made respectively as herein set forth for the year 1914.”
It is therefore seen from the above that there is a recital of the presence of a majority of the justices of the peace, giving their names, at the time the school tax was levied, a recital of the amount of tax voted in each school district, and a further recital of the order of the court, “all of the justices concurring,” that the school tax be levied as voted in the several districts. What more, therefore, was necessary in order to constitute an affirmative showing on the record of the “names of those members of the court voting in the affirmative and. those voting in the negative” on the proposition to levy the school tax? The record must be. considered in its entirety, and, when thus viewed, it shows the presence of the justices of the peace, and that they all manifested in some form their favorable vote for the levy of the school tax. This brings the case within the rule announced by this court in Hilliard v. Bunker, supra, that where the record shows affirmatively that there was a vote on the proposition to levy taxes, that the vote was unanimous, and the record also recites the presence of a majority of the justices of the peace of the county and their names, this was a sufficient compliance with the statute.
Counsel for appellant earnestly contends, however, that the recital of a concurrence of all of the justices of the peace does not show that there was a vote on the question or that concurrence was manifested by any overt act of the justices present. It is argued that the concurring attitude of the justices may have been expressed by mere silence and that this is not sufficient compliance with the statute, which requires a vote.
This is, we think, a rather strained interpretation of the words, “all of the justices concurring,” as found in the record. There is, as we have already seen, a recital in the beginning that the school taxes for the various districts as certified by the county court were examined by all of the justices, and in the concluding paragraph of the order it was recited that all of the justices concurred in the order of the court levying the taxes. The use of the word “concurring” necessarily implied consent, evidenced in some overt way, and not a mere silent acquiescence or submission. 2 Words and Phrases, p. 1390. The use of the word “vote” would not carry with it any stronger implication of some affirmative act of the justices in manifesting their favorable expression.
We are of the opinion, therefore, that when the record is considered as a whole it shows sufficient compliance with the statute by giving the names of those voting on the proposition to levy school taxes.
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Lacy, Judge,
delivered the opinion of the court:
The instrument sued on contains an assignment of a contract coupled with a warranty. It is perfectly clear to our minds that the assignments passed no legal interest in the contract attempted to be assigned, according to our statute of assignments, then in force, to the plaintiff, in such manner as to enable him to maintain the action in his own name. Steele and McCampbelPs Dig. p. 74, sec. 1. But the assignment unquestionably passes the equity in the contract.
It is contended in behalf, of the defendant in error that the declaration is defective, because it wholly fails to show that the plaintiff sued in his representative character or capacity. The doctrine upon this subject is correctly laid down in Brown vs. Flicks, and in Lyon vs. Evans, and others, 1 Ark. 341 aud 365. And if the declaration falls within the principles established in these cases, it is certainly defective on demurrer. If a party sues an executor, there must be a substantive averment in the pleadings, showing that he sued in his representative capacity, and nothing by intendment shall be taken to supply the want of such an allegation. But it is immaterial in what part of the declaration or of the pleadings that averment occurs.
The declaration now under consideration expressly contains such an averment, and unquestionably shows that the plaintiff sued in his representative, and not in his individual capacity, for it alleges that Byrd, Belding and Shelton failed to pay the intestate in his life-time for the rations delivered by him, nor have they, as yet, paid the same or any part thereof to the said plaintiff as administrator as aforesaid. The enquiry then is, what is the character and nature of the agreement sued on? Is it a covenant or collateral undertaking? No precise or technical words are necessary to create a covenant, but any words which show the intention of the parties will be sufficient for that purpose. Covenant is agreement of two or more persons by deed in writing, sealed and delivered, whereby either one or the other of them doth promise that something is done already, or shall be done afterwards. The true inquiry always is, what are the intentions of the parties? In construing such agreements, it must be considered in reference to the context, and performed according to the spirit and intention of the parties. If there be any ambiguity in its terms, such construction must be given as will militate most strongly against the covenantor. By applying these rules to the instrument sued on, they will readily determine its true character. Gaster vs. Ashsey, 1 Ark. 335, and authorities there cited.
The latter part of the agreement purports to assign the contract the defendant held upon Byrd, Belding and Shelton to Ludovicus Belding; but this clause, although wholly inoperative as an assignment at law, certainly does not vitiate or destroy the component parts of the agreement. The first clause certifies that the defendant’s contract to supply 22,000 rations for Byrd, Belding and Shelton, has been complied with on his part, and that they are indebted to him for the amount of the supplies at the price agreed upon, which was to be ascertained by reference to their contract with the government. This is certainly a covenant; for it certifies that the covenantor had performed his part of the agreement with Byrd, Belding and Shelton, by delivering the 22,000 rations of supplies for the emigrating Choctaw Indians, and that they stood indebted to him for the amount of rations so delivered. It is true that the amount is not set out in the agreement, but that is capable of being ascertained by reference to Byrd, Belding and Shelton’s contract with the government, which fixes the price which is to be paid for each ration. The word certify, which is used in the agreement, is certainly equivalent in its signification and meaning to the word promise, agree or declare, and these latter words are as capable of covenant, as the words grant, warrant or guarantee. Does the term certify, as used in the instrument, correspond with that covenant? That it does, is perfectly manifest, from the fact that the instrument is put under seal, and that it was the covenantor’s intention to make such an agreement, and so it was understood by the covenantee as well as himself. For upon this certification or warranty, he paid the covenantor the sum of $1750, and to it he looked for indemnity in full confidence that its stipulations would be complied with. The last clause in the instrument, after reciting the assignment, contains this peculiar and significant expression, “ that the said Byrd, Belding and Shelton will pay, on sight, to said Belding, or order, the amount of said rations according to this contract.” What, then, is the meaning of this language? It is a covenant that Byrd, Belding and Shelton will pay, at sight, the amount of rations delivered according to their contract. And does the covenantor certify that fact to the covenantee? This latter part of the sentence has no connection with the assignment although it immediately follows it. For the sense of the agreement would be unintelligible upon any such interpretation. To assign that Byrd, Belding and Shelton would pay at sight, is an unmeaning and useless expression. But to certify that they would do so is both intelligible and rational.
The instrument is under seal, and that gives to it such a character of a covenant as carries with it a good or valuable consideration, and it must be construed and taken most strongly against him who executed it. This being the case, the covenantor certified to Ludovicus Belding, Byrd, Belding and Shelton’s indebtedness to him, and that they would pay said Belding on sight. There are three distinct and separate covenants in the agreement, and upon each of these covenants the covenantor is bound to make his stipulation good: First, that he had performed his part of the agreement; second, that Byrd, Belding and Shelton were due him for the rations he had delivered; and, thirdly, that they would pay the amount then due to Ludovicus Belding at sight. All these three things he covenanted were true, and he cannot now be permitted to exonerate himself from any of them, provided the plaintiff has properly charged him in his declaration.
It is said, in behalf of the defendant, that the covenant was not binding upon the party making of it, for it was a guaranty to Ludovicus Belding, who constituted one of the firm of Byrd, Belding and Shelton, and therefore his making the agreement operated as a payment by one partner for the benefit of the firm, and consequently no action could be maintained upon such a contract. It is wholly impossible for this court, judicially, to know any such thing. The defendant has not thought proper to put such fact in issue. And the record no where shows that Ludovicus Belding was one of the firm of Byrd, Belding and Shelton.
The declaration is very inaccurately drawn, and sets out no substantial breach in such manner as will render the defendant liable, it contains no averment that the defendant had not performed his part of the agreement with Byrd, Belding and Shelton, neither does it allege that they were not indebted to him by reason of non-performance of his contract. It states that the agreement sued on was presented to Byrd, Belding and Shelton, and they refused to pay according to its true meaning and effect, and upon this allegation it attempts to charge the liability of the defendant. The allegation is wholly insufficient for that purpose, for it fails to state at what time the covenant was presented, or by whom presented; and nothing can be presumed by way of intendment that will cure the defect. Whether it was presented before or after the assignment, or by whom presented, it is impossible to determine. There is no specific allegation that they failed to pay at sight. The averment relied on is therefore insufficient to raise any liability. There being no sufficient breaches assigned, of course the court below rightly sustained the demurrer. The judgment of the circuit court must therefore be affirmed with costs. | [
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Ringo, Chief Justice,
delivered the opinion of the Court:
The plaintiff expressly waives all objections to such discrepancies and irregularities, as arc shown by the return of the County Court, and submits the single question, whether the keeping of a stud horse is a privilege embraced by the Constitution which may be taxed as such.
The attorney representing the county is also understood to rest the case solely upon the validity of the act of the Legislature, approved November 7th, 1836, in pursuance of a provision contained in the third section of which the tax in question is imposed. The section enacts “that in order to raise a revenue for county purposes in addition to-'the sums arising from tavern, grocery and ferry licenses, the county courts of the respective counties in this State shall have power to levy a tax of not exceeding fifty cents of each and every free male inhabitant, between the age of one and fifty years, residing in their respective counties; and for the privilege of keeping each stallion or jack, a tax equal to the amount for which every such stud horse, or jack, shall stand for the season; and a tax on the value of all property made taxable by the first section of this act not exceeding one-fourth of one per cent, on the nett value thereof; which taxes shall be levied and collected in the same manner as State taxes arc, and paid over to the County Treasurers of the respective counties.” Acts 1836, p. 189. The first section of this act subjects “ all horses, mules, jack, jennies, and neat cattle of whatsoever kind, or description, above three years old,” to taxation; and therefore, according to the express letter of the section above quoted, the county court may levy on stud horses, a tax ad valorem, in addition to the price for which he stands for the season; though in the present instance, such charge does not appear to have been made. Yet if the keeping of a stud horse may be taxed as a privilege, the act in question warrants it. But how is the keeping of a stallion metamorphosed into a privilege ? It certainly is not a right derived from, or enjoyed by virtue of, any grant from the government; nor is it enjoyed by part, and denied to others of the community. It is a right which, under our political organization, may be enjoyed as perfectly without, as with the aid of a grant from the Legislature. It is strictly and emphatically a common right, which1 cannot be denied, though it may be so restricted and regulated by law, as' to prevent injury to others, as well as improper, obscene, or offensive exhibitions of such beasts, but such laws can only be enforced by the infliction of penalties and punishments on those who violate such legal restrictions or regulations. Besides which, stallions are unquestionably property, within any legal definition of the term, and as such, every person in this State has the absolute right of acquiring and keeping .them. Const. Ark., Art. II, Sec. I. And this is a right of which no one can be deprived by any act of the Legislature, and therefore, as the right is absolute, and enjoyed by all, and none can be deprived of its benefits, it cannot by possibility be created a privilege to be enjoyed by a portion of the community only. This principle is alsoasserted and , enforced in, the case of Stevens and Woods vs. the State, ante p. 291. We are therefore of the opinion, that so much of the 3rd section of the •Statute, approved Nov. 7, 1836, as purports to authorize a tax to be •levied “for the privilege of keeping each stallion,” is in conflict with, and repugnant to the Constitution of this State, and void, and the tax with which the plaintiff is charged, in pursuance of said provision, on the tax book of the county of Pulaski, for the year A. D. 1838, is wholly unauthorized by law,- and the judgment of the County Court directing it to be levied is illegal, and ought to be, and the same is hereby quashed, and set aside with costs, and the collection thereof perpetually superseded.
But to prevent any misunderstanding, or misapplication of the principles asserted and decided in this case, as well as the case of Stevens and Woods, above cited, it may not be improper, before we dismiss this subject, to remark, that the court has not intended to decide, or in fact decided, whether the taxes levied for county purposes, must be 'ad valorem, and equal and uniform throughout the State, or may be otherwise in the discretion of those to whom the power of prescribing such taxes is confided, or what property, or things, may be constitutionally taxed. These are, in the opinion of this court, important questions, not necessarily involved in cither case, in relation to which the court has not designed either to express, or intimate any opinion. | [
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Ringo, Chief Justice,
delivered the opinion of the Court;
The only question presented by the record and assignment, which it becomes our duty to consider, is this: Is the service of the process on Rose, as set forth in the return thereof by the sheriff, endorsed on the writ, sufficient in law to authorize and uphold the judgment by default given against him by the Circuit Court?
The solution of this question depends upon the construction to be given to the thirteenth, fourteenth, and fiftecenth sections, of the CXVI. Chap, of the Revised Statutes of Arkansas, pages G21, 622, which provide “ that a summons may be executed either by reading the writ to the defendant, or by delivering him a copy thereof, or by leaving a copy thereof at his usual place of abode, with some white person of the family over 15 years of age.
“ And in all such cases where the defendant shall refuse to hear such writ read, or to receive a copy thereof, the offer of the officer to read the same, or to deliver a copy thereof, shall be a sufficient service of the writ; and every officer to whom any writ shall bé delivered to be executed, shall endorse thereon the time when such writ came to his hands, and shall make return thereof, in writing, and shall sign his name to such return, and set out how or in what manner he executed the same.”
The appellees insist that the presumption of law is in favor of the return. That certainty to a common intent only is regarded, and there being but one defendant named in the writ, the conclusion is irresistible, that it was u executed,” and the sheriff states that fact in his return; and if executed, it must ex necessitate rei have been executed on the defendant. Otherwise it could not have been executed at all; which last position is inadmissable, because it controverts the truth of the fact stated in the return, which is always taken as true until the contrary is proved; that the defect in the return, if any, was cured by the appearance of Rose, or the statute of jeofails, and was subject to amendment either before or after judgment; and that an appeal from a judgment by default, cannot be taken by the defendant, until he has applied to the court to set aside the judgment, and his application has been overruled or denied.
The law certainly presumes, that every public officer will perform his official duties according to law; and if the facts stated by the sheriff in his return of process show a legal service, as a general rule their truth cannot collaterally be questioned by the parties to the proceedings; but when the return, admitting all the facts stated in it to be true, essentially fails to show a valid legal service, we are not aware of the existence of any principle of law, or rule of practice, by which the court could be justified in presuming their existence, or supplying the omission. It is, also, as a general rule, admitted, that an officer may, by leave of the court, amend his return in form or Substance, cither before or after judgment, subject, however, at this time, to the important limitation of this right imposed by the 115th and 116th sections of the statute above referred to, Revised Statutes, Arkansas, -page 635, which, in our apprehension, limits the right, when the amendment is made aftci’ judgment, to matters of form. And there can be no doubt that the defendant, by appearing to the action, generally waives all exceptions to the writ, and the service of the writ; or at least he is precluded thereby from taking any advantage of either.
But he has no legal right to appear to or defend the action, after final judgment is given against him; for so long as it remains in force, he is hound by it, and his rights involved in the controversy are considered as determined. lie has, in legal parlance, “ no day in court and this was the situation of Rose, when he prayed the appeal in this ease, which is now urged as an appearance, by which he is concluded from taking advantage of any defect in (lie service or return of the writ,- We cannot, therefore, consider the prayer for an appeal as equivalent to an appearance, or regard him as having appeared to the action, so as to preclude him from the benefit of any legal objection to the return of the sheriff. The proposition stated and relied on by the defendants in error, that no appeal will lie in favor of the defendant from a judgment by default, until he has applied- to the court to set aside the judgment, and failed in' his application, is, in our opinion, equally untenable. By the 141st section of the statute before cited, Rev. Statutes, Ark., 638, it is enacted, “ that the party aggrieved by any final judgment or decision of any Circuit Court in any civil case, may make his appeal to the Supreme Court.” Other sections of the same statute prescribe the time within which the appeal shall be prayed, and define the conditions upon which it shall be granted, all of which appear to have been observed and strictly complied with by Rose; and we do not perceive how it is possible that the provisions of the seventy-seventh section of the same Act, which authorizes the court to set aside the judgment, for good cause shown, at any lime before the damages shall be assessed, and on such terms as may be just — or of the eightieth section, which provides, that whenever an interlocutory judgment shall be rendered for the plaintiff by default, or upon demurrer in any suit founded on any instrument in writing, and the demand is ascertained by such instrument, the court shall assess the damages, and final judgment shall be given thereon, cannot be considered as imposing any restriction upon the right of appeal, as given by the 141st section. One of them may, and probably does, enlarge the rights of the defendant, against whom judgment by default is given, while the other simply dispenses with the necessity of empannelling a jury, to inquire of damages in such cases as arc embraced by its provisions, and authorizes the court' to assess the damages, and give final judgment therefor; but surely neither can have any effect upon the right of appeal.
It is a principle alike essential to the preservation and security of private rights and civil liberty, that no valid judgment can be given, until the defendant or person to be bound thereby has appeared to the proceeding, or had actual or constructive notice thereof, and an opportunity of being heard in defence of his rights; and accqrding to this principle, enforced by the provisions of the statute first quoted, no judgment by default can be justified, or legally given, until it appears affirmatively by the record, or other competent legal proof, that the defendant has had actual or constructive notice of the proceeding, and failed to appear in obedience thereto; then, and not otherwise, the law considers him as making default by not appearing to answer to or defend against the charge preferred against him, and justifies an adjudication upon his rights without his presence.
• Having thus presented the principles and rules by which the validity of the judgment given in this case must be determined, and stated and disposed of several propositions presented and relied.on by the appellees, we will now proceed to test the return before us, by those principles and provisions of law, and determine upon its suffi-, cien cy.
The return states, that the process was executed by reading, but omits to state what was read, or to whom or at what .place. The writ bears date on the 18th day of March, and the return on the 8th of April, 1839. At the date of the former, the law required the writ to be endorsed on the declaration, and that the writ and declaration should go out and be served together; and the reading or delivery of a copy to the defendant of either without the other, would not have been a sufficient service; but at the date of the return, the .provisions quoted above were in force, and constituted the rule by which the officer should have acted and been governed, in the execution of the writ. And another section of the same statute provides, that the declaration shall not accompany the writ, or be served therewith. But it is evident that the declaration and writ in this case were both in the hands of the sheriff. Did he read the delaration or the writ, of did he read both of them to the defendant? Did he read them or either of them to the defendant in the county of Chicot? Does the return show satisfactorily, or with sufficient certainty, how' the writ was executed, “ to justify” the conclusion that it was executed according to law ? We think it does not. The sheriff was expressly required bylaw, to state in his return how, or in what manner, he executed the writ. This he has attempted to do, and wc arc to presume that he has set forth in his return, as many of the facts, necessary to show a valid service, as he could consistently with the truth, Yet he, contrary to the express direction of the statute, and in direct violation of his duty, if in fact the writ was executed by him according to law, has entirely omitted to state what he did read, and to show by reasonable intendment, that he read the writ to the defendant in Chicot county. These facts are material, and they, or something equivalent to them, must appear by the return, to authorize a judgment by default for the non-appearance, of the defendant. But every fact stated in this return may be literally true, and the sheriff or his deputy never have read the writ to the defendant, or, if read to him, it may not have been in Chicot county; and, in either event, there would not have been a legal service. Under these circumstances, the law did not, in our opinion, justify any adjudication upon the rights of Rose, without his appearance. And, therefore, the judgment in this case given against him by the Circuit Court of Chicot county, ought to be, and is, hereby, reversed, annulled, and set aside, with costs, and the case remanded to said Circuit Court, for further proceedings to be there had according to law, and not inconsistent with this opinion, and according to the rule established and uniformly acted upon by this court. The case, when returned to the Circuit Court, must be considered and proceeded in, as-though Rose had been legally served with a valid writ, more than thirty days previous to the term of the court to which the case may-be regularly returned, he having voluntarily made himself a party thereto, by prosecuting his appeal to this court. | [
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OPINION OF THE COURT. This is a case brought here by [Jesse Jeffrey, on] appeal, and the following errors are assigned: 1. “The appellees [Schlasinger and Gillett] offered in evidence their original book of entries, having previously proved they were regular merchants and kept a correct book of entries as such, and that the book was in their handwriting, and the court permitted the book to be read in evidence to the jury.” We cannot but look upon a proceeding of this character as fraught with the most dangerous consequences, and as tending to encourage fraud and imposition, in the highest degree. 3 Bl. Comm. 368; Owens v. Adams [Case No. 10,633]. It is also unprecedented except in states where allowed by statute, and is then generally limited to small amounts. We are of opinion that it was error to admit such testimony. 2. “The court erred in not permitting the defendant under his plea of non-assumpsit to give evidence of payment,” We think the court did err in excluding this testimony, as payment may be given in evidence under the general issue without notice, as decided by this court, in the case of John Smith, T. v. Edmund Hogan, and as the authorities clearly establish. 1 Salk. 394 ; 6 Com. Dig. “Pleader,” E 14; 1 Ld. Raym. 217, 566; 1 Chit. Pl. 511; 12 Mod. 376. Reversed.
By the common law of England, shop books are not allowed of themselves to be given in evidence for the owner. But a clerk or servant, who made the original entries may have recourse to them to refresh his memory, as to other written memoranda made at the time of the transaction. If the clerk or servant who made the entries be dead, the books may be admitted in evidence to show delivery of the articles on' producing proof of his handwriting. Bull. N. P. 282; 1 Salk. 285; 2 Ld. Raym. 873; 2 Salk. 690. But if the clerk be living, though beyond the jurisdiction of the court, the entries are inadmissible. 1 Esp. 1. Where there are regular dealings between the plaintiff and defendant, and it is proved that the plaintiff keeps fair and honest books of account, and keeps no clerk, his books of account, under the circumstances and from the necessity of the case, are admissible as evidence. Vosburg v. Thayer, 12 Johns. 462; Case v. Potter, 8 Johns. 163. In other states, the suppletory oath of the plaintiff must be added. Poultney v. Ross, 1 Dall. [1 U. S.] 238; Sterrett v. Bull, 1 Bin. 234; Cogswell v. Dolliver, 2 Mass. 217; Prime v. Smith. 4 Mass. 455. In Arkansas, “the regular and fairly kept books of original entries of a deceased merchant, or regular trader, or any person keeping running accounts for goods, wares, merchandise, or other property sold or labor done, accompanied by the affidavit of the executor or administrator of such deceased person, or some creditable person for him, setting forth that they are the books, or accounts of his testator or intestate. shall be evidence to charge the defendant for the sum therein specified, subject to be repelled by other competent testimony.” Mansf. Dig. § 7. p. 499. But this is subject to this qualification, that “to entitle the party to introduce such evidence, he must first establish to the satisfaction of the court, that his testator or intestate had the reputation of keeping correct books.” Id. § 8, p. 491. | [
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JOHNSON, Judge.
This is a motion to dismiss the appeal made by the appellee [Jacob Buzzard], the plaintiff in the court below, on the ground that the appellant [Massack H. Janes], the defendant in the court below, failed by himself or agent to make the affidavit required by law at the time of taking the appeal. The fifty-fourth section of the statute under the title “Judicial Proceedings,” in Geyer’s Digest, 261, provides that, “if any person shall feel himself aggrieved by the final decree or judgment given in any of the circuit courts in any cause wherein, the matter in dispute exceeds, exclusive of costs, the sum or value of one hundred dollars, it shall and may be lawful for such person at the term in which judgment is given, to enter his or her appeal to the superior court; provided that no appeal shall be. granted to any defendant in actions of debt or in. actions upon-the case, for note, bill, book account, or assumpsit, unless the defendant or his agent shall make affidavit -or affirmation stating that he does not appeal for the purpose of delay or' vexation, but tha.t he believes himself aggrieved -by the judgment of the inferior court.” If the proviso just recited be in force, the motion to dismiss this appeal must prevail, as the appellant made no affidavit or affirmation in the circuit court at the time he prayed the appeal. But it is contended that the proviso requiring the affidavit is repealed by subsequent legislation. Mr. Geyer, the compiler of the Digest, has marked it as repealed by the fifty-fifth section of the same title, and in this he was no doubt correct. But the fifty-fifth section has been subsequently repealed by the fifth section of an act supplementary to the several acts establishing courts of justice, and regulating judicial proceedings, passed December 23, 1818. Pamph. Acts, 36. By the repeal of the fifty-fifth section, all the fifty-fourth section was thereby revived. By the repeal of a repealing statuté, the original statute is revived. This principle of the common law is to be found in its earliest records, and is undisputed. The Bishops' Case, 12 Coke, 7; 1 Bl. Comm. 90.
The organic laws of Missouri and this territory have been referred to for the purpose of showing that an appeal is given by these laws, and that it is not competent to the local legislature to restrict the right of appeal. We think it' is within the power of the legislature of the territory to prescribe the conditions upon which an appeal may be taken, provided they are not manifestly unreasonable. The condition required in-.the proviso of the fifty-fourth section, is far from being unreasonable or improper; but, on the contrary, is consistent with the soundest policy.
It is further contended by the .counsel for the appellant, that an appeal without affidavit is given by the second section of an act in addition to an act, entitled “An act to amend an act regulating the mode of judicial proceedings in certain cases, and extending certain powers to the general, court, passed 21st December, 1818.” We are clearr ly of opinion, after attentive consideration of this act, that it is applicable to chancery suits alone, and not to actions or suits at law. It is the opinion of the court that this appeal must be dismissed, on the grounds of a failure of the appellánt to make by himself or his agent the affidavit required by law at the time of praying the appeal: Appeal dismissed. | [
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BART F. VIRDEN, Judge
| ¶Appellant Robert Thomas Dark was convicted by a Garland County jury.of possession of a controlled substance and sentenced as a habitual offender to fifteen years’ imprisonment and ordered to pay a $10,000 fine. He raises four points on appeal: (1) the State failed to prove that he possessed a “useable” amount of a controlled substance, (2) the trial court abused its discretion- using its local rule to cut off plea negotiations, (3) the trial court erred in denying his motion for a continuance and “in coercing him to accept appointed counsel,” and (4) the trial court erred by failing to order a fitness-to-proceed examination. We affirm.
|⅞1. Trial Testimony—December 7, 2015
Officer Brent Scrimshire with the Hot Springs Police Department testified that he assisted on a stolen-vehicle report and identified Dark as a passenger in that vehicle. Án ACIC (Arkansas Crime Information Center) check revealed that Dark had a warrant. Officer Scrimshire patted him down for weapons and found none. The officer then asked Dark whether he had anything else onp him, and Dark said that he had a small baggie in his pocket. The baggie contained a crystal-like substance, which ■ field tested positive for methamphetamine.
Nick Dawson, a drug chemist at the Arkansas State Crime Lab, testified that the test- sample’s total- net weight • was .3641 grams, and-he confirmed that it was methamphetamine' and dimethyl sulfone.
TI. Discussion
A. Sufficiency of the Evidence
Arkansas Code Annotated section 5-64-419(a) (Repl. 2016) provides that, except as provided by this chapter, it is unlawful for a-person to possess a controlled substance. A person who violates this section with respect ,to a Schedule I or Schedule II controlled substance that is methamphetamine or cocaine with an aggregate weight, including an adulterant or diluent, of less than two grams- upon conviction is guilty of a Class D felony. Ark. Code Ann. § 5-64-419(b)(1)(A).
Dark argues that, because no test was performed to determine what percentage of the sample weighing .3541 grams was methamphetamine, as opposed to the cutting agent, the State failed to prove that he possessed' a useable amount of methamphetamine. Dark relies on Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990), in which our supreme court reversed the appellant’s possession-of-cocaine conviction because a bottle found in his possession contained “less than a useable amount of cocaine.”
Arkansas Rule of Criminal Procedure 33.1(a) provides that a motion for directed verdict in a jury trial must be made at the close of the. State’s evidence and at. the close of all the evidence, and it must specify the respect in which the evidence is deficient. Campbell v. State, 2017 Ark. App. 59, 512 S.W.3d 663. After the State rested in this case, the trial court asked defense counsel whether he had any mo tions to make and was told, “No, I don't believe the record supports any motions for directed verdict or otherwise.” Because Dark made no directed-verdict motion below, his challenge to the sufficiency of the evidence is not preserved for review. Swanigan v. State, 2016 Ark. App. 15, 2016 WL 156642.
B. “Local Rule”
Initially, the State offered Dark three years in exchange for his guilty plea. He réjected that offer.' Later, the State offered' Dark ten years, but he rejected that offer as well. At' a pretrial hearing on Novembér 18, 2015, the trial court said, “There will be no other plea offers after today.”' Dark said that he wished to plead guilty and completed the necessary paperwork; however, Dark ultimately said that he would plead not guilty.
On December 7, 2015, the day of trial, Dark asked the trial court in chambers whether DCC (Department of Community Correction) was “off the table.” Defense counsel referred to the judge’s “policies” and how they were to be followed regarding the “cut-off point” with plea negotiations. Dark explained that he had gotten “shaken” and |/rattled” and, “out of [his] panic,” had said, “Not guilty” at the pretrial hearing on November 18.
Dark argues on appeal that, the trial court’s “local, rale” regarding plea negotiations is the type of rale abolished by the Arkansas Supreme Court’s per curiam decision dated December 21, 1987. In re Changes to the Ark Rules of Civil Procedure, 294 Ark. 664, 742 S.W.2d 551 (1987) (per curiam). Although Dark claims that he suffered prejudice by the trial court’s “refusal to allow a plea bargain,” the facts do not support that assertion^
Assuming this was a local rale, as opposed to the trial court’s simple exercise of control over its courtroom and docket, the judge considered paperwork handed to her by defense counsel on the day of trial indicating that Dark wished to admit to the charge and to his habitual-offender status. After some colloquy, the judge said, “I’ve asked you this question, now this is the third time I’ve asked you the question and I won’t ask it again. Do you wish to plead guilty?” Dark responded, “No, I don’t.” Dark cannot demonstrate prejudice because the trial court considered plea negotiations right up to the start of the trial, but Dark refused the last-minute plea offer and chose to go to trial. We find no reversible error.
C. Continuance and Coercion
The refusal to grant a continuance in order for the defendant to change attorneys rests within the sound discretion of the trial court. Alexander v. State, 55 Ark. App. 148, 934 S.W.2d 927 (1996). Moreover, the right to counsel of one’s choice is not absolute; if change of counsel would require postponement of trial because of inadequate time for a new attorney to properly prepare a defendant’s case, the court may consider, in granting or [^denying the change, such factors as the reasons for the change, whether other counsel has already been identified, whether the defendant acted'diligently in seeking the change, and whether the denial is likely to result in any prejudice to the defendant. Id. On appeal, we review the denial of a motion for continuance under an abuse-of discretion standard. Creed v. State, 372 Ark. 221, 273 S.W.3d 494 (2008). An appellant must demonstrate not only that the trial court abused its discretion in deciding the motion but also that the ruling resulted in prejudice amounting to a denial of justice. Id.
Dark argues that the trial court summarily denied his motion for a continu- anee without any consideration of the relevant factors. He contends that he was thus given no opportunity to articulate the reasons a continuance was warranted. Dark further argues that, despite his insistence on representing himself, the trial court “coerced [him] into continued representation by his trial counsel.”
On the morning of trial, defense counsel informed the trial court that Dark wished to discharge him and represent himself. Dark said, “I would beg for the Court’s mercy on a continuance since I am—” The trial judge said, “That’s denied. We’re not going to continue this case.”
Court: Okay. So we’re going to go out there. Mr.- Fraiser is going to represent you. You’re going to talk to him and tell him what you want, what you want the jury to know, what you want the jury to see, and we’re gonna get through this trial. Do you understand that?
Dark: So I can’t represent myself?
Court: You can represent yourself through your attorney. You feel confident to represent yourself? To stand up and go through this trial without an attorney and face a jury that can give you fifteen years in the Department of Correction? That’s what you want to do?
| (¡Dark: You know what, Ma’am?
Court: Yes or no?
Dark: No, I don’t want him to represent me. I would love to have a different counsel.
Court: You don’t get to pick and choose your counsel, Mr. Dark.
Dark: I know, yes, ma’am.
Court: That’s not the way this works. You don’t get to choose, unless you hire your counsel, you don’t get to choose who is your counsel.
Dark: If I had a little time I can do that.
Court: Well, you’ve had time. We’ve already been through this. Today’s been the trial date set since July 21st. And you were out most of that time— out of jail. You’ve had time to get an attorney, you didn’t get an attorney. You asked me to appoint the Public Defender. I did that and now you don’t want him because we’re sitting here ready to go to trial in a few minutes.
Dark: I would have let go of him earlier, Ms. Hearnsberger, but—
Court: But you didn’t. But you didn’t.
Dark: No, I was afraid to let him go.
Court: But you didn’t. You didn’t, Mr. Dark.
Dark: That’s why I waited to right here and right now to because I thought that he would—
Court: You’ve been to Court June 16th, July 21st, September 15th, October 18th, November 18th, and today. You’ve had all those opportunities[.]
Court: Well, you need to decide because we’re about to go out there and you’re either going to sit at that table by yourself and try a case which you’ve never, ever, ever done and given up the expertise of a fine lawyer or you’re going to have a fine lawyer represent you. That’s your decision. I’m not gonna change it for you.
|7And when the Court of Appeals looks at this they’re gonna know that we had a long conversation about this and that you chose to do this.
Dark: I tell you what, Ms. Hearnsber-ger, I’ve been seeing you for District Court for a long time. You’ve seen me many, many, many times, unfortu nately, and I’m sorry. But since you’re telling me this, I’m going to be moved to go ahead and I’m going to abide by what you’re saying, but I’m gonna tell , you it’s - against everything in my body that’s telling me absolutely don’t.
Dark was not diligent in seeking a change of attorneys. He admitted that he had waited until the last minute to mention the possibility of changing attorneys because he was “afraid to let go” of -defense counsel. Dark hád no other attorney in mind to represent him. Further, Dark cannot show that the trial court “coerced” him into accepting current defense - counsel. Coercion is defined as compulsion of a free agent by physical, moral, or economic force or threat of physical force. Black’s Law Dictionary 315 (10th ed. 2014). Dark ultimately accepted defense counsel’s representation based on his respect for the judge’s opinion on the matter, not because he had been forced or threátened. Dark waived his right to self-representation. We cannot say that the trial court abused its discretion in denying a continuance and find no prejudicial error in Dark’s acceptance of appointed counsel’s representation. • ■
D. Fitness-to-Proceed Examination
Arkansas Code Annotated section 5-2-305 (Supp. 2015) provided the following:
(a)(1) Subject to the provisions of §§ 5-2-304 and 6-2-311, the court shall immediately suspend any further proceedings in a prosecution if
(A)(i) A defendant charged in circuit court' files notice that he or she intends to rely upon thé defense bf mental disease or defect.
| s(ii) After the notice of intent to raise the defense of not guilty for reason of mental disease or defect is filed, any party may petition-the court for a criminal responsibility examination and opinion ,,;; or
(B)(i) Any party or the court raises the issue of the defendant’s fitness to proceed.
' (ii) The court shall order a fitness to proceed examination if it finds there is a reasonable.suspicion that a defendant is not fit to proceed. -
(2)(A) The fitness to proceed examination, and the criminal responsibility examination and request for an opinion on the defendant’s criminal responsibility, are two distinctly different examinations. -
Dark argues that a fitness-to-proceed examination was warranted because he himself raised his longstanding psychiatric diagnosis and disability and that the in-chambers discussions put the trial court on notiee of his psychiatric issues. He contends that, instead of getting any type of medical input on his mental status, the trial court allowed defense counsel to r.ebut his (Dark’s) statements and contentions.
- The following is a colloquy from the in-chambers discussion in which,Dark raised the topic of his mental status, and it also ties in with the- previous point “C” on appeal:
Dark: 'My decision is that I’m gonna be unprepared and I’m gonna represent myself. And it’s only because after many, many meetings with Mr. Fraiser—many, many meetings and many, many prayers—is that I’ve come to the conclusion that I can’t trust him.
Court: Can you tell me why?
Dark: I asked him a long time ago—I’m bipolar, and I wanted my medical records introduced into this case_My medical records—I was in a psych ward right before when I left Cove.nant and right before I got arrested this time and I’ve been in and out of psych wards all my life and for the last ten years I figured that, you know, that’s very important for the jurors to know. Mr. Fraiser says that he thinks that I’m not bipolar, that I was drug induced, but my bipolarism isn’t drug induced. I asked him is he a doctor, which he said he wasn’t. So this is the treason—one of the many reasons—and that would be my main reason to let go of Mr. Fraiser. Beside him cussing me on many occasions like a retarded stepchild. That’s another reason.
Court: Okay, so as far as that goes, then, where are we on the mental health issue?
Dark: I recently went to college. I had to get toy records—my medicál records—so I reviewed them recently and I believe that they’re.quite—-that they have validity in this case. I really believe that.
Court: What kind of medical records are you talking about?
Dark: I’m talking about from all the way back when I was in rehab and seeing a psychiatrist at a young age. And I’ve been getting a check for twenty-two.years, Ms. Hearnsberger. I mean the doctor, he just told me that I’m bipolar. That’s why I know. I mean this is why I get a cheek.
Fraiser: So as far as this bipolar claim, mental health claim, how does that— let’s just assume that it does apply, that he is bipolar—how does that raise to any defense under those fact circumstances?
Court: And , I’m sure you’ve discussed that with your attorney.
. Dark: No, I haven’t.
Fraiser: Ad nauseam.
Court: Well do you understand that?
Dark: I understand that I’ve read my records about who I am and as a bipolar—
Court: Do you understand what Mr. Fraiser just said?
Dark: I don’t know if I quite understand what he’s saying. He’s saying it has nothing to do with my case, I guess? ...
Court: He’s.saying that it’s not a defense to your case.
Dark: I disagree with that.
ImCouRT: Are you a lawyer?
Dark: No, but I mean isn’t it validity that I’m—you know, I went and tried to seek help on all these different things. Doesn’t that copnt that I’ve tried to help myself? I go to these places to help myself. Isn’t that something that needs to be brought out?
Criminal defendants . are . presumed to be competent to stand trial, and they have the burden of proving otherwise. Thessing v. State, 365 Ark. 384, 230 S.W.3d 526 (2006). The context of the colloquy demonstrates that Dark raised his mental status in the context of why he wanted to fire defense counsel, which was because defense counsel would not investigate his mental-health background for use as a defense to the possession-of-methamphetamine charge. The statute says a criminal-responsibility exam and a fitness-to-proceed exam are distinctly different. Dark perhaps argues fitness to proceed here because he did not file notice of his intent to use mental defect as a defense at trial. Although Dark asserted that he had a long-standing mental disability, there is no indication from the record that Dark did anything that would have caused the trial court to reasonably suspect that Dark was not fit to proceed. The colloquies show that Dark appeared to understand the charges against him and the proceedings and that Dark seemed capable of assisting counsel in preparation of his defense.
Dark also wants this court to consider the recent holding in McWilliams v. Dunn, 582 U.S. -, 137 S.Ct. 1790, 198 L.Ed.2d 341 (2017), where the United States' Supreme Court determined that McWilliams did not receive the minimum assistance required by Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Ake held that, when a defendant demonstrates to the trial court that his or her sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an Inappropriate examination and assist in evaluation, preparation, and presentation of the defense.
Dark failed to make the threshold showing per McWilliams, supra. He did not demonstrate that his sanity at the time of the offense was going to be a significant factor at trial. From the colloquy, it is clear that Dark wanted the jury to hear about his mental-health background because he wanted jurors to see that he had sought help over the years. Dark did not even suggest that his mental state played a role in his decision to possess methamphetamine. We find no reversible error on this point.
Affirmed.
Glover and Murphy, JJ., agree.
. In Dark v. State, 2017 Ark. App. 3, 2017 WL 203331, we denied counsel’s motion to withdraw and ordered rebriefing. The case is back before us as a merit appeal.
. The statute was repealed, effective August 1, 2017. | [
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DAVID M. GLOVER, Judge
It This is the third time appellant Owen Kelly has appealed an order to our court concerning alimony he has been ordered to pay his ex-wife, appellee Mandy Kelly. In Kelly v. Kelly, 2015 Ark. App. 147, 2015 WL 1000809 (Kelly I), our court dismissed his appeal due to lack of a final order; on grant of petition for review, our supreme court held the decree of divorce was a final order and remanded the case-to our court to render a decision. Kelly v. Kelly, 2016 Ark. 72, 483 S.W.3d 296. On remand, our court was tasked with determining whether the trial court abused its discretion (i) in setting the monthly amount of alimony initially at $9131 and (ii) in requiring Owen’s initial alimony obligation to automatically increase as his child-support payments abated in order to always provide Mandy the $16,659 per month amount-of support she requested, which resulted in Owen continuously paying this monthly support amount, even after his child-support obligation had ended. Our court de-tefnlined the circuit court had abused its discretion on both counts; we reversed and remanded for |athe circüit court to enter an order consistent with our opinion. Kelly v. Kelly, 2016 Ark. App. 272, 496 S.W.3d 391 (Kelly II).
On remand, Owen filed a prehearing brief, requesting not only, a reduction of the alimony he was required to pay Mandy but also a repayment of alimony he had already overpaid. Specifically, he requested the circuit court allow him to have a credit of $1000 per month against the alimony amount he was required to pay Mandy. Mandy, in her pre-hearing brief, requested alimony of at least $6131 per month, which, when combined with child support, would give her $13,659 per month in total support.
At the hearing, the circuit court decreased Mandy’s alimony only by the specific instances our court had listed in Kelly II. In its order, the circuit court further found Mandy “has an established need of $10,615.50 per month for expenses as itemized from the bench. [Owen’s] current child-support obligation of $7528 per month satisfies a significant portion of the monthly need. [Owen] is therefore ordered to pay $3087.50 per month in alimony to [Mandy].” The circuit court-also found that it would be inequitable to require Mandy to repay the amounts of alimony Owen had overpaid and denied his request for a credit against his alimony obligation.
Owen filed a motion to modify the circuit court’s order concerning alimony, asserting the circuit court departed from our court’s mandate by making a factual finding that Mandy had “an established need” for $10,615.50 per month and using his child-support obligation as a credit against Mandy’s established need. While Owen specifically stated he did not object to paying monthly alimony of $3087.50, he did object to the finding that LMandy had an “established need” exceeding $10,600 when our court had already found $9131 in monthly alimony to be excessive. Owen also asked the circuit court to reconsider giving him a credit for excessive alimony paid for thirty-two months or, at the very least, since the date of our opinion reversing the amount of alimony as excessive, especially in light of the fact Mandy had filed petitions for rehearing and review, further delaying resolution of the matter of alimony. In an order filed February 8, 2017, the circuit court denied Owen’s motion to modify without explanation. Owen filed this timely appeal.
Owen makes two arguments on appeal. First, he contends the circuit court over stepped the limited bounds of our court’s mandate by making' a factual declaration that Mandy • had established a need for $10,616.50 per month in support and then applying the child support he was paying as a setoff against, but not a reduction of, of that need to derive a figure for alimony; .he asserts the circuit court’s finding that Mandy had a personal need for $10,616.50 per month prejudices him in future, litigation. Second, Owen maintains the trial court erred in denying him any credit against either future alimony payments for the excessive alimony he paid Mandy from March 2014 to October 2016, or at the very least, from the date of , the appeal to our court until the case was heard on remand. Both of his arguments have merit; we affirm as modified in part and reverse in part.
Standard of Review
Appeals of domestic-relations proceedings are reviewed de novo, but a circuit court’s finding of fact will not be reversed unless it is clearly erroneous. Berry v. Berry, 2017 Ark. App. 145, 515 S.W.3d 164. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court'is 'left'with a definite and firm conviction that the circuit | ¿court has made a mistake. Id. Due deference is given tc the circuit court’s superior position to determine witness credibility and the weight to be accorded to their testimony. Id.
The purpose of alimony is.to rectify economic imbalances in earning power and standard of living in light of the particular facts of each case, and the circuit court may make an award of alimony that is reasonable under the circumstances. Brave v. Brave, 2014 Ark. 175, 433 S.W.3d 227. The primary factors a court should consider in determining whether to award alimony are the financial need of one spouse and the other spouse’s ability to pay. Id. Secondary factors that may also be- considered are (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 parties’ - income, both current and anticipated; (5) the extent and nature of the resources and assets of each of the parties; (6) the amount of income of each that is spendable; (7) the earning ability and capacity of each party; (8) the property awarded or given to one of the parties, either by the court or the other party; (9) the disposition made df the homestead or jointly ovraed property; (10) the condition of health and medical needs of both husband and wife; (11) the duration of thfe marriage; arid (12) the amount of child support (if applicable). Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766. The decision to grant alimony lips within the sound discretion of the circuit court and will not be reversed on appeal absent an abuse of discretion. Dozier v. Dozier, 2014 Ark. App. 78, 432 S.W.3d 82. A circuit court abuses its discretion wheri it exercises its discretion improvidently or thoughtlessly and without due consideration. Id. Thus, it follows that a decision whether to require repayment of an overpayment of alimony is likewise subject to an abuse-of-discrétipn standard.
IbMandy's Established Need of $10,616.50 Per Month
First, it must be noted Owen has never contested the $7528 in monthly child support thé circuit court ordered him to pay; in fact, in Kelly II, we recited that, in addition to the child support he agreed to pay, Owen further arranged to pay an additional $1000 per month for their son’s private-school tuition. Likewise, Owen does not appeal the amount of alimony set by the- circuit court on remand—$3087.50 per month.
Before us again by appeal, Owen takes issue with the circuit court’s finding that Mandy personally had “an established need of $10,616.50 per month” when, in fact, that figure is not simply Mandy’s own individual need, but rather an estimate of the collective needs of Mandy and their two children. Owen contends that when Mandy next returns to court to request an increase in alimony at a time when she is no longer receiving child support, the record will already reflect that Mandy herself has a need for $10,616.50, and he will be required to prove that her need has changed. He posits there was no reason to create a “set off’ of child support from the circuit court’s finding Mandy had an established monthly need of $10,616.50, because over time that setoff will disappear, leaving only a factual finding of Mandy’s “established need” of $10,616.50 per month. Owen maintains the circuit court erred in refusing to amend the order to reflect Mandy’s alimony need for |fiherself was $3087.50 per month and the $10,616.50 amount represented’ the entire family’s needs.
We hold the circuit court was clearly erroneous in refusing to clarify the support order. It was, and is, beyond question in Kelly II that Mandy’s calculation of monthly expenses did not reflect her sole needs, but rather the financial needs of both her and the parties’ two' children; Mandy admitted the figures she set forth in her affidavit of financial means for food, clothing, and vacations were based on a family of four, not her current family of three, and our court ordered that those figures be reduced accordingly. Clearly, that support order did not consider only Mandy’s personal financial needs, but rather the financial needs of a three-person household.
These parties have been before this court multiple times. It is our intention to make our orders as clear and precise as possible in order to avoid what we consider unnecessary litigation for the parties due to confusion or misunderstanding. To resolve further confusion between our court and the circuit court, we now hold that the circuit court shall enter an order modifying the fourth, fifth, and sixth sentences of its December 27, 2Ó16 order to state, “It is the order and decree of the court that Plaintiff has established a need for herself and the parties’ two children of $10,615.50 per month for expenses. Of this amount, Defendant’s current child-support obligation is $7528 per month. Defendant is therefore ordered to pay $3087.50 per month in alimony to the Plaintiff.”
Refusal to Grant Credit for Payment of Excess Alimony
Owen’s second point on appeal is that the circuit court erred in refusing to grant him credit against future alimony payments for the excessive alimony he paid to Mandy between 17March 2014 and October 2016, a period of thirty-two months. Alternatively, he argues he should, at a minimum, be granted a credit for the time between our opinion in Kelly II and when the circuit court heard the case on remand. We hold the circuit court abused its discretion when it found it would be inequitable to require Mandy to repay at least a portion of the excess alimony- payments she received from Owen; it is money to which our court has determined she was not entitled, and we reverse the circuit court’s decision on this point.
For thirty-two months—from April 1, 2014, when Owen was ordered to pay Mandy monthly alimony of $9131, until December 27, 2016, when, after being reversed by this court on appeal, the circuit court entered a new order reducing Mandy’s alimony to $3087.50 per month—Owen overpaid Mandy monthly by $6043.50. After remand, Mandy was still receiving $10,616.50 per month in total support. In Kelly II, it was noted that Mandy had been awarded $367,000 as her equal distribution of marital property; ail personal property in her possession (with the exception of two 12-piece place settings of silver awarded to Owen) and any personal property in the former marital residence; and $12,200 as her marital share of Owen’s medical practice and Leasing Services , of Arkansas. At the time of the divorce hearing, Mandy testified she had $350,000 remaining from the $367,000; she did not want to spend that money, but rather she desired Owen to pay alimony because that was all the money she had. She also acknowledged that the marital home was on the market; Owen was making the mortgage payments until it sold; and when the marital home sold, the net proceeds would be divided equally. It was also noted in Kelly II that Mandy had not pursued obtaining any type of employment.
IsOwen has overpaid Mandy $193,392— $6043.50 per month from April 2014 until the end of December 2016—as our court has reduced the amount of alimony the circuit court originally set due to our decision that the circuit court abused its discretion. Owen has been required to pay Mandy money to which she is not entitled.
Our court holds that requiring Mandy to repay thirty-two months of alimony over-payments is inequitable. However, we hold that it is not inequitable for Mandy to repay the alimony overage from June 2016, when this court issued Kelly II, until December 2016, when the circuit court issued its new order in. response to our mandate; this is a period of seven months. We find that Owen is due a repayment of alimony overage of $42,304.50 ($6043.50 x 7 months). We order repayment of this overage be accomplished by giving Owen a $1000 per month credit against his monthly alimony obligation to recoup the overpayment of alimony made to Mandy until the overage is repaid in full. We direct the circuit court to enter forthwith an order reflecting this repayment schedule.
Affirmed as modified in part; reversed in part.
Harrison and Vaught, JJ., agree.
. Our supreme court denied Mandy’s petition for review on September 15, 2016.
. Even though our" court found in Kelly II that Owen’s monthly net. take-home pay- was between $19,975 and $20,170, the circuit court, for whatever reason, thereafter specifically found on remand that Owen’s net monthly income was $36,167. This was improper. The circuit court was not asked to recalculate Owen's net monthly income—it was solely asked to set alimony. Our court determined Owen’s net monthly income was, at most, $20,170—this is the figure the circuit "court was'required to accept on remand. | [
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KENNETH S. HIXSON, Judge
|! Appellant, Sharon McCuller-Silver-man, appeals from an order mailed by the Arkansas Board of Review (Board) on December 7,2016, denying the claimant benefits in favor of appellees, Daryl Bassett, director of the Department of Workforce Services (Department), and Trinity Village, Inc. (Trinity Village). On appeal, appellant’s arguments can be summarized as (1) the Board exceeded its authority and abused its discretion in reviewing the decision of the Arkansas Appeal Tribunal (Tribunal), (2) substantial evidence does not support the Board’s findings, and (3) the Tribunal’s decision that appellant should repay benefits that were paid to her was premature and unfounded. We affirm.
Appellant was employed by Trinity Village as an administrator for assisted living prior to her termination. After she applied for unemployment-compensation benefits, Trinity Village filed a statement that appellant had been discharged for insubordination, specifically stating the following:
1⅞1. A#54[ ] Ms. Silverman not only failed to promptly initiate the protocols and actions necessary to address the deficiencies from the May 2-4, 2016 Assisted Living survey, but on 6/27/2016 refused to complete and sign the plan of correction. This is the Administrator’s responsibility.
2. A#57 As Assisted Living Administrator, it is Ms. Silverman’s'respon-sibility to review, monitor, and uti lize her departmental financial and budget reports as a primary too! in the management of her area. On 6/22/2016 she stated to me that they did not make sense to her and did not tell her anything, so. she puts them straight in the shredder. I have personally instructed her in the interpretation and use of these reports on numerous occasions.
3. B#37 Ms. Silverman informed at
least one staff member of the fiscal year end unaudited net income of Trinity Village. It was made clear by me in the staff meeting with only department managers, during which she was present that this was not to be repeated 'outside the meeting. Ms. Silverman also informed the same staff member as well as at least one additional staff member that she had a meeting with another manager where the manage? shook her finger in her face. This is a confidential personnel issue that should not have been discussed.
4. A#34 Ms. Silverman exhibited anger and even hostility to a nurse aide in her department when discussing á possible worker’s compensation injury. She was confrontational and exhibited a lack of good judgment in dealing with a sensitive issue.
5. B#23 With no proof, Ms. Silverman has stated to me and at least one other employee that another Trinity Department Manager “slashed her tires.” This is a malicious statement ' with no substantiation,
6. B#34 Ms. Silverman frequently handles herself in an argumentative, accusatory, unprofessional manner with fellow managers as well as the assisted living staff, thus creating an unacceptable and frequently hostile environment.
Appellant álso filed a statement. In her statement, appellant denied that she was fired for insubordination. Instead, she claimed the following: ■
I know they said I was fired for refusal to do an action plan but that is not true, the executive director told me that she was going to write it. She did tell me in the future that she wanted the administrators to write them from now on and I told her I would be hap[p]y to. I had a supervisor threaten me and yell and point her finger |sin my face. It cause[d] me to have an anxiety attack. My blood pressure spiked and my Dr[.] put me on a new anxiety medication, and bp medication.. I went, to EEOC due to the .supervisor threatening me. I did it for my own protection. My Doctor put me off work through 07/11/16. I went back to work on the 11th was there for 30 minutes and was called into the conference room, with Donna Stone and their attorney. Donna told me I was being terminated due to insubordination and I said for what. I didn’t do anything. Then the attorney told me they would offer me 3 months of severance plus a neutral reference in exchange for my resignation. I did not accept their offer. They gave me a whole list of stuff I supposedly did but not a bit of it was true. I still believe I was discharged in retaliation for filing an EEOC charge.
The Department found that appellant was not disqualified from receiving benefits in a Notice of Agency Determination mailed on August 24, 2016. Trinity Village timely appealed that decision to the Tribunal, and a telephone hearing was held on October 17, 2016.
At the hearing, Lea Reed testified that she was an RN consultant at Trinity Village and that appellant was her immediate supervisor. Reed recalled a meeting in which the executive director, Donna Stone, discussed the financial situation of Trinity Village with Reed and appellant present. Despite Stone’s instruction that the information was confidential, appellant subsequently discussed the employer’s specific profits and losses with Margie Smith and Reed. Smith was not , present at the prior staff meeting.
Reed further testified that the Office of Long Term Care found deficiencies during an audit. The deficiencies needed to be corrected, and a plan of correction needed to be submitted to the Office of Long Term Care. Reed testified that during the meeting about the deficiencies, Stone stated that she would assist April Boosier, the dietary manager, with correcting the deficiencies. Reed did not recall whether anything was said about who would prepare the plan of correction. However, Reed testified that she was in appellant’s office Lwhen appellant received a call from Stone. According to Reed, Stone had instructed appellant to prepare the plan of correction, but appellant refused.
Phyllis Offut, an LPN employed at Trinity Village, testified that appellant had told her that she thought she was in charge of the plan of correction. Appellant additionally told Offut that she was not going to complete it. Appellant further told Offut that Boosier would have to complete the plan of correction.
Stone testified that appellant was responsible for reviewing and understanding monthly financial reports. However, during one conversation, appellant told Stone that she did not understand them and would simply shred them each month. Stone additionally testified' that she had discussed confidential information in a managerial-staff meeting and specifically instructed that the information not be discussed outside that meeting. However, Reed informed Stone that appellant had subsequently discussed the information with Smith present.
Stone further testified that another one of appellant’s job responsibilities was to complete a plan of correction when deficiencies are discovered. Appellant had prepared and signed a previous plan of correction in 2015. During the meeting regarding the recent deficiencies, Stone stated that she would assist Boosier with correcting the deficiencies; but Stone did not state that she would prepare the plan of correction. In a telephone conversation on June 27, 2016, Stone inquired how appellant was doing with preparing the plan. However, appellant stated that she was not going to prepare the plan and further refused to do so after Stone had instructed appellant to prepare the plan. Stone testified that appellant’s actions were in violation of Trinity Village’s written policy. Appellant was ^medically excused from work from June 28, 2016, through July 11, 2016. During that time, appellant filed an EEOC complaint, and appellant was discharged the day she- returned to work.
Appellant did not testify at the hearing. Smith'testified oh appellant’s behalf. Smith testified that she had recalled that Stone and Boosier had agreed to prepare the plan of correction at the meeting regarding the deficiencies.
The Tribunal mailed a written decision affirming the Department’s .decision to award benefits on October 20, 2016, and Trinity Village timely appealed to the Board, The Board did not accept any additional evidence. The Board reversed the Tribunal’s decision. After summarizing the evidence presented at the hearing before the Tribunal, the Board specifically fpund that ..
[i]n this instance, Reed testified that the claimant discussed confidential financial information of the employer in the presence of an employee who was not pres ent in a meeting discussing the financial information, despite being told not to discuss the information. Additionally, both Stone and Reed testified that the claimant had a phone conversation with Stone on June 27, 2016, in which Stone asked about the status of the Plan of Correction, told the claimant to complete the Plan of Correction, and was told by the claimant that she would not complete the plan. Stone indicated that preparing the plan was one of the claimant’s job duties as administrator. Further, the claimant completed and signed the Plan of Correction for the employer in 2015. Although Margie Smith testified that she believed that Stone told the claimant in a meeting that she and April Booster would prepare the plan, the Board does not find this testimony to be more persuasive than the testimony of Stone and Reed. St,one did testify that she told Booster she would assist her with correcting the deficiencies during the meeting, but that she did not state, that she would prepare the plan. Although the claimant indicated in her statements to the Department that she was not told to prepare the plan and that she was discharged due to retaliation for an EÉOC claim, the claimant did not provide any testimony at the hearing, and as such did not provide sufficient evidence to show that she was discharged for any other' reason than what was stated by the employer. Therefore, the most credible testimony that the Board has to consider is the first-hand testimony of Stone and Reed. Pursuant to the testimony of Stone that one of the claimant’s job responsibilities was preparing the Plan of Correction and that the claimant prepared the plan in 2015, Rand Stone and Reed’s testimony that the claimant was instructed to prepare the plan and refused, the Board finds it more likely than not that the claimant was responsible for preparing the plan and did not prepare it although instructed to do so by Stone. The claimant’s failure to prepare the plan was a violation of the employer’s policy and constituted insubordination. Therefore, the decision of the Appeal Tribunal in Appeal No. 2016-AT-07387 is reversed on finding that the claimant was discharged from last work for misconduct in connection with the work on account of insubordination.
This appeal followed.
On appeal, appellant first argues that the Board exceeded its authority or abused its discretion in reviewing the Tribunal’s decision. However, appellant’s arguments lack merit. Arkansas Code Annotated section 11-10-525 (Repl. 2012) permits the Board to review a decision as follows:
(a) An appeal filed by any party shall be allowed as of right if the determination was not affirmed by the appeal tribunal.
(b) The Board of Review, on its own motion and within the time specified in § 11-10-52⅛, may initiate a review of the decision of an appeal tribunal or determination of a special examiner or may allow an appeal from the decision on application filed within the time by any party entitled to notice of the decision.
(c)(1) Upon review on its own motion or upon appeal and on the basis of evidence previously submitted in the case, or upon the basis of any additional evidence as it may direct be taken, the board may affirm, modify, reverse, dismiss, or remand the case.
(Emphasis added.) We conclude that the Board was entitled to review the Tribunal’s decision in the case before us under subsection (b).
Next, appellant argues that substantial evidence does not support the Board’s findings. She more specifically argues that Trinity Village failed to establish misconduct or present any other evidence showing that the Tribunal’s decision was in error. She further argues 17that the Board’s decision was not supported by the law or relevant evidence that a reasonable person might accept as adequate to support its conclusion. We disagree.
In unemployment cases, findings of fact by the Board are conclusive if supported by substantial evidence, and substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Holmes v. Dir., 2015 Ark. App. 387, 463 S.W.3d 744; Ivy v. Dir., 2013 Ark. App. 381, 2013 WL 2457188. We review the evidence and all reasonable inferences deducible therefrom in the,light most favorable to the Board’s findings, and even when there is evidence on which the Board might have reached a different decision, the scope of our judicial review is limited to a determination of whether the Board could have reasonably reached its decision on the evidence before it. Ivy, supra. This court may not substitute its findings for the Board’s, even though this court might have reached a different conclusion had it made the original determination on the same evidence. Holmes, supra. Furthermore, the credibility of witnesses and the weight to be afforded their testimony are matters to be resolved by the Board. Id.
Pursuant to Arkansas Code Annotated section ll-10-514(a) (Supp. 2015), if an individual is discharged from last work for misconduct in connection with the work, thé individual is disqualified from benefits until, subsequent to filing a claim, he or she has had at least thirty days of covered employment. Section ll-10-514(a) further provides in part,
(3)(A) 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, and ■
(B) Without limitation:
(i) Disregard of an established bona fide written rule known to the employee; or
(ii)' A willful disregard of the employer’s interest.
| ^(Emphasis added.)
Misconduct includes the violation of any behavioral policies of the employer, disregard of the employer’s rules', disregard of the standards of behavior that the employer has a right to expect from its employees, and disregard of the employee’s duties and obligations to his or her employer. Zenaro v. Dir., 2017 Ark. App. 290, 521 S.W.3d 164. Mere unsatisfactory conduct, ordinary negligence, or good-faith errors in judgment or discretion are not considered misconduct unless it is of such a degree or recurrence as to manifest wrongful intent or an intentional or substantial disregard of an employer’s interests or the employee’s duties and obligations. Whitmer v. Dir., 2017 Ark. App. 367, 525 S.W.3d 45. It is the employer’s burden to establish misconduct by a preponderance of the evidence. Id. There is an element of intent associated with a determination of misconduct. Id. When the employer has no written policy or fails to follow its written policy, then the facts must be evaluated to determine whether the employee’s behavior was a willful disregard of the employer’s interest. Id. Whether an employee’s actions constitute misconduct in connection with the work sufficient to deny unemployment benefits is a question of fáct for the Board. Id.
Here, there was evidence presented by the employer that, appellant had divulged confidential information despite having been instructed not to do so and that appellant had refused to prepare a plan of correction despite having been told to do so. Although Margie Smith testified that she believed that Stone told appellant in a meeting that she and April Boosier would prepare the plan, the Board specifically found Stone’s and Reed’s testimony more persuasive. It is within the Board’s province to resolve conflicting evidence. See Clark v. Dir., 2015 Ark. App. 491, 469 S.W.3d 808. The Board further found that the “most credible testimony” that it had to consider was Stone’s and Reed’s firsthand testimony. Stone testified that one of appellant’s job responsibilities was to prepare a plan of correction and that appellant had prepared a plan in 2015. Both Stone and Reed testified, that appellant was specifically told to prepare the plan in 2016 but that appellant refused. Misconduct includes, without limitation, the “[disregard of an established bona fide written rule known to the employee”; here, the employer presented evidence that insubordination was specifically prohibited in the employer’s written policy. Ark. Code Ann. § 11-10-514(a). Thus, we conclude that reasonable minds could have reached the same decisión as that of the Board and that the Board’s decision is therefore supported by substantial evidence. Accordingly, we affirm appellant’s denial of unemployment benefits.
Finally,, appellant argues that the Tribunal’s separate finding—that she should repay benefits—was premature and should be reversed, by this court. However, this decision, if it does exist, is not properly before us at this time. Repayment of benefits was not addressed in either the Tribunal’s or the Board’s decision before us, and any separate determination would be the subject of a separate appeal from that decision. See generally Holloway v. Dir., 2012 Ark. App. 635, 2012 WL 5422029; Ziegler v. Dir., 2012 Ark. App. 595, 2012 WL 5335834. Therefore, we do not address these arguments in this appeal.
Affirmed.
Gruber, C.J., and Murphy, J., agree.
. A#54, A#57, B#37, A#34, B#23,and B#34 are' references to the paragraphs in the employee handbook that appellant allegedly violated by the conduct described. | [
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KAREN R. BAKER, Associate Justice
| petitioner Roderick R. Williams filed a pro se petition for writ of mandamus seeking to compel the Honorable Steven Porch, circuit judge, to rule on a pro se petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2011); a motion for a copy of the trial transcript; a motion for appointment of counsel; and a petition to proceed in forma pauperis, which were filed in the Desha County Circuit Court on December 29, 2011. Williams also requests that this court compel Judge Porch to declare Williams’s sentences and convictions void, grant an evidentiary hearing, appoint counsel, and order a new trial. Judge Porch responded that he had been appointed in January of this year and he “can hardly be said to have clearly failed to perform his duty only some six months later given his inheritance of the caseload of the circuit division to which he was appointed.” Because Williams’s petition and related |2motions have been pending for an unreasonable length of time, we grant Williams’s request for rulings on the petition and motions but deny Williams’s request that Judge Porch vacate the convictions and sentences, conduct an eviden-tiary hearing, and order a new trial.
Williams was convicted by a jury of capital murder, first-degree domestic battering, endangering the welfare of a minor, and possession of a firearm by a felon, and he was sentenced to a term of life imprisonment without parole plus a term of seventy-two years. We affirmed. Williams v. State, 2011 Ark. 432, at 1, 385 S.W.3d 157, 159. The mandate was issued by this court on November 1, 2011, and Williams filed his petition for Rule 37.1 relief within the sixty-day time limit. See Ark. R. Crim. P. 37.2(c)(ii) (2011).
The purpose of a writ of mandamus is to enforce an established right or to enforce the performance of a duty. State v. Vittitow, 358 Ark. 98, 103, 186 S.W.3d 237, 240 (2004). A writ of mandamus is issued by this court to compel an official or judge to take some action. Id. A writ of mandamus will not lie to control or review matters of discretion and is used to enforce an established right. Id. Issuance of the writ of mandamus is appropriate only when the duty to be compelled is ministerial and not discretionary. Parker v. Crow, 2010 Ark. 371, at 6, 368 S.W.3d 902, 907. Therefore, mandamus will compel a judge to act when he or she should act, but it will not be used to tell a judge how to decide a judicial question. Branch v. Winfield, 80 Ark. 61, 95 S.W. 1007 (1906).
The resolution of the issues raised in Williams’s Rule 37.1 petition, together with his request for appointment of counsel and his asserted right to an evidentiary hearing, are |smatters that are entirely within the discretion of the trial court and outside the purview of mandamus proceedings. It is undisputed that the trial court has discretion pursuant to Rule 37.3(a) to decide whether the files or records are sufficient to sustain the court’s findings without a hearing. Sanders v. State, 352 Ark. 16, 25, 98 S.W.3d 35, 41 (2003). We have also made clear that the appointment of counsel in postconviction proceedings is discretionary and not mandated. Mancia v. State, 2015 Ark. 115, at 27, 459 S.W.3d 259, 276.
However, a court does have a ministerial duty to timely act on pleadings filed, regardless of the merit of those pleadings. See Thompson v. Erwin, 310 Ark. 533, 534-35, 838 S.W.2d 353, 354 (1992) (explaining that the imperative of Canon 3(A)(5), of the Code of Judicial Conduct to promptly dispose of cases provides recourse in mandamus proceedings). In his response to Williams’s mandamus petition, Judge Porch relies on our holding in Eason v. Erwin, 300 Ark. 384, 387, 781 S.W.2d 1, 2 (1989) (per curiam), for the proposition that Williams has made no clear showing that Judge Porch failed to perform his duty. As stated above, Judge Porch contends in his response that he inherited a' caseload from the previous circuit division and has not had sufficient time to dispose of Williams’s petition and motions.
In Eason, the trial judge explained to this court that cases were set for hearings based on their ages, assumed this court that the petitioners’ case would be set for trial 'as soon as it could be, and provided this court with dates on which the pending matter would be heard and concluded. Eason, 300 Ark. at 386, 781 S.W.2d at 2. Here, Judge Porch has not provided any such assurances, has failed to indicate when a ruling would be forthcoming, and did not clarify .the status of Williams’s petition within the context of his current caseload.
:. We have held that a. judge controls his or her docket and the disposition of motions filed. Thompson, 310 Ark. at 534-35, 838 S.W.2d at 354, We have also made clear that any other practice would destroy the independence of the bench, which is one of the trademarks of the American judicial system. Id. On the other hand, we have explained that' the court’s control over its docket does not mean a motion or case should be delayed beyond a time reasonably necessary to dispose of it. Id. We also noted that the fact that we had declined to issue the writ in Thompson because the petitioner did not have standing should not be construed as sanctioning unreasonable delays. Id. at 536-37, 838 S.W.2d at 355.
Because Williams’s petition and related pleadings have been pending beyond a time reasonably necessary to dispose of them, Williams’s request for an order disposing of these matters is granted. However, Williams’s request that Judge Porch vacate his conviction and sentence, appoint an attorney, conduct.an evidentiary hearing, and grant a new trial is denied. Accordingly, Judge Porch is directed to issue an order disposing of the Rule 37.1- petition and the related motions within 120 days of the date of this order.
Petition granted in part and denied without prejudice in part.
Hart, J., dissents. | [
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Ringo, Chief Justice,
delivered the opinion of the Court:
The question to be decided is, whether the rule upon Linton, to produce his authority to prosecute the suit was authorized by law, and if so, whether the authority produced by him, was legally sufficient for that purpose?, In the case of Tally vs. Reynolds, 1 Ark. Rep. 99, this court recognized the principle that every attorney regularly licensed and duly admitted to practice in the courts of this State, possesses by virtue of his license and admission, a general right to appear, for any of the suitors in the courts where he is admitted to practice, who may retain him for that purpose: but his license is not of itself an authority to appear as the representative of any particular person, until he is in /act employed or retained for such person. Yet bis authority to represent any suitor on whose behalf he may appear cannot be legally questioned, until facts or circumstances are shown by affidavit, or otherwise, sufficient to raise a legal presumption that he is not legally authorized to appear for the party be assumes to represent. Whenever this appears affirmatively the attorney may be legally required to produce his authority to appear for, or in the place of such party, otherwise he cannot. But the facts and circumstances disclosed by the record before us, do not, in our opinion, warrant a presumption that the attorney, Linton, had no legal authority to appear for the plaintiff, and prosecute this suit; because, it appears affirmatively from the record, that this suit is prosecuted for the use of Houston, and that the “plaintiff produced and filed his writing obligatory” in the Justice’s Court, as he was bound by law to do, which facts warrants the legal presumption that Houston is the bona Jide holder of the obligation, and equitably entitled to the avails thereof, notwithstanding it does not appear to have been endorsed and assigned to him by the payee, and this presumption is not repelled by any testimony, proving, or in anywise conducing to prove, that he obtained the possession thereof fraudulently or unlawfully; and therefore the rule upon the attorney to produce his authority to prosecute the suit was wholly unauthorized by law; and inasmuch as the legal presumption that Houston is the bona fide holder of the obligation in suit, is not in any manner impugned by any thing appearing in the record, or even questioned by the defendant, although the statement upon which the rule against the attorney is based, is set out entire in the record, consequently his right to sue in the name of Cartwell, the payee, must be conceded; and upon this state of the case, the allegation of the attorney that he was retained by and appearing on behalf of Houston, when admitted to be true, as it appears to have been on his motion to discharge the rule, showed a sufficient legal authority for his appearance in and prosecution of the suit, in the name of Cartweli, and thereupon the rule against him ought to have been discharged, and he suffered to proceed in the case according to law, as the attorney for the plaintiff. We are therefore of the opinion that the court erred in entering the rule against the attorney representing the plaintiff requiring him to discharge said rule upon the authority shown by him, and also in dismissing the suit, as upon the ground of a failure on his part to produce any legal authority to appear and prosecute the same for the plaintiff; wherefore the judgment of the Circuit Court is reversed. | [
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Dickinson, Judge,
delivered the opinion of the court:
According to the principles established by. this court in the case of Heilman vs. Martin, the jurisdiction of the Circuit Court can only be questioned by a plea in abatement, where the facts as shown by the ' declaration, present a contract upon which the plaintiff may, if the same be admitted or proven, legally recover a sum exceeding one hundred dollars. In the present case, the damages are unliquidated, and the plaintiff upon the contract as set out in his declaration, might, if the proof justified it, legally recover upon the contract as set out in. each count in the declaration, more than that sum. The court therefore, prima facie, had jurisdiction of the cause, and the defendant could not controvert the same, otherwise than by plea in abatement showing affirmatively such facts as in law would divest it of its apparent right to adjudicate the case; w'hich he in fact attempted to do, but subsequently waived by pleading to the action in bar thereof, whereby he rested his case alone on the general issue, and like every other suitor is now bound by law to abide the consequences of his own acts. The only question therefore to be decided is does the proof shown by the record establish and sustain the contract as laid in the declaration ? The contract specially set out is that the defendant below on the 15th of November, 1837, agreed to sell to the plaintiff 26 head of pork hogs, to be delivered at the defendant’s dwelling house on the 26th day of December following, for which he was to be paid at the rate of four dollars per hundred.
Does the proof support this allegation? The first witness says that the defendant told him he had sold his pork to the plaintiff at ‡4 per hundred if they agreed. The second witness said that the defendant below informed him he had sold his hogs to a stranger then in company at four dollars per hundred, but he did not know the stranger’s name, and that he heard him also say to his sister-in-law that he did not know whether the plaintiff would get his hogs or not, and that if plaintiff refused to take all, he should not have any of them. The third witness stated he was employed by the plaintiff to collect the hogs he had purchased, and he heard the plaintiff tell defendant that he had come for the hogs. To which the defendant replied that he would let him have all they could agree upon in regard to their weight. They disagreed as to their weight; the plaintiff alleging that he was to have 24 or 25 head according to the contract.. The defendant insisted that he was to take all of them that were fat.
'This is the substance of all the proof. For the bill of exceptions states that it was all the evidence given upon the trial. The testimony certainly does not prove the contract as laid. The proof, if it establishes any contract at all, which is exceedingly questionable, only establishes a conditional agreement which is every way indefinite as to its terms, and as to the number of hogs to be delivered. The allegation of the declaration is that it was a positive sale of 26 head of hogs depending upon no contingency whatever, which were to be delivered in six weeks from the 15th of November, 1837, at the defendant’s house, at four dollars per hundred, and the defendant’s failure to comply with this contract constitutes the plaintiff’s cause of action. The proof certainly wholly fails to support the allegations of the declaration, and of course the jury were not warranted in finding for the plaintiff', consequently the court below erred in rendering judgment upon the verdict, and in not granting a new trial to the defendant. This being the case,'the judgment of the court below must he reversed. | [
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Dickinson, Judge,
delivered the opinion of the court:
The only question presented for our consideration is whether a copy of the instrument sued on must, in addition to the copy set out in the petition, be filed in the Clerk’s office at the time of the commencement of the suit. By reference to the statute authorizing the mode of proceeding by petition and summons, the plaintiff is required to “ insert a copy of the instrument sued on.” The 6th section of the act referred to, declares that “ in all suits instituted under the provisions of this act, the petition signed by the plaintiff or bis attorney, together with a true copy of the instrument sued on, and the assignments thereon, if any, shall be filed in the office of the Clerk of the Circuit Court.” In the case before us, the petition was signed by the attorney of the plaintiff, and contains a true copy of the instrument sued on, and filed in the office of the Clerk of the Circuit Court of Phillips county, as required by said 6th section. Under the present law regulating the form of proceeding in prosecuting actions, the declaration or petition is filed in the Clerk’s office before the writ is issued, and does not go out with the writ, but remains on the files of the court, subject to the inspection of the party. It is clear, in our opinion, that this is all the statute contemplates or requires, for it would be absurd to suppose that the Legislature required that two copies of the instrument sued on should be filed in the same office, and at the same time, nor is it in our opinion necessary. The proceedings are in strict conformity with the statute, and the Circuit Court rightly overruled the motion to dismiss. The judgment of the court below must therefore be affirmed with costs.
The same decision was made in the case of Wiiíiam M. McPherson against Henry L. Biscoe, assignee, fyc., in error to the same court. | [
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Rjngo, Chief Justice,
delivered the opinion of the Court:
In the cases of Means vs. Cromwell and Guthrey, 1 Ark. 247, and Clark vs. Gibson as well as some other cases, decided by this court, the failure or omission of a non-resident plaintiff, to file a bond with security for the costs of suit, before he institutes suit in the courts of this State, is held to be matter in abatement only, of which advantage may be taken in the course of the proceeding, at such time only, as of any other legal disability of the plaintiff to sue; but this, as well as every other matter in abatement, existing at the time of pleading to the action in bar thereof, is thereby waived, and the party cannot avail himself of it, either in this court, or the court below, and upon this principle the right of the plaintiff in error, to avail himself of any error in the judgment of the Circuit Court, in refusing to dismiss the suit, on his motion, for the want of a sufficient bond and security í'of costs, and adjudging his plea of auter action pendant insufficient in law to abaté the suit, upon the demurrer of the defendants in error, must be denied. See Dyer vs. Hatch, 1 Ark. 339. And, therefore, as the plaintiff in error subsequently interposed a general demurrer to the petition, which according to the principle recognized by this court, in the case of Clark vs. Gibson, decided at the last term, must be regarded as a plea to the merits of the action, in bar thereof, he cannot now avail himself of any error in the adjudications of the Cir cuit Courtrin relation either to his motion to dismiss, or his plea in abatement. ■
The only question remaining to be decided, is whether the court below erred in overruling the demurrer to the petition, and pronouncing the final judgment thereupon. The petition conforms strictly to the form prescribed in the statute, and the writing shown upon oyer, corresponds in every particular, with the statement of it in the petition. The objection urged in support of the demurrer, is that there is no averment in the petition that the defendant Albert W. Webb is the same person who executed the obligation upon which the suit is founded, bearing the signature of A. W. Webb, only. This is rather a criticism upon the form prescribed by the statute than a substantial legal objection to the petition, which although it does not in express language contain any specific averment that the obligation therein set forth is the writing obligatory of the defendant, Webb, or that it was made or sealed by him, is a literal copy of the form prescribed by the statute, and explicitly states that the plaintiffs below “ are the legal owners of a writing obligatory to the following effect,” which is copied therein immediately after said statement; which, in our opinion, is substantially an averment that it his deed; for we cannot conceive how it can possibly be a writing obligatory against him, if he never executed, or sealed and delivered it as such. We are therefore of the opinion that the demurrer was rightly overruled* Wherefore the judgment of the Circuit Courtis affirmed with costs* | [
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Lacy, Judge,
delivered the opinion of the court:
It is impossible for this court to know whether the instructions were rightfully or wrongfully overruled, or what influence, if any, they might have had upon the verdict given.
The bill of exceptions does not state that the answer of Mason constitutes all the evidence produced upon the trial; and therefore we are hound to presume that the judgment and verdict of the court below was in accordance with the justice and right of the case.
It is certainly true that the answer of the garnishee is prima facie evidence of the truth of the allegations it contains. But these allegations may be rebutted or disproved by any other competent evidence. If there was no other evidence in the case, but the answer of the garnishee, it would then amount to full and conclusive proof of the facts it asserted. But if it was disproved, or the presumptions in its favor weakened or overthrown, all of which it is surely competent for the plaintiff to establish, then it would be entitled to no weight or consideration at all. In the present case, the court below may, and probably did refuse the instructions asked for, upon the ground that the garnishee’s answer was disproved by other higher legal evidence adduced in support of the plaintiff’s right of action. Be that however as it may, such is the legal presumption in favor of the verdict and judgment below, and of course we are bound by it. It was the duty of the party excepting, if there was no other evidence offered upon the trial, to have placed that fact upon the record, so that this court could judicially know whether the instructions asked for were properly or improperly refused. Having failed to do so, he cannot now take advantage of his own neglect or omission, and consequently the judgment of the court below must be affirmed with costs. | [
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Ringo, Chief Justice,
delivered the opinion of the Court:
The plaintiff, by his assignment of errors to which there is a joinder, questions the decision and judgment of the court, in; 1st. Overruling his motion to dismiss the suit, on the ground that no sufficient bond and security for costs was filed by the plaintiff below, at or before the commencement of the suit: 2nd. Giving final judgment for the plaintiff below, without adjudicating upon, or in any manner disposing of his .demurrer to the declaration: 3d. Giving final judg ment for the plaintiff below, his declaration being insufficient in law to warrant or justify such judgment.
The motion to dismiss does not appear to have been supported by any evidence establishing the fact of Gibson’s non-residencc at the time of the commencement of the suit, and it certainly is not a fact the existence of which the law will presume from any thing contained in the record; besides which, thé motion to dismiss appears to have been made after a defence in bar of the action was interposed, and therefore the question in every' aspect in which it can be viewed, is within the principle heretofore stated and recognized by this court as applicable to this case, in the case of Clark vs. Gibson, decided at the present term, and other cases there cited; therefore, the Circuit ■Court does not appear to have erred in refusing to dismiss the case on said motion.
The second question presents more difficulty. The record simply slates that the defendant “ demurred to the plaintiff’s declaration,” but no demurrer, cither formal or informal, is transcribed with the record; and it does not appear that any demurrer specifying or specially setting forth any particular defect or imperfection in the declaration, or any other proceeding in the case, as mentioned in the 60lh section of the act regulating the practice of law, approved December 18, 1837, Rev. Stat. Ark. 627, which was in force when this proceeding was had, was ever filed or otherwise interposed. Nor does it appear that the court, or the plaintiff below, regarded this statement in the record as a defence to the action, for the latter never joined in it, and the former pronounced final judgment for the plaintiff’, without even noticing it. The only rational conclusion appears to us to be that the court regarded this statement in the record as a mere nullity, and not entitled to any consideration whatever, or held the declaration sufficient in law to maintain the plaintiff’s action against the defendant, and therefore gave judgment for him notwithstanding the demurrer, and this imposes upon us the necessity of determining whether the record before us shows any defence which the court was bound to notice. Chilly in his Treatise on Pleading, says vol. 1, p. 700, “ a demurrer has been defined to be a declaration that the party demurring will go no further, because the other has not shown sufficient mat ter against him,” and “ in point of form no precise words are necessary in a demurrer, and a plea which is in substance a demurrer, though very informal, will.be considered as such; and it is a general rule that there cannot be a demurrer to a demurrer.” 1 Chit. Plead, p. 705. Other definitions not differing in substance or effect, though stated in different language, may be found, which we do not deem it necessary to cite in this place, as in our opinion the single term “ demurred,” as expressed in the record before us, comprehends as much as would be comprehended by the language used in defining the term “ demurrer,” and must be regarded as equivalent to a declaration of the defendant made in open court, and placed upon the record of the court, that he will “stay” or “ go no further” in the case, because his adversary has not shown sufficient matter against him; and as no precise words, or special form are required in a demurrer, and there can be no demurrer to a demurrer, the court, after the statement had been admitted on the record, was bound to regard it as a general demurrer to the declaration, notwithstanding it would not, in our opinion, have constituted such a demurrer as the court was bound to receive and admit .on the record, and the court would have been completely justified in disregarding and excluding it from the record altogether in the first instance; and, to prevent misconception on this subject we will remark here, that when the defence comprises matter of fact instead of la,w, such statement or notice of the plea on the record mu'st, as a general rule, be disregarded. At least, such would be the case where the matter of defence relied on must, by law, be pleaded specially; and, although the demurrer in this case could not be legally overlooked or disregarded, either by the plaintiff below or the court, yet inasmuch as the joinder in demurrer is merely matter of form, and “ may be filed at any time,” by virtue of the fifth section -of the Statute before cited, Rev. Stat. Ark. 627, and as the court ■proceeded to give final judgment forthe plaintiff below, notwithstandstanding the demurrer to his declaration, we are bound by law to presume that the court overruled the demurrer, and adjudged the declaration sufficient in law to entitle the plaintiff to a recovery against the defendant upon the facts as stated therein. Otherwise the court could not legally have given judgment in favor of the plaintiff below, as it appears to have been given in this case; and this devolves upon us the necessity of considering and determining whether the final judgment as given is, upon the whole record, authorized by law. If it is, the rule is well settled that no court exercising appellate jurisdiction over the subject will reverse or disturb it, though errors and irregularities in the previous proceedings not affecting the merits of the case may appear in the record, and this rule applies with peculiar force to the case under consideration; because, if it be conceded that the proceeding, as to the demurrer, was irregular or even illegal, and that no direct adjudication was ever made upon it; still if a good cause of action, stated in legal form, appears upon the declaration, the defendant below could not have been prejudiced by such irregularity, illegality, or omission; and, therefore, as he is not damnified thereby, the law will not suffer him to derive any advantage therefrom, to the injury of the óther party; and against the justice of the case, and this view of the subject accords with the provisions of the 119th section of the Statute above cited, Rev. Stat. Ark. 636; and, therefore, the only question remaining to be decided is, whether the declaration is sufficient in law to entitle the plaintiff below, to a recovery upon the facts as therein stated and set forth, notwithstanding the demurrer of the defendant.
The plaintiff in error insists that there is a material variance between the writing obligatory described in the declaration, and the one given on oyer, and that such variance may be taken advantage of by general demurrer to the declaration. The defendant in error contends that the variance, if any, consists only in the omission to mention in the declaration the names of certain persons, by whom the, writing obligatory exhibited on oyer, purports to have been sealed', as co-obligors with the plaintiff in error, and as the obligation is several, as well as joint, there is no misdescription of it in the declaration, and that the non-joinder of the co-obligors must be taken advantage of by plea in abatement, if it can be taken advantage of in any manner; but it is not, and never was ground of demurrer to the declaration. To determine this question correctly, it is necessary before we apply to it the rules and principles of the common law, to ascertain the operation and effect of the statutory provisions in force, when the demurrer was interposed and final judgment rendered in the case. The 60th section of the Statute before cited, Rev. Stat. Ark. 627, declares that “ when, any demurrer shall be filed in any action, and issue joined therein, the court shall proceed and give judgment according as the very right of the cause and matter in law shall appear, without .regarding any defect or other imperfections in any process or pleading, so that sufficient appear in the pleadings to enable the dourt to give judgment according to the very right of the cause; unless such defect or imperfection be specially expressed in the-demurrer, but no defect or imperfection shall be set out in any demurrer, that would only be cause of special demurrer at common law.” And the 61st section of the Statute provides that “ if a demurrer be filed in any action, the court shall amend every such defect or other imperfection in any process or pleading in the preceding section mentioned, other than those which the party demurring shall express in his demurrer.” These provisions do not essentially differ from those contained in Stat. 7 Eliz. 5, and Anne 4 & 5; Anne 16, taken together; and' therefore adjudications upon the latter, will generally apply to such cases as arise under the former; for their general object and design is the same; that is, to simplify the proceedings and pleadings in actions at law, by disregarding and amending all objections thereto, which are only calculated to subvert justice,or to embarrass or delay the final adjudication of the matter; yet requiring the parties to set forth in their proceedings and pleadings respectively, enough to enable the court to adjudicate the matter according to law and the very right of the cause; or, in other language, to award.to each litigant his legal right as it regards the matter-under adjudication; but to prevent surprise, and disembarrass legal proceedings of every exception, not affecting the real merits of the case. The party demurring is required to express in his demurrer specially, the particular defect or imperfection in the case presented by his adversary, which, as he conceives, vitiates the proceeding or pleading demurred to, and he is expressly prohibited from so expressing in his demurrer any matter which is only cause of special demurrer at common law, while it is enjoined upon the court to amend every defect or imperfection in the process or pleading which the party demurring does not so express in his demurrer. And when the pleading so amended exhibits sufficient matter to enable the court to give judgment according to the very right of the^cause, judgment must be given thereupon, without regarding any defect or other imperfection in the process or pleading. But this general rule as prescribed by the statute in order to carry into complete effect the paramount object and design of the law as before stated, as well as to prevent it from depriving parties of their legal rights, instead of assisting them in the investigation to ascertain them, must be understood with this exception, that the court cannot amend as to matters of fact, which are not in any manner stated by the parties, because it is a universal maxim that the law never requires of any person an impossibility, and the court cannot by possibility know what facts do, or do not exist, and therefore, when the facts stated, cannot under any form of stating them, be made to exhibit a legal cause of action, or ground of defence, the pleading cannot be maintained, notwithstanding this particular defect is not specially expressed in the demurrer; and the court, in enforcing the law, by proceeding to give “judgment, according as the very right of the cause and matter in law shall appear” is bound to decide the matter against the party, whose pleading is so defective, because he does not show any legal right to the thing in demand, and the Legislature cannot be presumed to have intended to establish a rule by which the estate of one person shall be adjudged to another, who cannot exhibit and establish a paramount legal right to it; because such act would be not only contrary to natural justice, but to the whole spirit of our institutions; and such would, in our opinion, be the effect of the general rule as prescribed by the statute, without the exception before stated, which is fully authorized and clearly indicated upon the face of the statute itself, which requires that sufficient shall appear in the pleadings to enable the court to give judgment according to the very right of the cause; and, therefore, according to the letter as well as the principal object and design of the statute, when sufficient does not so appear, judgment must be given against the party whose legal right to the matter under adjudication is not shown by the pleadings.
Having thus ascertained the rule by which the case is to be determined, we have only to apply it to the case before us, and discover whether the plaintiff below has stated and set forth in his pleading such facts, as in any form in which they can be presented, legally entitle him to a recovery against the defendant.
The declaration states with a profert, a writing obligatory of the defendant, bearing date on the 15th day of March, 1836, by which he bound himself to pay to the plaintiff, on or before the first day of February, 1838, the sum of $2,000; and alleges that the same remains wholly unpaid by the defendant. These facts are sufficient in law to entitle the plaintiff below to a recovery of that sum, with interest, of the defendant, and they are all pleaded in the declaration with ample certainty, and in strictly legal form; but if they were not so pleaded, the defendant below has omitted to specify in his demurrer in what particular, if any, the pleading is defective or imperfect, and therefore the court is not at liberty to regard such defect or imperfection, but is bound by law to amend the same and give judgment according to the very right of the cause, as the Circuit Court in this case appears to have done.
Wherefore, in the opinion of this court, there is no error in the proceeding and judgment of the Circuit Court of Chicot county, in this case, for which the same ought to be reversed; and therefore the said judgment is hereby in all things affirmed with costs. | [
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Lacy, Judge,
delivered the opinion of the court:
It is contended on behalf of the plaintiffs in error that the court below erred in overruling the demurrer to the declaration, and that all the subsequent proceedings are consequently irregular and illegal.
Before we proceed to determine this point, it may he well to notice., and dispose of another objection, urged by the plaintiff in error. It is said the action cannot he maintained because'the suit is brought in the name of James S. Conway, Governor of the State of Arkansas, as the successor of John Pope, late Governor of the Territory as afore said, when in truth and fact the plaintiff was the successor of William S. Fulton, Governor of the Territory as aforesaid; that the, &c.s. the bond, upon which the suit is instituted, was executed in 1834, and the allegation in the declaration is, that it was made to the plaintiff in the action, and therefore this court is bound judicially to take notice when the State Government was formed, and when the present acting Governor entered upon his official duties; and that this being the case, it follows that the present plaintiff was the' successor of Governor Fulton, and not of Governor Pope. We are unable to perceive the force or reasons of this objection. The statute authorizing the execution of administrator’s bonds makes them payable “ to the Governor and his successors in office.” This is the express language of the act. The object and design of the statute was to vest in the Governor and his successors the- right of action whenever a breach occurred on the condition of the bond. It does not confine or restrict this right to the Governor and his immediate successor in office, but it gives it to him and his successors, thereby clearly authorizing the suit to be brought in the name of any person who may be legally chosen to fill the office. The office itself, in legal contemplation, is always in esse, and it matters not to whom the bond was executed ; if there is a breach upon it, the right of action accrues to him who is the acting Executive at the time of the institution of the suit, and of course such person is the legal successor of him to whom the bond was executed. This being the case, the suit is properly brought in the name of the present plaintiff as the successor of John Pope, late Governor of the Terrtory of Arkansas.
This suit is prosecuted in the name of the Governor for the use and benefit of the heirs and legal representatives of David Trimble, deceased, against the administrator of said estate, and the securities upon their official bond, under the provisions of an act of the General Assembly of the Territory of Arkansas, passed in 1831, which declares that “ in all actions upon any bond or penal sum for non-performance of covenants or agreements in any indenture,.deed, or writing contained, the plaintiff or plaintiffs may assign as many breaches as he or they shall think fit.” This act is substantially the same in most of its provisions, as the act of 8th and 9th Wi. Ill, and the decisions upon that statute may be regarded as strictly applicable to the one now under consideration. Under the statute of William it has been held that the plaintiff is compelled to assign or suggest breaches, and if he fails to do so, he cannot recover. Unless the condition and the breach appear upon the record the proceedings will be erroneous. 5 T. R. 633, 538; 2 Wilson, 337. And such we apprehend is the legal and legitimate operation of the act of 1831, and so it has been determined in the case of Lyons vs. Evans, and others. 1 Ark. 367.
The bond upon which the suit is instituted is made payable to the Governor and his successors in office, and the jury upon the trial are ,required to assess damages for each of the breaches that the plaintiff alleges, and that are' proved to be broken. The Governor holds the legal interest in the bond in his official character, as a naked trustee for the benefit of those for whom the suit is instituted, and the injuries resulting from the non performance of the condition of the bond, do not appear until some special breach or breaches are suggested and assigned, and the damages specially shown or proven. Therefore, every breach must state the facts specially upon which the plaintiff’s right of action depends, and must allege them with as much certainty and precision as-are required in the count or counts of a declaration. The breaches appear in every point of view to answer the same purposes as counts in a declaration where the form of proceeding is different, and therefore if the plaintiff fails to suggest or assign proper breaches upon the record, no cause of action accrues. This is - the undoubted rule upon the subject, for the breaches assigned are to be considered as the gravamen or real foundation of the recovery; consequently the persons for whose benefit the suit is brought are the real plaintiffs, and of course they must show a good cause of action, or upon general demurrer the declaration will be held fatal. The People vs. Russell and Wood, 4 Wend. 570; People vs. Brush, 6 Wend. 554. A breach may be considered well assigned if it be in the words of the; contract, either negatively or affirmatively, or in words co-extensive-with its legal import or effect. The object of the assignment ofi’abreach, is to apprise the opposite party of what he is called upon to answer. By applying the rules above stated to the declaration now under consideration, we will be enabled to perceive whether or not the breaches are properly assigned. •
In the present instance the declaration seems designed to cover the whole condition of fhe bond, and it contains but a single breach, which amounts'to nothing more than this, that the said administrator had done nothing which by law he was bound to do. Such a breach is fatally defective, for it contains neither substance nor form, and it expressly contradicts all the known rules and precedents of pleading. 1 Chit. Pl. 424, 425; 3 Chit. Pl. 1179, 1180; Story Pl. 325. There is certainly but one breach contained in the declaration, for it possesses no separate or component parts assigning different breaches. It simply sets out the condition of the bond, and then negatives them in general terms, without alleging any specific facts upon which the defendants’ liability depends. This is a suit for the use of: heirs, and of course they are only entitled to maintain the action in the event that they have been damnified. In order to do this, they are bound to show by positive and specific averments their interest in the estate, and how and in what manner they have been deprived of that interest by the devastavit of the administrator. The declaration cannot be regarded as containing any one substantial breach. It seems to rely solely upon the fact that the administrator had not performed his duty according to law, and it lays the breach to pay the debts of the deceased in the same clause with that to pay the distributive shares of the heirs. In all the breaches it attempts to set forth there is no specific cause of action alleged with reasonable certainly or precision, and of course it is fatally defective upon demurrer.
Again the finding of the jury is not in conformity with the statute regulating the practice in such case, and of course the subsequent proceedings are erroneous. The act in relation to judgments obtained upon demurrer, or by confession, or default, upon penal bonds, requires that “ the court shall make an order therein that the truth of the breaches assigned be inquired into, and the damages sustained thereby assessed. And the judgment in such action shall be entered for the penalty of the bond, together with costs of suit,” and that the plaintififhave execution for the damages so assessed. Rev. Stat. 669, sec. 7 and 8. Neither of these requisites is contained in the order or judgment of the court. The record merely states that “ the jury was sworn well and truly to try, and damages assess, and a true verdict render according to evidence,” and they assessed the damages sustained by reason of the breaches of covenant for a given sum. There was no verdict as to the truth of the breaches, nor judgment for the penalty of the bond as the statute requires. The judgment of the Circuit Court must therefore be reversed.- | [
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Ringo, Chief Justice,
delivered the opinion of thc-Court:
That all of the courls of this State derive the whole of their jurisdiction from the Constitution, and statutes passed in conformity with the provisions thereof, is a proposition which, in our judgment cannot be denied, for they arc all created, or their creation specially provided for by the Constitution; and their respective jurisdiction is, in many respects, expressly defined and limited by the same instrument; yet, in some respects, it is subjected to the control of the Legislature, and may be, fiom time to time, distributed by statute, according to the will of that department, among thé several judicial tribunals, not prohibited by the Constitution from taking cognizance thereof. In regard to matters of contract, the jurisdiction of the Justices of the Peace, is definitely and definitively prescribed by the Constitution, so far as it depends upon the sum in controversy, and in this respect the power of the Legislature over the subject is confined or restricted: so, likewise it is in regard to the jurisdiction of the Circuit Court, except that the latter is not made exclusive, and therefore it is competent for the Legislature to vest in other judicial tribunals, a jurisdiction concurrent with that of the Circuit Court, over all matters oí contract of which it has cognizance: although it is not within the power of that department to divest the Circuit Courts of their original jurisdiction conferred upon them by the Constitution in “ matters of contract where the sum in controversy is over one hundred dollars,” or in any manner restrict or prohibit their exercise thereof, so far as it depends upon the sum in controversy. On this subject the language of the Constitution is that the Circuit Court shall have “original jurisdiction of all civil cases which shall not be cognizable before the Justices of the Peace, until otherwise directed by the General Assembly: and original jurisdiction in all matters of contract, where the sum in controversy is over one hundred dollars,” and 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 of one hundred dollars arid under.” This language comprehends every description of contract, and gives to the Circuit Courts or Justices of the Peace jurisdiction over them, and leaves their respective jurisdiction to be determined solely by the sum- in controversy; and therefore it is that each Circuit Court is alike vested with original jurisdiction in every matter of contract where the sum in controversy exceeds one hundred dollars, and no valid law can be passed by the Legislature prohibiting its exercise; and every Justice of the Peace is in like manner vested with exclusive original jurisdiction in every matter of contract, (except in actions of covenant,) where the sum in controversy does not exceed one hundred dollars. But before such jurisdiction can be exercised, every party to the contract, whose rights in respect thereof, are to be adjudicated, must be legally before the court, or at least be legally notified of the proceeding, and have an opportunity of contesting the demand of his adversary, and vindicating his own right according to law, and therefore, unless the defendant voluntarily enters his appearance to the action, or is found and legally served with such process or notice as is required by law in such case, within the territorial juris» diction of the court or Justice of the Peace, or such other place as the law authorizes such service to be made, the jurisdiction so conferred by the Constitution on the Circuit Court and Justices of the Peace cannot be exercised. But upon such appearance being entered, or such process or notice served on the defendant, the court or Justice of the Peace thereby acquires jurisdiction of the person of the defendant, and may lawfully take cognizance of and adjudicate the case, without any regard to the residence of the parties, or either of them; because the jurisdiction of the court, in such cases, depends entirely upon the sum in controversy, and neither does or can be made to depend upon the residence of the parties. And if the right of a party to sue, can be restricted by statute to the county or township where the defendant resides, or where the plaintiff resides, and the defendant may be found, it must in our opinion, upon the same principle, be also conceded, that the Legislature possesses the power of prohibiting suits from being brought in the Circuit Court of more than one county in the State — a power which, if so exercised, would effectually take from every other Circuit Court the whole of their jurisdiction in civil cases, and vest it in a single court, contrary to the express letter, as well as the obvious design of the Constitution. We are therefore of opinion that so much of the 4th section of the 116th chapter of the Revised Statutes .of this State, as enacts that suits instituted either by summons or capias “shall be brought, when the defendant is a resident of this State, either in the county in which the defendant resides, or in the county in which the plaintiff resides, and the defendant may be found,” so far as it restricts the right to sue upon matters of contract in any of the Circuit Courts of this State, when the sum in controversy is over one hundred dollars, is in conflict with, and repugnant to the Constitution of this State and void, and that in suits instituted in said courts on any contract, no averment as to the residence of either party is necessary to give the court jurisdiction of the case, or for any other purpose whatever.
In regard to the other defects or imperfections specially expressed in the demurrer, it is deemed sufficient to remark that each count in the declaration discloses a contract for a sum exceeding one hundred dollars, and therefore within the jurisdiction of the court; and the fact that it appears from the oyer granted that the several obligations upon which the first and third counts are founded, are respectively endorsed with a credit, sufficient to reduce the amount due thereon to a sum less than $100 does not, in our opinion, constitute an objection of which the defendant can avail himself on demurrer to the declaration, because the demurrer expressly admits the jurisdiction of the court, and the declaration in each count thereof, declares in legal form on a good cause of action against the defendant, which is apparently within its jurisdiction; and although-the obligation set out, on oyer thereof being given, enters into and forms a part of the declaration, the credits thereon endorsed do not, because they are no part of the contract upon which the suit is founded, and do not change or quality the legal rights of the parties to it, otherwise than as a payment of so much of the debt, of which the endorsement is but evidence of the same grade as a receipt, which is not otherwise connected with the original contract, but may be explained or controverted by the plaintiff; and therefore the amount of the defendant’s legal liability upon the contract, as set out in the declaration, and shown upon oyer, exclusive of interest^ must, in regard to the question of jurisdiction attempted to be raised upon the demurrer, be considered as the sum in controversy; although it was competent for the defendant, if he thought proper to have done so, to have shown the facts by a special plea in abatement, to the jurisdiction of the court, be/ore he had interposed any defence admitting the jurisdiction thereof, and thereby have raised and presented a distinct issue as to the sum really in controversy, the finding upon which would have determined the question of jurisdiction; and according to the principle established by this court in the case of Heilman vs. Martin, decided at the last term, this is the only means by which the want of jurisdiction can be shown, when the contract, as set out in the declaration, is within the jurisdiction of the court. We are therefore of the opinion that the declaration is sufficient, and that the demurrer thereto was rightly overruled.
The pleas to the jurisdiction of the court were not filed until after the demurrer was disposed of, which is too late, as has been repeatedly held by this court, and for this reason they were properly struck out of the case.
The third error assigned questions the opinion and judgment of the court in refusing to instruct the jury as asked by the defendant, as well as in the instructions given. As a general rule, it is unquestionably true, that the finding of the jury must embrace all the issues joined, and be responsive thereto. But when all of the issues are, as in this case, essentially the same, and such as may be distinctly and fully responded to by a general verdict for either party, we are not aware of any principle of law which requires a separate finding as to each issue, and in such case we have not been able to discover what benefit either party could derive therefrom, and therefore, in our opinion, the court did not err in refusing to give the instruction asked, nor in the instruction given. The judgment is therefore affirmed. | [
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Dickinson, Judge,
delivered the opinion of the court:
The only question is as to the legality of the judgment. The re-_ cord simply shows the motion, and that the judgment was entered in conformity to the application of the party, and appears to be predicated on the 34th section of the act regulating the proceedings before Justices of the Peace, as contained in McCampbell's and Steele’s Dig.,p. 362, which provides that “in all cases of appeal or certio rari from Justices of the Peace, by existing laws on those subjects, if the judgment of the Justice be affirmed, or judgment given on a trial upon the merits de novo, in the Circuit Court, judgment shall be given, and execution issue not only against the original defendant or defendants in the suit before such Justice, but also against his or their security or securities in the appeal bond, or bonds, to prosecute such certiorari; and the amount of such judgment with costs, shall be levied by the Sheriff or proper officer on the'estate, real or personal, of such security or securities in case the original party does not, or cannot, satisfy the said judgment. And the Sheriff, or proper officer, shall specify, in his return of the writ, how and by whom such execution shall have been satisfied; provided that the amount satisfied and paid by such security or securities shall be taken and considered a debt of record in his or their favor against any such principal debtor or debtors. And such security or securities may, as in other cases of debt of record, thereupon sue out execution against the property, real or personal, of such principal debtor or debtors.” There is no evidence that any notice, either actual or constructive, was given to Clark, or that he waived it by personal appearance. The filing of the motion was the first and only step taken previous to judgment. It was decided at last term of this court, in the case of Webb vs. Estill, that a party must have notice, either actual or constructive', before a judgment can be legally and rightfully entered against him. This doctrine we consider supported by every principle of justice, and too well established to admit of a doubt of its correctness. From the state of the case as presented,to us on the record, we are of opinion that the court below erred in permitting judgment to be entered against Clark, and therefore ought to be reversed with costs. | [
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Dickinson, Judge,
delivered the opinion of the court:
The question of jurisdiction .having already been discussed and decided in the case of Heilman vs. Martin, and James Hanna vs. Henry Harter, we consider it unnecessary to make any further remarks upon the subject than to state, that from the pleadings, the court below rightfully took cognizance of the cause.
The defendant below excepted to the opinion of the court, and spread his exceptions on the record in admitting the testimony of one of the witnesses in relation to the price of pork, which is said to be inadmissible, and therefore, illegal. The declaration sets out a special contract, and this being the case, the plaintiff is required to prove his agreement as laid. That contract is, that he bought of the defendant ten hogs, to be delivered six weeks from the date of the agreement, at the defendant’s dwelling-house; and upon the delivery thereof,'he was to pay the plaintiff four dollars per hundred for the pork. The proof substantially supports this allegation, though it does it in a confused and somewhat imperfect manner. The evidence shews that the plaintiff first refused to take the hogs at the price agreed on, because he could not make up a drove of fifty or sixty head; that he afterwards called again and agreed to take them; to which the defendant consented. He then sent his agent to receive the hogs upon the day appointed, but the defendant refused to deliver them, upon the ground that the agent was not legally authorized to receive them. So far the proof may be considered "as sustaining the declaration.
But the enquiry still remains to be determined, what is the correct standard or criterion in regard to the amount of damages that the plaintiff is entitled’t to recover by reason of the non-compliance of the defendant with the conditions of his contract ? It certainly was the difference between the price agreed on between the parties, and the marketable price of the pork at the time of the delivery at the place fixed on by the agreement. And how should this difference be ascertained or computed? There is but one way by which it could be established. The plaintiff was bound to prove, by witnesses, what was the price of pork at the time for the delivery thereof at the place appointed; and the difference between that sum and the amount agreed to be paid by him, constituted the true damages that he was entitled to recover. This he failed to do, but proved, by a witness,that the defendant sold- his pork at four dollars and fifty cents per hundred. Did the testimony, thus given, prove that was the marketable price of pork at that time and place, or in the neighborhood ? Certainly not. The defendant might have sold his own pork at a greater or less sum than the ordinary selling price. But the fact of his so doing certainly does not establish the marketable price of the article. If this reasoning be correct the evidence objected was inadmissible, and therefore ought not to have been .permitted to be given to the jury on the trial; and as this was all the testimony that was offered upon that point, the verdict must have been erroneous in fixing the amount of damages assessed. The judgment of the court below must, therefore, be reversed, and a new trial awarded. | [
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Humphreys, J.
Appellee instituted suit against appellant and W. W. Brown in the Clark Circuit Court, to recover $269.83, with interest at six per cent, per annum from August 23,1917, on account of goods and merchandise sold and delivered to them.
~W. W. Brown filed a separate answer, admitting appellee delivered the goods and merchandise to him, but alleging the sale and delivery was under an agreement with appellant to pay for them.
Appellant filed a separate answer, denying the sale and delivery of any goods or merchandise to it or to W. W. Brown for it on the dates alleged, and, by way of further defense, pleaded the statute of frauds as exempting it from liability on the debt of W. W. Brown for goods and merchandise delivered to him by appellee. Included in the answer was a cross-bill, alleging that appellant sold and delivered to appellee on August 1, 1917, four barrels of flour for $56.25, for which he prayed judgment, with six per cent, per annum from said date.
The cause was submitted to a jury upon the pleadings, evidence and instructions of the court, upon which a verdict was returned and judgment rendered for $213.58. Under proper proceedings, appellant has prosecuted an appeal from the judgment, and appellee a cross-appeal from the refusal of the court to allow interest on the amount of the judgment from the date of the last item of merchandise furnished.
A summary of the facts is as follows: Appellee, a merchant at Womble, had for many years prior to May, 1917, sold W. W. Brown, a stave mill operator, fifteen miles out from Womble, supplies on credit. Under contract with Brown, appellant was entitled to the output of the mill. Brown was allowed a checking account, and paid his labor and other mill expenses by drafts on appellant. On April 16, 1917, appellee wrote to appellant that Brown was behind with him, and, unless he could be assured of his money, he could not let Brown have any more goods. Shortly thereafter, appellant changed his system of doing business with Brown. It agreed to pay $2.50 per thousand for producing the bolts in the woods, the cost of hauling them to the mill, and' to advance $5 a thousand on manufactured staves stacked on the mill yard. J. A. Carr, as agent of appellant, was sent to Brown’s mill semi-monthly for the purpose of checking up the bolts, staves and labor incurred in making them, and for the purpose of paying them in the following manner: After ascertaining the status of Brown’s account in the production of the staves, he issued checks against appellant to settle- the labor accounts, and to Brown, or to others by Brown’s direction, for any balance that might be due on the estimate of $2.50 per thousand for bolts, and $5 per thousand for staves. At the same time, Carr visited Golden’s mill, some fifteen or twenty miles distant in an adjoining county, for the same purpose. Appellant had a contract for the output of that mill also.
Appellee testified that when J. A. Carr first came to Womble, he assured him that Brown’s account was good; that on the second trip he accompanied Brown to the store, checked over the account and paid it himself by check or draft on appellant; that Brown then asked if he could continue to get goods. He answered “not” unless he could be assured of his money every thirty days; that Brown said, “What about that, Mr. Carr?” That Carr replied, “You (referring to appellee) let him have the goods, and I will be here once a month and pay you; ’ ’ that Carr also said he was representing appellant; that Carr made two settlements with him subsequent to that time;.that on the first settlement, he received a check of date June 12, 1917, for $300, drawn on the Citizens National Bank of Womble, payable to W. W. Brown, signed “W. W. Brown, by J. A. Carr,” and on the second settlement received a check, of date July 17th, for $200, payable to appellee at the same bank, and signed in the same manner as the first. The checks were filled out on blanks used by appellant in payment of bolts and staves, bearing appellant’s business and place of business, and containing a direction to the bank to charge the amount to the stave department of appellant. Appellee testified further that the goods were charged to W. W. Brown on the books, being carried on the old account as a matter of convenience; that he sued Brown jointly with appellant because he was mixed up with the matter, and not because he looked to Brown for the account; that the goods were sold to Brown on appellant’s credit; that on August 13, 1917, he wrote to appellant that it would inconvenience him to carry the account longer, and urged that he send Carr over by the 15th to check up Brown, but received no reply to the letterthat Carr enlisted in the army, and Patterson, appellant’s representative, ■came in August and refused to pay the account, but bought goods from appellee to the amount of $118 to be delivered to Brown’s mill, and paid for them by check drawn on appellant.
J. A. Carr testified that he did not promise to pay for goods furnished Brown nor pledge appellant’s credit therefor, but that he told Green if Brown had anything coming, after the labor was paid out of the $5 per thousand to be advanced, he would be glad to give Green a check for it, if requested to do so by Brown.
E. Nowlin, manager of the stave department of appellant, testified that J. A. Carr had no authority to pledge appellant’s credit for goods to be delivered to Brown.
Appellant insists that the court erred in refusing to give its requested peremptory instruction, for the reason that the undisputed evidence showed, first, that J. A. Carr had no authority to pledge appellant’s credit for the delivery of goods to Brown; and, second, that the undisputed evidence showed that the agreement, if any, between Carr and appellee, was a collateral and not an original undertaking, and, therefore, void, if made, by virtue of the statute of frauds, which was specially pleaded.
(1) A person dealing with a special agent must do so at his peril, and, if the special agent was without authority, the principal cannot be held. Not so, however, in dealing with a general agent. A person dealing with a general agent can hold the principal if the acts of the agent are within the general scope of the particular kind of business intrusted to him. Liddell v. Sahline, 55 Ark. 627. J. A. Carr’s employment was not a special one and confined to a single transaction, but was a general employment to transact a particular kind of business for appellant. He was, therefore, a general agent under the rule announced in the case last cited. Again, he must be held as a general agent of appellant in his dealings with Green for the reason that he was appellant’s admitted agent, and, being an admitted agent, Green had a right, without notice to the contrary, to treat with him as a general agent and within the apparent scope of his authority. It was said in the case of Three States Lumber Co. v. Moore, 132 Ark. 371, that: “One dealing with an admitted agent has the right to presume, in the absence of notice to the contrary, that he is a general agent clothed with authority coextensive with its apparent scope. ’ ’
The evidence revealed the fact that J. A. Carr was clothed with authority to pay for the labor which entered into the production of the bolts and manufactured staves, as well as to check up the bolts and staves and settle with Brown on the basis of the cost of the actual haul of the bolts, $2.50 per thousand for the production thereof, and $5 per thousand for manufactured staves. It also disclosed that appellant received the entire output of Brown’s stave factory; that the goods sent by Green to the mill were for the purpose of facilitating the manufacture of the staves; that appellant knew that the goods were being used for that purpose, and, for two months prior thereto, had honored checks drawn on it in the name of Brown, by Carr, its agent, in settlement of the goods and merchandise thus furnished; that in August, its representative, J. C. Patterson, purchased from Green a bill of goods for the use of Brown at the mill, to the amount of $118 and paid for them by check drawn on appellant. Under these facts, it was clearly implied, and, therefore, within the scope of Carr’s authority to pledge the credit of appellant to pay for goods which entered into the manufacture of the staves. The first reason, therefore, assigned by appellant in support of its contention that the court erred in refusing its peremptory instruction is not sound.
(2) The evidence was conflicting as to whether the undertaking was collateral or original. It is true the goods were charged on the books of appellee to Brown, and not to appellant, and also true that appellee included W. W. Brown as defendant in this suit. It is explained, however, that he carried the account in the name of W. W. Brown, after the alleged agreement, because it was a matter of convenience, growing out of the fact that W. W. Brown had been dealing with appellee for a number of years. The fact of bringing suit against appellee was explained by saying that it was brought simply because Brown was mixed up in the matter. These explanations differentiate the instant case from the case of Millsaps v. Nixon, 102 Ark. 435, relied upon by appellant; so, it cannot be said in this case, as was said in that, that the manner of charging the account on the books rendered it a collateral, and not an original, undertaking. With the explanation, it became a disputed fact for determination by the jury. So, the second reason assigned by appellant, in support of its contention that the court erred in refusing its peremptory instruction, is not sound.
It is insisted that the court erred in giving appellee’s fifth instruction, for the reason that it is not qualified by the bearing of the statute of frauds upon collateral undertakings. The instruction is as follows: ‘ ‘ The defendant, Arkadelphia Milling Company, is bound to the plaintiff, W. C. Green, for the result of the apparent authority of its agent, J. A. Carr; and if the jury find that it was within the apparent scope of J. A. Carr’s authority to arrange for supplies to enable W. W. Brown to operate his mill, they should find for the plaintiff, if they find that said Carr did in fact promise to pay the account sued on in this case.”
This instruction was intended to present the theory of appellee that the acts were within the apparent scope of Carr’s authority and that the agreement or promise was an original undertaking. The statute of frauds has no application to an original undertaking. In presenting this theory of the case, the instruction contains no error.
It is also insisted that the third instruction, given by the court, was erroneous for the same reason urged against instruction No; 5. It carried the declaration of law that, if the jury found from the evidence that the milling company made the promise to pay for the goods, it became an original undertaking, and, for that reason, not prohibited by the statute of frauds. This was a correct instruction on appellee’s theory of the case, and there was evidence to support a direct promise on the part of appellant, through its agent, to pay for the goods. There was no error in giving it.
It is urged that the first instruction given by the court invades the province of the jury. The instruction outlined the issue by stating that the complaint was based upon an allegation of an original and express promise to pay the debt; that, if the jury found by a preponderance of the evidence that such a promise was made, they should find for the appellee. It set forth the gravamen of the action and the necessity for appellee to sustain it by a preponderance of the- evidence in order to prevail. We do not think this in any way invaded the prerogative of the jury.
A great many objections were made to instructions given and to the refusal of instructions requested. It would unnecessarily extend the opinion to discuss all the objections made and exceptions saved by appellant. Upon the whole, we think the case was submitted upon correct declarations of law, as applied to every phase or theory of the case.
Appellee’s right of action accrued on August 23, 1917, and he should have been allowed six per cent, interest per annum on the balance due him on account after that date. The court committed error in refusing to allow him interest on the amount of the recovery from the date his cause of action accrued, towit: on August 23, 1917.
The judgment is therefore affirmed on the direct appeal, and reversed on appellee’s cross-appeal, with judgment here for $213.58, with interest thereon at the rate of six per cent, per annum from August 23, 1917. | [
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Wood', J.
Appellant instituted this action against the appellee in the chancery court of Randolph County.
The appellant alleged in her complaint in substance that A. O. Armstrong died in 1919, leaving his widow, M. E. Armstrong, and the appellant and the appellee, his only children and heirs at law; that he died seized of 565 acres of land; that before his death he purchased a certain eighty acres as a home for the appellee and allowed her to live upon the same for a number of years without paying any rent and allowed her to sell valuable timber from the land but retained the title in himself and continued to pay the taxes thereon; that a short time before his death he deeded the land to the appellee as an advancement to her out of his estate, since which time appellee had continued to hold the land and enjoy the rents and profits therefrom. She alleged that she was entitled to one-half of the estate of her father subject to the dower rights of her mother, M. E. Armstrong, and that the appellee was entitled to the same; that the eighty acres of land above mentioned deeded by their father to the appellee were of greater value than most of the othei land of the estate, being of the value of $10,000-$12,000.
Appellant, therefore, prayed for a partition of the lands and that commissioners be appointed and instructed to set aside to the appellant and the appellee, after carving out the homestead and dower'interest of their mother, an undivided one-half interest in all of the lands owned by her father at the time of his death and including the eighty acres which he prior to that time had deeded to the appellee.
The appellee answered the complaint and alleged that her father, A. O. Armstrong, on the 5th of March, 1903, purchased the eighty acres of land in suit for the sum of $450, which at that time was a fair and reasonable value for the same, and that he immediately thereafter sold the same to the appellee by parol; that she at once took possession of the lands which were wild and built a house on the same and continued to reside thereon until May, 1918; that she made other improvements which she described; that under the terms of the oral contract of sale she was to repay her father the amount he paid for the lands, and she took possession and improved the lands upon the faith of that contract; that the lands had greatly increased in value; that on the 26th day of April, 1918, her father and mother executed to appellee a deed to the property at which time she paid her father $100 in cash and executed to him her four promissory notes in the sum of $100 each as the purchase price for the lands; that since the execution of the deed she had paid one of the notes, and the others were in the hands of the administratrix, M. E. Armstrong, as a part, of the assets of the estate; that it was expressly understood and agreed between the appellee and her father and mother at the time of the execution of the deed that the transaction was a sale and not a gift, and that she was not to be held to account for the value of the land as an advancement out of her father’s estate, but that upon payment of the notes she was to have the absolute title to the lands free from any claims of the estate.
Appellee joined in a prayer to the extent that the other lands, not including the eighty^cres, be partitioned between appellant and the appellee subject to the homestead and dower rights of their mother.
The court found the facts to be that the lands were purchased by appellee’s father for her in the year 1903 for the sum of $450, and that in December, 1903, she went into possession of the land under a parol contract with her father to sell her the lands for the same consideration which he paid; that on the 26th of April, 1918, he executed a deed to the appellee for a consideration of $500; that A. O. Armstrong from the time of his purchase of the lands until the time he executed the deed to the appellee had paid the taxes; that the land at the time of his purchase was heavily timbered; that the appellee and her husband had cut and removed therefrom timber to the value of several hundred dollars; that the land had greatly increased in value and at the time of the decree was worth from $6,000 to $8,000.
The court found that the deed to the eighty acres by A. O. Armstrong to the appellee was in pursuance of the parol contract of sale to her and was not an advancement and could not be considered as a part of the assets of the estate of A. O. Armstrong to be divided between the appellant and the appellee.
The court, thereupon, entered a decree dismissing appellant’s complaint for want of equity as to this eighty acres, from which is this appeal.
The deed to the land in controversy from appellee’s father and mother to appellee was executed April 26, 1918. The consideration expressed in the deed was “the sum of five hundred dollars, ’ ’ and, ‘ ‘ the love and affection that we have for our said daughter.”
The undisputed testimony shows that at the time the deed was executed the land was worth between six and eight thousand dollars. The appellant testified that after the deed was executed she had a conversation with her father in the course of which he said to her, “You and her (appellee) are the only two children and I will not make any difference between them, I expect you and’ Lizzie to share equal.” He also stated “that the value of the land was more now than when he bought the place that they (appellee and her husband) were living on; that all would be made right. ’ ’
One witness on behalf of the appellant testified that about thirteen years ago he was cutting timber for A. O. Armstrong on a tract of land adjoining the land in controversy. At that time Bonner was cutting timber on the eighty now in suit. Witness asked Armstrong “if it was Bonner’s land,” and Armstrong replied: “It may be some day when I get ready to give it to him. ’ ’
Another witness heard Armstrong say something over two years before the trial “that Bonner has got no farm; that is my farm; he never paid the taxes on it.”
Another witness, about six years before the trial, heard Armstrong say that the land in suit belonged to him, that it did not belong to her (appellee).
Still another witness, who had lived with Armstrong ten years, heard Armstrong say “a number of times” that “he intended for Sylvia (appellant) to have an equal charge with Lizzie” (appellee). These conversations occurred more than five years before the trial, “might have been nine years.”
It was conceded that the land was assessed in the name of A. O. Armstrong from 1903 to 1918, and that during that time he paid the taxes.
The above is the material testimony upon which the appellant relies.
The appellee testified that she requested her father to buy the land for her and to hold, it in his name until she paid for it or got money enough to make a payment on it. He bought it for the sum of $450. Appellee was' to pay her father the sum of $500. She was to pay back the purchase money. She went into possession after her father got the deed. Her husband was in the sawmill business. The land was timbered, and they sawed all the timber that ..was suitable for sawing. They put sixty acres in cultivation, built dwelling and tenant houses, spent all the money derived from the place in the last ten years in improvements on same. It was the understanding between herself and father that the place was hers. She was to have it when she paid for it. He bought the land from M. R. Armstrong. The price he paid ($450) was reasonable at that time. Until he made1 her a deed, the land being still in his name, he paid the taxes. Appellee proposed twice to borrow money and pay for the land, but her father preferred that she should wait and pay it out without interest. The deed from M. R. Armstrong to A. O. Armstrong was introduced and the consideration named therein was $450.
The testimony of Mrs. M. E. Armstrong corroborated in all essential particulars the testimony of the appellee. She stated that the land was bought for appellee and turned over to appellee for a home. Appellee and her husband made the improvments on it; they had lived on it for twelve or fourteen years. At the time the place was purchased for appellee she offered to pay for it, but her father told her to go ahead and improve the place. Witness testified, among other things, concerning the deed made in 1918, that she was present when the deed was made. The appellee had paid her father on& hundred dollars on the land. He was old, being ninety-four years and a few months when he died. Was talking about making a will, and said there was no use making a deed, that appellee would get the land any way, that he intended for her to have it. He further said she, appellee, had ‘ ‘ deviled him into making a deed. ’ ’ At the time the deed was made it was the understanding that appellee was to have the land absolutely, subject to the payment of the purchase money notes. She was not to account for any part of it in the distribution of the as-1 sets of the estate, except these notes.
The lawyer who prepared the deed and notes stated that he did so at the request of A. O. Armstrong. The material part of his testimony is as follows: “I understood from his conversation and from what he told me that he was making this deed to carry out his part of the contract of sale he had made verbally to his daughter a number of years ago; that he was conveying to his daughter all his interest and claims against this land except to the extent of the unpaid $400 of the purchase money, and that neither he nor his estate had any other claims against it.”
The burden was upon the appellant to prove the allegations of her complaint. That is, the burden rested on her primarily to prove that the conveyance of the land in controversy was, not a simple gift, nor a sale from A. O. Armstrong to the appellee, but that same was given to her as an advancement. The appellant having proved by the undisputed evidence that the value of the land was $6,000 to $8,000 at the time of the execution of the deed, and that the consideration expressed therein was only $500, it was a prima facie showing’ of an advancement, to the extent, at least, of the difference between the consideration expressed and the real value of the land conveyed. For the law presumes that the natural affection of parents is as strong for one child as another, and that in the distribution of property parents will treat their children equally and fairly.
Therefore, when appellant adduced evidence which proved that her father had deeded to the appellee a tract of land worth between $6,000 and $8,000 for the sum of $500, she established a prima facie case of advancement. as already stated, to the extent of the difference between the consideration paid and the real value of the land.
The parent, however, has the absolute right to make such disposition of his property as he pleases. Therefore, the presumption that he will not give one child a greater portion of his property than another is not a conclusive one, but one that may be overcome or rebutted by proof to the contrary.
Proof on the part of the appellant of the deed from A. O. Armstrong to the appellee and the disparity between the consideration paid and the actual value of the land at the time of the conveyance shifted the burden to the appellee to prove that the conveyance was not an advancement but a sale.
An advancement is a gift by a parent to a child in anticipation of that which it is supposed the child will be entitled to on the death of the parent.
The question as to whether or not a conveyance or transfer of money or property is regarded as a simple gift, or advancement, or a sale, is to be determined by the intention of the parent. The question as to what was the intention is generally purely one of fact to be ascertained from the circumstances of the transaction. The donor’s intention is the controlling principle, and if it can be said from all the circumstances surrounding a particular case that the parent intended a transfer of property to a child to represent a portion of the child’s supposed share in the parent’s estate such transfer will be treated in law as an advancement. Conversely, if it appears that the ancestor intended that a gift to his child should not be treated as an advancement such intention will prevail. 1 R. C. L., p. 656, § 5, p. 665, § § 1617-23-27, and other cases in note; Ruch v. Biery, 110 Ind. 444; McMahill v. McMahill, 69 Iowa 115; Wallace v. Reddick, 119 Ill. 151.
The appellee does not contend, as we understand the record, that the deed in controversy was intended as a simple gift. Appellant contends that it was a gift by way of an advancement, and the appellee that it was a sale.
Applying the above familiar rules of law of advancements to the facts of this record, we are convinced that a clear preponderance of the evidence shows that the deed in controversy was made in pursuance of an understanding between the appellee and her father that the latter should purchase the lands in controversy and convey the same to the appellee; that the transaction was a sale and not a gift by way of advancement. It was not a voluntary transfer without consideration, but on the contrary was a sale for a consideration which at the time of the original transaction represented the fair value of the land. . The deed was but the culmination of a transaction which antedated that instrument some fifteen years.
It was the consummation and evidence of a complete contract which was first entered into between the appellee and her father in the year 1903. The promise of A. O. Armstrong in 1903 to convey the land to appellee was, of course, not binding upon him'in law, because it was not in writing, and there was no part of the consideration paid when appellee took possession. But A. O. Armstrong nevertheless considered his promise then made to appellee as binding upon his conscience, as evidenced by the execution of the deed in pursuance of such promise.
The findings of the chancellor are in accord with our own. The decree is, therefore, correct, and it is affirmed. | [
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McCulloch, C. J.
This is a suit for divorce, and the decree in accordance with the prayer of the complaint of appellee was granted on constructive service without appellant having appeared. The appeal was allowed by the clerk of this court.
The ground urged here for reversal is that the decree was rendered on ex parte affidavits. The record sustains appellant in this contention, for it recites that the cause was heard on the affidavits of appellee and two other witnesses. It is true that in the record certified by the clerk the testimony of each of the three witnesses is referred to as a deposition, The originals have been brought up for our inspection, and they are also marked depositions, bnt they show that they were in fact not depositions, but were ex parte affidavits. There is no caption nor certificate of an officer showing that the depositions were taken at a designated time and place. Accepting the recitals of the record as true, which we should do on appeal, it is apparent that the decree was based solely on ex parte affidavits introduced in evidence, and it has been decided by this court that it is error to accept such character of evidence, and that it cannot be made the basis of a decree for divorce. Johnson v. Johnson, 122 Ark. 276.
It is contended by counsel for appellee that no advantage can be taken of the form in which the testimony was introduced because appellant did not appear and object to it. This argument is answered by the decision of this court in the case just cited, where it was expressly held that ex parte affidavits could not be received in evidence at all, and that a decree could not be supported by that form of testimony.
The decree is, therefore, reversed and the cause is remanded for further proceedings. | [
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McCulloch, C. J.
This appeal is from a judgment convicting the appellants of the crime of robbery.
In the course of the selection of the jury, three of the veniremen answered in substance that they had heard and read a great deal about the case and had formed an opinion concerning its merits which would require evidence to remove. It was not shown that the opinion was formed from talking with witnesses or any one who knew or professed to know the facts. The jurors in answer to the questions stated that notwithstanding their •preconceived opinion they believed they could try the case according to the evidence and the instructions of the court.
The court first refused to excuse any of these jurors for cause, but afterward as to one of them changed its ruling and excused him for cause. At the time of this ruling appellants had exhausted their' challenges, but the ruling had the effect to give to appellants the right to exercise another peremptory challenge.
After a certain juror had been accepted by the State and the appellants, and after a recess of the court, the prosecuting attorney asked permission to exercise peremptory challenge on a juror whom he had already accepted, which the court permitted over the objection of appellants.
After this ruling of the court one juror remained to be selected. The next venireman called, over the objection of appellants, was held to be qualified and the appellants exhausted their last peremptory challenge upon him. The next juror, over the objection of appellants, w.as held to be qualified and was selected, which completed the panel.
There was no reversible error in the rulings of th« court. The answers of the jurors show that their opinions were based upon rumor. At least the appellants did not show that they had talked with witnesses or any one who assumed to know the facts. The preconceived opinion, which, prima facie, rendered the jurors incompetent was overcome by the further examination in which the jurors disclosed that they would be governed in rendering their verdict by the evidence and the instructions of the court.
The record does not show that at the time the court permitted the prosecuting attorney to exercise a peremptory challenge on a juror who had been previously accepted that the appellants’ right to peremptory challege had then been exhausted. The panel had not been completed, and the appellants at that time still had the right to one peremptory challenge.
The rulings of the court in passing upon the qualifications of these jurors, and thus completing the panel by which the appellants were tried, were in conformity with previous decisions of this court. Sneed v. State, 47 Ark. 185; Williams v. State, 63 Ark. 527; Sullins v. State, 79 Ark. 127; Daughtry v. State, 80 Ark. 13; Decker v. State, 85 Ark. 64; McGough v. State, 113 Ark. 301; see also § 2357, Kirby’s Digest.
The only limitations found in the statute (Kirby’s Digest, § 2357) with respect to the time for- the exercise of the right of peremptory challenge is that it must be before the juror "is sworn in chief,” but another limitation necessarily implied is that it should not be exercised at such time as to prejudice the rights of the other party in the exercise of challenges. Sneed v. State, supra; Williams v. State, supra; McGough v. State, supra.
When the prosecuting attorney challenged the previously accepted juror, appellants had, as before stated, one more peremptory challenge left to them. It does not appear from the record before us at what stage of the formation of the jury this particular venireman was originally accepted, nor how many challenges appellants had left at that time. It does not show that appellants * rights with respect to the exercise of their challenges were in any wise altered by the challenge made by the State. All that the record shows in this matter is that when the State was allowed to challenge this juror, appellants had one challenge left, and this is sufficient to show that no prejudice resulted. McGough v. State, supra.
The appellants next contend that the court erred in permitting the State to read in evidence to the jury statements purporting to be the testimony of Patrick Stearns, W. Kramer, Sam Dillard and J. F. Potts, taken before the municipal judge, Ledgerwood, who presided at the examining court. The appellants urge that the court did not comply with that part of section 2137 of Kirby’s Digest, which provides as follows: “The magistrate, before commencing the examination, shall state the charge and inquire of the defendant whether he de/ sires the aid of counsel and shall allow a reasonable opportunity for procuring it.”
The judge who presided at the preliminary examination testified on this issue as follows: “They (appellants) were not represented by counsel. I don’t remember that I said anything to them beforé' I began the examination. I asked them if they were ready for trial, was all, and if they had anything to say, and neither of them wished to make any statement. ’ ’
Witness was asked the following question: “Before entering upon that examination, did you ask them if they wanted counsel or time to get counsel or anything of that sort?” He answered, “I don’t believe I did, Mr. Murphy.” Witness was asked the following question by the court: “Q. Did neither of them say anything about wanting to get counsel?” “A. No, neither one of the boys said whether they wanted to get counsel or not. I didn’t ask them if they wanted counsel. They were not represented there at the trial. When any one is not rep resented by counsel I try to make the examination as fair to the defense as I can.”
R. B. Gotham testified that he was the official court stenographer; that in the performance of his duties he sometimes took down testimony in preliminary hearings; that he took and transcribed the testimony, of several witnesses in the case of the State against the appellants. Witness identified the manuscript that was presented to him a.s his official transcript of that testimony. Witness was asked the following question: “Q. You took down everything that occurred at the trial, did you?” “A. Yes, sir; I think I did.” “Q. The preliminaries of the examination as well as the other matters?” “A. I am not so sure about that, Mr. Murphy, as to whether I took all of the preliminaries down or not.” “Q. Well, I see it says here, ‘The State of Arkansas (after styling the case) appears by prosecuting attorney John Hoskins, Esq., and the defendants, Gus Berger and George Ruloff, appear in person but not being represented by counsel. The State of Arkansas, in order to sustain its charges against the defendants, introduced the following testimony. ’ Now were Ruloff and Berger asked if they wanted counsel or if they had counsel?” “A. I don’t remember of any such question being asked them at that time.”
The appellants testified that they were not asked by any one before the examining trial whether they wanted an attorney or counsel to represent them.
Joe Wakelin, for the State, in rebuttal testified as follows: “I was present in the municipal court when the preliminary hearing of Ruloff and Berger was had charged of robbery.” Witness was asked: “At the beginning of the trial what action did the court take ? ’ ’ Witness answered, “Well, as near as I remember, the court told them that they were charged with robbery and asked them if — I think he asked them if they wanted any counsel or had anything to say. ’ ’
On cross-examnation witness was asked: “And do you say that he (the court) asked them if they wanted counsel?” He answered: “I don’t remember whether it was ‘wanted’ or if ‘they had’ and he told them what they were charged with. ’ ’
“Q. Did he say either one? Did he say, ‘Have you counsel?’ or ‘Do you want counsel?’ ”
“A. Yes, one or the other, I am not positive which it was.”
“Q. What was it attracted your attention to that; fact?”
“A. Well, I was just listening to the trial.”
‘ ‘ Q. How come you to be there ? ’ ’
“A. I was one of the ones that was in the chase.”
A majority of the court have reached the conclusion that the above testimony made an issue of fact before the circuit court as to whether or not the judge who conducted the examining trial, before commencing the examination, inquired of the appellants whether they desired the aid of counsel, and that the trial court could have found and did find from the above testimony that the presiding judge at the examining trial before commencing the examination did inquire of appellants’ whether they desired the aid of counsel and did allow them a reasonable opportunity for procuring counsel. The conclusion is reached that there was a conflict in the testimony on this issue and that there was substantial evidence to sustain the finding of the trial court. Such being the finding of fact by the trial court, this court does not feel called upon to determine whether or not the admissibility of the former testimony of the absent witnesses depends upon an affirmative showing of strict compliance in the committing court with the provisions of the statute (Kirby’s Digest, § 2137).
Other rulings are presented which we have considered and find correct. They do not involve the laying down of any precedents that would be of value to the profession, and we, therefore, do not deem them of sufficient importance to discuss in this opinion.
Affirmed. | [
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McCulloch, C. J.
Appellee instituted this action against appellants before a justice of the peace in Craw ford County to recover possession of a belt, a whistle, and an inspirator used as a part of a saw mill plant.
It appears from the testimony that appellee sold certain lands and a stock of merchandise to appellants- at a stated price, and subsequently there was an agreement for rescission of the sale of merchandise in consideration that appellee was to retain an old boiler and saw rig on the land which had been sold. The testimony tends to show that the belt, the whistle and the inspirator were parts of the machinery mentioned in the contract.
The case was tried in the circuit court on appeal from the justice of the peace, and the verdict of the jury was in favor of appellee for recovery of the inspirator and against him as to the other articles sued for, viz.: the belt and whistle. The court thereupon rendered judgment in favor of appellee for recovery of possession of the inspirator and for the costs of the action. Appellant filed a motion to retax the cost and for a judgment in favor of appellants for the cost of the action on the ground that they had not refused to deliver possession of the inspirator, and that the verdict was in their favor as to the other two articles, which constituted the entire subject-matter of the controversy. The court overruled the motion, and an appeal has been prosecuted to this court.
There was a controversy in the trial of the cause as to whether or not there had been a wrongful detention of the inspirator. Appellee testified that he made demand, for each of the articles claimed, but that appellants refused to deliver the articles. He testified that he sent his wagons to get the boiler and engine and the articles involved in this litigation, and wrote a letter asking for these particular articles, and that he received a letter in reply disputing his claim to the whistle and belt and' claiming that the inspirator was not there. It was also stated in the letter written by appellants that all of the property that belonged to appellee had been loaded on the wagon except the boiler and engine. Appellants testified on the trial of the case in the circuit court that they had never claimed the inspirator and did not know that there was one left on the place until after the trial before the justice of the peace. They stated in their testimony that they did not then claim the inspirator, and that appellee could have it when he called for it.
There was enough conflict in the testimony to justify the finding of the jury that appellants failed to deliver the inspirator in response to the demand of appellee. This being true, appellee was entitled to judgment for the costs, notwithstanding his failure to recover the other two articles sued for. According to the testimony, viewing it most favorably to appellee, the first time that appellant offered to surrender possession of the inspirator was in the midst of the trial in the circuit court, when all of the costs of the action had accrued. They could not escape liability for costs by tendering possession of the inspirator at that time, even if the statement of the witnesses on the witness stand could be treated as a tender. It is true that each of the appellants testified at the trial in the circuit court that they had stated in the trial in the justice of the peace court that they had not claimed the inspirator and that appellee was welcome to come and search for it and take it if he could find it, but that statement was disputed by the testimony of appellee that lie had no recollection of any such offer before the justice of the peace.
The right to recover must be tested by the evidence adduced in the trial of the action, and not by testimony introduced at the hearing of the motion to retax the cost. The question of wrongful detention having been an issue in the trial of the main action, the verdict of the jury was conclusive, and that question could not be tried over again on motion to retax the cost.
That question was properly submitted to the jury in the court’s charge. The court refused to give an instruction requested by appellants but gave one on the court’s own motion on the same subject which correctly stated the law applicable to the case.
Finding that there was testimony legally sufficient to support the verdict on the issue as to whether or not the inspirator had been wrongfully detained, it follows that the judgment of the circuit court must be affirmed, and it is so ordered. | [
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McCulloch, C. J.
Appellant is the prosecuting attorney for the Twelfth Judicial District, which is composed of Scott and Sebastian counties, and he has appealed from a judgment of the circuit court, rendered on appeal from the county court for the Fort Smith District of Sebastian County, refusing to order a warrant on the treasury for the amount of his compensation, as fixed by statute, for the month of November, 1919.
The General Assembly of 1919 (Acts 1919, p. 248) enacted a statute fixing the amount of compensation of the prosecuting attorney of that circuit to be paid by each of the respective counties, and by each of the two districts of Sebastian County. The total amount of compensation, in addition to the salary of $200 to be paid out of the State treasury, was fixed at the sum of $2,700, of which the sum of $1,800 was apportioned to the Fort Smith District of Sebastian County.
The statute was construed by this court in the recent case of Dobbs v. Holland, 140 Ark. 398. The constitutionality of the statute was attacked on the ground that the office of prosecuting attorney is a State office, and that the Legislature cannot put the office on a salary basis to be paid out of the funds of the respective counties. This court upheld the validity of the statute, however, and as a reason for the decision it was held that the effect of the statute was to provide for compensation payable out of fees earned by the prosecuting attorney as fixed by statute and paid into the county treasury. In disposing of the matter, the court stated in the opinion that it is “a fair construction of the act to say that the Legis lature intended that the compensation fixed in the act should be paid out of the fees which the act provided should be collected and paid into the county treasury.” The conclusion of the court was summed up in the last sentence of the opinion as follows:
“We conclude, therefore, that the salary of the prosecuting attorney has not been increased beyond the constitutional limitation, but that a compensation has been fixed payable out of the fees which he earns, and that the act does not, therefore, offend against the Constitution.”
There is no escape from the effect of the decision in that case that it was not intended that the prosecuting attorney should receive compensation out of the general revenues of the counties, but that the amount of compensation to be paid out of the treasury was to be limited to the amount of fees actually received and paid.
It appears that the fund in the treasury accruing from earned fees of the prosecuting attorney has been exhausted by warrants drawn for the salary of previous month's, and the judgment of the circuit court in refusing to order a warrant on the treasury was, therefore, correct.
We deem it not inappropriate to say at this time, in order to avoid future controversy on the subject, that the prosecuting attorney is entitled to the full amount of the salary if the earned fees during his full term of office amounts to that much. The salary is payable in monthly installments, but the fact that the earned fees in a given month are insufficient to pay the salary for that month is no reason why the salary should not subsequently be allowed and paid if the earned and collected fees during the term are sufficient to pay the whole salary. The case is in this respect controlled by the decision of this court in the case of Rowden v. Fulton County, 132 Ark. 245.
Judgment affirmed.
Humphreys, J., dissents. | [
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Hart, J.
(after stating the facts). The decree of the chancellor was correct. That one who is already in possession of land as tenant and continues such possession after the making of a parol contract for the purchase thereof from his landlord does not thereby take the contract out of the statute of frauds. This court has held that possession to have the effect to take the case out of the statute must be exclusive, evincing the birth of a new estate, and distinguished from the continuation of an old one; and must not be referable to an antecedent right. McNeil v. Jones, 21 Ark. 277; Haines v. McGlone et al., 44 Ark. 79; Moore v. Gordon, 44 Ark. 334, and Ashcraft v. Tucker, 136 Ark. 447, and cases cited. These authorities also support the rule that an independent ground for specific performance for a parol contract for the purchase of land is that the purchaser has made permanent and valuable improvements under claim of ownership of the land. According to this test Vaughan was entitled to a decree of specific performance. According to Ms own testimony and that of one of the witnesses for the defendants, he cleared seven acres of land which was worth $15 per acre. He also, as he expressed it, finished building a house which had been started by Rugen during the period of his tenancy.
Another witness testified that the work Vaughan did on the house was to cover it.
Rugen testified himself that Vaughan did some work on the house. He, also, paid $20 of the purchase money at the time the contract was made. The contract price of the land was $500. The value of the improvements and the part of the purchase money paid amounted to at least $125. These improvements were permanent in their nature, and it can not be said that they were of so little value as to be considered as compensated for by the temporary enjoyment of the land. The evidence shows that Turner lived in the neighborhood and knew of Vaughan’s claim to the land at the time he purchased it from Rugen.
The chancellor found the issues in favor of the plaintiff. Under the circumstances we think that the part payment of the purchase money and the improvements made by the purchaser were of a permanent nature and of such a substantial character, when compared with the value of the land, that it would be inadequate to refuse the plaintiff the relief prayed for in his complaint.
It follows that the decree must be affirmed. | [
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McCulloch, C. J.
Appellant instituted this action in the chancery court of Howard County to cancel a deed executed by him conveying certain lots in Nashville on which is situated a plant operated for the purpose of removing hulls from peanuts. The parties entered into a partnership agreement for the construction and operation of a plant under the firm name of Nashville Peanut Hulling Company, and the deed was executed to the copartnership under that name. A cash consideration of $3,000 duly paid was recited in the deed. Appellant alleges that appellee orally agreed as the real consideration for the execution of the deed (the price of $3,000 being recited merely for the purpose of specifying a paid consideration) to advance and furnish to the copartnership the sum of $10,000 to use in constructing and operating the plant; that appellee failed to furnish any part of said sum, and the cancellation of the deed is sought on that ground.
Appellee denied that he agreed to furnish that sum or any other sum for the purpose named, and alleges that he purchased from appellant an undivided half interest in a patent applied for by appellant on a hulling machine, that he paid the stipulated price of $1,000, and that the copartnership agreement was entered into with certain mutual undertakings for the operation of the plant.
It appears from the testimony that the parties entered into a copartnership agreement in writing dated September 27,1917, whereby appellee purchased from appellant the half interest in a peanut hulling machine, appellant having applied for a patent thereon, and they were to construct and operate a hulling plant in Nashville. The price to be paid by appellee for the interest in the patent was the sum of $1,000, and it is conceded that he paid it. The plant was built and put into operation on the lots involved in the present controversy.
On September 24, 1918, after the plant had been in operation for a considerable time, the parties entered into a new copartnership agreement in writing. Nothing was mentioned in that agreement about a conveyance of the lots in controversy. The plant is therein described as being located on these lots. Contemporaneously with the execution of the new contract appellant executed to the copartnership the deed in question reciting, as before stated, the consideration of $3,000 paid. Appellant testified that appellee orally agreed, as consideration for the conveyance, to furnish $10,000 to the copartnership to use in operating the plant, and that he failed to furnish any part of that sum. Another witness corroborated appellant. Appellee .denied that he made such an agreement. The written contract is silent oh that subject.
The parties operated the plant until November 4, 191:8, when they leased the plant to Mulkey & Son, a firm composed of appellee and another, both appellant and appellee signing the lease contract. Under the lease com tract Mulkey & Son were to pay royalties to appellant and appellee on all peanuts hulled at the plant and to employ appellant as manager or superintendent at the wage of $5 per day. Appellant alleged in the complaint that Mulkey & Son had not performed the lease contract in accordance with its terms; but this is denied; and the testimony is conflicting.
Appellant’s sole ground urged for canceling the deed is that appellee has failed to perform an oral agreement constituting the real consideration instead of that recited in the deed.
Waiving the question whether or not appellant has proved his alleged ground for cancellation by a preponderance of the testimony, the law is well settled against his contention. He is not permitted to show, for the purpose of defeating the conveyance, failure to perform a consideration not expressed in the writing itself. Jernigan v. Davis, 71 Ark. 494; Sims v. Best, 140 Ark. 384.
The conveyance was to the copartnership. The property became partnership assets and the recited consideration, if not paid, became a partnership liability. The remedy of appellant, if the consideration has not been paid or shall not hereafter be paid, is in the adjustment of the copartnership accounts, either by mutual agreement of the parties or by a decree of court in an appropriate action instituted for that purpose. The proof is not sufficient in this case to show a failure to perform the contract between the parties to this litigation or the lease contract between them and the lessees.
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Humphreys, J.
This suit was instituted by appellee against appellant in the Ouachita Circuit Court, to recover $405 as damages, caused by the alleged negligence of appellant to feed and water a mixed shipment of mules and horses. Omitting caption and signature, the complaint is as follows: '
‘ ‘ Comes the plaintiff, J. B. Morgan, and for his cause of action against the defendant, Missouri Pacific Bailway Company, states:
“That the defendant is a corporation engaged in the business of a common carrier by railway in this State, and that as such it entered into a contract with plaintiff, in writing, by which it undertook to transport for him, consigned to himself, a car load of mules and horses from Iola, Kansas, to Stephens, Arkansas, and that said mules and horses were delivered to defendant by plaintiff in good condition and were accepted by it for such shipment on Thursday, the 6th day of December, 1917. That said shipment consisted of twenty-two mules and five horses. A copy of said contract is filed herewith, marked Exhibit ‘A,’ and plaintiff asks that same be taken as a part of this complaint.
“That in the course of shipment, said car load of mules and horses reached Van Burén, Arkansas, at 4:30 a. m. on Saturday, December ¡8, 1917, and were unloaded at Van Burén, Arkansas, at 10:18 a. m. on said December 8, 1917, making forty-one hours which said mules and horses were continuously kept in said car. That during said time said horses and mules were kept in said car defendant negligently failed and refused to either feed or water said stock, and as a result said stock became so nearly starved that all of them had their tails and manes entirely eaten off by each other; that by reason of the negligence aforesaid the general condition of all of said stock was greatly impaired; that by reason of the impaired condition of said stock, and the loss of their tails as aforesaid, the market value of said stock was reduced $405, and plaintiff has been damaged in that sum; that said damage was the result of the negligence of the defendant as aforesaid.
“That said stock was delivered to plaintiff at Stephens, Arkansas, on December 13, 1917, damaged as above stated.
“Wherefore, plaintiff prays judgment against the defendant in the sum of $405, for costs herein and all proper relief.”
Appellant filed answer, denying each material allegation in the complaint, and, by way óf further defense, alleged that the damage, if any, resulted to the stock on account of appellee’s own negligence in failing to put some sort of chemical on the tails, of the animals to prevent them from gnawing or eating the hair off of each other’s tails.
The cause was submitted to a jury upon the pleadings, evidence and instructions of the court, upon which a verdict was returned and judgment rendered against appellant in the sum of $405 as damages. From that judgment an appeal has been duly prosecuted to this court.
The undisputed evidence disclosed that appellee shipped a car, consisting of twenty-two mules and five horses, from Iola, Kansas, to Stephens, Arkansas, on the 6th day of December, 1917; that the stock were in good condition when received for shipment; that the mules and horses were continuously kept in the car for forty-one hours without being fed or watered, or stopping and removed from the car for that purpose; that, at the time the shipment reached Van Burén, Arkansas, the mules and horses had been in the car continuously without food or water for over thirty-six hours; that they arrived at Van Burén at 4:30 a. m., December 8, 1917, and, although being requested to do so, appellant failed to unload them until 10:18 a. m. of said date; that the contract of shipment contained a clause relieving appellant from feeding, watering or removing the stock for that purpose within thirty-six hours from the date of shipment'; that appellee accompanied the shipment from Iola, Kansas, to Van 'Burén.
The evidence on behalf of appellee tended to show that, after the arrival of the shipment at Van Burén, and after thirty-six hours from the time the stock were received for shipment at Iola, and before they were unloaded to be fed and watered, their tails and manes were entirely eaten off by each other on account of their starved condition; that appellee lost from $15 to $25 per head in the sale of the stock, because the hair on their tails and manes had been eaten off; that it was not the general custom to place chemicals upon the tails and manes of animals to keep them from eating the hair on the tails and manes of each other.
. The testimony on behalf of appellant tended to show that it was the custom, especially in the West, for shippers to apply chemicals to prevent stock of this character from eating the hair off the tails and manes of each other, on account of their inherent vices or propensities; that chemicals had not been applied to the tails and manes of the horses and mules constituting this particular shipment.
It is contended by appellant that there is no substantial evidence to support the finding of the jury that the injury resulted to the mules on account of hunger or because they were kept in the car more than thirty-six hours continuously after the date of shipment, or that the injury occurred after the thirty-six hour period. Appellee testified that he saw the stock between 9 and 10 o ’clock, after the expiration of the thirty-six-hour period, at Yan Burén, and that their tails and manes were eaten off at that place, by each other, on account of their hunger or starved condition. This was substantial evidence tending to show that the tails and manes of the animals were eaten off by each other on account of hunger, resulting from being kept in the car continuously for more than thirty-six hours without feed or water. But it is suggested that there is no evidence tending to show that it was the duty of appellant to feed and water the stock, and, therefore, a failure to do so did not tend to show any negligence on its part. On interstate shipments it is made the duty of carriers to unload stock of this character at periods of twenty-eight consecutive hours and to place them in properly kept pens for rest, water and feeding for a period of at least five consecutive hours, unless prevented by storm or by other accidental or unavoidable cause which can not be anticipated or avoided by the exercise of due diligence and foresight, provided the twenty-eight-hour period of time may be extended to a period of thirty-six hours if written request of the owner of the shipment shall be made separate and apart from the printed bill of lading, and also made the duty of the carrier, in default of the owner doing so, to properly feed and water the stock during the rest period. A heavy penalty is imposed upon carriers for noncomplinace with the Federal act. Fed. Stat. Ann. Supp. 1909, pages 43, 44 and 45. Proof that a carrier has failed to comply with this law is certainly evidence of a substantial nature tending to show negligence on its part. Such proof was made in the instant case. It is true the shipper in the instant ease .accompanied the shipment, but the first opportunity accorded him to -feed and water the stock was after they had been continuously aboard the car for forty-one hours.
It can not be said the undisputed evidence' shows it was the duty of appellee to place chemicals upon the tails and manes of the animals, and because of his failure to do so, was guilty of negligence. The evidence tended to show it was not a universal practice, so much so as to make it a custom, and not so necessary that the railroad itself exacted such treatment of shippers before receiving stock for shipment. Neither can it be said that the undisputed evidence showed that appellee was guilty of negligence himself for failure to feed and water the stock at the expiration of the thirty-six-hour period, because it appears that no opportunity was accorded him to do so until the stock had been con tinuously confined in the car for forty-one hours. There is therefore substantial evidence to support every material allegation necessary to a recovery, and, for that reason the court was correct in refusing to give appellant’s requested peremptory instruction.
Appellant insists that the court committed reversible error in giving instruction No. 1, which is as follows: “You are instructed that if you find from the evidence in this case that the plaintiff delivered to the defendant the car load of mules and horses referred to in the complaint, and that on account of the negligence of the defendant in failing to feed and care for said stock, which occurred more than thirty-six hours after delivery to the defendant of said stock, and that the same were damaged in the manner complained of, you will find for the plaintiff, unless it be shown by the evidence that the plaintiff was himself guilty of negligence in the handling of said stock, which contributed to cause the damage of Which he complains.”
It is said that this instruction in effect assumed that it was the duty of appellant to feed and care for the stock and that it was negligent in failing to do so. • If the instruction made the assumption, it was upon condition that it would not be responsible in the event appellee was himself negligent in not caring for the stock. The law imposed the absolute duty to feed and water the stock at the expiration of the thirty-six-hour release period upon appellant, irrespective of any contract with the appellee shifting the duty. Certainly it can not complain of the conditional assumption if it failed to afford appellee the opportunity to feed and water the stock.at the expiration of the release period. There was ample evidence to sustain a finding by the jury that no opportunity was afforded him to feed until five hours after the time limit had expired. No prejudice, therefore, could result to appellant if the instruction-did assume that it was appellant’s duty to feed and water the stock at the expiration of thirty-six hours.
Appellant insists that no damage was established because the proof showed that the mules could do as much work after their manes and tails ha'd been eaten off as before. This is not the test. The test is, Did the injury to the manes and tails of the animals decrease their market value? The undisputed evidence in this case showed that animals with manes and tails eaten off are not worth as much in the market as if they had their manes and tails.
No error appearing in the record, the judgment is affirmed. | [
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Humphreys, J.
This suit was instituted by appellant against appellees in the Hempstead Chancery Court to restrain the appellees, who were the commis sioners of the Hope, Fulton and Emmet Road Improvement District, from levying an assessment of benefits for constructing the road through the district, against appellant’s gas distributing lines laid in the streets and alleys of the town of Hope, within said district.
The pleadings consisted of a complaint and demurrer, presenting the sole issue of whether the distributing pipe lines within the city limits of Hope are personal property or real estate. It is conceded and has been recently decided by this court that personal property can not be subjected by the Legislature to assessments of benefits for local improvements. Snetzer v. Gregg, 129 Ark. 542.
According to the allegations of the complaint, appellant is the owner of the main gas line connecting the Caddo gas fields, in Louisiana, with the city of Little Rock. This main pipe line passes through the Hope, Fulton and Emmet Road Improvement District in Hemp-stead County, and from a point thereon near the city of Hope, distributing lines branch off of the main line, and, under and by virtue of a franchise granted to appellant by said city, the distributing lines are laid in the streets thereof for the purpose of serving the consumers in the city with, gas.
The Hope, Fulton and Emmet Road Improvement District was created by Act No. 153 of the Acts of the General Assembly of the State of Arkansas for 1919. That part authorizing the assessment of benefits against pipe lines is as follows: “Their (referring to the commissioners) assessment shall embrace not merely the lands, but all railroads, tramroads, telegraph, telephone and pipe lines, and other improvements on real estate that will be benefited by the improving, of the roads; and wherever the word ‘lands’ is used in this act, it shall be construed, to embrace all property subject to taxation therein. # *
In construing section 7 of Act 71, Acts of the General Assembly of 1917, which was a provision quite similar to the one now before the court, this court held that assess ments of benefits for constructing the improvement provided for in the act might be levied against interurban telephone, telegraph, power and pipe lines upon the same ground that such assessments may be levied upon the right-of-way of railroad companies. Mo. Pac. Rd. Co. v. Conway County Bridge Dist., 134 Ark. 292. The reason or ground for imposing such a tax upon the right-of-way of railroads is that the railroads have an interest in the soil and that such easement or freehold interest may be specially benefited by the improvement. Because a town or city in Arkansas had no right to grant a street railway any easement or freehold interest in the soil or exclusive control over the street on which the track is laid, but can only grant it a franchise to use the street in common with others, and not for its exclusive benefit, this court ruled in Lenon v. Brodie, 81 Ark. 208, that assessment for benefits could not be levied against the right-of-way of street railroads in the public streets. The same doctrine was announced in Fort Smith Light & Traction Co. v. McDonough, 119 Ark. 254. It was said in that case (quoting the sixth syllabus): “The tracks of an interurban railway, lying within a city, are not to be classified as real estate for purposes of assessment for a local improvement.” In reannouncing the same doctrine in the case of Board of Improvement v. Southwestern Gas & Electric Co., 121 Ark. 105, the court took occasion to say: “Authorities are abundant to the effect that the tracks of a street railway laid along the public highway (meaning public streets within the city limits) do not constitute an interest in the soil so as to be classified as real property within the meaning of taxation laws.”
Franchises granted by a city to public utilities to lay pipe lines in the public streets are on a parity with franchises granted to a street railway to lay its track and operate in the public streets. Neither confer any easement or freehold rights in the soil. So, pipe lines must be classified as personal, and not real estate, within the meaning of taxation laws. Pipe lines laid in the streets of a oity are clearly personal property, and can not be classified as real property by a Legislature. It is only where the character of the property is doubtful that a Legislature has power to classify it as real estate.
For the error indicated, the decree of the chancellor is reversed and the cause remanded with instructions to overrule the demurrer and to enjoin appellees from levying an assessment of benefits against appellant’s pipe lines within the city limits of Hope. | [
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Wood, J.
The appellee instituted this action against the appellant on a promissory note, which reads as follows:
“Little Rock, Ark., Oct. 15, 1915.
‘ ‘ Ten months after date, I, wej or either of us, promise to pay to the order of
Ben B. Weil
Five hundred.............................-...........................................mo/100 Dollars, For value received, negotiable and payable, without de falcation or discount, at the.......................................................................of ...................................., with interest from maturity at the rate of ten per cent, per annum to maturity, and at the rate of ten per cent, per annum from maturity until paid. The makers and indorsers of this note hereby severally waive presentment for payment, notice of nonpayment and protest.
“Payments to be made $50.00 per month until paid. Secured by a real estate mortgage in Pulaski County, Arkansas.
"C. E. Castleberry.
"Mrs. W. H. Trimm.”
The defense was usury. The appellee introduced the note.
Appellant, Castleberry, testified that he borrowed the $500, evidenced by the note, through appellee’s agent, Reinberger; that he borrowed the sum of $700 at the time represented by two notes; that one of the notes was made payable in four months and the note in controversy in ten months; that the understanding was that witness was to pay ten per cent.; that he did not know at the time that appellee was going to take out the interest in advance; that he expected to get $700 in cash; that he thought that he was to pay the interest from maturity. Witness was asked if he did not request the privilege of paying it at $50 per month and answered the note was made payable that way.
A mortgage was given to secure the note, which, among other things, recites with reference to the notes as follows: ‘ ‘ Until paid at the rate of ten per cent, per annum. Said note being signed by C. E. Castleberry and Mrs. W. H. Trimm, and one note for the sum of two hundred ($200) dollars of even date, herewith payable to the order of the said 'Ben B. Weil, and to be due and payable four months after date, and bearing interest from maturity until paid at the rate of 10 per cent, per annum. That the said C. E. Castleberry shall have the right to pay fifty ($50) dollars per month upon said notes until the same are fully paid, both principal and interest.”
Castleberry further testified that, “The original agreement was that I was to pay $50 per month until paid on the note.” Witness could have begun the payments of the $50 per month after maturity and paid it out long before he was sued. Witness had not paid the note.
The appellee in rebuttal testified that he purchased the note through his agent, Mr. Reinberger; that his only instructions to his agent were that the note should be good and bear ten per cent, per annum. Witness did not demand that the interest should be paid in advance. He instructed his agent that he was to receive ten per cent, per annum on the note, as shown by the notes. Witness had not made an alteration on the note nor had he authorized any one else to do so. Witness instructed his agent to be careful so that no claim could be made that compound interest was intended and to make all settlements so that witness was to receive ten per cent, per annum.
Another witness testified that he represented the appellants in negotiating the loan from Weil; that the interest charged on the note was ten per cent, per annum; that there was never anything said by any one either directly or indirectly agreeing to pay any more than ten per cent. Witness, acting for Castleberry, did not agree that more than ten per cent, per annum should be charged on the loan. Witness did not remember who wrote the note, but believed that it was C. E. Castleberry. The regular bank words were used in writing the note. ‘ ‘ Ten months after date, ” and the amount “$500” were written in and signed by Castleberry and Mrs. Trimm. At a later time witness remembered the words “may, at his option, pay the note in installments of $50 per month.” Witness did not remember whether this was written in before Castle-berry got his money, but it was not on the note when witness first saw it. The note was signed by Castleberry in witness’ office and was delivered by Castleberry to appellee’s agent, Castleberry collecting the proceeds.
The cause was tried by the court sitting as a jury.
The appellant asked the court to make eight separate specific findings of fact, among them a finding to the effect (7) that the parties to the note intended the words “payments to be made $50 per month until paid” be a part of the note; (8) that the note in suit was discounted in advance at the rate of ten per cent, per annum for a period of ten, months. Appellant also asked that the court make certain declarations of law to the effect that the note in suit is not commercial paper, but is a note payable ten months after date in installments of $50 per month, and that the collection of the interest in advance on the full amount of the note, was therefore usurious.
The court refused the declarations of law and found generally the facts and the law in favor of the appellee.
The court, therefore, rendered a judgment in favor of the appellee for the amount of the note with interest at the rate of ten per cent, thereon from date. From which judgment is this appeal.
In the left hand corner of the note, which is the foundation of the action, written with ink, are the words “payments to be made $50 per month until paid. Secured by a real estate mortgage in Pulaski County, Arkansas.”
The plaintiff (appellee) does not allege that these words were added to the note after the same was signed and he does not allege that the same were no part of the note nor does the testimony of the witness Braham show or tend to show that these words were not written on the note before the same was delivered to the appellee.
We conclude, therefore, that the note in controversy was a plain, negotiable promissory note payable ten months from date with interest at ten per cent, per annum from date, with payments to be made in installments of $50 per month. The withholding or deducting from the face of such note the highest legal rate of interest for the full ten months constituted usury. Because interest at the rate of ten per cent, on $500 payable in monthly installments of $50 per month would amount, for the full period of ten months, to the sum of $23.02, whereas, the appellee, through, his agent, charged and received the sum of $41.67. This was a fraction over 18 per cent, per annum on $500 payable in monthly installments o'f $50 each for a period of ten months.
The contention by the appellee that the words “payments to be made $50 per month until paid” was a notation written after the note and mortgage were executed and that same were only for the purpose of giving Castle-berry the option or privilege of paying off the note in installments after maturity, has no evidence to support it. In the absence of evidence to that effect or evidence showing that these words were a forgery, it must be held that these words were a part of the instrument. The note on its face shows that they are a part of it, and Castleberry testified that they were part of the note, and the testimony of appellee’s agent who was instrumental in obtaining the note, shows that Castleberry prepared the note. Therefore, the testimony is undisputed and the conclusion irresistible that these words were a part of the note and expressed the manner in which the principal was to be paid.
'But, if counsel for appellee were correct in his contention that these words were intended to give the appellant the option or privilege of paying the note in monthly installments after the same became due, still this could not rescue the appellee from the charge of usury, for if the appellant had the option of paying the note in installments of $50 each after the date named for the maturity of the note, this would in reality make the note payable in twenty months instead of ten months. If the note was payable in twenty months instead of ten, then the same would not be commercial paper and there would be no authority in the law for appellee to receive or discount interest upon such paper in advance. “A contract is usurious whereby interest is deducted at the time of making the loan if the loan is for a period of over twelve months. ’ ’ Ellis v. Terrell, 108 Ark. 69; section 5382, Kirby’s Digest.
The appellee contends that the note was not usurious, because at no time during the making of the contract of sale was there anything said except that the appellee was to receive interest at the rate of 10 per cent, per annum and so instructed his agent Reinberger. But the appellee’s contention is not tenable for the reason as we have shown that the note upon its face shows that it was payable in installments of $50 per month, and appellee’s agent, before delivering the note to appellee, deducted in advance the full amount of the' interest for the entire ten months and gave to the appellants the balance. He does not set up in his complaint or show in his testimony that there was any inadvertence - or mistake on the part of his agent in taking the note in the form in which it was executed or in receiving the $41.67 interest in advance.
In Galveston & H. Inv. Co. v. Grymes, 50 S. W. 467-70, it is said, “Both parties intended the notes to be for the amounts named in them and knew how these amounts were obtained. In the sense that they believed the interest charge to be lawful they did not intend to violate the law, but they did intend to do just what they did, and that was a violation. Their mistake was simply as to legal effect.” See,, also, Habach v. Johnson, 132 Ark. 374, and cases there cited.
Reinberger in deducting the interest in advance from the $500 and paying the balance to the appellant was acting within the scope of his authority and appellee was bound by his act and intention. The undisputed circumstances show that the appellee knew what Castleberry had done. See Jones v. Phillippe, 135 Ark. 578-81.
The court erred in its findings and judgment. The judgment is, therefore, reversed and the cause will be dismissed. | [
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McCulloch, C. J.
Appellants instituted this action below attacking the validity of an act of the General Assembly of 1919 (regular session), creating two improvement districts embracing contiguous territory for the purpose of improving certain roads in that county. Acts 1919, vol. 1, p. 898. The two districts are separately designated, and they are declared to be separate organizations with different commissioners. In other words, the two organizations are entirely separate in every respect, except that’ they were created by the same statute, which is in that respect similar to the statute which we upheld in the recent case of Van Dyke v. Mack, 139 Ark. 524.
The dividing line between the two districts is an irregular one, though it follows section and half-section lines, and District No. 1 embraces all of the northern portion of the county except thirty-three sections in the northwest corner of the county, and District No. 2 embraces all of the southern portion of the county, except certain areas in the extreme southern and southeastern part of the county equaling nearly two townships in extent. The boundary line between the two districts does not run straight across the county, but, as before stated, is an irregular line, following, however, section and half-section lines. The territory in District No. 1 runs far down the western side of the county well below the middle line, and the territory in District No. 2 runs up through the center of the county far above the middle line. The city of Warren, which is the county seat, is situated in the northeast portion of the county, and the roads converge, so to speak, from that point. The division line between the two districts is at that point along the southern boundary of the city of Warren. District No. 1 includes several roads to be improved, all converging, as before stated, from the city of Warren. One of those roads begins on the northern boundary of the county in a certain designated section and runs southerly to the city of Warren, and through the city to a certain point along a certain designated street. Another one of the roads begins on the northern boundary of the county, six or eight miles west of the beginning of the other roads, and runs southeasterly to the city of Warren, and thence through the city on designated streets so as to intersect with the other road. The other road to be improved begins on the eastern boundary line of the county, and runs northeasterly to the city of Warren, thence through that city along a certain designated street and thence westward to the town of Banks, and thence southwesterly to a certain point connecting with a public road coming across from Calhoun County. All of these roads are connected together in the city of Warren.
In District No. 2 the principal road to be improved is one beginning in the southern portion of the city of Warren and running thence southerly and southwesterly through the town of Hermitage and thence southwesterly along a designated route to Moro Bay on the southwest boundary line of the county. The only other road to be improved in that district is one forming a loop, which begins at the intersection of what is termed the Hermitage and Ingalls public road with the road last above described at the town of Hermitage, and running southerly to the town of Ingalls on the Chicago, Rock Island & Pacific Railway, thence in a southerly direction to the town of Vick, on said railroad, and thence northeasterly to Johnsville, and thence northeasterly to the intersection at a certain point with the aforementioned road from Warren to Moro Bay.
Appellants are owners of real property in the two districts, and joined, without objection, in a single action against the commissioners of both districts for the purpose of attacking the validity of the statute as a whole. The chancellor upheld the statute, and an appeal has been prosecuted.
The first contention in support of the assault on the statute is that it is discriminatory in its effect in that a certain tract of land situated in the heart of the affected territory, and abutting on one of the public roads, is omitted entirely from each of the districts, whilst other lands more remote are included. The tract alleged to have been omitted intervenes between one of the roads to be improved and other lands which are included, and, if the charge is true that these lands are omitted, it makes clear a case of unwarranted discrimination. Heinemann v. Sweatt, 130 Ark. 70.
This contention of appellants, however, is based upon the charge that the tract of land in question was omitted from the statute, but that there has been an unauthorized interlineation on the typewritten legislative bill as engrossed, and on the enrolled bill signed by the Governor and now on file with the Secretary of State, showing the inclusion of the tract alleged to have been omitted. In other words, it is conceded that the tract of land in question was included in one of the districts if the face of the enrolled bill be accepted as correct with the interlineation thereon, but appellants contend, and attempt in this case to prove, that the interlineations were unauthorized and were made after the enrolled bill was signed by the Governor and filed in the office of the Secretary of State. Much testimony was adduced bearing on the issue as to when the interlineations were made on the original typewritten bill and the enrolled bill as signed. The testimony adduced by appellants tends to establish the fact that the interlineations describing the tract of land in question were not on the original bill as engrossed after it passed the Senate, and that the interlineations on the enrolled bill were not there when the bill was signed by the Governor and filed in the office of the Secretary of State. On the other hand, the testimony adduced by appellees tends to show that the interlineations on the original bill were made after the bill had been prepared but before its introduction into the Senate, and that the interlineations on the enrolled bill were made with the consent of the enrolling committee of the Senate before it was signed by either of the presiding officers of the two houses of the Legislature or by the Governor. Appellants introduced clerks and assistants in the office of the Secretary of State who testified that they copied the enrolled bill and carefully compared the copy the next morning after the bill was filed in the office of the Secretary of State, and that these interlineations were not there at that time. The Secretary of State furnished to the State printer a duly authenticated copy of the enrolled statute and the copy thus furnished did not show these interlineations. Another copy was furnished to one of the newspapers at Warren, and it did not show the interlineations. A lady who was a stenographer doing work for members of tbe Legislature during the session of 1919 testified that she copied the bill after it had passed the Senate and was pending in the House, and that the bill at this time did not have any interlineations on it. The testimony of all these witnesses tended to show that the interlineations were not on the enrolled bill at the time it was approved and filed in the office of the Secretary of State, and the witnesses gave very definite statements on that subject, but conceded the possibility of overlooking the interlineations in making copies.
It seems to be conceded that the interlineations on the original typewritten bill are in the handwriting of Mr. Hugh R. Carter, an engineer, who at that time was connected with the State Highway Department, and who is now the engineer for the districts involved in this litigation. The interlineations on the enrolled bill are in the handwriting of Mr. Aubert Martin, who was then a clerk or draftsman in the State Highway Department. The testimony adduced by appellees tends to show that after the preparation of the bill, but before its introduction, it was carefully checked over by two attorneys who were interested in promoting it and Mr. Carter, the engineer, in the presence of the senator who introduced it, and that when these omissions were discovered they were supplied by the interlineations of Mr. Carter, and that the bill was then introduced and was passed in that form without amendment. The testimony further shows that after the bill had been duly passed by both houses and had been enrolled, the above mentioned parties who were interested in the bill were allowed by the chairman of the enrolling committee to take the enrolled bill into a committee room for the purpose of comparison to ascertain whether or not there were any errors therein and that they discovered that the interlineations on the original bill had been omitted from the enrolled bill and these interlineations were supplied by Mr. Martin on the enrolled bill. This was, according to the testimony, with the knowledge axid consent of the enrolling committee, and was done before the bill was signed by either of the presiding officers of the Legislature or by the Governor. The Governor was introduced as a witness and testified that his recollection was that when the enrolled bill was presented to him for approval the interlineations appeared there at that time in the handwriting of Mr. Martin, with which he was familiar and recognized.
There is a sharp conflict in the testimony as to when these interlineations were made. It would serve no useful purpose to further analyze the testimony of the various witnesses for the purpose of determining its force and effect.. Suffice it to say that the chancellor made a finding in favor of appellees on this issue, and we are unable to discover that there is a preponderance of the testimony against the finding of the chancellor. It is a well-established practice here not to disturb the findings of a chancellor on an issue of fact unless there is a preponderance of the testimony against those findings.
We deem it not amiss to say, without attempting to criticize the members of the Legislature or the assistants or employees of that branch of the Government, that the situation presented in this proof with respect to interlineations on the enrolled bill is a deplorable one by reason of the fact that it leaves open to question the last solemn record made of the enactment of a statute. Interlineations and erasures in bills, and journal entries concerning them, should be avoided as far as possible, even in the preliminary stages of the enactment of a statute, but when it comes to the enrolled bill there ought not to be any doubt as to the condition of the bill at the time it was approved and filed in the archives of the State for permanent preservation. That is the last and best evidence of the enactment of a statute, and its pages should be clear and unequivocal. No amount of urgency or haste should be permitted to call for sacrifice in accuracy, and when errors are discovered in comparison of an enrolled bill, the bill should be rewritten before presentation to the Governor. This case presents such an unseemly controversy and such a conflict in the testimony as to when the interlineations in the bill were made as to serve as a warning that the situation should not again arise. Each house of the General Assembly should have sufficient assistance for the enrollment of bills as to perform that work with accuracy and dispatch, and the work should be confined to those so employed and working under the supervision of the committee.
We pass then from this phase of the case, since we uphold the finding of the chancellor that the interlineations describing the tract of land in question were made in the bill before its approval.
It is next contended that the statute is void because it creates two districts which embrace the greater portion of the whole territory of the county. Counsel for appellant state in their brief that the territory embraced in the two districts covers eighty-six per centum of all the lands in the county and all the public roads, except about seventeen miles. It is contended that the case falls within the decisions of this court in Road Improvement Dist. No. 1 v. Glover, 89 Ark. 513, and Swepston v. Avery, 118 Ark. 294. The substance and effect of the Glover case was to hold that the inclusion of the whole of a county for the purpose of improving all the roads was void for the reason that the entire road system of the county was too diverse to be made the subject of a single' local improvement, and that it constituted an invasion of the jurisdiction of the county court. In Swepston v. Avery, supra, substantially all of a county was included in a road district for the purpose of improving any or all of the roads selected by the commissioners,-and the statute provided that the improvement should be paid for by assessments levied in the same proportion on all of the land in the county. We have never decided that the mere inclusion of the whole of a county in a district is void. On the contrary, we have held that the whole of a county may be included if the improvement is a single one and affects all the lands of the county. Board of Directors of Jefferson County Bridge Dist. v. Collier, 104 Ark. 425.
The test is not the extent of the area included in the district, but the singleness of the authorized improve ment and the relationship to it of the included territory as to benefits to accrue from the improvement. This is not a case like the Glover case, supra, where all the roads in a county were to be improved, nor like the case of Swepston v. Avery, supra, where any or all of the roads might be improved and the cost of improving any given road taxed against all of the property in the district in like proportion. In each of the districts created by the statute now before us a large area — nearly half of the county — is included, and more than one road is to be improved, but the relations of the roads to each other are such that we can not say that the legislative determination that all of the roads to be improved in one of the districts constitutes a single improvement in that district so as to be grouped together as one improvement is arbitrary and erroneous. Nor is the area so extensive that we can say that the fixing of the boundaries of the district is arbitrary and erroneous. The case is, in this respect, ruled by the decisions of this court in Conway v. Miller County Highway Bridge District, 125 Ark. 325; Bennett v. Johnson, 130 Ark. 507; Sallee v. Dalton, 138 Ark. 549.
It is not true, as contended, that the statute in question invades the province of the county court in authorizing the commissioners to lay out and improve roads not already established as public highways. In describing the various roads in the two districts, the statute does not in each instance refer to the roads as public highways, but it is fairly inferable that they were found by the framers of the statute to be public highways, and there is no showing made in this case that they were not public roads; on the contrary, the proof adduced in the case shows that they are public roads. It is not essential to the validity of the statute that they should be described therein as public roads. In order to render the statute void, it would be necessary for those who assail its validity to show that the roads to be improved are not. public highways, and that no authority is conferred to submit to the county court the question of laying them out as public highways. The statute provides for changes in the route, and for widening and straightening the roads, but that this must be done under the approval and authority of the county court. It is provided in the statute that all the plans for the improvement must be submitted to and approved by the county court before the commissioners can proceed with the construction of the improvements. We find nothing at all in the statute which tends towards an invasion of the constitutional jurisdiction of the county court.
Attention is called .to the language of the two sections of the statute in regard to the appointment and qualification of commissioners, providing that “thereafter the commissioners of said district shall be maintained in succession in the same way as a board of improvement for the preservation and maintenance of the highway hereby contemplated.” It is argued that a continuing power over roads is thus conferred, which invades the jurisdiction of the county court.
This subject is discussed in the case of Easley v. Patterson, ante, p. 52, handed down this date, and fully disposes of the question. In addition to what is said in that case, it may be added that the language of section 26 of the statute shows unmistakably that its framers did not intend to confer a continuing power to make improvements, but limited the power to a single improvement to be presently made.
Section 29 of the statute contains the following provision: “The county court of Bradley County is hereby authorized to turn over to each of said districts such proportions of the road tax collected in any of the townships in which any of the lands of either of the districts shall lie as may be just and equitable, and the county court of said county is further authorized to contribute such funds in money or script to the expense of the several improvements from the general revenue of said county as it may deem appropriate, provided, that, if said county court shall make any contribution out of the gen eral revenue of said county, it shall be apportioned equitably to each of the several districts hereby created.”
This is a recognition of the general public interest in the improvement of the roads mentioned. It confers authority for contributions out of the general road funds and is merely directory to the county court — not mandatory. ■ The county court exercises its discretion in determining whether or not the contributions shall be made and the provision is not compulsory. It does not invade the juridiction of the county court. McClelland v. Pittman, 139 Ark. 341. It relates to the original improvement and not to maintenance or repairs, which already falls within the authority of the court.
It is next contended that the provision in the statute for the assessments of benefits is not sufficiently definite to form a basis for the assessments, and that the whole statute fails on this account.' This contention is untenable, for the statute provides that the commissioners of each district shall “make an assessment of the benefits to be received by each tract or parcel of land, railroads and tramroads, and all other real property within the district of which they are the commissioners, and shall inscribe the same in one or more books, as may be necessary, together with the assessment of benefits against each tract;” that the assessment books shall be filed in the office of the county clerk and notice given of the time and place of a hearing to be afforded to property owners to present complaints concerning tile assessments. It is also provided that as soon as the assessments have been completed the county court shall enter an order levying assessments on the benefits, and the statute also prescribes the time and method of collecting assessments and enforcing payment of delinquent assessments. There is nothing found wanting in the statute to afford a complete and adequate scheme for the assessment and collection of benefits.
This completes the discussion of the several grounds of attack on the statute, none of which we find to be well founded. The decree of the chancery court is, therefore, affirmed. | [
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McCulloch, C. J.
Appellee’s husband died intestate and without issue many years ago, owning a lot or tract of real estate in the city of Fayetteville, Arkansas, which he and appellee occupied as their home, and appellee has continued to occupy it as her home since the death of her husband. She acquired an undivided one-half interest in the fee by purchase from two of her husband’s collateral heirs. The house which (constituted the dwelling of appellee’s husband is still situated on the tract in question, but is, to a considerable degree, dilapidated and out of repair. On May 7, 1912, appellee, for a cash consideration, sold and conveyed to appellant an undivided three-fourths interest in a strip of land off the aforesaid tract of land, and on May 9, 1912, she conveyed to appellant an undivided three-fourths interest in still another strip off the tract. On November 7,1914, appellee executed to appellant a third conveyance for an undivided three-fourths interest in an additional strip of the land. On April 14, 1917, appellee entered into a written contract with appellant whereby she agreed to sell to him an undivided three-fourths in the residue of said tract, the part on which the dwelling is situated, for the sum of $500, of which $300 was paid in cash, and the remainder was to be .payable in installments. There was a stipulation in the contract that appellee should have the use and enjoyment of the premises for the remainder of her life, but should keep the taxes and improvement taxes paid and keep the premises insured for appellant’s benefit.
At the time of the execution of these conveyances by appellee to appellant, and at the time of the execution of the aforesaid contract between the parties, they were under the impression that appellee had an undivided three-fourths interest in the property, but afterward discovered that they were mistaken and that she was the owner of only an undivided one-half of the property in fee, subject to her own homestead and dower interest. After discovery of the mistake, appellee paid over to appellant the sum of $500 by way of reimbursement for the difference in the purchase price between an undivided one-half and an undivided three-fourths interest. This payment was made by appellee to appellant in August, 1917, in the form of a check on a local bank, given at her own residence.
The present action was instituted by appellee on April 16, 1918, to cancel the contract of April 14, 1917, and also to recover the sum of $500 paid as aforesaid to appellant in August, 1917, on the alleged ground that at the time of those transactions appellee was mentally incapable of conducting any business transactions. Appellant answered, denying that appellee was lacking in mental capacity or that there was any unfairness or advantage taken by him in the transactions. The chancellor made a finding of facts in favor of appellee and decreed cancellation of the contract of sale referred to on condition that appellee refund the consideration received. The court also found in favor of appellee for the recovery of the sum paid by appellee in reimbursement of the difference in the purchase price of the interests in the land.
A very voluminous record is presented for our consideration, which involves merely the determination of the question of fact concerning the mental capacity of appellee at the time she executed the contract with appellant and at the time that she refunded the money to him. It would serve no useful purpose to discuss the testimony-in detail.
There are numerous witnesses whose testimony tends in more or less degree to establish the fact that appellee was lacking in mental and physical vigor at the time of the transactions in controversy, and much of the testimony tends to show that she was lacking in sufficient mental capacity to enable her to conduct the transaction intelligently. On the other hand, there were a large number of witnesses introduced who testified that they were well acquainted with appellee, and that, while she was far advanced in years and physically weak, her mental capacity was about normal, or at least that she was possessed of sufficient mental capacity to intelligently transact business. Appellee is more than seventy years of age, and the testimony undoubtedly establishes the fact that she has for several years been in a poor state of health and is physically weak. According to the testimony of a number of witnesses, her mentality is below normal, but we are of the opinion that, according to the clear preponderance of testimony, both in weight and numerical strength, appellee was not lacking in sufficient mental capacity to fully understand the transactions which she conducted with appellant.
She was not a woman of any business experience, so far as disclosed by this record, but she was capable of fully comprehending the extent and importance of the sales of property to appellant, and she was fully conscious of what she was doing when she refunded the sum of money sufficient to make up the difference between the three-fourths interest, which she thought she owned and conveyed, and the one-half interest which she in fact owned. The burden was on appellee to establish her case, and it was not sufficient merely to show that from time to time she displayed childishness and lack of mental vigor, for it devolved on her to prove that at the time she conducted the transactions she was mentally incapable of acting intelligently in matters of that importance.
Our conclusion, therefore, is that the decree of the chancellor is against the preponderance of the testimony, and it is, therefore, reversed and the cause is remanded with directions to dismiss the complaint for want of equity. | [
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Smith, J.
Mrs. Irene Harris brought this suit in Hot Spring County, the county of her'residence, against her husband, who resided in Logan County, for divorce. In her complaint she asked a divorce on account of cruel and inhuman conduct on the part of her husband, rendering her condition as his wife intolerable, and also alleged desertion. She asked the custody of their infant child and an allowance for its support. Harris filed an answer, denying the allegations of his wife’s complaint, and by way of cross-complaint alleged that his wife, without cause, had deserted him, and prayed a divorce on that account.
The court made no finding on plaintiff’s allegation of intolerable treatment, but did find that she was not entitled to a divorce for desertion for the reason that the parties had not been separated for a year at the time of filing the complaint. The separation had continued for more than a year, however, when the cross-complaint was filed, but relief was denied cross-complainant for the reason that he was not a resident of Ho.t Spring County, and that the court, therefore, had no jurisdiction of his cross-complaint. Both the complaint and the cross-complaint were dismissed, but without prejudice to any future action which either party might thereafter commence.
The court, however, awarded the custody of the child to its mother, and made an allowance of $12 per month against the father for its support. This action of the court in regard to the custody of the child and the allowance for its support is, of course, subject to future review in an appropriate action. Harris concedes that the allowance is reasonable, and makes no complaint against it, and on account of the tender age of the child, it being only about a year old, he does not object that its mother has been awarded its custody, subject to his right to visit the child at all reasonable times, a right which, of course, he has and one not denied him by the decree below.
Cross-complainant has appealed, however, from the action of the court below refusing him a divorce, and now insists that the testimony shows his wife deserted him wilfully and without cause, and that the desertion had continued for more than one year at the time he filed his cross-complaint, and that the court was in error in dismissing his cross-complaint for the want of jurisdiction.
It appears, however, from a certified copy of a decree rendered in a suit between the parties to this litigation that upon the rendition of the decree herein appealed from Mrs. Harris brought another suit against her husband, which proceeded to a hearing and final decree, wherein she was awarded a divorce and the custody of the child and an allowance of $12 per month for its support, which decree, in reference to the custody of the child and allowance for its support, was properly made subject to the future orders of that court “or some other court having competent jurisdiction.”
The decree in this second suit is conclusive of the rights of the parties on this appeal. It is true the pend-ency of this appeal could have been pleaded in bar of the prosecution of that suit, but that was not done. This second suit was apparently ignored, notwithstanding the court in which it was pending had jurisdiction of the parties and of the subject-matter, and the'issue now presented to us has been there decided. As was said in the case of Church v. Gallic, 76 Ark. 423, “The pendency of the first action might have been pleaded in the second suit in bar of the right to maintain the same, but, if not pleaded, or if, after the plea is amended, judgment upon the merits of the controversy in the second suit is allowed to become final, it is a bar to further prosecution of the first suit.” See, also, Jenkins v. Jenkins, 78 Ark. 388; Hollingsworth v. McAndrew, 79 Ark. 185; Quellmalz Lbr. & Mfg. Co. v. Day, 132 Ark. 469; Sallee v. Bank of Corning, 134 Ark. 109.
Having suffered a decree to be rendered against him in this second bill which is decisive of the questions here raised, his right to prosecute this appeal has on that account ceased, and the same must be dismissed. It is so ordered. | [
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Humphreys, J.
This suit was instituted by appellee John Mayne Bailey, trustee in the will of Dr. W. W. Bailey, deceased, against the other appellees and appellants to terminate the trust provided by the will and to construe the will as vesting a fee simple title to certain real estate in Fort Smith in the petitioner and other appellees, the only children and heirs of Dr. W. W. Bailey, and not a contingent remainder in said real estate in appellants, the only grandchildren of said testator.
In substance, it was alleged in the bill that the will vested in appellees a fee simple title to said real estate, subject to a trust imposed upon John Mayne Bailey to manage and control same for the benefit of the appellees until the testator ’s grandson, William Bailey Black, attained to the age of twenty-one years, or, in the event he should, die before attaining his majority, to continue the control and management of same for ten years thereafter, rendering to himself ten per cent, of the net income from the property for his compensation as trustee and the balance in equal parts, semi-annually, to himself and the other appellees; that, at the time of the death of the testator, a part of the real estate comprising the trust was producing considerable net income, but that the purposes of the trust had failed in that the property had not only ceased to pay any net income, but had failed to pay carrying expenses; that the property could not again be made self-sustaining and net-producing without an expenditure of large sums of money; that all the appellees were sui juris.
The other appellees answered, admitting all the allegations of the bill and joining with appellee, John Mayne Bailey, in his request for a construction of the will and termination of the trust.
Appellants, minors and the only grandchildren of the testator, after being properly summoned into court, filed answer by a duly appointed guardian ad litem, denying seriatim each material allegation of the bill and claiming an interest as contingent remaindermen in the real estate.
The cause was submitted to the court upon the pleadings, the will of Dr. W. W. Bailey and the evidence, upon which it was decreed that appellees took under the will an estate in fee simple in said real estate, and, being the owners of the beneficial as well as the legal title, this terminated the trust. From that decree an appeal has been prosecuted to this court.
Dr. W. W. Bailey was the owner of a large estate in Fort Smith. He died on September 15, 1913, being survived by the appellees, who were his only children and heirs. The appellants are his only grandchildren. On the 25th day of January, 1910, he executed his last will and testament, in which his son, John Mayne Bailey, was appointed executor, who probated the will and qualified as executor after the death of his father. Under his letters testamentary, he administered the will, and, upon final settlement, was discharged as executor. He continued to control and manage that portion of the estate placed in his care and control under the terms of the will until the present time. For a number of years,.the properly thus placed under his control in trust paid a net income, but thereafter not only ceased to pay a net income but was not self-sustaining, and, in order to make it a paying proposition, it would entail an expenditure of fifteen or twenty thousand dollars in the way of remodeling and repairing the rental property. No fund was provided under the will for such an expenditure. That portion of the will drawn in question for construction is designated by paragraphs 6 and 7, which are as follows:
Paragraph 6. “It is my will and my intention that, after my funeral expense and the expenses of my last sickness and all my just and lawful debts, and the distribution of gifts above made to my children, who are all the children I have, that all the rest, residue and remainder of my estate, which I may possess at the time of my death, both personal and real, except whatever interest I may have in the estate of my father, Joseph H. Bailey, shall be held in trust, by a trustee hereinafter named, until my grandchild, William Bailey Black, shall have become the age of twenty-one (21) years, my said estate, except whatever interest I may have in the estate of my father, Joseph H. Bailey, to be held in trust for the use and benefit of my children, Isabella M. Black, Kate T. Parker, William Worth Bailey, Jr., and John Mayne Bailey, they being all the children I have.
“If my said grandchild, William Bailey Black, should die before he attains the age of twenty-one years, then it is my will and intention, and I direct that said trust estate shall be extended for ten years after the death of said grandchild, provided he should die before he reaches the age of twenty-one years.
“It is my will and my intention, and I hereby appoint my dearly beloved son, John Mayne Bailey, as trustee of my estate, with full power and authority to handle, manage and control my estate as such trustee, as in his judgment may seem best, for the use and benefit of my children, Isabella M. Black, Kate T. Parker, William Worth Bailey, Jr., and John Mayne Bailey, and their heirs, it being my intention that my said trustee, John Mayne Bailey, shall divide the rents and profits equally among my heirs at law, Isabella M. Black, Kate T. Parker, William Worth Bailey, Jr., and John Mayne Bailey, or their heirs, semi-annually, etc.”
Paragraph 7. “It is my will and intention and I do hereby give, devise and bequeath, at the expiration of the above and aforesaid trusteeship hereinbefore created, all of my estate, both real and personal, not hereinbefore disposed of, to my children, Isabella M. Black, Kate T. Parker, William Worth Bailey, Jr., and John Mayne Bailey, and to their heirs forever, share and share alike; provided that if any of my children should die before the expiration of the said trusteeship hereinbefore created, leaving issue, said issue shall only take the share that would go to my child if living.”
We are unanimously agreed that the language used in neither paragraph warrants the conclusion that it was the intention of the testator to create a contingent remainder in the trust estate in the appellants. The only language pointed out as indicating such intention on the part of the testator is found in paragraph 7, and is as follows: “Provided that if any of my children should die before the expiration of the above trusteeship herein-before created leaving issue, said issue shall only take the share that should go to my child if living.” The language just quoted is nothing more than a direction that during the continuation of the trust and before the termination thereof, in the event one of the testator’s children should die, his issue should inherit according to the law of descent and distribution. It was a mere declaration of law and not the expression of an intention to create a remainder interest in the grandchildren. It follows that by the will a fee simple title to the trust estate vested in the appellees, unless it can be ascertained from a reading of the two sections that it was the intention of the testator to vest the legal title to the trust estate in the trustee for the period of the trust. Had such intention been in the mind of the testator, it would have been very easy to vest the legal title in so many words in the trustee. Instead of doing so, paragraph 6 provided that the property in question should be held in trust by the trustee with power and authority to manage and control same according to his best judgment for the use and benefit of the testator’s children, naming them. The trust was created for the purpose of control and management, and not for the purpose of temporarily vesting the legal title to the property. The only attempt to vest the title occurs in paragraph 7, in which paragraph the title was vested in the four children, John Mayne Bailey, William Worth Bailey, Isabella M. Black and Kate T. Parker. It is apparent from a reading of both paragraphs that not only the beneficial interest was intended for the children by the creation of the trust, but that the title itself was to vest in his children and not in the testator’s trustee. We think the proper interpretation of paragraphs 6 and 7, when read together, is that it was the intention of the testator to vest the entire estate in his children with a postponement of their right to enjoy the possession thereof in severalty for a period of years, towit: until the testator’s grandchild, William Bailey Black, attained his majority, or, dying before attaining such age, for a period of ten years after his death.
There is no language or clause in the will to indicate that the purpose of the testator was to create a spendthrift trust. The only purpose seems to have been to hold the property intact for a period of years for the use and benefit of his children. It was producing a good income at the time of his death, and it was perhaps in his mind that it would continue to do so during the management and control thereof by his son, John Mayne Bailey. Conditions have arisen which were apparently not in the mind of the testator at the time he executed the will, or at the time of his death. No net profits can be realized on the property without very large expenditures, for which no fund was provided. No one, save the appellees, according to the interpretation placed upon the will by this court, has any interest in the property. They are all sui juris. A. continuation of the trust will perhaps work a confiscation of the property, or, at least, greatly burden it with incumbrances. It was manifestly not the intention of the testator that the property should be thus consumed. The whole estate having vested in the appellees, and all desiring a termination of the trust, we see no good reason why it should not be terminated. Such doctrine was clearly announced in the case of Booe v. Vinson, 104 Ark. 439.
No error appearing, the decree is affirmed. | [
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Wood, J.
The appellee brought this action against the appellant to recover a balance which he alleged was due him on a contract entered into with appellant by the terms of which appellee was to raise about 300 acres of rice on the lands of appellant, being the same number of acres cultivated by the appellant in 1911. Appellant was to pay appellee the sum of $5,000 “for labor to raise and properly irrigate, mature, and harvest” the rice. The appellee was to do all necessary hauling, to do the plowing in the fall and winter for the next year’s crop. In case of too bad weather in the fall and winter, he was to be allowed to plow as late as April 15th. If appellant was going to make a change in the employment or in case the appellee was going to make a change and stop raising rice after the termination of the contract, either party was to give the opposite party a notice of his intention in writing three months previous to the termination of the contract. Appellee was also to make all necessary levees, canals, flumes, and open up all drains and outlets pertaining- to the crop; to keep all fences in good repair; to do the cutting and proper shocking of the rice; to take care of all the farming tools, wagons and machinery, putting same in the tool shed when not in use and to take good care of everything belonging to the party of the first part. There was also a further provision that, all seed rice must be cleaned on fanning mill and the land must be well prepared, well ditched and harrowed. For raising the crops appellant was to pay appellee partly in monthly installments. The appellant during the time of threshing the rice was to furnish the appellee a man to tend to the separator and also to furnish an engineer and a man and team for the water wagon. The appellant was also to furnish seed rice, binding twine, rice sacks, coal and wood, oil and grease, and all necessary tools and machinery.
The appellee alleged that he had complied with all the terms of the contract, and that appellant had paid him the sum of $3,500, leaving a balance due him of $1,500, for which he prayed judgment.
The appellant answered denying that appellee had complied with the terms of his contract in this, that instead of seeding 300 acres of land to rice, as he was bound to do under the contract, he only seeded 260 acres, to appellant’s damage in the sum of $2,250; that the appellee had also failed to harvest 60 acres of the 260 acres, which he seeded, to appellant’s damages in the sum of $3,375, making the total damage to appellant, by reason of appellee’s failure to comply with his contract, in the sum of $5,625. This sum the appellant asked to be allowed as a counter-claim against appellee.
The appellant also alleged that the appellee wrongfully appropriated to his own use 363 bushels of rice which were worth $163.35, which appellant claims as a set-off.
Appellant prayed that it have judgment against the appellee for said sums.
The appellee answered the cross-complaint, admitting that he only harvested about 200 acres of rice, but alleged that of the 300 seeded to rice 100 acres were lost on account of the failure of the appellant to supply enough water to irrigate the same. He denied that appellant was damaged in any sum on account of appellee’s failure to comply with the terms of the contract. He also denied that he was indebted to the appellant for 363 bushels of cracked rice.
It will be observed that the execution of the contract was admitted by the appellant but it denied that the appellee had performed the contract on his part. On the contrary, it alleged that the appellee had failed to perform his part of the contract in the particulars set forth in its answer and cross-complaint and prayed for damages on account of such failure.
The first question, therefore, to be determined is whether or not the appellee complied with the contract. A proper solution of this involves a construction of the contract to determine what were the obligations of the appellant. Appellant contends that under the contract the appellee was an independent contractor and bound under the terms of the contract to produce and deliver to appellant about 300 acres of rice for which appellant was to pay him the sum of $5,000. Undoubtedly, if the contract read that “Edward Suhs hereby agrees and makes contract to raise about 300 acres of rice for which party of the first part agrees to pay the party of the second part the sum of $5,000,” the appellant would be correct in its contention, for if these were the terms of the contract they would denote an unqualified undertaking upon the part of the appellee to produce and deliver to the appellant the rice from 300 acres of land according to his own methods and using his own means to accomplish the result without being subject to the control or direction of the appellant in any particular. But, when all the provisions of this contract are construed together, as they must be, the relation of the appellee to the appellant was not that of an independent contractor.
The contract itself does not undertake in words to define or characterize the relation of the parties to each other. Yet, when all of its provisions are considered, we are convinced that it should be construed as creating the relation of employer and employee or master and servant, rather than that of independent contractor employed for no other purpose than to produce through his own resources a crop of rice on appellant’s land.
In J. W. Wheeler & Co. v. Fitzpatrick, 135 Ark. 117-24, this court, in the language of Judge Elliott, defines an independent contractor as follows: “An independent contractor may be defined as one who, in the course of an independent occupation, prosecutes and directs the work himself, using his own methods to accomplish it, and represents the will of the company only as to the result of his work.” From Words and Phrases as follows: “An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his' employer, except as to the result of the work.”
Now, applying the above definitions to the contract under review, it is manifest that the relation of the appellee to the appellant was not that of an independent contractor.
If the parties had intended that appellee’s duty under the contract were at an end when he had cultivated, harvested and delivered the rice raised on 300 acres of appellant’s land, the contract would have doubtless been couched in language similar to that above set forth and would have ended there. But, instead of this, the parties proceeded to specify things that are to be done by the appellee and appellant, which are wholly incongruous with the theory that the appellee was to produce and deliver to the appellant the rice grown on the 300 acres of land as a condition precedent to his receiving any consideration for his services. It will be observed that the contract does not stop with merely obligating the appellee to ‘ ‘ raise about 300 acres of rice, ’ ’ but it proceeds to specify the methods to be used, and enumerates the things which the appellee is required to do in order to produce such results, and also specifies certain obligations on the part of the appellant which must be done to contribute to such result, which necessarily imports that the appellee could not use his own means and methods but that he must adopt and use those furnished and specified by the appellant. Furthermore, the appellee had other duties under the contract to perform 'than those of simply raising 300 acres of rice. Among these was the duty to notify the appellant if he were going to quit raising rice after the termination of the contract. He was to clean all seed rice on a fanning mill and take care of all farming machinery.
Without further enumeration, it suffices to say that the reciprocal duties and obligations imposed by the words of this contract are entirely inconsistent with the relation of employer and independent contractor. If the parties had intended to create such relation the words used were wholly unnecessary and inappropriate. ' But if we are mistaken in this conclusion when the words of the contract alone are considered, then certainly there can be no doubt of the correctness of our conclusion when the contract is considered in the light of the testimony.
The president of the appellant, among other things, testified that he was to a certain extent in active charge and control of the affairs of appellant with reference to raising rice. He would go over there to see what was going on and then go home and report to the directors of appellant. The appellee “practically looked to all of us for his directions.”
The testimony shows that the appellee had occupied virtually the same relation to appellant for four years previous to 1913 except that he received a smaller salary. His relations up to the year 1913 had always been satisfactory, and he had always been paid for his work. Appellee was paid for his services, notwithstanding he failed to produce rice on all the land of appellant under his contract. In 1912 appellee was operating under the identical contract that he had in 1913 except as to the amount of compensation for his services, and he fell short some forty to forty-five acres that year from the amount he cultivated the year previous. Notwithstanding this fact, the appellant renewed his contract and increased his pay from $4,500 to $5,000.
One of the directors visited appellant’s farm in August, 1913. He and the appellee, in looking over the farm agreed that seventy acres' of the rice had not been irrigated. This director was asked if on that occasion he told appellee that if he (appellee) harvested the crop as it then stood lie would get a bonus of $100, and he replied that he might have done so.
The appellee testified that this director had promised him on this occasion, after seeing that seventy acres of the land was not watered, that if he (appellee) raised and harvested the crop like it then stood that he would pay appellee $100.
Another witness .testified that he heard the president of appellant say, after the crop was harvested in November, that he was pleased with the results. Witness heard a conversation at that time between the president and the appellee concerning appellee’s continuing to work for the appellant during the year 1914.
The appellee testified that in January, 1914, that the appellant tried to make a contract with him for the year 1914.
The president of appellant testified that he was the man who looked after making the payments to the appellee under the contract. On February 7, a short time before the differences between the appellant and the appellee arose, he was down at the rice farm and gave the appellee a check for $800 on account and a due bill for the balance:
“ Stuttgart, Ark., Feb. 7, 1914. Paid to Edward Suhs up to date for salary on 1913 contract thirty-five hundred dollars ($3,500), balance fifteen hundred dollars ($1,500). Henry Moecker.”
Witness was asked the following question:
“Q. Didn’t you tell him that if you had the money in the bank you would pay it all to him then, but as you did not have it he would have to wait until you got back to Homewood?”
“A. I might have said that, yes. But when I came back to Homewood, it was all different. The directors refused, and cautioned me for even paying that $800.”
In Wood v. Kelsey, 90 Ark. 272-7, we said: “Courts may acquaint themselves with the persons and circumstances that are the subject of the statements in the written agreement, and are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so as to judge of the meaning of the words and of the correct application of the language to the things described.” Alf Bennett Lbr. Co. v. Walnut Lake Cypress Co., 105 Ark. 421; Maloney v. Maryland Casualty Co., 113 Ark. 178-81; Arlington Hotel Co. v. Rector, 124 Ark. 90.
Therefore, if it can be said that the language of the above contract is ambiguous, then the above testimony clearly shows that it was not the intention of the appellant to make the appellee an independent contractor and treat with him as such. Having concluded that appellee under the contract was not an independent contractor and that his relation to the appellant was rather that of a servant, it follows that the appellee was not absolutely bound under his contract to produce and deliver to appellant 300 acres of rice before he was entitled to recover under the contract.
The next question, therefore, is, did the appellee exercise reasonable diligence in performing the services required of him under the contract? The appellee admitted that he did not produce and deliver to the appellant rice raised on 300 acres of land, but he alleged that his failure to produce and deliver the rice on that number of acres was caused by the insufficiency of the pumping plants to irrigate the farm and to the inability of the appellee to harvest all of the crop produced because of the muddy condition of the field due to the extraordinary rainfall.
As to whether or not appellee had exercised ordinary care to comply with the terms of the contract on his part to raise 300 acres of rice and whether or not the failure to do so was caused by his negligence or through failure of the appellant -to supply him sufficient pumps and machinery to irrigate the land or through excessive rainfall which precluded appellee from harvesting all the rice that was produced on the land of appellant, were all purely issues of fact. It could serve no useful purpose to set out in detail and discuss the testimony bearing upon these issues. We have carefully examined the instructions in which these issues were sent to the jury, and we find no reversible error in any of them. There was evidence to sustain the verdict.
Affirmed. | [
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Hart, J.
This is an action in ejectment by F. A. Blackburn against J. Gr. Coffee to recover ten acres of land. At the conclusion of the evidence the court, directed a verdict for Coffee and Blackburn .has appealed.
According to the testimony of J. Gr. Coffee, he is seventy-three years of age and was born and raised on a tract of land which includes the strip in controversy. In about the year 1849, J. Gr. Wilson entered from the government the eighty acres of land on which Coffee now lives and it included the ten acres in controversy. In 1850 Wilson conveyed by deed to J. C. Baskin a tract of land, and they established what they called a conditional or division line. The deed to Baskin only conveyed thirty acres of the forty acres in which the ten-acre tract in controversy is situated; but the conditional or division line between the parties gave to Baskin the ten-acre tract in controversy. They built a division fence and a ditch, and the fence and ditch have been there ever since. Coffee plowed the land when he was only eight years of age and remembers that the fence was the division line between Wilson and his stepfather, J. O. Baskin. Baskin claimed the ten acres in controversy until the date of his death in 1863. Since that time Coffee and his grantors who obtained title from J. C. Baskin have cultivated up to the division line referred to and claim the land up to that line. Coffee has owned the place where he now lives for thirty-seven years.
J. M. Laster was a witness for the defendant and is seventy-eight years of age. According to his testimony, he first remembered being on the place sixty-five years ago and knew that the present fence was regarded as the •line between the parties. They each cultivated up to the fence. The fence as it was constructed then is at the same place except that Coffee has put in a lane and moved his fence back to that extent. Since he has known the land, each party has cultivated up to the cross fence, and it has been regarded as the line between the two places.
Two other men of about the same age as Laster, who had lived in the neighborhood all their lives, testified to substantially the same state of facts as Laster.
According to the testimony of the plaintiff, Blackburn, he had the land surveyed and found that the deed to Coffee and his grantors did not include the ten acres in controversy. Coffee had told him that his deed only called for thirty acres and that he did not claim any more land in that forty-acre tract. - The survey showed that the ten-acre tract in controversy was not included in the thirty acres called for in Coffee’s deed. Coffee then recognized that the ten acres in controversy belonged to Blackburn.
Blackburn offered to let Coffee have it for $500 and settle the matter. Coffee agreed 'to this, but subsequently backed out. Coffee denied having made this agreement with Blackburn.
The circuit court in directing a verdict excluded this testimony of Blackburn and this action of the court is now assigned as error calling for a reversal of the judgment.
The correctness of the ruling of the court in excluding Blackburn’s testimony depends upon whether or not Coffee’s grantors had already obtained title to the ten acres in controversy by adverse possession. This offer to purchase from Blackburn by Coffee would be to a certain extent a recognition of Blackburn’s claim and would have a tendency to show that Coffee’s possession was not adverse, if it had occurred before the statutory period had run and the title by adverse possession had been acquired. But if at the time it was made Coffee’s grantors had already been in possession of the land for over seven years claiming to hold it adversely and had thereby become vested with the title by limitation, a mere recogni tion of Blackburn’s title could not revest the title in him when the title had already been acquired by another by adverse possession. This court has expressly held that recognition of another’s title after the full statutory period has elapsed will not have that effect. Shirey v. Whitlow, 80 Ark. 445, and Hudson v. Stillwell, 80 Ark. 575. Here the undisputed evidence shows that the parties erected a fence and ditch on what they called the conditional or division line. It is evident, when reading the whole testimony, that they used the words, “conditional line and division line,” as meaning the same thing. It is true Baskin only got a deed from Wilson to thirty acres in the forty-acre tract in which the ten acres in controversy are situated; but the evidence shows that the parties at the time thought that the division fence was the line between the parties and that the deed to Baskin included the ten acres in controversy. Wilson and Baskin each cultivated the land on his side of the division fence. They regarded it as the line between them. Baskin intended to claim up to the fence. He believed that he owned the ten acres in controversy. It was within his enclosure, and he held it continuously under such claim of ownership until he died in 1863 without any recognition of the possible right of another thereto on account of any mistake in the boundary line. Therefore the holding and possession of Baskin was adverse. It was continued for more than seven years and had the effect to divest the title out of the former owner and invest it in Baskin. O’Neil v. Ross, 100 Ark. 555, and cases cited.
The testimony not only of Coffee, but of several other old men who had lived in the neighborhood all their lives, shows that when the fence was established in 1850 it was believed to be on the true line. Baskin claimed up to the fence. He claimed to a line visible and known, and his actual possession was coextensive with that boundary. He acquired title by adverse possession, and, under the authorities above cited, it operated as a complete investiture of title, and a. subsequent executory agreement with Blackburn to pay him1 for the ten acres in controversy would not remove the statute bar and reinvest the title in Blackburn.
It follows that the judgment will be affirmed. | [
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Dickinson, Judge,
delivered the opinion of the court:
In declaring upon a covenant, it is not necessary to set out the exact words of the agreement, but only to state its legal effect according to its true meaning and intention. Whenever a covenant is in its terms defective, it ought to be set out according to its legal consequences. Grannis vs. Clark, 8 Cowen 35; Osborne vs. Lawrence, 9 Wend. 135; 1 Ch. Pl. 302-3; Lunt vs. Padelford, 10 Mass. Rep. 320; Gaster vs. Ashley, 1 Ark. 325. The principle is so well settled that it is unnecessary to say any thing further in defence of it. The breaches are properly assigned in the declaration, for they aver the only facts upon which the defendant’s liability accrued. The covenant contains two t conditions. The one was precedent upon the other. The plaintiff was employed as attorney to attend to a suit in which the defendant was interested, and he was to receive one hundred and fifty dollars provided the defendant succeeded in the action.
The reception of his fee was made to depend upon a condition precedent, which was, that he would, with due care and diligence, attend to the suit as such attorney. This fact he has averred, and then adds, that he has gained the suit for the defendant. He had no interest in the suit, except the interest of his client as an attorney, and the allegation that he gained the suit for the defendant, is equivalent to averring that the defendant gained it. For this declaration shows that he gained it not for himself, but for the defendant; and therefore, the defendant’s liability to pay him one hundred and fifty dollars became fixed by the performance of this precedent condition.
The judgment of the court below must therefore be reversed, with costs. | [
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Ringo, Chief Justice,
delivered the opinion of the Court:
The matter first assigned as error is, “ that the court below permitted the plaintiffs to enter, or enroll, or re-instate the judgment previously rendered in the case, without any authority in law, and without any notice to the defendant.” This assignment is contradicted by the record, which shows affirmatively that the assignment was regularly recorded at the time when it was given, instead of the entry, enrolment, or re-instating of a judgment previously pronounced, and therefore it presents no question to be decided by this court.
The second and only remaining assignment of error, is general, that judgment was rendered for the plaintiffs, whereas, by the law, it should have been for the defendants. The defendant insists, that by the statute regulating the practice in the Supreme Court, in cases brought before it by appeal or writ of error, and (he rule of practice adopted by it, such general assignment is not authorized; and that the court should not therefore examine the record, for the purpose of discovering and correcting the errors which may exist therein; and this, we have no doubt, is the better practice, although it has never been expressly ruled or implicitly observed by the court. There certainly would not be any very great hardship in the rule requiring the appellant or plaintiff in error to specify, and set out particularly, the errors whereby he thinks himself aggrieved, by which the court would be relieved from the labor of investigating the whole record, to ascertain whether any error to his prejudice exists in it. Yet, in the present case, we do not deem it necessary to make the rule imperative, or rigidly observe its injunctions, as the result would not be changed by it; and therefore we purposely avoid expressing any opinion as to the legal consequences of such general assignment of errors, and will proceed to consider the point mentioned in the briefs, and presented by the record, which is simply this: “that the court erred in refusing to dismiss the suit, on the motion of the plaintiffs in error, for insufficiency of the' bond for costs.” This motion could only have been predicated on the ground, that Dudley was a non-resident of this state, when the suit was instituted; because, if the fact was otherwise, 'there was no necessity for his filing such bond prior to the commencement thereof, or indeed at any time, unless ruled to give security for the costs of suit; and no such rule appears to have been made in this case, and, therefore, we must regard the motion to dismiss, as based upon the fact of the non-residence, and his failure to give a sufficient bond and security for the costs of suit, before it was instituted, which, under the provisions of the Revised Statutes ©f this state, (which were in force, and furnished the rule of decision when this motion was made), would, if admitted or established by competent legal proof, have been a sufficient ground to dismiss the suit, of which the plaintiffs in error could have availed themselves on motion. But they held the affirmative of the proposition, and the law cast upon them the burthen of proving, first, that Dudley was a nonresident of the state when he instituted the suit; and secondly, that he had failed to give sufficient security for the costs of suit, prior to the institution thereof, as required by the statute; and their failure to establish either, would he a sufficient ground upon which to justify the decision of the court overruling the motion; hut no question as to the sufficiency of the security given could legitimately arise, until the fact of Dudley’s non-residence was established, which could only be done by his own admission, or some other competent legal testimony. And although this fact may have been, and probably was, admitted or proved upon the hearing of the motion in the court belów, yet, however the fact may have been, we are left wholly to conjecture, for the record as to that is entirely silent; and in support of this judgment, we are bound by law to presume, that it was neither admitted or proved; and if the fact was otherwise, the plaintiffs in error could, by bill of exceptions, or otherwise, have caused it to be made a part of the record, and thereby enabled this court to revise and correct the decision of the Circuit Court, if it was erroneously given to their prejudice. But this being admitted, they have thereby subjected their case to the full operation and influence of the legal presumption in favor of the judgment against them, as well as the rule which requires of every party demanding the correction of errors, or the revision and reversal of a judgment, to prove affirmatively, by the record itself, the existence of some error by which his rights are prejudiced. The principles, and the reasons, and authority, upon which they have been established and affirmed, have, on several occasions, been discussed, examined, stated, approved, and enforced, by this court, and their application to this case appears to us manifest and conclusive upon the question. For the fact of Dudley’s non-residence is no where stated in the record, or even mentioned or recited in the. bond for costs, transcribed with it. There is nothing, therefore, in the record, which even conduced to prove the fact or raise the presumption that he was a non-resident of this state when the suit was commenced. Consequently, there does not appear to have been any necessity for a bond and security for costs, and of course no question as to the sufficiency of bond for costs, if one was actually made and on file, could have legitimately arisen on the motion, and any discussion thereupon, would be idle and useless; and for this reason, we refrain expressing opinion as to the sufficiency of the bond transcribed with the record, or whether it comprises any part of it, not being expressly made a part thereof by bill of exceptions or otherwise.
Whereupon, it is our opinion, that the judgment of the Circuit Court of Chicot county, given in this case, ought to be, and the same is hereby, in all things, affirmed, with costs. | [
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KENNETH S. HIXSON, Judge
| ¶ Appellant Steve Humbert appeals from the termination of his parental rights to his two sons, C.H. and M.H., who are ages seven and six respectively. On appeal, Steve argues that there was insufficient evidence to support the termination. We affirm.
We review termination of parental rights cases de novo. Willingham v. Ark. Dep’t of Human Servs., 2014 Ark. App. 568, 2014 WL 5382622. 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); M.T. v. Ark. Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). 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, 947 S.W.2d 761 (1997). 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. Yarborough v. Ark. Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006).
This case was initiated on September 23, 2013, when appellee Department of Human Services (DHS) filed an ex parte motion for emergency custody. Attached to the motion was an affidavit by a DHS caseworker stating that DHS had taken an emergency hold of both children after a report had been made to the child-abuse hotline stating that the children’s mother, Nycole, had been using methamphetamine and crack cocaine in a hotel room in the presence of the children. Steve was reportedly buying the drugs for Nycole. The caseworker went to Steve and Ny- cole’s residence to inquire about the report, and Nycole admitted that she had recently used cocaine. Nycole then tested positive for THC, methamphetamine, and cocaine, and Steve refused a drug screen. Based on these circumstances, the trial court entered an ex parte order for emergency custody on the same day DHS filed its petition.
The children remained in DHS custody until November 6, 2013, when the trial court entered an order placing the children in their father’s custody. That order provided that all of the children’s visitation with their mother must be supervised by DHS. The trial court ^entered an adjudication order on November 12, 2013, wherein it found the children to be dependent-neglected based on parental unfitness and neglect due to Nycole’s illegal drug use. The adjudication order stated that Steve had passed his drug screen, had a job and a place to live, and that placement of the children with him was in the children’s best interest. The adjudication order reiterated that Nycole shall not have contact with the children unless DHS was present.
On January 21, 2014, DHS filed an emergency motion for an ex parte change of custody of the children from Steve back to DHS. The emergency motion was based on Steve allowing the children to visit Ny-cole without DHS supervision in violation of the trial court’s orders. An attached affidavit by a caseworker stated that DHS had made an unannounced visit to Steve’s apartment and found Steve and the boys there with Nycole. DHS attempted to drug screen Nycole, but she refused. Upon speaking with the boys, the boys disclosed that they had been seeing their mother on almost a daily basis since they had come to live with their father from foster care. The boys indicated that their mother had watched over them while their father was at work, that she had taken them on outings while their father stayed home, and that she frequently spent the night at the apartment. The boys stated that their parents often argued, which scared them. C.H. stated that his father had told him not to tell anyone that the boys were seeing their mother or else they would get taken away again. The caseworker stated that there was no furniture in the apartment and little food. Based on this information, the trial court granted DHS’s motion for an emergency change of custody on the same day that the motion was filed.
|4Steve was terminated from his employment on May 23, 2014, after he tested positive for methamphetamine on a hair-follicle drug screen. On June 12, 2014, the trial court entered a permanency-planning order changing the goal of the case from reunification to termination of parental rights and adoption. In the permanency-planning order, the trial court noted that Nycole continued to use illegal drugs and had not maintained stable housing or employment. The order stated that Steve continued to be enmeshed with Nycole, had not diligently applied himself to counseling, had not addressed his anger issues, and that his lack of credibility made it impossible to assess his compliance with the court’s prior orders to maintain employment and refrain from using illegal drugs.
DHS filed a petition to terminate the parental rights of both parents on July 22, 2014. The termination hearing was held on September 19, 2014.
On September 26, 2014, the trial court - entered an order terminating the parental rights of both parents. The trial court found by clear and convincing evidence that termination of parental rights was in the children’s best interest, and the court specifically considered the likelihood that the children would be adopted, as well as the potential harm of returning them to the custody of their parents as required by Arkansas Code Annotated section 9-27-341(b)(3)(A)(i) & (ii) (Supp. 2013).- With respect to Steve, the trial court also found clear and convincing evidence of one statutory ground. Specifically, pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a), the trial court found that other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrated that placement of the juveniles in the custody of their father was contrary to the | juveniles’ health, safety, or welfare and that, despite the offer of appropriate family services, the father had manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate his circumstances that prevented the placement of the juveniles in his custody. The trial court made specific findings that Steve had been terminated by his employer for testing positive for methamphetamine; that he had refused to submit to random weekly drug screens; that he was homeless and unemployed; that he had failed to demonstrate stability or the ability to protect the boys and keep them safe; and that he had no desire to participate in counseling.
Lori Johnson, the DHS caseworker assigned to this case, testified at the termination hearing. Ms. Johnson stated that the children’s mother had made no progress during the pendency of the case and was unstable and continued to use illegal drugs. Ms. Johnson further testified that Steve had not made substantial, measurable progress. Ms. Johnson expressed concern because Steve had no stable housing or employment, did not have a car, and had missed numerous scheduled drug screens leading up to the termination hearing. Ms. Johnson also testified that at one time the children’s mother disclosed to Ms. Johnson that she and Steve had been using drugs together. Ms. Johnson testified that the boys are highly adoptable. She recommended termination of both parents’ parental rights so that the children could be adopted.
Steve testified on his own behalf, and he stated that he was homeless and living with a friend. Steve did not have a permanent job, but he said he had done some work through a temporary agency over the past month. Steve stated that he had never used 16methamphetamine, although he acknowledged that when he got fired from his previous job as a truck driver it was his fault. The only reason Steve lost that job was due to testing positive for methamphetamine. Steve testified that he was extremely close with his children and had a great relationship with them before they were taken into DHS custody. Steve stated that he thought he could get a permanent job and an apartment in a few months. He also stated that, if the children were returned to him and the court ordered no contact with their mother, he would follow that order.
In this appeal, Steve challenges the sufficiency of the evidence supporting termination of his parental rights. He argues that there was an absence of evidence that termination of his parental rights was in the children’s best interest, and also that the single statutory ground found by the trial court was not met.
In support of his argument, Steve cites Benedict v. Arkansas Department of Human Services, 96 Ark. App. 395, 242 S.W.3d 305 (2006), where we stated that if there is still reason to believe there can be a positive, nurturing parent-child relationship, the law favors preservation, not severance, of natural familial bonds. Appellant also cites Arkansas Code Annotated section 9-27-341(a)(4)(B) (Supp. 2013), which provides, “The court shall rely upon the record of the parent’s compliance in the entire dependency-neglect case and evidence presented at the termination hearing in making its decision whether it is in the juvenile’s best interest to terminate parental rights.” Steve contends that, by making its decision in a vacuum and not considering his compliance throughout the entire dependency-neglect case, the trial court violated the above statutory requirement.
|7Steve concedes that he was not able to take custody of his children at the time of the termination hearing, but he blames his instability on one failed drug test (which he claims was questionable) that caused him to lose his job as a truck driver. Steve asserts that during the pendency of this case he was mostly in compliance with the case plan and had demonstrated stability and the ability to care for the boys prior to his unfortunate dismissal from his job. His children had only been out of his custody for a total of about nine months when the termination hearing was held, and Steve contends that it would have been in the children’s best interest to allow him more time to regain his stability so he could again provide a stable home for them. Steve specifically takes issue with the trial court’s finding that he was indifferent to remedying the subsequent issues or rehabilitating his circumstances. To the contrary, Steve claims that throughout the case he demonstrated a genuine interest in maintaining custody of the boys, and that at the time of the termination hearing he was working toward that goal. For these reasons, Steve asks that the trial court’s order terminating his parental rights be reversed.
On this record, we conclude that the trial court did not clearly err in finding that termination of Steve’s parental rights was in the children’s best interest. Although Steve denied methamphetamine use, it is undisputed that he lost his job after testing positive for methamphetamine, and he missed multiple drug screens scheduled by DHS including the last six preceding the termination hearing. The children’s mother, Nycole, disclosed to a caseworker that she and Steve had used drugs together. And when Steve had been given custody of the children, he exposed the children to their drug-addicted mother on a daily basis |sin direct violation of the trial court’s orders. By his own admission, at the time of the termination hearing Steve was homeless, had no vehicle, and had no steady job. Based on these facts, the trial court could reasonably conclude that there was the potential for harm if the children were returned to their father’s custody. Moreover, there was evidence that the children were highly adoptable.
We further conclude that the trial court did not clearly err in basing the termination on the “other factors” statutory ground. Due to the aforementioned factors, there were other issues that arose after this case began that demonstrated that the return of the children to Steve’s custody would be contrary to their health, safety, or welfare. And given the evidence of Steve’s drug use and avoidance of drug screens, his propensity to subject the children to their drug-addicted mother in contravention of court orders, and his homelessness and instability, we find no clear error in the trial court’s determination that Steve had manifested indifference to remedying the subsequent issues.
We have held that 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. Arkansas Department of Human Services, 2010 Ark. App. 17, 372 S.W.3d 849, and this principle is applicable in this case. We hold that the trial court’s decision to terminate appellant’s parental rights was not clearly erroneous.
Affirmed.
Kinard and Glover, JJ., agree.
. The parental rights of the children’s mother, Nycole Fargo, were also terminated, but she is not a party to this appeal.
. At the time the emergency custody order was entered, Steve was the putative father of the boys. However, three days later an order was entered establishing his paternity. | [
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BART F. VIRDEN, Judge
1 lAppellant Georgina Peavler appeals from the Sebastian County Circuit Court’s decree quieting, title to a tract of land in appellee Shirley Bryant based on adverse possession. We agree with Peavler that the trial court erred in its decision, and therefore reverse and remand for the trial court to enter an order consistent with this opinion.
I. Background
Freda A. Polton left a lot in Greenwood to her children, Peavler, Robert E. Mason, and Cathy H. Marvel. An executor’s deed dated May 1993 indicates that Mason was to receive a life estate, and the property would then revert to Peavler and Marvel at Mason’s death. In January 1994, Marvel conveyed- her interest in the property to Peavler.
A July 2002 warranty deed from Mason purported to convey fee-simple title in the land to Larry and Andrea Gaston. Property taxes from 1999 to 2002 were not paid, and the | gland was forfeited to the State. Andrea Gaston was the highest bidder at a tax sale, and in May 2004, a limited warranty deed was issued to her by the State. In January 2005, the Gastons issued a quitclaim deed to Shirley Bryant, Larry Gaston’s mother. The Commissioner of State Lands issued two redemption deeds, each covering one of two parcels of land. The first was to Bryant in March 2007 and reflects that she paid delinquent taxes owed from 2003 to 2005. The second redemption deed was issued in July 2010 to the Gastons, who paid delinquent taxes owed from 2007 to 2008. The Gastons conveyed their remaining interest in the property to Bryant in August 2010. Mason died in 2012.
In November 2012, Bryant filed a complaint to quiet title to the land. In an amended answer and counterclaim, Peav-ler denied the general allegations of Bryant’s complaint and counterclaimed, alleging that the redemption deeds were void, voidable, or defective based on, among other things, lack of notice to her. Bryant amended her complaint to assert that she had adversely possessed the land.
II.Hearing — March 28, 20H
Larry and Andrea Gaston, Bryant’s predecessors, testified that they bought the land from Mason in 2002. They did not have a title search conducted, did not buy title insurance, and did not consult an attorney. They assumed that Mason owned the land. There was testimony that the Gastons had mowed, trimmed trees, fixed a drainage problem, and filled in a septic tank. Moreover, the City of Greenwood had worked with the Gastons and Bryant [sin obtaining an easement. The record shows that the house was demolished in 2007 because it was uninhabitable. Bryant claimed that she spent over $12,000 on taxes and maintenance.
Lisa Pelton, assistant director of the real-estate division for the Commissioner of State Lands, testified her office was notified in January 2002 by the clerk’s office in the Greenwood District of Sebastian County that the land was being forfeited for nonpayment of taxes. The clerk’s certification identified Mason and Marvel as the owners. Pelton testified that the executor’s deed and assessment record should have put her office on notice of Peavler’s interest; however, while certified mail was sent to Mason and Marvel, Peavler was not notified of the tax sales. Pelton testified that a legal notice also appeared in a newspaper prior to the sales, but Peavler’s name was not listed as an owner.
Georgina Peavler testified that she and her half-brother Mason were not close and she had not seen him since their mother’s funeral. Peavler said that, following her mother’s death, she helped pay the taxes for a couple of years and Mason agreed to pay them after that. Peavler said she was unaware that Mason had purported to sell the property. She had assumed that Mason lived on the property until his death.
At the conclusion of the hearing, the trial court asked for post-trial briefs with proposed findings of fact and conclusions of law. In Peavler’s post-trial brief, she proposed the conclusion that her remainder interest in the land did not become possessory until the death of Mason, who had only a life estate in the property pursuant to the 1993 executor’s deed, and that she thus had no right of action until 2012.
In its decree quieting title in Bryant, the trial court found that Bryant and her |4predecessors in title had paid taxes on the property continuously since 2003 and had color of title arising from the warranty deed from Mason to the Gastons and a limited warranty deed for forfeited property issued to Andrea Gaston. The trial court found that since 2002 Bryant and her predecessors had exercised actual, open, notorious, continuous, hostile, and exclusive control over the property with an intent to hold against the world .and any other persons claiming an interest in the property.
III. Standard of Review
This court reviews quiet-title actions de novo; however, we will not reverse the trial court’s findings of fact unless they are clearly erroneous. Smith v. Smith, 2011 Ark. App. 598, 385 S.W.3d 902. We do not defer to the trial court on a question of law. Id. On de novo review of a fully developed record, when we can plainly see where the equities lie, we may enter the order that the circuit court should have entered. Frigon v. Frigon, 89 Ark. App. 180, 201 S.W.3d 436 (2005).
IV. Discussion
Arkansas Code Annotated section 18-ll-106(a) (Repl. 2003) provides that to establish adverse possession of real property, the person and those under whom the person claims must have actual or constructive possession of the property and have held color of title for a period of at least seven years and during that time paid ad valorem taxes. The requirements of this section are in addition to all other requirements for establishing adverse possession. Ark.Code Ann. § 18 — 11—106(c). To prove the common-law elements of ad verse possession, a claimant must show that she has been in possession of the property continuously for more 15than seven years and that her possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. Gibbs v. Stiles, 2011 Ark. App. 302, 383 S.W.3d 453.
Peavler maintains Mason had only a life estate in the property and her remainder interest in the land did not become possessory until after Mason’s death in 2012. We agree and conclude that neither Bryant’s nor the Gastons’ possession of the land was adverse to Peavler and that the statute of limitations could not have commenced running against Peavler until the death of the life tenant, Mason.
As a general rule, in order to acquire title by adverse possession, the holding must be against one entitled to the possession of the land held, and having the right to bring an action for its recovery. Ogden v. Ogden, 60 Ark. 70, 28 S.W. 796 (1894). No principle of law is better established than that the possession of one claiming under a life tenant is not adverse to the remaindermen until the death of the life tenant. Bradley Lumber Co. v. Burbridge, 213 Ark. 165, 210 S.W.2d 284 (1948). In Smith v. Maberry, 148 Ark. 216, 229 S.W. 718 (1921), our supreme court wrote:
It is well settled in this state that prior to the death of a tenant for life neither his possession nor the possession of his grantee is adverse to the remain-derman or reversioner. Hence the statute of limitations does not begin to run against the remainderman or reversion-er until the death of the life tenant. The reason is that no one can be in default in not bringing an action which he could not have maintained if brought, and that no statute of limitations can commence to run until the time comes when the person claiming title or right of possession can successfully maintain his action. Neither the possession of the life tenant nor his grantee can, by any possibility, become adverse to the reversioner or remainderman, for the reason that such possession is not an interference with the rights of the latter.
Id. at 219-20, 229 S.W. at 719. “So far as concerns the statute of limitation, it could not be Rput into operation against the remaindermen prior to the expiration of the estate of the life tenant merely because the entry was under a tax deed.” Champion v. Williams, 165 Ark. 328, 336, 264 S.W. 972, 974 (1924) (affirming nevertheless because confirmation decree, which recited proper notice, was binding on re-maindermen, as well as life tenants).
The trial court’s ruling on adverse possession in favor of Bryant effectively avoided the question of the validity of the tax sales under which Bryant initially claimed ownership of the property. In Champion, supra, our supreme court wrote:
The tax sale, if valid, would have barred the right of all interested parties, those holding remainder interests as well as the life tenant, for the sale operated in rem, and all parties were bound by it, but, the sale being void, one who entered under the sale was a mere trespasser.
Id. at 335, 264 S.W. at 974 (emphasis added).
In cases involving redemption of tax-delinquent lands, strict compliance with the requirement of notice of the tax sales themselves is required before an owner can be deprived of her property. Rylwell, LLC v. Men Holdings 2, LLC, 2014 Ark. 522, 452 S.W.3d 96. The United States Supreme Court held in Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006), “Before a State may take property and sell it for unpaid taxes, the Due Process Clause of the Fourteenth Amendment requires the government to provide the owner ‘notice and an opportunity for hearing appropriate to the nature of the case.’ ” Id. at 223, 126 S.Ct. 1708 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). Any sale of tax-delinquent land without proper notice is void. Rylwell, supra.
While Peavler was entitled to notice of the tax sales, a representative from the Commissioner of State Lands testified that Peavler did not receive any notice despite the fact |7that her name and address were available on documents in the Commissioner’s file. No one disputes that Peavler did not receive notice; therefore, the tax sales were void and could not have extinguished Peavler’s remainder interest. We direct the circuit court to enter an order quieting title to the land in Peavler.
Reversed and remanded with directions.
Glover, J., agrees.
Gruber, J., concurs.
. The property at issue was divided into two parcels. One pertained to Lot 3, and the other referenced a strip of land between Lots 2 and 3. The trial court determined that the two parcels were actually one, and no one disputes that decision. | [
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DOUG MARTIN, Judge.
Appellant Robbin Gowen entered a plea of guilty on March 26, 2010, to one count of being a felon in possession of a firearm and one count of possession of drug paraphernalia. At that time, the Lo-noke County Circuit Court sentenced her to sixty months’ probation on the felon-in-possession count and twelve months’ probation on the paraphernalia charge. In addition, Gowen was ordered to pay $1500 in fines and $150 in court costs.
The State filed a petition to revoke Gowen’s probation on July 30, 2010, alleging that Gowen had failed to report to her probation officer as required; committed the crimes of possession of drug paraphernalia and possession of drug paraphernalia with intent to manufacture methamphetamine; associated with a known felon; and failed to pay her fines, court costs, and supervision fees. On August 23, 2010, the State filed a felony information against Gowen, charging her with possession of drug paraphernalia with the intent to manufacture methamphetamine and with maintaining a drug premises.
Following a bench trial during which the circuit court considered both the new criminal charges and the State’s revocation petition, the court found Gowen not guilty of the drug-premises charge but convicted her of possession of drug paraphernalia with intent to manufacture, for which the court sentenced Gowen to forty-two months in the Arkansas Department of Correction. In addition, the court revoked Gowen’s probation based on the new conviction, sentencing her to seventy-two months in prison.
Gowen filed timely notices of appeal from both the new conviction and the revocation. On appeal, she argues that the evidence was insufficient to support her conviction for possession of paraphernalia with intent to manufacture, and she contends that the evidence was insufficient to support the revocation of her probation. We find no error and affirm.
In her first argument on appeal, Gowen argues that her conviction for possession of drug paraphernalia with intent to manufacture methamphetamine is not supported by substantial evidence because the State failed to establish that she had exclusive possession of the paraphernalia. Our standard of review for determining the sufficiency of the evidence is well set-tied. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Holt v. State, 2009 Ark. 482, 348 S.W.3d 562; Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003). Substantial evidence is that “which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture.” Holt, supra. With regard to circumstantial evidence, such evidence may provide a basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Id. When we review a challenge to the sufficiency of the evidence, this court views the evidence in the light most favorable to the State, and only evidence supporting the verdict will be considered. Id. Furthermore, a finder of fact need not lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant’s guilt from improbable explanations of incriminating conduct. Id.
At trial, probation officer Thomas McBroom testified that, on June 9, 2010, he received information that led him and probation officer John Rooney to travel to Gowen’s residence. Once there, McBroom observed a teenage boy in the driveway next to the home. A gate blocked the driveway, so McBroom honked his car’s horn to attempt to get someone to come open the gate. When no one came out, he and Rooney climbed over the fence and went to the door of the home. McBroom and Rooney knocked on the door, trying to alert anyone inside to their presence, but, although McBroom could hear noises inside the home, no one would come to the door. McBroom and Rooney continued to knock on the door for thirty to forty-five minutes; while doing so, they walked around the property, and McBroom noticed what appeared to be a burn barrel in the back yard that contained what appeared to McBroom to be components for a meth lab.
Rooney called Officer Kevin Trigg of the probation office for assistance. When Trigg arrived, he also observed the barrel and then contacted Lieutenant James Kulesa of the drug task force. After Kulesa arrived, Rooney and McBroom continued knocking on the door, but still no one responded. At that point, Kulesa called the prosecuting attorney’s office to determine whether they had probable cause to enter the house.
Upon being informed that they had probable cause, the officers again knocked on the door and advised the occupants of the house that they needed to respond or the officers would make a forced entry. Once more, no one responded, so the officers entered the home. Rooney went to one end of the house, where he found Gowen and Clayton Ainsworth, who was also on probation, in a bedroom. Rooney brought Gowen and Ainsworth to the kitchen, and Kulesa then obtained consent from Gowen to search the house.
Rooney searched the residence, and, in the master bedroom, he found a homemade funnel, some plastic tubing, and some other paraphernalia next to the bed. Trigg found coffee filters in a plastic bag underneath the bedroom dresser and two cans of camp fuel in a black bag in the bedroom. Trigg also found a smoking device in the bottom drawer of the dresser, as well as tubing, syringes, gloves, a metal spoon with residue, and coffee filters. Trigg also recalled seeing a pill crusher near the bed.
Kulesa verbally advised Gowen of her Miranda rights, and Gowen told him that she did not know anything about a bottle found in the burn barrel. Gowen also told Kulesa that Ainsworth had been staying with her for a couple of weeks. Kulesa asked Gowen when was the last time she used methamphetamine, and she said, “about two or three days ago.”
Kulesa also found a glass smoking device in a jewelry box in the bedroom where Gowen had been found. Kulesa retrieved the burned bottles from the burn barrel along with some blister packages. In addition, Kulesa found a bag of ammonia nitrate on the side of the bed, along with a pill grinder and some stained tubing. Based on his experience in investigating hundreds of meth labs, Kulesa identified the items discovered in the bedroom and the burn barrel as materials utilized to manufacture methamphetamine.
Leonard Brickell, a pharmacist at the Wal-Mart in Cabot, testified that his pharmacy’s computer records showed that Gowen purchased packages of pseu-doephedrine totaling 2.4 grams on three occasions between May 20, 2007, and July 3, 2010.
Dan Hedges, a forensic chemist with the Arkansas State Crime Laboratory, testified that he tested the materials recovered from Gowen’s home, including a plastic sampling bottle that had a glass vial containing a red-and-white beaded material and dark-gray metallic pieces in it; those materials were positive for methamphetamine and indicative of ephedrine/pseu-doephedrine, as well as sodium nitrate and ammonia. This mixture, Hedges said, was the reaction mixture for manufacturing methamphetamine. The metal spoon found at Gowen’s house tested positive for methamphetamine and oxycodone.
Gowen testified on her own behalf, denying that she had ever taken part in manufacturing methamphetamine. Gowen explained that she hired Ainsworth to clean up some tornado damage around her home, and she claimed that she had no knowledge of the things that were found in her residence. Gowen also denied ever providing Ainsworth with pseudoephedrine or ephedrine, claiming that she had purchased them as medication because she takes other medications that cause her to itch.
On cross-examination, Gowen acknowledged that she had tested positive for methamphetamine on one of her drug tests, but she denied using methamphetamine and suggested that it was because “those kids” might have drugged her by putting meth in her coffee. Gowen also claimed that she did not answer the door when her probation officer was knocking because she could not hear the knocking over the air conditioner; in addition, she said that Ainsworth told her that it was her ex-boyfriend at the door. Gowen further asserted that, although the items of paraphernalia were found in the bedroom, she was not staying in the bedroom but was sleeping on a couch in the living room.
On appeal, Gowen argues that the evidence was insufficient to “establish that she had exclusive possession” of the paraphernalia. Neither exclusive nor actual physical possession is necessary, however, to establish the offense charged. A person is guilty of possession of drug paraphernalia with intent to manufacture if he or she uses, or possesses with intent to use, drug paraphernalia to “plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance.” Ark.Code Ann. § 5-64-403(c) (Repl.2005). The Arkansas Criminal Code defines possession as “exercisfing] actual dominion, control, or management over a tangible object.” Ark.Code Ann. § 5-1-102(15) (Repl.2006).
Our supreme court has held that the State need not prove that the accused physically possessed the contraband in order to sustain a conviction for possession of a controlled substance if the location of the contraband was such that it could be said to be under the dominion and control of the accused, that is, constructively possessed. Cantrell v. State, 2009 Ark. 456, 343 S.W.3d 591; Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003). Though constructive possession can be inferred when the accused has joint control over the contraband with another, an additional factor is necessary to link the accused to the contraband in joint-occupancy situations. Holt v. State, 2009 Ark. 482, 348 S.W.3d 562 (citing Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978)). “It cannot be inferred that one in non-exclusive possession of premises knew of the presence of drugs and had joint control of them unless there were other factors from which the jury can reasonably infer the accused had joint possession and control.” Walley, 353 Ark. at 596, 112 S.W.3d at 354. Our supreme court has stated that an additional factor to consider in determining whether a defendant was in constructive possession was the proximity of the defendant to the contraband. Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147.
Indicators of possession are ownership of the property where the contraband is found, see Abshure v. State, 79 Ark.App. 317, 87 S.W.3d 822 (2002), and an accused’s suspicious behavior coupled with proximity to the contraband. See Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994). Here, the drug paraphernalia was found primarily in Gowen’s bedroom, where she was also discovered by the investigating officers who had been attempting to get her to open the door for thirty to forty-five minutes. Gowen admitted to Kulesa that she had used methamphetamine within the last two or three days. Although Gowen claimed that someone must have drugged her, the trier of fact was free to disbelieve her; moreover, a defendant’s guilt may be inferred from improbable explanations of incriminating conduct. See Draper v. State, 2010 Ark. App. 628, 378 S.W.3d 191. On these facts, the circuit court did not err in denying Gowen’s motion to dismiss, and substantial evidence supported Gowen’s conviction for possession of drug paraphernalia with intent to manufacture.
In her second point on appeal, Gowen argues that the revocation of her probation was in error because the trial court “improperly considered evidence that was not contained in the petition to revoke probation, and the State failed to show that Gowen willfully failed to pay her supervision fees or knew that Clayton Ainsworth was a felon.” A sentence of probation may be revoked when a court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his probation or suspended sentence. Jenkins v. State, 2011 Ark. App. 248, 2011 WL 1166855. The State bears the burden of proof but need only prove that the defendant committed one violation of the conditions.
As there was sufficient evidence to support Gowen’s conviction for possession of drug paraphernalia with intent to manufacture, there was clearly sufficient evidence to support the revocation of her probation, as one of the conditions of probation was that Gowen “must not commit a criminal offense punishable by imprisonment.” Nonetheless, Gowen argues that, in granting the State’s petition to revoke, the circuit court stated that it had “found Gowen guilty of possession of drug paraphernalia with intent to manufacture ... as well as other evidence that’s been presented to the court.” Gowen maintains that what this “other | aevidence” consisted of was not expressly stated by the court, and the revocation of her probation should be reversed because it was error to consider this “other” evidence. Gowen failed to object to or seek clarification of the trial court’s ruling and thus waived any argument thereon. Cheshire v. State, 80 Ark.App. 327, 330, 95 S.W.3d 820, 823 (2003) (“While it is true that appellant’s right to due process required that he be given notice of the conditions of probation he was alleged to have violated, it is also true that the denial of any right, even a constitutional one, must be objected to at trial to be preserved for appeal.”) (citations omitted). Accordingly, the trial court’s decision to revoke Gowen’s probation is affirmed.
Affirmed.
HART and GLOVER, JJ., agree.
. Brad Coyle was Gowen's regular probation officer, but he was out of the office that day.
. For this reason, we do not address Gowen’s arguments that the trial court erred by considering evidence that she had tested positive for methamphetamine, finding that she willfully failed to pay her fines, and finding that she had knowingly associated with a known felon. | [
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LARRY D. VAUGHT, Judge.
It Following a golf-cart accident that occurred at the New Champions Golf Course (Pinnacle Country Club) in Rogers, Arkansas, the Arkansas Workers’ Compensation Commission found that appellee Michael Lemna was immune from the negligence claims asserted by his co-employee, appellant William Curtis. In its resolution of the claim, the Commission relied on the Arkansas Workers’ Compensation Act’s provision of immunity to employers and employees who carry out the employer’s duty to maintain a safe workplace. Curtis argues three issues on appeal: (1) the Commission acted beyond its jurisdiction in deciding the case, (2) the Commission’s finding that the accident occurred within the course and scope of the parties’ employment was clearly erroneous, and (3) the Commission’s extension of an employer’s tort immunity under Arkansas Code Annotated section 11-9-105 (Repl.2012) to a negligent co-employee is in contravention of article 5 section 32 of the Arkansas Constitution. We affirm.
|2The pertinent facts are not disputed. Curtis and Lemna were employees of Henkel of America (d/b/a Dial Corporation), located in Scottsdale, Arizona. The two were roughly equal in the corporate hierarchy — Curtis worked in the finance division of the sales department and Lem-na worked in operations. Their offices were in close proximity to each other, and the men had known each other for several years.
Marc Moliere, the team leader for Dial’s field office in northwest Arkansas, planned a sales meeting for August 8, 2007, at the Pinnacle Country Club. Mollere’s office served Wal-Mart and Sam’s Club, two of Dial’s biggest customers. After Curtis suffered an injury while a passenger in a golf cart operated by Lemna during a game at the sales meeting, Dial and its workers’ compensation carrier, Zurich American Insurance Company, accepted the injury suffered by Curtis on August 8, 2007, to be compensable under the Arizona Workers’ Compensation Act. Arizona Act compensation benefits were paid to Curtis pursuant to the Arizona Act.
Curtis did not make a claim for workers’ compensation benefits under the Arkansas Workers’ Compensation Act, and he did not seek damages from Dial Corporation or Zurich American Insurance Company. However, on September 10, 2008, Curtis filed a tort action in the Benton County Circuit Court against Lemna and Pinnacle Country Club alleging that Lemna’s negligence was the proximate cause of the accident and Curtis’s resulting injury. Lemna filed a motion to dismiss, alleging that he and Curtis were co-employees at the time of the accident and that the Arkansas Workers’ Compensation Commission had exclusive [¡jurisdiction to determine whether Lemna was entitled to tort immunity pursuant to Arkansas Code Annotated section 11-9-105 (Repl.2012).
In its November 23, 2010 order, the circuit court dismissed the case (without prejudice) for lack of jurisdiction until the issues reserved to the Arkansas Workers’ Compensation Commission could be resolved. Curtis then requested a hearing before the Commission. He stipulated to most of the facts and agreed to litigate (1) the application (if any) of the Arkansas Workers’ Compensation Act; (2) whether Curtis and Lemna were acting in the course and scope of their employment on August 8, 2007; (3) whether Lemna can claim immunity under the Arkansas Workers’ Compensation Act; and (4) whether an employer’s tort immunity under Arkansas Code Annotated section 11-9-105 can be extended to a co-employee consistent with the limitations of article 5, section 32, of the Arkansas Constitution.
The evidence at the hearing consisted of testimony (mostly by deposition) of various employees, including Mark Moliere, who was employed in August 2007, by Dial in its northwest Arkansas office as the vice-president of sales. He also served as the team leader of Dial’s sales to Wal-Mart and Sam’s. Moliere testified that he scheduled a meeting at Pinnacle Country Club on August 8, 2007. The purpose of the meeting was for Dial to review its business operations, including its financials, sales opportunities, and sales plans. According to Mollere’s deposition testimony, these sales constituted over a third of Dial’s business so it was necessary for employees from Dial’s corporate headquarters to attend the meeting, including Curtis and Lemna (although they were based in Scottsdale, Arizona).
LMollere further testified that he was responsible for setting up the details of the meeting, which was held in the board room of the Pinnacle Country Club. He acknowledged that he arranged for food to be served at lunch and for the meeting participants to play golf that afternoon. Moliere paid (with a company credit card) for the meeting facility, golf fees, clubs, and carts. He testified that the golf outing was a team-building exercise that benefitted Dial and that he aimed to create a relaxed environment for the “free flow of thoughts and ideas.” He further testified that when he arranged the golfing groups, he mixed those who “did not normally have access to corporate employees together with corporate employees” in order to exchange dialogue.
Also testifying by deposition was Curtis, who stated that he worked in Dial’s finance department in Scottsdale, Arizona, and that his primary job duties were to work with sales organizations in terms of pricing, promotion, and customer profitability analysis. Curtis testified that he arrived at the meeting on August 8, 2007, in time for his particular presentation. Thereafter, he ate lunch with the remainder of the participants and then played golf. Curtis testified that Moliere arranged for club rental and the golf cart. Curtis stated that he considered his participation in the golf outing to be a matter of pleasure as opposed to it being work for Dial. Curtis also acknowledged that he had received workers’ compensation benefits for his injury in Arizona.
Lemna also testified via deposition, stating that in August 2007, he worked for Dial and was based in Scottsdale, Arizona, as the director of “channel development.” Lemna testified that on August 8, 2007, he and Curtis were sent by Dial to Northwest Arkansas for |Ba meeting with Dial’s “Wal-Mart team” and that on the morning of August 8, 2007, he and Curtis attended the meeting at the Pinnacle Country Club, ate lunch, and then played golf. Lemna testified that he thought that the golf outing was mandatory because it was included as part of the meeting agenda. According to Lemna, he and Curtis were assigned to the same golf cart, and they took turns driving the cart, depending on who was making a shot.
Specific to this appeal, Lemna testified that on the tee shot at # 6, both he and Curtis hit shots that “went to the right, almost in the fairway of an adjacent hole.” In order to recover their stray golf balls, they drove their cart across a bridge. After hitting their second shots and subsequently finishing the hole, they returned to their cart. Lemna testified that in an attempt to avoid driving on the green, he took a wider route around the green and this resulted in him driving the cart over a retaining wall. Lemna stated that the wall could not be seen from his vantage point, and by the time they saw the retaining wall, it was too late to stop the golf cart. According to Lemna, both he and Curtis were thrown out of the cart upon impact. Lemna testified that when asked if they were “okay,” Curtis replied that his shoulder did not feel right. Based on Curtis’s complaint of pain, an ambulance was called to the scene, and Curtis was taken to the hospital where he underwent surgery. The record reflects that Curtis underwent an additional surgical procedure upon his return to Arizona.
Our review of this case on appeal is limited to the question of whether the Commission’s decisions concerning the jurisdiction, the application, and the immunity provided by the Arkansas Workers’ Compensation Act are supported by substantial evidence. Honeysuckle v. Curtis H. Stout, Inc., 2010 Ark. 828, 868 S.W.3d 64. In so doing, we view all | r,evidence in the light most favorable to the Commission’s decisions and reverse only if sub stantial evidence does not support the Commission’s determination. Id. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. Further, if a fair-minded person could reach the same conclusions as the Commission, our standard of review requires us to affirm. Id.
First we consider the jurisdiction of the Arkansas Workers’ Compensation Act. To the extent that Curtis argues on appeal that Arkansas lacks jurisdiction or that application of Arkansas workers’ compensation law is not proper, it should be noted that Curtis filed a tort claim in Arkansas and specifically requested a hearing before the Commission. Therefore, Curtis stipulated that Arkansas had jurisdiction and that the application of Arkansas workers’ compensation law was appropriate. Furthermore, based on our supreme court’s holding in Williams v. Johnson Custom Homes, 374 Ark. 457, 288 S.W.3d 607 (2008), because Curtis could seek benefits under Arkansas workers’ compensation law if he so chose, the Commission had a legitimate interest in the injury, and correspondingly had the right to apply Arkansas’s law simultaneously or successively with Arizona’s. Id.
Additionally, when a party to a tort claim in Arkansas raises a question of whether a person enjoys immunity as an employer under the Workers’ Compensation Act, the Commission must first determine that issue. Miller v. Enders, 2018 Ark. 23, 425 S.W.3d 723. Accordingly, we are satisfied that the Commission appropriately answered the questions relating to applicability of the Act and its co-employee immunity provision to the case before us and that the Commission’s holdings were squarely within its jurisdictional bounds.
[7Next, we consider whether there is substantial evidence to support the Commission’s decision that Curtis and Lemna were acting within the course and scope of their employment on August 8, 2007. In order for an accidental injury to be compensable, it must arise “out of and in the course of employment.” Ark.Code Ann. § ll-9-102(4)(A)(i) (Repl.2012). A compensable injury does not include injuries “inflicted upon the employee at a time when employment services were not being performed.” Ark.Code Ann. § 11-9-102(4)(B)(iii). The same test is used to determine whether an employee was performing employment services as is used when determining whether an employee was acting within the course and scope of employment. Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002). The paramount question is whether the injury occurred within the time and space boundaries of the employment, when the employee was carrying out the employer’s purpose or advancing the employer’s interest either directly or indirectly. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999).
Although participation in the golf outing was not mandatory, the activity was provided by Dial Corporation, at Dial’s expense. According to the testimony of Moliere, the purpose of the golf outing was a “team-building exercise” that ultimately benefitted Dial. In reaching its decision, the Commission found Moliere to be credible and relied on his testimony “that he wanted a relaxed environment for free flow of thoughts and ideas” and that he “specifically paired groups in an effort to mix employees from Dial’s northwest Arkansas office with employees from the Scottsdale office in order to create a dialogue.” Based on this testimony, the Commission determined that the golfing activity occurred | ^during the space and bounds of employment and that “Curtis and Lem-na were carrying out Dial’s purpose or advancing Dial’s purpose directly or indi rectly.” After reviewing the evidence in the light most favorable to the Commission’s decision, we are satisfied that the decision is supported by substantial evidence and should be affirmed. Furthermore, on this point, we note that Curtis is attempting to have his cake and eat it too. The fact remains that he has received workers’ compensation benefits in Arizona, which is contrary to his current position that he and Lemna were simply participating in a voluntary event — not acting in the course and scope of their employment at the time of his injury.
Curtis also contends that the golf cart did not constitute a place of employment. However, we have determined previously that the definition of a work place is not static in the sense that it is limited to an employer’s physical premises or an actual place of business. See Rea v. Fletcher, 39 Ark.App. 9, 832 S.W.2d 513 (1992). Instead, work places have been recognized as including activity that takes place in a motor vehicle and even roadside. Brown v. Finney, 326 Ark. 691, 932 S.W.2d 769 (1996); Barnes v. Willciewicz, 301 Ark. 175, 783 S.W.2d 36 (1990). Here, although Curtis and Lemna were in a golf cart at the time of the injury, the Commission concluded that they were “nevertheless acting within the course and scope of their employment at the time of the injury.” The fact that the golf cart was not a physical business location or Dial’s normal place of business is of no consequence. Because there is substantial evidence to support the Commission’s conclusion, we affirm on this point as well.
IsCurtis also argues that the extension of the doctrine of immunity to actions in tort to co-employees is a violation of article 5, section 32 of the Arkansas Constitution as amended by amendment 26. However, this issue is now moot based on our supreme court’s January 21, 2013 opinion, Miller v. Enders, 2013 Ark. 23, 425 S.W.3d 723. But the question remains whether Lemna is eligible for the tort immunity. The Commission concluded that although Lemna was not acting in a supervisory role at the time of the golf-cart accident, he was acting as an arm of his employer by fulfilling the employer’s duties to transport its employee and thus was entitled to the employer’s immunity.
Immunity from a tort action is only extended to supervisors or co-employees if, at the time of the accident, they are “fulfilling the employer’s duty to provide a safe place to work” and are essentially acting as “an arm of the employer.” Id. at 13, 425 S.W.3d at 730. In such cases, because the employer is immune from suit in tort, a co-employee who is acting on behalf of the employer by providing a safe place to work is entitled to that same immunity. Id., 425 S.W.3d at 727. The determination of whether the Commission correctly concluded that Lemna was fulfilling Dial’s duty to provide a safe place to work is the most difficult facet of the case because it involves a question of statutory construction, which we review de novo. McLane So., Inc. v. Davis, 366 Ark. 164, 167, 233 S.W.3d 674, 677 (2006).
In considering whether employer immunity can be extended to Lemna under Arkansas workers’ compensation law, we are guided by the Miller opinion, where our supreme court provided a thorough discussion of the progression of tort immunity for co-employees. Miller, 2013 Ark. 23, 425 S.W.3d 723. In Miller, our supreme court stated that all cases interpreting | ioArkansas’s workers’ compensation statutes have become part of the statutes themselves, short of legislative amendment. The court further instructed that it
has consistently interpreted Ark.Code Ann. § 11-9-105 to extend immunity to co-employees, such as Enders, for ac tions arising from the alleged failure to provide a safe workplace because those employees are charged with the employer’s nondelegable duty of providing a safe workplace.... We have consistently afforded immunity to co-employees that are acting as an arm of the employer. This extension does not limit recovery; it cloaks certain co-employees in limited fact scenarios with immunity as an employer when they are fulfilling their employer’s duties to provide a safe work place.
Id. at 8-13, 425 S.W.3d at 728-30. The supreme court in Miller left all prior case law intact, and it provided further explanation of the distinction between co-employees who are fulfilling an employer’s responsibility to provide a safe place to work and employees who are simply carrying out a separate individual duty. In developing this distinction and ultimate extension of co-employee immunity, the court relied on the precedential history of employer, supervisor, and co-employee tort immunity.
In King v. Cardin, King was driving a dump truck, which backed over a fellow employee named Dyer, killing him. 229 Ark. 929, 319 S.W.2d 214 (1959). Dyer’s estate sued King as a third-party tortfea-sor alleging that King was negligent in his operation of the truck. Id. at 930-31, 319 S.W.2d at 216-18. The supreme court held that King was not immune, noting that the co-employee was not fulfilling the employer’s responsibility to provide a safe work place; rather, he was merely attempting to carry out his separate, individual duty as an employee to drive the dump truck used in asphalt operations. Id., 229 Ark. at 931-32, 319 S.W.2d at 216-17.
[nIn Simmons First National Bank v. Thompson, our supreme court held that because an employer is immune from tort action for a negligent failure to provide employees with a safe place to work, that same immunity also protected supervisory employees when their duties involved overseeing and discharging the responsibility of providing a safe place to work. 285 Ark. 275, 686 S.W.2d 415 (1985). This immunity was extended to nonsupervisory employees in Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987).
In Barnes v. Wilkiewicz, the employee filed a tort action against his supervisor for injuries he sustained when they were working on a company truck that had stalled along a road. 301 Ark. 175, 783 S.W.2d 36 (1990). The employee alleged that his supervisor had negligently parked the truck partly in the roadway and that the negligence was the proximate cause of his injuries that occurred when another motorist struck the parked vehicle. Id. at 177-78, 783 S.W.2d at 37. Our supreme court held that the supervisor was immune from suit because the employee’s claim amounted to one of failure to provide a safe work place and that the employee was injured during and within the course and scope of his employment because the accident scene was the workplace as the job required repair of a stalled company truck, which was within a supervisory capacity. Id. at 178-79, 783 S.W.2d at 37-39.
In Rea v. Fletcher, 39 Ark.App. 9, 832 S.W.2d 513 (1992), Rea filed a tort action against Fletcher, a co-employee, alleging that Fletcher negligently operated a vehicle in which Rea was riding. Id. at 10, 832 S.W.2d at 514. In Rea, the employer provided transportation from a designated parking lot to the work site and back during lunch and after 112work. Id. at 10-11, 832 S.W.2d at 514. On the day of the accident, Fletcher’s supervisor asked him to bring his own truck to the work site for the purpose of transporting employees back and forth for lunch because company trucks were not available. Id. at 11-12, 832 S.W.2d at 514-15. While riding in Fletcher’s truck, Rea fell out of the back of the truck and sustained a spinal injury. Id. at 12, 832 S.W.2d at 514-15. We affirmed the trial court’s summary judgment in favor of Fletcher and stated that assuming arguendo that Fletcher had negligently operated his private vehicle, he was immune from suit because providing transportation from the employer-designated parking area to the job site involved a duty to provide a safe place to work. Id. at 13, 832 S.W.2d at 514-15.
Our supreme court confirmed this line of reasoning in Brown v. Finney. 326 Ark. 691, 932 S.W.2d 769 (1996). Brown and Finney worked for ConAgra as part-time employees. Id. at 693, 932 S.W.2d at 770. Neither Brown nor Finney had supervisory duties within the company, and they were transported in a company van to their respective job sites. Id. at 693-94, 932 S.W.2d at 770-71. While on their way from one work site to another, the van driven by Finney overturned and Brown was injured. Id., 932 S.W.2d at 770-71. He sued Finney in tort. Id. at 694-95, 932 S.W.2d at 771. On appeal, it was determined that it was ConAgra’s duty to provide its employees with a safe place to work and that the duty could not be delegated to its employees — supervisory or otherwise — and that while driving the company van Finney was acting “as an arm of the employer.” Id. at 697-99, 932 S.W.2d at 774.
11sRelying on both Rea and Brown, cases where a co-employee was performing the employer’s duty to provide a safe place to work for employees while operating a vehicle, the Commission concluded that when Lemna was driving the golf cart in the course and scope of his employment, he was fulfilling Dial’s duty to provide a safe place to work for Curtis. After a careful review of the evidence and the development of co-employee immunity law in Arkansas, we affirm the decision of the Commission because there is substantial evidence to support its conclusion on this question. Once the Commission correctly determined that the golf outing was within the workplace bounds, it was logical to conclude that the employer had a duty — a non-delegable duty — to provide a safe place to work. In this case, Lemna was engaged as an “arm of the employer” when he provided transportation within the workplace environment (as was Curtis when taking his turn driving the golf cart).
We also note that the Commission’s resolution of the co-employee immunity question in this case supports the exclusive-remedy provision of our workers’ compensation law, which favors both the employer and the employee. Hickey v. Gardisser, 2010 Ark. App. 464, at 7, 375 S.W.3d 733, 737(noting that courts are to take a narrow view of any attempt to seek damages beyond that favored, exclusive remedy of workers’ compensation benefits). Based on the facts of this case, we are satisfied that the Commission’s resolution of Curtis’s claim is logically, statutorily, and constitutionally sound. We also conclude that the evidence presented at the hearing, when considered in the light most favorable to the Commission’s decision, is sufficiently substantial. As such, the decision of the Commission is affirmed in all respects.
_J_yAffirmed.
PITTMAN, GRUBER, GLOVER, and BROWN, JJ., agree.
WYNNE, and WHITEAKER, JJ., concur in part; dissent in part.
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ROBERT J. GLADWIN, Judge.
|, This appeal is one of three cases decided today that involve children who were taken into emergency custody by DHS from the Tony Alamo Christian Ministries compound in Fouke, Arkansas, in September 2008. Appellant Brian Broderick is the father of two girls, S.B. and A.B., taken into custody and challenges the circuit court’s order adjudicating his daughters dependent-neglected. Judge Joe Griffin heard this case and the one concerning Alphonso Reid’s daughters, A.R. and C.R., at the same hearing. Judge Jim Hudson heard the proceeding concerning Greg Seago’s daughter, V.S. Many witnesses testified at both hearings, and some testimony was consolidated in all three cases. Where possible, we will refer to the evidence discussed at length in the Seago opinion in order to avoid repetition.
Broderick has been a member of the ministry for over twenty-five years. He works for and lives on property used by the ministry. Susan Broderick, the mother of S.B. and A.B., married Broderick in 1989 in the ministry when she was fifteen or sixteen. She left the ministry in early 2008 and is now living in Virginia with her fourteen-year-old daughter, M.B., and her adult son, Nicholas Broderick. Although Susan Broderick was involved in the adjudication proceeding, she has not appealed the adjudication order. The Brodericks’ fif teen-year-old son lives with his father. S.B., who was born December 31, 1995, and A.B., who was born June 17, 1997, lived at Alamo’s residence before they were taken into custody by DHS.
Spencer Ondrisek testified in this hearing and in the Seago hearing. As in the Seago case, he talked about the iron control held by Tony Alamo over the members of the ministry. In both hearings, he testified about being beaten by John Kolbeck when he was twelve; his second beating by Kolbeck in 2006, when his sister, A. O., was also beaten; and a third beating in October 2007. Spencer stated that parents must get permission from Alamo to take their children to the doctor, and that he never saw a parent try to prevent their child from being beaten. He explained that fear played a vital role in keeping everyone under control. He testified that the members of the church were taught that if they left, they would fall into sin; that they could not trust the government, which was the “anti-Christ”; and that they could not go to the government for help. Spencer said that his parents would not speak to him after he left the ministry.
M.B., who also testified at the Seago hearing, testified that she, S.B., A.B., A.R., V.S., B.S., A.T., and M.E. were underage females who lived at Alamo’s house with the adult women who were known to be Alamo’s wives. She said that D.K. moved into Alamo’s house when she was eight, and that S.H. moved there when she was about ten. M.B. said that she saw both D.K. and S.H., who were known as his wives and had wedding rings, go into Alamo’s bedroom and shut the door, staying there for hours. As in the Seago hearing, she described her sexual molestation and threats by Tony Alamo when she was in the shower. She said that she did not tell her parents about the molestation because they would not have believed her over Alamo. As in the Seago hearing, she described her beating by John Kolbeck when she was ten years old, and talked about being forced to participate in a recording with B.S., V.S., and A.R., wherein the underage girls denied having been molested by Alamo. M.B. also testified that she witnessed her sister S.B. being beaten by Michelle Jones, one of Alamo’s wives, with a board, while M.B. was forced to help hold her sister down. Another time, she said, she observed Alamo catch B.S. by the throat and shove her against the wall. She also said that she heard B.S. being beaten by Kolbeck as she screamed that she wanted her mother.
Danny Ondrisek also testified in both hearings. He described his punishment on “diesel therapy” and said that the whole church was placed on a week-long fast when he was eight or nine years old. He stated that, after his sister Alice moved in with Alamo when she was ten or eleven, 'his family’s status improved. His mother received a new Dodge Caravan; his father got an expensive digital camera; they moved into a very large house in Texar-kana; and his parents obtained better jobs in the ministry. He stated, “It is common knowledge that if you move into Tony’s house and you are spending a certain amount of years there you are one of his wives. I mean he definitely doesn’t have boys coming over all the time. It’s only little girls and they usually never move out.”
Alanna Downs also testified in both hearings. She said that her sister Pebbles was one of Alamo’s wives and described seeing several young girls go into Alamo’s bedroom; she saw A.O. go into Alamo’s room and stay for three or four days. She stated that Alamo talked about how beautiful Alice Ondrisek was and referred to her as his wife. As in the Seago hearing, she described her periods of imposed fasting and her physical punishment. She described the beatings of other young girls, including A.O., and Kolbeck’s beating of Danny and Spencer Ondrisek. She testified that, when they were tipped off about an upcoming raid, the younger girls who were Alamo’s wives were sent out of Alamo’s residence, and that she observed some pictures of his underage wives being removed from his belongings.
The videotaped depositions of Nicholas Broderick and Jessica Cooper, which were played in the Seago hearing, were also admitted in this hearing.
Antavia Reid, Alphonso Reid’s stepdaughter, also testified about being beaten and forced to fast as punishment. She said that the primary reason why she left the ministry was because Alamo did not permit her to obtain medical attention for her son, who was born with a serious medical condition. Antavia testified that Alamo has multiple wives and that she witnessed J.G. and W.T. marry thirty-year-old men when J.G. was twelve and W.T. was thirteen. Antavia said that she had only completed the eighth grade.
Dr. Karen Worley’s testimony in this hearing was significantly similar to her testimony in the Seago hearing. She said that the girls in this proceeding did not reveal any sexual abuse. She stated that C.R., A.B., and S.B. talked about how the government thought that Alamo was a pedophile and appeared to have been coached before their interviews with investigators.
Robbie Polite, with DHS, testified that, although S.B. and A.B. had received some immunizations, they were not up-to-date, according to the records in Arkansas.
S.B. testified that, since she was eleven years old, she and A.B. had primarily lived in Alamo’s house. She described a spanking that Alamo ordered one of his wives, Michelle Jones, to give her:
After he got off the phone, Tony said he was going [to] have Michelle spank me and I begged him not to and he said, yes, he was going to, I needed to learn my lesson and he took me into his room and got the paddle from behind his desk and had all my friends and everybody in the office come into his room and said for all them to watch me....
I was scared. I was crying. I asked him not to do this. We went into Tony’s room and he had four people hold me, hold my arms and legs down and he told me to bend over on his bed and I believe it was, do I need to say the name? It was Lydia, Sharon Alamo, Yvonne. She is known as Pebbles. And I can’t remember who else ... but I got beat four times with the board.... He didn’t know how many licks I was going to get. He ... had a smile on his face and just watching me and he whispered something to Michelle and Michelle just gave me four. After it was done I said thank you. I said that because I believed that he was doing it because he loved me and that’s what he said....
I had marks on my thighs. They were big bruises and, you know, my blood vessels had broken inside my skin. They were blue, purple, and black. They hurt. I felt the pain for about three weeks. About the first week I couldn’t sit down, but the second week after that I could. I did not report the pain because I was scared.
Tony has slapped me probably five times. I think, five. He slapped my face. Well one time it was because he said I was giving him a dirty look, and which I wasn’t but. [sic] That caused me to question him being blind.
S.B. said that she did not tell her father about the spanking or that Alamo had slapped her.
Bernie Lazar Hoffman, aka Tony Alamo, testified that he did not have total control over the members of the church. He denied the allegations of sexual abuse. He affirmed his belief in the Bible’s teachings that polygamy is acceptable and that girls can be married after they reach puberty. He denied, however, actually practicing polygamy, or condoning or permitting the marriage of underage girls. He said that he had not witnessed A.O.’s “spanking” by Kolbeck, but acknowledged that he had witnessed Spencer Ondrisek’s “spanking.” He called the reports of beatings “exaggerated.” A significant amount of his testimony concerned his religious beliefs and was not relevant to the issues presented in this appeal.
Alphonso Reid denied having any knowledge of beatings, sexual abuse of young girls, underage marriages, or fasts. He admitted that he had permitted Tamela to live in Alamo’s house since she was eleven or twelve; that A.R. and C.R. had also lived there; and that he had lived apart from the girls in Fouke. He said that when he was not traveling for work with the ministry, he lived in the brothers’ dorm, and admitted being away from Fouke for months at a time. He acknowledged seeing J.G. with her husband, and that he knew about the recording Alamo had made with the girls, as well as the allegations of sexual abuse. He admitted asking Alamo for permission to marry Alanna Downs, but said that the marriage did not occur because she was underage and she did not want to marry him; he said that the idea “was from the devil.” He said that he thought that Alamo was a prophet and did not believe that Alamo had sexually abused any girls.
Brian Broderick denied knowing that children had been beaten, sexually abused, slapped, or forced to fast, and described the ministry as a great environment in which to raise children. He did not believe any of the witnesses testifying to such abuse and called his children, M.B. and Nicholas, liars. In fact, he said that there was nothing anyone could do to make him believe that Alamo, whom he considered to be a prophet, had molested M.B. He acknowledged that he had been aware of the allegations of sexual abuse because he had heard the recording of Alamo and the girls and had attended some Fouke city council meetings. He admitted permitting his daughters to live at the mission, where Alamo resides, while he worked out of town for months at a time. He said that he has done construction work for the ministry most of his life, and that he is totally dependent upon it for all of his needs.
On January 6, 2009, Judge Griffin entered an order adjudicating S.B. and A.B. dependent-neglected for the same reasons that Judge Hudson gave in the Seago order. He found Spencer Ondrisek, Danny Ondrisek, Antavia Reid, M.B., Jessica Cooper, and S.B. credible. He found Broder-ick, Reid, and Tony Alamo not credible. He imposed the same requirements on Broderick as Judge Hudson did on Seago — that he obtain housing and employment outside of the ministry. The same day, Judge Griffin entered an order adjudicating A.R. and C.R. dependent-neglected for the same reasons, and imposing the same requirements on Reid. He made the same credibility findings.
Broderick challenges the sufficiency of the evidence supporting the adjudication order and attacks the credibility of the witnesses who said anything negative about the ministry. As Seago argued, he contends that there was no medical evi dence that the fasts were dangerous or that the children were injured. He disputes that the children were neglected medically or educationally. He also asserts, for the first time on appeal, that the trial court’s requirement that he obtain employment and housing outside of the ministry is unconstitutional. We do not address arguments raised for the first time on appeal. See Ark. Dep’t of Health & Human Servs. v. Jones, 97 Ark.App. 267, 248 S.W.3d 507 (2007).
Adjudication hearings are held to determine whether the allegations in a petition are substantiated by the proof. Ark. Code Ann. § 9-27-327(a)(l) (Supp.2009). Dependency-neglect allegations must be proven by a preponderance of the evidence. Ark.Code Ann. § 9-27-325(h)(2)(B) (Supp.2009). We will not reverse the circuit court’s findings unless they are clearly erroneous. Brewer v. Ark. Dep’t of Human Servs., 71 Ark.App. 364, 43 S.W.3d 196 (2001). In reviewing a dependency-neglect adjudication, we defer to the circuit court’s evaluation of the credibility of the witnesses. Id. The focus of an adjudication hearing is on the child, not the parent. At this stage of a proceeding, the juvenile code is concerned with whether the child is dependent-neglected. An adjudication of dependency-neglect occurs | flWithout reference to which parent committed the acts or omissions leading to the adjudication; the juvenile is simply dependent-neglected. See Howell v. Ark. Dep’t of Human Servs., 2009 Ark. App. 612, 2009 WL 3028987; Albright v. Ark. Dep’t of Human Servs., 97 Ark.App. 277, 248 S.W.3d 498 (2007).
Arkansas Code Annotated section 9-27-303(18)(A) (Supp.2009) defines a “dependent-neglected juvenile” as any juvenile who is at substantial risk of serious harm as a result of abandonment, abuse, sexual abuse, sexual exploitation, or neglect. The definition of “neglect” in section 9-27-303(36)(A) includes acts or omissions of “a parent, guardian, custodian, foster parent, or any person, who is entrusted with the juvenile’s care by a parent,” that constitute:
(i) Failure or refusal to prevent the abuse of the juvenile when the person knows or has reasonable cause to know the juvenile is or has been abused;
(ii) Failure or refusal to provide the necessary food, clothing, shelter, and education required by law, ... or medical treatment necessary for the juvenile’s well-being ...;
(iii) Failure to take reasonable action to protect the juvenile from abandonment, abuse, sexual abuse, sexual exploitation, neglect, or parental unfitness when the existence of this condition was known or should have been known;
(iv) Failure or irremediable inability to provide for the essential and necessary physical, mental, or emotional needs of the juvenile, including failure to provide a shelter that does not pose a risk to the health or safety of the juvenile;
(v) Failure to provide for the juvenile’s care and maintenance, proper or necessary support, or medical, surgical, or other necessary care;
(vi) Failure, although able, to assume responsibility for the care and custody of the juvenile or to participate in a plan to assume the responsibility; or
(vii) Failure to appropriately supervise the juvenile that results in the juvenile’s being left alone at an inappropriate age or in inappropriate circumstances, creating a dangerous situation or a situation that puts the juvenile at risk of harm.
The evidence introduced at this hearing presented a clear picture of the danger to children in the ministry compound at Fouke. There was testimony that many children were beaten, including M.B., S.B., and their brother; Antavia Reid; and C.R. Several were placed on fasts. Spencer Ondrisek was given “diesel therapy” and his brother Danny was imprisoned in a warehouse for eight months. Alamo slapped S.B. and shoved B.S. against a wall. There was evidence that Alamo molested M.B., and that he “married” several young girls. There was testimony that it was normal for underage girls to be married to much-older men. In spite of the evidence demonstrating that sexual abuse of underage girls, beatings, and fasts were widely known within the ministry, Broder-ick denied knowing of any potential danger to his children. The evidence presented at this hearing sufficiently demonstrated that the environment in which Broderick placed his children was dangerous. Given the juvenile code’s goal of preventing the abuse of children before it occurs, if at all possible, we have no hesitation in affirming the circuit court’s finding that these children were dependent-neglected.
Affirmed.
VAUGHT, G.J., and MARSHALL, J., agree. | [
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KAREN R. BAKER, Justice.
| ,The record demonstrates that the present case stems from a land-condemnation action initiated by the City of Conway and Conway Corporation (“Conway”), in Faulkner County Circuit Court, against the petitioners, husband and wife, Karen Cooper and Jack Dowell (“Cooper and Dowell”). Cooper and Dowell petition this court to issue a writ of prohibition or, in the alternative, a writ of certiorari, against the respondent, Faulkner County Circuit Court. They contend that the circuit court was without jurisdiction, exceeded its jurisdiction, and committed a gross abuse of discretion in its January 31, 2013 order when it (1) ordered Cooper and Dowell to pay Conway’s attorney’s fees and costs in lathe amount of $21,345 as a condition of granting their motion for continuance and (2) prohibited Cooper and Dowell from filing any additional pleadings until the fees and costs were paid in full. In their petition, Cooper and Dowell make two requests: (1) grant a writ of prohibition directing the circuit court to rescind its January 31, 2013 order or (2) grant a writ of certiorari directing the circuit court to rescind its January 31, 2013 order. This court has original jurisdiction of this case pursuant to Ark. Sup.Ct. R. 6-1 (a) (2013) as the petition seeks extraordinary relief. We deny the writ of prohibition and grant the writ of certiorari for the reasons explained below.
The relevant facts are these. On September 28, 2011, Conway initiated a condemnation action against Cooper and Do-well. On May 29, 2012, the circuit court entered a scheduling order, set a trial date of October 12, 2012, and set a pleadings deadline of sixty days prior to trial. On September 28, 2012, the circuit court entered a pretrial order addressing the parties’ pretrial motions. On October 9, 2012, Cooper and Dowell filed a motion to clarify the circuit court’s September 28, 2012 pretrial order. Specifically, Cooper and Do-well sought to clarify the circuit court’s finding with regard to certain evidence related to damages. On October 10, 2012, Conway responded, and on October 11, 2012, Cooper and Dowell replied. On October 11, 2012, the day before the trial was set to commence, at 4:24 p.m., the circuit court issued its order on the motion to clarify it previous order and sent the order via facsimile to the parties.
On the following day, the morning of trial, October 12, 2012, Cooper and Dowell requested a continuance, asserting that the circuit court’s clarification order limited their | .¡damages arguments and that Cooper and Dowell would be foreclosed from raising approximately $15,000 worth of damages to their property based on the condemnation. Conway objected to the continuance and asserted that the October 11, 2012 order simply restated the circuit court’s previous orders and that Cooper and Dowell should have already filed a counterclaim to address the damages issue. The circuit court agreed with Cooper and Dowell, found that they had demonstrated good cause, and granted the continuance pursuant to Rule 40 of the Arkansas Rules of Civil Procedure. However, the continuance was granted on the condition that Cooper and Dowell would be responsible for Conway’s attorney’s fees and costs associated with preparing for the trial, including expert and juror fees. The record demonstrates that Conway would submit its bill to the circuit court and Cooper and Dowell for review, that they would have an opportunity to review and rebut the proposed expenses, and that the circuit court would then issue an order addressing the fees and costs. The record further demonstrates that at the October 12, 2012 hearing on the continuance, there was no mention of a prohibition on either party filing pleadings.
On December 13, 2012, the condemnation action was transferred to the Faulkner County Circuit Court, First Division. On January 31, 2013, the circuit court entered an | additional order continuing the trial. Referencing the October 12, 2012 order, the January 31, 2013 order continued the trial and ordered the continuance conditioned upon Cooper and Dowell’s payment to Conway for its attorney’s fees and costs in the amount of $21,345 to be paid within five days of the order. The continuance order also prohibited Cooper and Dowell from filing any additional pleadings until the attorney’s fees and costs were paid. On February 1, 2013, Conway filed garnishment allegations and interrogatories, and on that same day, the Faulkner County Circuit Clerk issued a writ of garnishment against Cooper and Dowell to collect the $20,805 in reimbursement costs to Conway for attorney’s fees and costs.
On March 6, 2013, Cooper and Dowell filed their motion for writ of prohibition, or in the alternative, writ of certiorari with this court; they also filed a motion to stay the circuit court proceedings. On March 11, 2013, Cooper and Dowell filed a motion to expedite their petition, and on March 13, 2013, Conway responded. On March 14, 2013, we granted the motion to stay the circuit court proceedings, including any garnishment, granted the motion to expedite, and took the petition as a case. On March 21, 2013, Conway filed a motion to dismiss or motion to strike Cooper and Dowell’s petition. On March 29, 2013, Cooper and Dowell filed a response to the motion, and on April 11, 2013, Conway replied to the response. On April 18, 2013, we passed the motion to dismiss to take it up with our ^consideration of the petition.
Now before the court is Cooper and Dowell’s petition requesting us to grant a writ of prohibition or, in the alternative, a writ of certiorari to rescind the circuit court’s January 31, 2013 order continuing the trial, ordering the payment of costs and fees, and prohibiting Cooper and Do-well from filing additional pleadings until the fees and costs were paid.
We first address Cooper and Do-well’s request that we issue a writ of prohibition and order the circuit court to rescind its January 31, 2013 order. A writ of prohibition is extraordinary relief that is appropriate only when the circuit court is wholly without jurisdiction. See White v. Palo, 2011 Ark. 126, 380 S.W.3d 405. Writs of prohibition are prerogative writs, extremely narrow in scope and operation; they are to be used with great caution and forbearance; they should issue only in cases of extreme necessity. Int’l Paper Co. v. Clark Cnty. Circuit Court, 375 Ark. 127, 289 S.W.3d 103 (2008). The writ of prohibition cannot be invoked to correct an order already entered. Id. In those instances, a writ of certiorari is the appropriate vehicle. See id.
Here, each of the allegations in Cooper and Dowell’s petition for a writ of prohibition concerns an order already entered by the circuit court. We will not issue a writ of prohibition for something that has already been done. Allen v. Circuit Court of Pulaski Cnty., 2009 Ark. 167, 303 S.W.3d 70. Because the circuit court has already entered the order, a writ of prohibition cannot he. Id.
Alternatively, Cooper and Dowell have requested that this court issue a writ of certiorari and order the circuit court to rescind its January 31, 2013 order. They present two | fibases for the issuance of the writ of certiorari: (1) the circuit court’s prohibition on Cooper and Dowell’s filing additional pleadings was in excess of the circuit court’s jurisdiction and a gross abuse of discretion and (2) the circuit court’s award of fees and costs of $21,345 to Conway was in excess of the circuit court’s jurisdiction and a gross abuse of discretion.
A writ of certiorari is extraordinary relief. “In determining its application we will not look beyond the face of the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding of fact, or to reverse a trial court’s discretionary authority.” Southern Farm Bureau Cas. Ins. Co. v. Parsons, 2013 Ark. 322, at 6, 429 S.W.3d 215, 218. A writ of certiorari lies to correct proceedings erroneous on the face of the record where there is no other adequate remedy; it is available to the appellate court in its exercise of superintending control over a lower court that is proceeding illegally where no other mode of review has been provided. Casement v. State, 318 Ark. 225, 884 S.W.2d 593 (1994) (citing Lupo v. Lineberger, 313 Ark. 315, 316-17, 855 S.W.2d 293, 293-94 (1993)).
There are two requirements that must be satisfied in order for the court to grant a writ of certiorari. First, there can be no other adequate remedy but for the writ of certiorari. No other adequate remedy exists where the issuing court had no legal authority to support its order. Arkansas Game & Fish Comm’n v. Herndon, 365 Ark. 180, 183, 226 S.W.3d 776, 779 (2006). Second, the writ of certiorari lies only where (1) it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, or (2) there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. Id. Accordingly, a writ of certiorari is 17appropriate when, on the face of the record, it is apparent that no other remedy is available to correct a plain, manifest, and gross abuse of discretion by the circuit court. See Chiodini v. Lock, 373 Ark. 88, 281 S.W.3d 728 (2008). It lies when the judge has acted in excess of his or her authority. See Conner v. Simes, 355 Ark. 422,139 S.W.3d 476 (2003).
Turning to Cooper and Dowell’s petition, they first contend that the circuit court exceeded its jurisdiction when it prohibited them from filing additional pleadings until they paid the fees and costs. Conway responds that the circuit court’s prohibition was appropriate because the order only limited Cooper and Dowell from filing “pleadings.” Conway relies bn Rule 7 of the Arkansas Rules of Civil Procedure and contends that “pleadings” only includes a complaint, an answer, a counterclaim, a reply to a counterclaim, and an answer to a cross-claim. See Ark. R. Civ. P. 7 (2013). Relying on Rule 7, Conway contends that Cooper and Dowell were not denied access to the courts because they had already filed their answer and counterclaim and the rule did not allow for any additional pleadings.
At issue before us is the January 31, 2013 order that provides in pertinent part:
1. Judgment is rendered against the Defendants, jointly and severally, and in favor of the Plaintiffs in the sum of $20,805.00, in reimbursement of Plaintiffs’ attorneys fees and costs incurred in preparing for trial;
2. Judgment is rendered against the Defendants, jointly and severally, and in favor of the Faulkner County Circuit Clerk in the sum of $540.00 as reimbursement for all expenses and juror pay incurred by the Court in summoning the jurors for jury selection and trial;
3. All sums due and owing under this Order shall be due and payable within five (5) days of the entry of this Order. Defendants shall not be permitted to file any further pleadings in this case until such time as the attorneys’ fees and costs awarded herein and the jury costs awarded herein are paid-in-full[.]
|8Here, Cooper and Dowell assert that the circuit court’s prohibition on filing pleadings infringes upon their access to the courts and urge this court to grant the writ. Conway responds that the writ of certiorari is not available because Cooper and Dowell have failed to demonstrate that there is no other remedy available. Conway contends that they may appeal at the conclusion of the litigation as the motion for continuance is at the discretion of the circuit court and appealable when litigation is complete. Thus, issuing the writ would amount to piecemeal litigation. Conway further asserts that Cooper and Dowell cannot complain about the order because they requested the continuance.
In reviewing our law, it is clear to us that access to the courts is a constitutional right. Christopher v. Harbury, 536 U.S. 403, 415 n. 12, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) (internal citations omitted) (“Decisions of this Court have grounded the right of access to courts in the Article IV Privileges and Immunities Clause, the First Amendment Petition Clause, the Fifth Amendment Due Process Clause, the Fourteenth Amendment Equal Protection, and Due Process Clauses.”). The United States Supreme Court has explained that access to the courts “is one of the highest and most essential privileges of citizenship, and must be allowed by each state to the citizens of all other states to the precise extent that it is allowed to its own citizens.” Chambers v. Baltimore & Ohio R.R. Co., 207 U.S. 142, 148, 28 S.Ct. 34, 52 L.Ed. 143 (1907). “Due process of law signifies a right to be heard in one’s defense.” Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (citing Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215 (1897)). Further, the access must be “adequate, effective, and meaningful.” Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). A state must afford to all individuals a meaningful opportunity to be heard if it is to fulfill the promise of the Due Process Clause. Boddie, 401 U.S. 371, 91 S.Ct. 780.
We turn now to whether the writ is appropriate. First, it is clear to this court that Cooper and Dowell have no other remedy. The January 31, 2013 order prohibiting the filing of additional pleadings is not a final, appealable order. Although it is a part of a continuance order which would normally be appealed at the conclusion of litigation, in the interim time, Cooper and Dowell have no other recourse to obtain relief from the prohibition portion of the order. Second, we find that the record on its face demonstrates that the circuit court exceeded its jurisdiction and committed gross abuse by denying Cooper and Dowell access to the courts. The record fails to support or provide any basis for the circuit court’s prohibition of filing additional pleadings, and the limitation infringes upon Cooper and Dowell’s access to the courts under the facts in this case. Conway asserts that the prohibition had no effect on Cooper and Dowell’s access to the court because there were no pleadings left for them to file. We disagree. Even applying the literal definition of pleadings from Rule 7, Cooper and Dowell are prohibited from accessing the circuit court. Therefore, we agree with Cooper and Dowell and issue the writ of certiorari.
Because the circuit court acted in excess of its jurisdiction and committed a plain, manifest, clear, and gross abuse of discretion, and because Cooper and Dowell are left without an adequate alternative remedy, we hold that relief in the form of a writ of certiorari is appropriate. We issue the writ of certiorari and direct the Faulkner County Circuit Court to rescind its January 31, 2013 order.
Finally, although Cooper and Dowell also request that the court issue a writ of | incertiorari on the grounds that the circuit court exceeded its jurisdiction and committed a manifest, clear and gross abuse of discretion in ordering them to pay the $21,345 in fees and costs, we do not reach this issue. The conditions imposed by the circuit court in the January 31, 2013 order are inextricably intertwined and cannot be parceled out individually; therefore, we direct the circuit court to rescind the order in its entirety.
Writ of prohibition denied; writ of cer-tiorari granted; motion to dismiss or motion to strike denied.
DANIELSON, J., concurs.
. On May 7, 2013, the Attorney General’s Office notified this court that Conway was the plaintiff from the lower court action and would provide filings on behalf of the Faulkner County Circuit Court.
. Although both parties reference a November 2, 2012 letter and proposed order from Conway to the circuit court itemizing the $21,345 in fees and costs, this information is not contained, in the record. The parties also reference objections made to the proposed order, but this information is lacking as well.
. Due to a change in the assignment of criminal and civil cases in Faulkner County for 2013, the parties' condemnation action was transferred from the Faulkner County Circuit Court, Second Division, Honorable Michael A. Maggio, to the Faulkner County Circuit Court, First Division, Honorable H.G. Foster. The January 31, 2013 continuance-order heading indicates that the order is from the Second Division, but the court notes the order was issued by the Honorable H.G. Foster of the First Division after the case was transferred.
. The circuit court’s order awarded $20,805 in reimbursement fees and costs to Conway and $540 to the Faulkner County Circuit Clerk for reimbursement of juror fees. | [
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WAYMOND M. BROWN, Judge.
A Miller County jury found appellant Lee James Owens guilty of possession of a Schedule II controlled substance with intent to deliver. He was sentenced as an habitual offender to 101 years’ imprisonment, Owens argues on appeal that the trial court erred (1) by denying his motion to disclose the identity of the confidential informant, (2) by denying his motion to suppress the evidence, (3) by admitting State’s Exhibits 5 and 8 into evidence, and (4) by denying his motion for directed verdict. We affirm.
Owens’s jury trial took place on June 21, 2010. Detective Alan Keller of the Bi-State Narcotics Task Force (BNTF) testified that he and his partner received information that an unknown black male, driving a dark-colored Chrysler, was about to deliver 12methamphetamine to a confidential informant (Cl) at the E-Z Mart located on Highway 71. According to Det. Keller, detectives went across the street from the E-Z Mart located at Highways 71 and 245 and set up surveillance. He stated that he saw a blue Chrysler pull into the parking lot but that he did not remember seeing the driver or the female passenger go into the store. Detective Keller testified that he then received information that he was at the wrong E-Z Mart. Detective Keller stated that he told the Cl to call the suspected dealer and have him meet the Cl at the E-Z Mart located south of the one where they were. Detective Keller stated that shortly after talking to the Cl, he observed the car he was watching leave the E-Z Mart and head south. He stated that a patrol unit was contacted to stop the vehicle. Appellant and his girlfriend, Ashley Howard, were subsequently arrested. Detective Keller testified that he interviewed Howard following her arrest.
Officer Todd Harness testified that he was contacted by “narcotics” to make a traffic stop on appellant’s vehicle. He said that he came to a location close to the E-Z Mart and witnessed the vehicle leave. Officer Harness stated that he followed the vehicle and initiated a stop when he received instructions to do so. Officer Harness said that appellant gave the name Gerald Owens when initially approached. He stated that it took appellant some time to give his age and date of birth, which according to Officer Harness, was indicative of someone being untruthful about his or her identity. Appellant was arrested for obstructing ^governmental operations. A canine unit was called, and the car was subsequently searched. An Arkansas identification card was discovered showing appellant’s real name. Officer Harness said that appellant admitted to previously smoking marijuana in the vehicle after the canine alerted on it.
Officer Kevin Bounds testified that he was called to back up Officer Harness. He stated that he performed a narcotics search of the vehicle. According to Officer Bounds, his canine partner, Bruno, alerted on the passenger side of the vehicle. When the vehicle was opened, Bruno went to the driver’s seat, indicating “where the smell is the strongest.” Officer Bounds gave three possibilities for Bruno’s alerting on the driver’s seat: (1) someone had smoked narcotics in the vehicle and the odor was trapped in the fabric of the seats; (2) narcotics were in the vehicle, under the seat, or inside the seat cushion; or (3) drugs were either on the passenger or the driver. Detective Claudia Phelps of BNTF testified that she located narcotics on Howard after Howard informed her that appellant told Howard to hide the drugs. Detective Phelps stated that Det. James Atchley took the narcotics and the glove from her and sealed it up. Detective Atchley of BNTF testified that he removed the evidence from the evidence locker and sent it for testing at the crime lab. Madison Kniskern of the Arkansas State Crime Lab testified that she received two bags in appellant’s case that tested positive for methamphetamine. Appellant objected to the introduction of the drugs (Exhibit 5) and the envelope containing the glove (Exhibit 8), arguing there was a break in the chain of evidence. The court allowed the exhibits to be admitted into evidence.
Howard testified that at the time of her arrest, she had been dating appellant for only a few months. She stated that she knew appellant as “Moosey” and Gerald. According to Howard, she and appellant were at a birthday party on July 11, 2008, when appellant got a call and asked her to ride with him. She said that they were going to meet someone at E-Z Mart. She testified that, after they arrived, they received a call saying that they were at the wrong E-Z Mart. Howard stated that she answered the phone and relayed the message to appellant. She said that they left to go to the correct E-Z Mart but were subsequently pulled over. According to Howard, once they were pulled over, appellant asked her to “do something with a blue glove.” She stated that she placed the glove in her pants. Howard testified that she eventually told the police that she had something on her. However, she claimed that she did not know what was in the glove. During her testimony, she was shown State’s Exhibit 9, which she identified as a letter appellant sent to her. She stated that she recognized the writing as that of appellant. Howard acknowledged that appellant did not sign the letter, but indicated that his nick-name “Moosey” was written at the top of the letter. The letter was introduced into evidence without objection. In the letter addressed from appellant to Howard, appellant told Howard to tell her lawyer that appellant did not know anything about the drugs in the glove. He also asked her to say that Fred Law, an individual who appellant believed set him up, gave her the drugs to hold for him. Appellant stated that he did not want to go to prison for forty years, which was what he was facing if Howard |stestified that he knew the dope was in the glove and that he gave her the glove. He asked her to please help him out because he would do the same for her. He concluded the letter by saying that all he was doing was trying to make a way for them.
At the conclusion of the evidence, appellant unsuccessfully renewed his prior motions and objections and moved for directed verdict. He argued that the evidence was insufficient to support the charge because there was no independent evidence to corroborate Howard’s testimony that the drugs belonged to him. The jury found appellant guilty of possession with intent to deliver and sentenced him to 101 years in the Arkansas Department of Correction. He filed a timely notice of appeal. This appeal followed.
Although appellant raises his challenge to the sufficiency of the evidence in his fourth point on appeal, double-jeopardy concerns require that this court review it first. In reviewing a challenge to the sufficiency of the evidence, this court views the evidence in the light most favor able to the State and considers only the evidence that supports the verdict. We will affirm a conviction if there is substantial evidence to support it, and substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion without resort to speculation or conjecture.
Appellant argues that the trial court erred by denying his motion for directed verdict because there was insufficient corroboration of Howard’s testimony. A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof. Corroboration must be evidence of a substantive nature, since it must be directed toward proving the connection of the accused with the crime and not directed toward corroborating the accomplice’s testimony. Circumstantial evidence may be used to support accomplice testimony, but it too must be substantial. Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. Rather, it need only, independently of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the crime. The test for corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the remaining evidence independently establishes the crime and tends to connect the accused with |7its commission. It is well settled that the acts, conduct, and declarations of the accused, before or after the crime, may furnish the necessary corroboration. Evidence of a defendant’s attempt to influence a witness to change his or her testimony possesses independent relevance because it tends to show the defendant’s knowledge of his own guilt.
We must determine whether the remaining evidence connects appellant to the crime for which he was convicted. Detective Keller testified that he was informed by a Cl that a black male driving a dark-colored Chrysler was to deliver methamphetamine to the Cl at an E-Z Mart on Highway 71. A car matching that description pulled into the parking lot of the store, and its occupants remained in the car. The Cl then called to inform Det. Keller that the suspect had not arrived at the set location. According to Det. Keller, that is when he realized that both he and the suspect were at the wrong location. Detective Keller instructed the Cl to call the suspect and have him come to the E-Z Mart located down the street. Shortly after instructing the Cl to make contact with the suspect, Det. Keller saw appel lant’s car leave the parking lot and head south, in the direction of the other E-Z Mart. Officer Harness was instructed to make a traffic stop on the vehicle, and Officer Bounds acted as back up. Officer Bounds had his canine go around the stopped vehicle. Bruno alerted on the passenger side of the vehicle, giving the officers probable cause to search the vehicle. Once the door was opened, the dog alerted on the driver’s seat. Detective Phelps was called to the | ^scene to search Howard. Howard admitted to Det. Phelps that she had something concealed on her body. Detective Phelps testified that Howard informed her that appellant had given her the glove to hide once the vehicle was stopped. While in jail on these charges, appellant wrote Howard a letter asking her to change her statement and to implicate someone else in the crime. Appellant argues that the letter is not independent corroboration, but is instead evidence that also must be corroborated. We do not consider this argument because it is raised for the first time on appeal. Additionally, the letter was introduced into evidence without any objection from appellant.
Even if Howard’s testimony is eliminated, the other evidence presented independently established the crime and tended to connect appellant with its commission. We hold that the State provided sufficient evidence to corroborate Howard’s testimony. Thus, the trial court did not err in denying appellant’s motion for directed verdict.
Appellant argues that the trial court erred by denying his motion to disclose the identity of the CL He acknowledges the line of cases that state that the CPs identity is not required when the defendant is charged with possession with intent to deliver; however, he argues that his case is distinguishable because he is attacking the validity of the stop itself.
Our supreme court discussed the Cl privilege in Hill v. State:
[Disclosure shall not be required of an informant’s identity where his identity is a prosecution secret, and a failure to disclose will not infringe upon the constitutional rights of the defendant. ‘When the disclosure of the informant’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” In determining whether the privilege shall prevail, the trial court must balance the public interest in getting needed information against the individual’s right to assert a defense. The trial court must consider the crime charged, the possible defenses, the significance of the informant’s testimony, and any “other relevant factors.” The burden is upon the defendant to show that the informant’s testimony is essential to his defense.
(Internal citations omitted.)
Here, appellant was not charged with delivery of a controlled substance that would have directly involved the Cl, but was charged with possession with intent to deliver. Thus, the Cl did not directly participate in the crime although his involvement led to appellant’s vehicle being watched by the narcotics task force. The detectives’ personal observations led to their decision to have a patrol unit stop appellant’s vehicle. Appellant has failed to meet his burden of showing that the identity of the Cl was necessary to his defense. The Cl was not present when appellant’s vehicle was stopped or when the drugs were found. There is also no evidence that the Cl participated in any criminal activity. Thus, the trial court did not err by denying appellant’s motion to disclose the Cl’s identity.
Next, appellant argues that the trial court erred by denying his motion to suppress because the officers did not have reasonable suspicion to conduct a traffic stop on his vehicle. When reviewing the trial court’s denial of a motion to suppress, we conduct a de novo review, looking at the totality of the circumstances. In doing so, we review the trial court’s historical factual findings for clear error. We then analyze whether those facts give rise to reasonable suspicion or probable cause, always giving due deference to the inferences drawn by the trial court. Arkansas Rule of Criminal Procedure 3.1 provides in pertinent part:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.
Reasonable suspicion is defined as “suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.” It is an objective inquiry, and “due weight must be given to the specific reasonable inferences an officer is entitled to derive from the situation in light of his experience as a police officer.” The legislature has provided factors for the trial court to consider in its analysis, including any information received from third persons, whether they are known or unknown.
Here, detectives with BNTF acted on a tip from a Cl, who provided information that appellant was going to deliver methamphetamine to the Cl at an E-Z Mart located on Highway 71. Detective Keller testified at the suppression hearing that he had used the Cl before on “prove-ups” and considered the Cl to be reliable. Detective Keller stated that he set up surveillance at the E-Z Mart located at Highways 71 and 245 and saw a car matching the description given to him by the Cl. At some point, Det. Keller received a call from the Cl stating that he was at a different E-Z Mart and that appellant had not shown up. Detective Keller had the Cl call appellant and tell him to come to the other E-Z Mart. A short time later, Det. Keller noticed the vehicle that he had been watching leave the E-Z Mart and go south on Highway 71. At that point, a decision was made to have appellant’s vehicle stopped by a patrol unit. Considering the totality of the circumstances, we hold that reasonable suspicion existed for Officer Harness to stop appellant’s vehicle. Therefore, the trial court did not err by denying appellant’s motion to suppress.
Finally, appellant argues that the trial court erred by admitting State’s Exhibits 5 and 8 into evidence. According to appellant, “the break in the chain of custody of [the exhibits] ..., rendered both exhibits inadmissible.” The decision of whether to admit evidence is a matter within the discretion of the trial court and will not be reversed absent an abuse of discretion. The purpose of establishing the chain of custody is to prevent the introduction of evidence that has been tampered with or is not authentic. The trial court must be satisfied within a reasonable probability that the evidence has not been tampered with, but it is not necessary that the State eliminate every possibility of tampering. Minor uncertainties in the proof of chain of custody are matters to be argued by counsel and weighed by the jury, but they do not render the evidence inadmissible as a matter of law. While proof of the chain of custody for interchangeable items like blood or drugs needs to be more conclusive than for other evidence, the mere possibility of access to these items, where there is no evidence of tampering, is not enough to render the evidence or the test results inadmissible. Any inconsistencies in the testimony offered to establish chain of custody are for the trier of fact to resolve.
Detective Phelps testified that she removed the glove containing the methamphetamine from Howard’s person and gave the evidence to Det. Atchley. However, Det. Atchley did not testify that he took the items from the scene and placed them in the evidence locker. He stated that he removed the evidence from the locker where an officer would have logged the evidence. Appellant has failed to make any argument that the drugs removed from Howard were not the same as, or in the same condition as, the ones sent to the crime lab. Instead, he argues that since no one could account for how the evidence got from the scene of the stop to the evidence locker, the court erred by admitting those items into evidence. Because there has been no showing of evidence tampering, the court did not abuse its discretion by admitting Exhibits 5 and 8 into evidence.
Affirmed.
ROBBINS, WYNNE, GRUBER, and GLOVER, JJ., agree.
HART, J., dissents.
. This is the second time this case is before us. We originally remanded the case for supplementation of the record. See Owens v. State, 2011 Ark. App. 372, 2011 WL 1896630.
. Testimony revealed that there were three EZ Marts located on Highway 71.
. Detective Keller said that he did not go to the scene of the stop.
. Officer Harness stated that he did not search the vehicle but was present during the search.
. In this case, drugs were found on appellant’s passenger.
. The drugs were located inside a glove placed near Howard's stomach area.
. See Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147.
. Id.
. Id.
. Howard was once a co-defendant, but the charges against her were dropped in exchange for her testimony against appellant.
. Ark.Code Ann. § 16-89-111(e)(1)(A) (Repl. 2005).
. Ark.Code Ann. § 16-89-111(e)(1)(B).
. Camp v. State, 2011 Ark. 155, 381 S.W.3d 11.
. Id.
. Id.
. Id.
. Id.
. Id.
. See Wallace v. State, 55 Ark.App. 114, 932 S.W.2d 345 (1996) (citing Morris v. State, 21 Ark.App. 228, 731 S.W.2d 230 (1987)).
. Rye v. State, 2009 Ark. App. 839, 373 S.W.3d 354.
. 314 Ark. 275, 862 S.W.2d 836 (1993).
. Mhoon v. State, 369 Ark. 134, 251 S.W.3d 244 (2007).
. Id.
. Id.
. Ark. R.Crim. P. 2.1.
. Summers v. State, 90 Ark.App. 25, 31, 203 S.W.3d 638, 642 (2005) (quotation omitted).
. Ark. Code Ann. § 16-81-203 (Repl.2005).
. White v. State, 330 Ark. 813, 958 S.W.2d 519 (1997).
. Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001).
. Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997).
. Id.
. See Dansby v. State, 338 Ark. 697, 1 S.W.3d 403 (1999).
. Id. | [
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JOHN MAUZY PITTMAN, Judge.
|, This is an appeal from a February 2011 order terminating appellant’s parental rights to his minor child, E.G., born No vember 21, 2008. Appellant’s counsel has filed a no-merit brief pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6 — 9(i), asserting that there are no issues of arguable merit to support the appeal and requesting to be relieved as counsel. The motion is accompanied by an abstract and addendum of the proceedings below and a brief explaining why none of the trial court’s rulings present a meritorious ground for appeal. The clerk of this court sent by certified mail copies of the motion and the abstract, brief, and addendum to appellant’s last known address, informing him that he had the right to file pro se points for reversal under Ark. Sup.Ct. R. 6-9(i)(3). Appellant filed no statement of points.
The record shows that the child was removed from the custody of appellant’s wife because of severe physical abuse at the age of five months, when appellant was performing military service and not present in the home. The parental rights of appellant’s wife were terminated. Appellant returned from Iraq and was in Kentucky for eighteen months prior to the termination hearing. Appellant was ordered to obtain a psychological examination, complete parenting classes, complete anger-management classes, submit to a drug and alcohol assessment, participate in random drug screens and DNA testing, and maintain stable employment and housing. The Department of Human Services made referrals to services, but appellant failed to participate in any of them and remained noncompliant until the termination hearing, when his attorney asked that he be given additional time.
The dissenting judge’s passionate outrage is noteworthy, but the fact remains that none of the issues that she identifies were raised or developed by appellant at the termination hearing or anywhere else. Despite her suggestion to the contrary, this is not a matter of subject-matter jurisdiction that may be raised for the first time on direct appeal. See Porter v. Arkansas Department of Health & Human Services, 374 Ark. 177, 286 S.W.3d 686 (2008); Arkansas Department of Human Services v. Circuit Court of Sebastian County, 363 Ark. 389, 214 S.W.3d 856 (2005); Banning v. State, 22 Ark.App. 144, 737 S.W.2d 167 (1987).
Based on our examination of the record and the brief presented to us, we find that counsel has complied with the requirements established by the Arkansas Supreme Court for no-merit motions in termination cases, and we hold that the appeal is wholly without merit. Consequently, we grant counsel’s motion to withdraw and affirm the order terminating appellant’s parental rights.
Affirmed; motion to withdraw granted.
GLADWIN, ROBBINS, WYNNE, and GLOVER, JJ., agree.
HART, J., dissents.
. Appellant was represented by counsel for several months prior to the termination order, including at the termination hearing. At no time during the termination hearing did appellant’s attorney argue that the services appellant agreed to perform were improperly imposed; he simply asked that appellant be given additional time to complete those services. | [
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PAUL E. DANIELSON, Justice.
| Appellant Shauna Chantel Yates McNutt appeals from the circuit court’s order changing custody of the parties’ minor children to appellee Matthew Dalton Yates. The court of appeals affirmed the circuit court’s order in part and reversed and remanded in part in a 5-1 decision. See McNutt v. Yates, 2013 Ark.App. 307, 427 S.W.3d 749. Ms. McNutt petitioned this court for review, which we granted on July 25, 2013. When this court grants a petition for review, we treat the appeal as if it had been originally filed in this court. See Payne v. Arkansas Dep’t of Human Servs., 2013 Ark. 284, 2013 WL 3322339. On appeal, Ms. McNutt asserts three points of error by the circuit court: (1) that it abused its discretion in denying her motion for a continuance after granting her counsel’s motion to withdraw; (2) that it erred in finding that Mr. Yates proved a material change in circumstances and in awarding him custody; and (3) |2that it did not have the power to retroactively modify child support to April 2011. We affirm the circuit court’s order in part and reverse and remand in part.
The parties were divorced by order of the circuit court on September 9, 2011. The parties were awarded joint legal custody of M.Y. and N.Y., the two children from the marriage, with Ms. McNutt having primary physical custody and Mr. Yates receiving visitation. In addition, Mr. Yates was ordered to pay Ms. McNutt $152 per week in child support, based on his income of $585 per week.
On September 28, 2011, Ms. McNutt filed a motion for contempt, request for modification, and for review of child support. In it, Ms. McNutt alleged numerous violations of the divorce decree for which she believed Mr. Yates should be held in contempt, including that Mr. Yates had harassed her by verbally abusing her; had made disparaging comments about her in the children’s presence; had hampered communication between her and the children; had failed to pay child support; had had overnight guests of the opposite sex; had used alcohol in excess; and had refused to return Ms. McNutt’s personal property. She further requested a modification of Mr. Yates’s visitation and the circuit court’s order to sell her vehicle at a commissioner’s sale. Finally, Ms. McNutt requested that the circuit court review Mr. Yates’s income because she believed it to be more than $585 per week.
On October 21, 2011, Mr. Yates answered Ms. McNutt’s motion and filed his own motion for contempt, modification, and motion for relief of outstanding issues. In it, he alleged that Ms. McNutt had violated the divorce decree when she failed to communicate with him regarding the children’s well-being; failed to inform him of emergency care or |snonroutine medical care provided to the children; denied him visitation to the point that police involvement was required; used the children to communicate with him; made disparaging remarks about him in front of the children and allowed others to do so; allowed third parties “to act inappropriately toward” him in front of the children; continued to harass him and make baseless allegations against him; and had not paid a debt for which she was responsible, such that he was receiving notices about the debt. He further requested that the first right of refusal for childcare be added to the divorce decree; that she be required to reimburse him for a joint debt that he was required to pay in full because of Ms. McNutt’s failure to cooperate; and that she be ordered to communicate with him regarding an IRS inquiry as to their joint tax return.
He subsequently filed a motion for modification of custody on March 2, 2012. Mr. Yates again alleged that Ms. McNutt had continued to be noncompliant with the circuit court’s orders and would not facilitate or promote a relationship between the children and him; he further asserted that Ms. McNutt actively attempted to disrupt his relationship with the children. In addition, he alleged that the children spent more time with Ms. McNutt’s parents than with her; that her parents’ home was “filthy” and in an unsafe neighborhood; that her parents were unable to assist the children with their homework and caused them to be late to school on several occasions; that he disagreed with Ms. McNutt’s choice of school for the children, in that it conflicted with “the religious upbringing the parties had agreed upon for the children” and was unaccredited; that Ms. McNutt refused to allow the children to participate in extracurricular activities and further prevented them from engaging in age-jappropriate4 activities, such as dancing, wearing nail polish, participating in organized sports, and wearing appropriate clothing to the extent that the children feared punishment or religious backlash; and that the children had expressed a desire to live with him. For these reasons, he stated, he sought to be granted full custody and for Ms. McNutt to receive reasonable visitation.
The matters were set for trial on April 12, 2012; but on March 16, Ms. McNutt’s counsel moved to withdraw, stating that he and Ms. McNutt had irreconcilable differences such that he could no longer represent her. The circuit court granted the motion, and on April 11, 2012, the day before the set trial date, Ms. McNutt moved for a continuance pro se. That motion was denied, and the hearing on the foregoing matters was held on April 12.
On May 9, the circuit court entered its order. In it, the circuit court found there to be a material change of circumstances in light of the fact that Ms. McNutt now had the children attending a private school not accredited by the State; she had the children attending a church associated with the school that the parties had agreed during the marriage not to attend; the children were no longer in extracurricular activities as they were during the marriage; and the children’s overall demeanor had changed in a negative way since entry of the divorce decree. The circuit court then found it to be in the children’s best interest to change custody to Mr. Yates and award visitation to Ms. McNutt. It further ordered that should either party need a care provider for the children, the other party had the first right of refusal to provide that care. In addition, the circuit court ordered Ms. McNutt to pay child support in the amount of $301 biweekly, and it retroactively modified Mr. Yates’s past child-supports obligations to April 2011, “when Mr. Yates was receiving $300/ week in unemployment compensation benefits which is $107.00/week child support.” Ms. McNutt was ordered to reimburse Mr. Yates for her share of the marital debt that he had paid to the Arkansas Department of Finance and Administration, and she was ordered to communicate with the IRS about that matter and to notify Mr. Yates of that communication. It further denied all remaining claims for relief. Ms. McNutt brings the instant appeal from this order.
I. Withdrawal of Counsel and Motion for Continuance
For her first point on appeal, Ms. McNutt argues that the circuit court abused its discretion in allowing her counsel to withdraw and in its subsequent denial of her motion for continuance. She contends that the circuit court should have denied the motion to withdraw where her former counsel stated no facts in support of his claim that there were irreconcilable differences with her and the circuit court failed to make any inquiry thereto. She further maintains that the circuit court abused its discretion in denying her motion for continuance and forcing her to go to trial when she was not well-versed in the law.
Mr. Yates counters that Ms. McNutt never challenged the circuit court’s order relieving her counsel; therefore, that issue is waived for purposes of appeal. He further contends that there was no abuse of discretion in the circuit court’s denial of her continuance motion, where she had twenty-seven days in which to find alternate counsel and where she did not file the motion until the day before the hearing date.
A. Withdrawal of Counsel
Ms. McNutt first challenges the circuit court’s grant of her former counsel’s motion Rto withdraw; however, that issue is not preserved for our review. A review of the record reveals no written or verbal objection made by Ms. McNutt to the circuit court opposing her counsel’s motion to withdraw. This court has been resolute that objections must be timely and even constitutional objections are waived unless made to the circuit court. See Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992).
B. Motion for Continuance
The denial of a motion for a continuance is within the sound discretion of the circuit court, and the circuit court’s ruling will be reversed only if there is an abuse of discretion. See Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000). The burden is on the appellant to show an abuse of that discretion as well as to demonstrate prejudice before this court will consider the circuit court’s denial of a continuance as an abuse of discretion warranting reversal. See id.
Here, Ms. McNutt’s counsel was permitted to withdraw by order of the circuit court on March 16, 2012, and she did not file her motion for continuance until April 11, 2012. In it, she merely stated, in effect, that she had attempted to find counsel, but was unable to do so. She further averred that she was currently pro se only because she lacked the funds to hire counsel, and she sought a continuance to permit her more time in which to find legal representation.
In her brief on appeal, Ms. McNutt points to no other prejudice than the facts that she lost custody of the children to Mr. Yates and that she did not know proper trial procedure so as to make relevant objections. This court does not presume bias or prejudice. See, e.g., ^Committee for Util. Trimming, Inc. v. Hamilton, 290 Ark. 283, 718 S.W.2d 933 (1986). Merely because Ms. McNutt did not prevail in the instant action does not suffice to prove prejudice. Accordingly, we affirm the circuit court’s denial of her motion for continuance.
II. Material Change in Circumstances and Best Interest of the Child
In her second point on appeal, Ms. McNutt asserts that the circuit court erred in finding a material change of circumstance that warranted a change of custody. She contends that there was no change in circumstance relating to the children’s school and church, as they were attending the same school and church at the time of the parties’ divorce; the same, she urges, applies to the circuit court’s finding regarding the children’s lack of participation in extracurricular activities. Finally, she asserts, the circuit court’s finding of a change in the demeanor of the children can be attributed solely to Mr. Yates’s new wife, who she alleges does not agree with Ms. McNutt’s religious practices. She further states that the “only time their demeanor changes is when they are with their father and his new wife.”
Mr. Yates responds, conceding that the children were attending the same church and school as they were before the divorce decree was entered; however, he contends that Ms. McNutt failed to consult him on her decision to change churches and enroll the children in that school. He further states that it was not until after the divorce that Ms. McNutt changed her behav ior and became more strict in her Pentecostal beliefs and lifestyle, which had grave effects on the children. He maintains that the circuit court’s main focus and concern regarding the change of the children’s church and school related to the negative impact these abrupt changes had on their demeanor since entry of the divorce decree. He further avers that | smuch evidence was presented to demonstrate that, since the entry of the divorce decree, the children have acted in an unsettling manner and have been put under undue stress by Ms. McNutt. In addition, he notes, there was sufficient evidence before the circuit court on which this court could find a change in circumstances due to Ms. McNutt’s interference with Mr. Yates’s relationship with his children.
In reviewing child-custody cases, we consider the evidence de novo, but will not reverse a circuit court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. See Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses. See id. This deference to the circuit court is even greater in cases involving child custody, as a heavier burden is placed on the circuit court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. See id. Where the circuit court fails to make findings of fact about a change in circumstances, this court, under its de novo review, may nonetheless conclude that there was sufficient evidence from which the circuit court could have found a change in circumstances. See id. (citing Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988)).
Arkansas law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. See Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005). A judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a 19modification of the decree is in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented to the circuit court or were not known by the circuit court at the time the original custody order was entered. See id.
Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody. See id. The reasons for requiring these more stringent standards for modifications than for initial custody determinations are to promote stability and continuity in the life of the child and to discourage the repeated litigation of the same issues. See id. In order to avoid the relitigation of factual issues already decided, the courts will restrict evidence on a custodial change to facts arising since the issuance of the prior order. See Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009). The party seeking modification has the burden of showing a material change in circumstances. See id. Here, the circuit court found that the change in the children’s demeanor “in a negative way” since the parties’ divorce, among other bases, constituted a material change in circumstances. We agree with that par ticular finding, but note, through the context of our de novo review, that there was other additional evidence before the circuit court that, when coupled with the change in the children’s demeanor, sustains a finding of a material change in circumstances. | mSee, e.g., Hamilton, 337 Ark. 460, 989 S.W.2d 520.
In the hearing before the circuit court, Ms. McNutt testified that, just prior to the hearing, she had called the Child Abuse Hotline of the Arkansas Department of Human Services (“DHS”) to report that Mr. Yates and his current wife fondled each other in the children’s presence and that Mrs. Yates walked around in her underclothing in front of the children. In addition, she stated, she reported that the Yateses performed sexual acts in front of the children and that Mr. Yates forced N.Y. to take medicine when he was not sick. She admitted, however, that she had not “seen or witnessed anything.” Ms. McNutt further testified that she told other parents at the children’s school that Mr. Yates was addicted to pornography and that he and his current wife were bisexual and had sex with multiple partners and that she had told still others, without any proof, that Mr. Yates had killed the children’s puppy. Ms. McNutt also admitted to telling the police and others, again, without any proof, that Mr. Yates had burglarized her home; this included the children, to whom she did not specifically confirm, but also did not explicitly deny, that their father may have been the one to break into her home.
Samantha Bishop, M.Y.’s fourth-grade teacher, also testified and confirmed that another parent had contacted her to relay concerns about Mr. Yates’s behavior that the parent had heard from another parent in the weeks prior to the hearing. She stated that the concerned parent heard “[tjhat he had been involved in porn, in multiple partners, and that he’d never really had a relationship with [M.Y.] and ... they didn’t know why he was coming up to the school [to visit his children during their lunch and recess time].”
Johnathan Ball, a friend of Mr. Yates’s for six or seven years and a relative of Ms. InMcNutt’s, testified that Mr. Yates had a good relationship with his children, but that it was “different now that all this is going on.” He testified that with “all” that had been going on, it was “awkward ... for the kids” and “a total shock to their ... culture.” He stated that the children acted differently and were distant since the parties’ divorce. Cammy Yates, Mr. Yates’s wife and the children’s stepmother, also testified that, since the divorce, “it’s gotten worse and worse” when the children came to their house for visitation. She stated that on several occasions in the last couple of weeks prior to the hearing, M.Y. had asked her questions that she felt were abnormal coming from a ten-year-old child. She testified that the children are “real scared about getting in trouble.”
For instance, Mrs. Yates explained, when they would go to the mall to shop, M.Y. looked around and, if she saw anyone from her church, hid in a store because she was worried about getting in trouble for wearing what is considered in the Pentecostal faith to be nontraditional clothes. She further testified that the children had occasionally “expressed concern or upset before going back to” Ms. McNutt. For example, she testified that she took M.Y. for a manicure and pedicure, but on arriv ing back at home, M.Y. began to cry and said that the nail polish had to be removed “because I will get in trouble” at school and with her mother.
Mrs. Yates testified that M.Y. had attempted to “catch [her] naked” on several occasions, and M.Y. had asked about her sex life with Mr. Yates. Mrs. Yates stated that M.Y. had asked her, approximately two or three weeks prior, how one obtained AIDS and whether Mrs. Yates had it. She testified that her husband had made attempts to not meet Ms. McNutt at her church to exchange the children because it made the children uncomfortable, and the 112children would get out of the car and cover themselves. She further testified that recently, since the divorce, it had been “[t]ough on the kids.”
Mr. Yates also testified. He stated that there has been no communication from Ms. McNutt regarding the children’s needs relating to school, such as needing to bring things or school projects, or when they have been invited to birthday parties, requiring a gift to be purchased, that fall on a day that he has visitation with the children. He testified that instead of letting him know beforehand, he is told by the children on the day he has visitation with them that they have a project due the next day.
He further stated that Ms. McNutt makes disparaging remarks about him in front of the children and allows others to do so. Mr. Yates testified that, that very day, his children were sitting in the hallway of the courthouse during the hearing. He stated that he heard Ms. McNutt state to her family, including the children, that “[he and the witnesses on his behalf] were all a bunch of liars and that we were in there trying to take the kids from her.” He testified that he overheard Ms. McNutt’s mother telling the children that there were lies being told in the courtroom about them. Mr. Yates stated that, while they were in the hallway, he also saw Ms. McNutt allowing their daughter to read an order for his drug testing.
Mr. Yates testified that as late as the week before the hearing, M.Y. wanted to attend a dance camp. The problem though, he testified, was that she would have to do it without Ms. McNutt’s permission or authority, because she “will be in trouble if she does anything like that, she’s not allowed to do that at her mom’s.” He further testified that he noticed a change in M.Y.’s demeanor since she was told that dance and gymnastics were “bad,” that she had become “just kind of down” and “sad” about it. He stated that, prior to the divorce, she |ishad participated in those activities.
With respect to N.Y., Mr. Yates testified that he was “having to struggle to get him into team sports” because Ms. McNutt refused to take N.Y. and told Mr. Yates that her pastor did not believe in organized sports. He testified that both of the children are “on guard when they’re around” their mother, and that as soon as she is not around, “it’s like a light switch goes off and they are completely different children.” He stated that when Ms. McNutt is present, the children are not affectionate with him; they appear scared to give him any affection in front of her. However, he stated, when she is not around, he cannot get the children “off’ him; they want to sit in his lap and hug him. He stated that it is “like a completely different life ... when she is not around.”
Finally, in a video deposition that was also admitted and considered by the circuit court, Elaine “Laney” Yates, Mr. Yates’s mother, testified that since the divorce, the children’s demeanor had really changed. She stated that she had caught M.Y. spying on her, Mr. Yates, and Mrs. Yates, trying to overhear things. She testified that she had taken M.Y. shopping and that most of the clothes M.Y. chose were not traditional, Pentecostal attire. She stated that M.Y. did not “think about it until right before she ... has to go home, and then she starts getting scared.”
Laney also testified that she had taken M.Y. to get a pedicure at the beginning of her visitation with Mr. Yates, but that on the night or day she was due to return to her mother, she had taken off the nail polish. She stated that M.Y. “was in a panic” to remove the residue that had stained her nail; M.Y. told her that she had to get it off. Laney stated that N.Y. then said that their mother was going “to be real mad at [M.Y.].” She testified that M.Y. was 114depressed and needed counseling because she was unhappy. She also said that M.Y. would get angry when she normally “wasn’t like that at all.”
We have been clear that in resolving the clearly erroneous question, we must give due regard to the opportunity of the circuit court to judge the credibility of witnesses. See Hudson v. Kyle, 365 Ark. 341, 229 S.W.3d 890 (2006). Additionally, we give great weight to the circuit court’s personal observations; this is so because there are no cases in which the superior position, ability, and opportunity of the circuit court to observe the parties carries a greater weight than those involving the custody of minor children. See id. In this case, Ms. McNutt herself seems to agree that there has been a change in the children’s demeanor, although she attributes it to Mrs. Yates’s influence. However, the circuit court was not required to find to whom the change in demeanor should be attributed; it simply needed to find that there was a material change in circumstances, which it did when it found that there existed a change in the children’s demeanor “in a negative way” since the parties’ divorce. In light of the testimony before the circuit court, we cannot say that this finding was clearly erroneous. But, in addition, there was the testimony before the circuit court in support of Mr. Yates’s contention that Ms. McNutt did not facilitate or promote a relationship between him and the children and actively attempted to disrupt the relationship they had, since their divorce.
To find that the circuit court clearly erred, we must be left, on the entire evidence, with a definite and firm conviction that a mistake has been committed. See Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999). After conducting our de novo review of the instant record, we are not so left. Our court of appeals has observed that the appellate court does not examine each of the circuit court’s findings in isolation; certain factors, when |15examined in the aggregate, may support a custody modification even where each factor, if examined in isolation, would not. See, e.g., Boudreau v. Pierce, 2011 Ark. App. 457, 384 S.W.3d 664; Davis v. Sheriff, 2009 Ark. App. 347, 308 S.W.3d 169. And we have been clear that our de novo review in these cases means that a complete review of the evidence and the record may take place as part of the appellate review to determine whether the circuit court clearly erred. See Stehle, 375 Ark. 446, 291 S.W.3d 573. Having conducted such a de novo review in the instant case, we simply cannot say that the circuit court clearly erred in finding that a material change in circumstances existed.
We then must consider whether the change of custody to Mr. Yates was in the children’s best interest. In its order, the circuit court stated as follows:
In determining the children’s best interest, the Court has considered the moral fitness, stability, and love and affection of the parties. The Court has also considered the children, their well- being, and all their relationships.... In sum, the Court has weighed the totality of the considerations in favor of Mr. Yates being granted custody, of the children, though not to a significant degree. Ms. McNutt shall have the same visitation schedule with the children as Mr. Yates which is set forth in the September 9, 2011, Divorce Decree. The Court specifically finds said custody and visitation to be in the children’s best interest.
We cannot say that the circuit court’s decision was clearly erroneous.
It is more than clear from the instant record that Ms. McNutt loves and cares for her children, as does Mr. Yates. However, as already set forth, the circuit court considered these factors, in addition to others, as well as all of the testimony and evidence before it, and determined that it was in the children’s best interest to change custody to Mr. Yates. We have emphasized that our de novo review in these cases does not mean that the appellate court becomes the surrogate circuit court. See Stehle, 375 Ark. 446, 291 S.W.3d 573. And |1fiwe have more than well established that the circuit court, in these types of cases, is in a much better position than this court to observe the parties’ demeanor and assess their credibility. See id. Therefore, giving the great weight to the circuit court’s observations as we must, we are unable to say that the circuit court clearly erred in finding that it was in the children’s best interest for custody to be changed to Mr. Yates.
III. Retroactive Modification of Child Support
For her final point on appeal, Ms. McNutt contends that the circuit court erred in retroactively modifying Mr. Yates’s past child-support obligation back to April 2011. In his brief, Mr. Yates concedes for purposes of appeal that the circuit court erred in making such a modification.
Here, the circuit court stated that Mr. Yates’s past child-support obligations were “retroactively modified to April 2011.” However, we have held that a decree that contains a provision for the payment of child support shall be a final judgment until either party moves to modify the order. See Guffey v. Counts, 2009 Ark. 410, 2009 WL 2971752. We have further observed that retroactive modification of court-ordered support may only be assessed from the time that a petition for modification is filed, absent a specific finding of fraud in procuring the existing support decree. See id. Accordingly, we reverse and remand on this issue.
For the foregoing reasons, we affirm in part and reverse and remand in part.
Affirmed in part; reversed and remanded in part; court of appeals’ opinion vacated.
BAKER and HART, JJ., dissent.
KAREN R. BAKER, Justice,
dissenting.
While troubled by the circuit court’s failure to grant a continuance after relieving appellant’s counsel, I disagree with the majority |17opinion’s holding on McNutt’s second point on appeal, and agree that the circuit court erred in assessing child support. Because the majority looks behind the divorce decree and ignores the standard of review, I must respectfully dissent.
We review child-custody cases de novo. Brown v. Brown, 2012 Ark. 89, 387 S.W.3d 159. In Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009), this court clarified the de novo standard of review, stating as follows:
Equity cases are reviewed de novo. This means the whole case is open for review. This does not mean, however, and we emphasize this point, that find ings of fact by the circuit judge in equity cases are simply dismissed. They are not. The clearly erroneous standard, cited above and set out in our rules of civil procedure, governs if the circuit judge has made findings of fact. As Rule 52(a) states:
Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the circuit court to judge the credibility of witnesses.
In determining whether the circuit judge clearly erred in a finding, the appellate court may look to the whole record to reach that decision. But, to reiterate, to reverse a finding of fact by a circuit judge, that judge must have clearly erred in making that finding of fact, which means the reviewing court, based on the entire evidence, is left with the definite and firm conviction that a mistake has been made.
To summarize, de novo review does not mean that the findings of fact of the circuit judge are dismissed out of hand and that the appellate court becomes the surrogate trial judge. What it does mean is that a complete 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 455, 291 S.W.3d at 580 (internal citations omitted). While the majority opinion emphasizes that de novo review does not mean that the appellate court becomes the surrogate circuit court, that is exactly what the majority has done here.
To facilitate stability and continuity in the life of a child and to discourage repeated | ^litigation of the same issues, custody can be modified only upon a showing of a material change of circumstances. Orantes v. Orantes, 2011 Ark. 159, 381 S.W.3d 758. The party seeking modification of the custody order has the burden of showing a material change in circumstances. Id. In order to avoid the relitigation of factual issues already decided, trial courts will restrict evidence on a custodial change to facts arising since the issuance of the prior order. Id.
When circumstances affecting the best interests of the child were not presented to the circuit court at the time the original custody order was entered, they can be considered in determining whether a material change of circumstances has occurred. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). However, the exception to the general rule that custody orders are final as to circumstances then existing has no application where the parties were aware of the circumstances and entered into an agreement that is approved by the court. Orantes, supra. The trial court is rarely, if ever, apprised of all the circumstances leading to a custody settlement, yet when incorporated into a divorce decree, they are nonetheless final orders. Id. Agreed orders of custody would have no finality if these circumstances could later be used as a basis to modify custody. Id. Circumstances known by the parties when they enter into a custody agreement cannot be the basis for finding that a material change in circumstances has occurred. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996).
In this case, the divorce decree was entered on September 9, 2011. The circuit court, therefore, was barred from considering any changes that occurred before that date as evidence to support a finding of a material change in circumstances. The circuit court’s order states as follows:
liaSince the Divorce Decree, Ms. McNutt now has the children attending a private school which is not accredited with the State; the children are attending a church associated with the school which the parties had agreed during the marriage not to attend; the children are no longer involved with extracurricular activities as they were during the marriage; and the children’s overall demeanor has changed in a negative way since the entry of the Divorce Decree. Thus, the Court finds there to be a material change in circumstances.
Thus, the circuit court made four findings to support its ruling that there had been a material change in circumstances: (1) the church the children were attending; (2) the school the children were attending; (3) the lack of extracurricular activities that the children were participating in; and (4) the change in the children’s demeanor. The majority recognizes that some of these circumstances existed prior to the divorce. However, the majority holds that the change in the children’s demeanor and “other additional evidence” is sufficient to sustain a finding of a material change in circumstances.
It is clear from a de novo review of the record that the circuit court clearly erred in finding that the church the children attended, the school that the children attended, and the lack of extra-curricular activities for the children to participate in were material changes in circumstance. Yates admitted that the children attended the church and school before the divorce decree, and stated that the children had been forbidden to participate in extracurricular activities for more than a year. These circumstances all existed prior to the divorce decree, and thus cannot be considered material changes in circumstance.
The majority bases its holding on the only remaining finding of fact made by the circuit court, the change in the children’s demeanor. As evidence from its de novo review of the record, the majority points out a laundry list of evidence gained from testimony at the hearing. This evidence, however, was not shown to have an impact on the children’s |2ndemeanor, and is simply a listing of accusations of bad acts by McNutt or her family, most of which occurred, if they occurred at all, before the entry of the divorce decree.
The evidence that the majority opinion relies on to sustain the circuit court’s finding of a change in the children’s demean- or, mainly stems from M.Y.’s worries of getting in trouble over clothing and nail polish or her “sad” disposition in regards to no longer being able to participate in gymnastics. However, even if these issues were sufficient to support a change of circumstances determination, and they do not, both of these changes predate the divorce decree. It is uncontested that the reason that M.Y. does not participate in extracurricular activities and worries about wearing nail polish and specific types of clothing is the church and school that she attends, a church and school that she attended before the divorce decree was entered. Yates further testified that M.Y. had been “like that for a year or actually more than that.” As the hearing was held in April 2012 and the divorce decree was entered in September 2011, any change in M.Y.’s demeanor predated the entry of the divorce decree.
The majority also puts great weight on the statement by McNutt that there has been a change in the children’s demeanor, which she ascribes to Yates’s wife. However, it is clear from the record that McNutt’s belief relates to the children’s reactions to the different lifestyles of their parents. These circumstances were in place prior to the divorce decree and were thus not before the circuit court in this case.
The party seeking modification of the custody order has the burden of showing a material change in circumstances. Or-antes, supra. The evidence presented by Yates does not establish whether the changes in the children’s demeanor came before or after the divorce decree. For example, Yates’s mother testified that M.Y. had been caught spying and trying |21to overhear things, but it is not clear whether these incidents occurred before or after September 9, 2011. Because Yates has the burden to show that a change has occurred since the entry of the divorce decree, evidence failing to establish that it occurred after the last custody order cannot meet his burden.
Therefore, the only evidence that Yates presented to show a change in the demeanor of his children since the entry of the divorce decree is the testimony of his wife, Cammy Yates, and the testimony of Johnathan Ball, his friend and McNutt’s cousin. Ball stated that the children acted differently and were distant since the divorce, but did not tie this to any specific actions on the part of either child. Cam-my Yates stated that M.Y. had asked her several questions she felt were abnormal for a ten-year-old girl over the few weeks before the hearing and that the children’s behavior has gotten “worse and worse” since the parties’ divorce.
However, I can find no cases where this court has held that the change in the demeanor of a child alone was sufficient to constitute a material change in circumstances. In so holding now, the majority abrogates the finality of custody orders. Under the majority’s entirely subjective standard, the noncustodial parent has the opportunity to relitigate the issue of custody any time the noncustodial parent perceives a change in a child’s “demeanor.”
The majority opinion also states that there was testimony before the circuit court in support of Yates’s contention that McNutt did not facilitate or promote a relationship between him and the children and actively attempted to disrupt the relationship since the divorce. However, the circuit court made no such finding. On de novo review, this court does not make its own findings of fact, or state that there was sufficient evidence for the | ^circuit court to make a finding of fact that it did not make. Instead, as stated above, we review the record to ensure that the evidence supports the circuit court’s findings of fact. It is clear, then, that without a finding of fact, this court has nothing to review. Ignoring this, the majority looks at evidence that predates the divorce decree and conjures up a finding of fact that the circuit court did not make, namely that McNutt had actively attempted to disrupt Yates’s relationship with their children.
Because I do not believe that a de novo review of the record supports the circuit court’s finding that there was a material change in circumstances, I would reverse the circuit court’s order.
HART, J., joins.
. As already noted, the circuit court also found that, since the divorce decree, the children were attending an unaccredited school and a church associated with that school that the parties had agreed during their marriage not to attend, and that the children were no longer engaged in extracurricular activities as they were during the marriage. Because there is a dispute between the parties as to whether these events occurred since the divorce or existed prior to that time, we note that our decision today is based solely on our de novo review of the evidence and bases specifically set forth in this opinion. | [
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ANNABELLE CLINTON IMBER, Justice.
|, This appeal arises from the dismissal with prejudice of a complaint filed by Appellant Edward Trusclair. The facts forming the basis of this case are not in dispute. Appellant’s original complaint against Appellee McGowan Working Partners was voluntarily dismissed without prejudice on May 26, 2006. Appellant then refiled his complaint on March 6, 2007, demanding damages from Appellee as a result of injuries allegedly caused by Appellee. The circuit court dismissed Appellant’s complaint with prejudice on May 1, 2008.
Appellee is a foreign corporation with its principal place of business in Mississippi and an agent designated for service of process in Arkansas. Appellant served the agent by certified mail and return receipt on March 8, 2007, with a copy of the complaint attached to a properly issued summons. The summons, however, contained an error stating that |2Appellee had twenty (20) days from the date of service to answer the complaint. Rule 12(a) of the Arkansas Rules of Civil Procedure allows foreign corporations thirty (30) days to answer. Appellee filed an answer on March 26, 2007, within the 20-day period, and pointed out that the summons’ statement of a 20-day period violated Ark. R. Civ. P. 12(a). Appellee’s answer also addressed the allegations made in the complaint. Appellant did not serve a corrected summons on Appellee within 120 days of the filing of the complaint as required by Ark. R. Civ. P. 4(i), nor did he file any motion to extend within that period.
On July 13, 2007, Appellee filed a motion to dismiss with prejudice for lack of jurisdiction. The circuit court held a hearing on April 9, 2008, and granted Appellee’s motion to dismiss. Because the 120-day period for service of summons had expired without an extension, the circuit court concluded that it lacked jurisdiction to amend the defective summons. In addition, as this was the second dismissal, the circuit court dismissed Appellant’s complaint with prejudice pursuant to Ark. R. Civ. P. 41. Appellant filed a timely notice of appeal on May 9, 2008.
The sole issue on appeal is whether the incorrect statement in the summons as to the deadline for filing an answer constitutes a sufficient defect to invalidate the service of process and deprive the circuit court of jurisdiction. We have jurisdiction over the case pursuant to Ark. Sup.Ct. R. 1 — 2(b)(5) because the appeal involves significant issues needing clarification or development of the law, or overruling of precedent.
|,Jt is undisputed that the only defect in the summons was the statement that Ap-pellee had 20 days instead of 30 days to file an answer. Ark. R. Civ. P. 4(b) mandates the form of the summons:
(b) Form. The summons shall be styled in the name of the court and shall be dated and signed by the clerk; be under the seal of the court; contain the names of the parties; be directed to the defendant; state the name and address of the plaintiffs attorney, if any, otherwise, the address of the plaintiff; and the time within which these rules require the defendant to appear, file a pleading, and defend and shall notify him that in case of his failure to do so, judgment by default may be entered against him for the relief demanded in the complaint.
Ark. R. Civ. P. 4(b) (2008). According to Ark. R. Civ. P. 12(a)(1), “A defendant shall file his or her answer within 20 days after the service of summons and complaint upon him or her, except that: (A) a defendant not residing in this state shall file an answer within 30 days after service.... ” Ark. R. Civ. P. 12(a)(1) (2008).
Appellant argues that strict compliance with Rule 4(b) should not be applied to this case because it is preferable to decide eases on the merits and, in this case, Ap-pellee did not suffer any prejudice. Appel-lee, on other hand, responds that the technical requirements of Rule 4 must be met exactly in order for process and service of process to be valid.
Our case law is well-settled that statutory service requirements, being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003). This court has held that the same reasoning applies to service requirements imposed by court 14rules. Id. More particularly, the technical requirements of a summons set out in Ark. R. Civ. P. 4(b) must be construed strictly and compliance with those requirements must be exact. Id. Actual knowledge of a proceeding does not validate defective process. Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996). The reason for this rule is that service of valid process is necessary to give a court jurisdiction over a defendant. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., supra; Posey v. St. Bernard’s Healthcare, Inc., 365 Ark. 154, 226 S.W.3d 757 (2006).
We have made it clear in a long line of cases that compliance with Rule 4(b) must be exact. See Brennan v. Wadlow, 372 Ark. 50, 270 S.W.3d 831 (2008); Posey v. St. Bernard’s Healthcare, Inc., supra; Shotzman v. Berumen III, M.D., 363 Ark. 215, 213 S.W.3d 13 (2005); Tobacco Superstore, Inc. v. Darrough, 362 Ark. 103, 207 S.W.3d 511 (2005); Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (2004); Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., supra. The bright line standard of strict compliance permits certainty in the law; whereas, a substantial compliance standard would lead to an ad hoc analysis in each case in order to determine whether the due process requirements of the Arkansas and U.S. Constitutions have been met.
With regard to the instant appeal, our court’s decision in Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., supra, is particularly instructive. In that case, the defendant’s designated agents for service of process were properly served, but the summonses did not identify the defendants correctly, and the summonses misstated the time in which an out-of^tate5 defendant is required to respond. The circuit court dismissed Smith’s complaint with prejudice based on the deficiencies in the summonses. Id. Because the service requirements imposed by the court rules must be strictly construed and compliance with them must be exact, we concluded that the circuit court had properly dismissed Smith’s complaint for failure of service of valid process under Rule 12(b). Id. Likewise, in the instant ease, the summons misstated the time in which an out-of-state defendant is required to respond. Thus, the circuit court properly applied the above-cited case law and dismissed Appellant’s complaint based upon the deficiency of the summons under Rule 4(b).
Appellant nonetheless suggests that the circuit court should have amended the summons pursuant to Ark. R. Civ. P. 4(h). His response to Appellee’s motion to dismiss included a request to amend the summons, which request was reiterated at the hearing. Rule 4(h) provides that “[a]t any time in its discretion and upon such terms as it deems just, the court may allow any summons or proof of sendee thereof to be amended unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the summons is issued.” Ark. R. Civ. P. 4(h) (2008). Appellant, however, failed to obtain service of valid process on Appellee within 120 days after the filing of the complaint; nor did he file any motion to extend within that period, as required by Ark. R. Civ. P. 4(i). Pursuant to Rule 4(i), “If service of the summons is not made upon a defendant within 120 days after the 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 | nwithin 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause.” Ark. R. Civ. P. 4(1) (2008). By its plain language, which we have strictly construed, Rule 4(i) requires that service of process be accomplished within 120 days after the filing of the complaint unless the plaintiff has filed a motion to extend time prior to the expiration of the deadline. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525. If service is not obtained within that time and no timely motion to extend is made, dismissal of the action is mandatory. Id. Appellant did not accomplish service of valid process within 120 days after the filing of the complaint or move for an extension within that period. Thus, the dismissal of Appellant’s complaint was mandatory.
Finally, we are required to consider Rule 41 of the Arkansas Rules of Civil Procedure which governs the dismissal of actions in civil proceedings. With regard to involuntary dismissal, Rule 41(b) provides in pertinent part: “[a] dismissal under this subdivision is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.” Ark. R. Civ. P. 41(b) (2008). Appellant’s original complaint against Appellee was dismissed without prejudice on May 26, 2006. The complaint at issue was refilled on March 6, 2007. Pursuant to Ark. R. Civ. P. 41(b), the second dismissal operates as an adjudication on the merits. Ark. R. Civ. P. 41(b) (2008). Therefore, the circuit court properly dismissed Appellant’s complaint with prejudice. Bakker v. Ralston, 326 Ark. 575, 932 S.W.2d 325 (1996).
Affirmed. | [
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KAREN R. BAKER, Judge.
11A jury in Pulaski County Circuit Court convicted appellant Jonathan Goodman of rape in violation of Ark.Code Ann. § 5-14-103(a)(1) (Supp. 2007) and sentenced him to fifteen years’ imprisonment in the Arkansas Department of Correction. He presents one argument on appeal: that the trial court erred in denying his motion for a directed verdict because the State failed to introduce substantial evidence that he engaged in sexual intercourse with the victim by forcible compulsion. Finding no error, we affirm.
LaToya Franklin, the victim, was twenty-two years of age. She and appellant were both employed at the Arkansas Democrat-Gazette. She testified that they had known each other briefly and had spoken on the telephone once or twice. During one of their telephone conversations, appellant offered to give LaToya a ride home from work. She testified that on December 31, |⅞2006, at 4:30 a.m., she agreed to let appellant give her a ride home. She explained that appellant did not drive her directly to her home in North Little Rock. Instead, appellant “made an excuse to kind of go to Little Rock.” He told LaToya that he had to “drop some papers off at someone’s house.” LaToya testified that initially she “was okay with [appellant’s detour].” She explained, however, that appellant pulled the vehicle into a gated area in an unfamiliar area of Little Rock and exited the vehicle. He went to the back of his vehicle and returned with a bottle of liquor. She was unable to testify as to the location because she was unfamiliar with certain areas of Little Rock. Appellant did not deliver the papers. Instead, he drove La-Toya to a second location where they had a river view and parked the vehicle. At this point, appellant poured each of them a shot glass of liquor, which they drank.
LaToya testified that up until this point, she was not alarmed. However, after she finished a second shot glass of the liquor, while she and appellant were talking, she began to have a strange feeling. She stated that she thought, “this is not feeling right for me,” and though she did not see a weapon, she was “scared of what [appellant] would do.”
During their conversation, appellant revealed to LaToya that he “liked her.” She then told appellant that she “wasn’t into him like that.” Appellant began “rubbing on her leg” and began “making his way over there as far as kissing on [her].” LaToya told appellant that she “didn’t want to do it.” She also “pushed him off [her] saying no.” Despite her protests, appellant proceeded to pull her clothes off; LaToya fought him as he removed her clothes, but appellant’s strength was such that she was unable to keep him from removing her clothes. She, again, told him to stop and repeated to him that she “didn’t want to do it.” LaToya testified that |sshe was “scared” and that she became more afraid when appellant asked her, “What’d you gonna do? Are you going to go to the police?” Appellant then pulled down his pants, put on a condom, and engaged in sexual intercourse with LaToya by force. LaToya testified that the condom had broken during intercourse, and appellant then removed the condom and put it back inside of her saying, that if she was pregnant, the substance on the condom would “kill the baby.” LaToya testified that appellant then climbed back into the driver’s seat of the vehicle, and she put her clothes back on. She described appellant as acting like “that [was] all he wanted.” Appellant then drove La-Toya home.
During the ride home, LaToya testified that she used her cellular phone to record the conversation between her and appellant. Relevant portions of the conversation were as follows:
Franklin: I was saying no from the beginning. That should have been enough.
Goodman: What’d you think? Sh*t, at (inaudible) the sh*t escalated. Put it in retrospect, I was prepared. I had a condom.
Franklin: So you were expecting to have sex with me?
Goodman: No I was not ... I just wanted to see how far it was that I could push everything. (Inaudible) ... I wanted to know if you’re the type of female that bite, kick and scratch ... I just wanted to know what kind of female you were ...
Franklin: When I said no, you should have stopped then.
Goodman: That already happened. That already happened. Sh*t. I can’t take that back. Yeah, I should have stopped. You know what I’m saying? But for real, you gonna help me out or something 14(inaudible) like that?
Franklin: I told you no, and you kept going.
Franklin: No means no, right?
Goodman: Yeah, it do.
Goodman: You shocked you had a one night stand?
Franklin: Against my will, yes.
Goodman: (Inaudible), was it good though?
LaToya testified appellant left her at her home. Approximately two hours later, La-Toya called a friend and went to the hospital.
At the conclusion of LaToya’s testimony, the State rested. Appellant’s counsel made a motion for a directed verdict stating that the State had failed to make a prima facie case that appellant forcibly had sexual intercourse with the victim. The trial court denied appellant’s motion.
Appellant then testified that he and La-Toya were in the process of getting to know each other. In their conversations, they had discussed things such as whether or not LaToya drank alcohol and that appellant’s favorite drink was Opportunity State Jamaican Rum. Appellant also testified that he specifically asked LaToya “if [he] could have sex with her,” and that she responded, ‘Yeah, sure, it could happen.”
| ¡^Appellant testified that on December 31, 2006, he and LaToya left work together and that she was aware that he had liquor in the trunk. He said that he made one stop to drop off some papers and then stopped to get a “liquor cutter.” He then drove LaToya to “skateboard park.” He parked the car, locked the doors, and poured two shots of liquor, which they drank. They talked for approximately fifteen minutes when things became physical, and the two had sexual intercourse. He testified that LaToya did not ask him to stop or say “no.” She did not “try to bite [him], hit at [him],” scream, or do anything to make him think she did not want to have sex with him. Appellant stated that it was not until intercourse was over that LaToya told him to “leave her alone.” Ap pellant denied that the recorded conversation ever took place.
At the conclusion of the evidence, appellant’s counsel renewed the motion for a directed verdict. The motion was denied. Appellant was found guilty of rape and sentenced accordingly. This appeal followed.
A motion for directed verdict is a challenge to the sufficiency of the evidence, Pinder v. State, 357 Ark. 275, 166 S.W.3d 49 (2004). The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id. A rape victim’s testimony need not be corroborated to support a conviction. Id.
Appellant argues that the State presented insufficient evidence of rape. While he concedes that he had sexual intercourse with the victim, he alleges that the State failed to prove |ñthat he had sexual intercourse with the victim by means of forcible compulsion. Arkansas Code Annotated section 5-14-103(a)(l) states: “A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person: ... By forcible compulsion.” “Forcible compulsion” means physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person. Ark.Code Ann. § 5-14-101(2) (Repl. 2006). Our supreme court has defined “physical force” as any bodily impact, restraint or confinement, or the threat thereof. Freeman v. State, 331 Ark. 130, 132, 959 S.W.2d 400, 401 (1998). The test to determine if there was physical force is whether the act was against the will of the party upon whom the act was committed. Freeman, 331 Ark. at 133, 959 S.W.2d at 401. Furthermore, our courts have continually held that a rape victim’s testimony alone is sufficient and is substantial evidence to support a rape conviction. Ellis v. State, 364 Ark. 538, 222 S.W.3d 192 (2006).
In this case, LaToya testified that appellant forced her to have sexual intercourse with him against her will. A rape victim’s testimony satisfies the requirement that there be substantial evidence that the defendant committed the crime. West v. State, 27 Ark.App. 49, 766 S.W.2d 22 (1989) (citing Houston v. State, 293 Ark. 492, 739 S.W.2d 154 (1987)). A victim’s testimony that she was forcibly compelled to submit to the rapist constitutes substantial evidence on which to base a conviction. Id. (citing Taylor v. State, 296 Ark. 89, 752 S.W.2d 2 (1988); Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988)). The quantum of force need not be considered as long as the act is committed against the will of the victim. Spencer v. State, 255 Ark. 258, 499 S.W.2d 856 (1973). Although appellant’s testimony contradicted LaToya’s account of what happened, the jury was not required to believe him. See Strong v. State, 372 Ark. 404, 277 S.W.3d 159 (2008) |7(stating that even when an appellant denies all of the allegations or contradicts the victim’s testimony, the jury is free to disbelieve the appellant’s self-serving testimony and believe the victim’s testimony instead). We hold that the evidence viewed in the light most favorable to the State supports the jury’s verdict.
Affirmed.
KINARD, J., agrees.
ROBBINS, J., concurs. | [
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BRANDON J. HARRISON, Judge.
In Malcum v. State, 2013 Ark. App. 499, 2013 WL 5272998, we affirmed the Pulaski County Circuit Court’s sentencing order entered against Malcum following a jury trial. Malcum challenged our decision through a petition for rehearing. We deny Malcum’s petition for rehearing but issue this substituted opinion.
A jury found that Chad Edward Malcum had committed an aggravated robbery against Eugene Cherry, in April 2011, while Cherry was at his own home. Mal-cum, attacked Cherry after he refused to give Malcum a ride to Conway; Malcum then stole Cherry’s car. An unidentified person called 911. A neighbor, Donnell Jackson, reportedly saw Cherry’s car speed away from his home and became suspicious that the elderly man would drive in such haste. So Jackson, according to a police report, went to [^Cherry’s house, found him in distress, and carried him outside so he could receive emergency treatment.
The circuit court sentenced Malcum to serve 300 months’ imprisonment as a habitual offender. Malcum appeals his conviction, arguing that the circuit court erred by making him go to trial before Donnell Jackson could be located and compelled to testify about the robbery. Malcum also argues that a second reversible error occurred when the court strayed from the model jury instructions.
We hold that Malcum was not denied justice when he was denied a continuance. And though we agree with Malcum that the court technically erred when instructing the jury at the trial’s beginning, the error was a harmless one because the jury was properly instructed before it deliberated the case and returned its guilty verdict.
I. The Continuance Issue
. One day before the March 2012 jury trial started, the circuit court held a hearing on Malcum’s motion to continue the trial given Jackson’s unavailability as a witness. The record indicates that no party had successfully contacted Jackson since the robbery. The court ruled that it was not for a lack of trying that neither the State nor Malcum could find Jackson; it then ordered the sheriffs office to find Jackson and jail him overnight. Before adjourning for the day, the court then told defense counsel:
But I should tell you, sir, that if he is found after tomorrow, it is my present intention to keep him confined in the county jail until such time as we get this case tried. I intend to reschedule this case tomorrow for another trial date or date certain and I want everybody to know that we will proceed to trial on that date with him or without him. So everybody needs to have a contingency, trial with Donnell Jackson, trial without Donnell Jackson. Put that in your war plan.
|sThe sheriffs office never found Jackson. So Malcum renewed his continuance request the following morning, which was the first day of trial, before jury selection started. Malcum’s attorney also filed an affidavit "on 15 March 2012, pursuant to Ark.Code Ann. § 16-63-402 (Supp.2011), which stated, among other things, that a woman claiming to be Jackson’s wife had told him that Jackson would be out of town for at least thirty days. In addition to the affidavit, three witnesses told the court that Jackson had a surrender date to authorities on the following Monday.
During the day-of-trial continuance hearing, Malcum argued that Jackson was the unidentified 911 caller and that his testimony was needed to impeach Cherry’s anticipated trial testimony. Without Jackson’s presence at trial, Malcum argued, the jury would not get a “great deal” of information. For its part, the State said that it would not call Jackson as a witness — and it stipulated that Jackson did not see Mal-cum hit Cherry and that “there are a lot of ifs involved” on whether Jackson would actually appear.
The court denied Malcum’s second motion to continue the case. In doing so, it ruled that the defense had made a good-faith, diligent effort to locate Jackson and that his absence was not Malcum’s fault. The court also noted that the State did not oppose the continuance, and it credited the affidavit that Thomas Kendrick (one of Malcum’s lawyers) had filed. A key point to the court’s denial was that no one disputed that Jackson never saw who beat and robbed Cherry. The court reasoned that Jackson’s absence would not prevent Malcum from fully defending the aggravated robbery charge because the probable effect of Jackson’s testimony at trial, even if he did testify, was that he did not personally see Malcum beat and rob Cherry. Finally, though the court recognized the 1¿possibility that the sheriff or federal authorities might find and detain Jackson before or during the trial, it was “not at all certain whether or not [Jackson] will show up or if he does show up, whether he will testify.”
A circuit court’s decision to deny a continuance due to a witness’s absence is a discretionary one. A number of considerations, however, guide and constrain its discretion on this issue. Ark.Code Ann. § 16-63-402 (Supp.2011); Ark. R.Crim. P. 27.3 (2012); Brown v. State, 374 Ark. 341, 347, 288 S.W.3d 226, 232 (2008) (citing caselaw factors for circuit courts to consider). Our statutes, rules, and caselaw work together to protect an accused’s state and federal constitutional rights “to have compulsory process for obtaining witnesses in his favor” and to give him due process of law. U.S. Const, amends. VI, XIV; Ark. Const, art. 2 § 10 (1873). Our supreme court has held that denying an accused’s motion for a continuance — when an unavailable witness is also a fugitive from justice — is not an abuse of discretion and does not necessarily violate an accused’s rights. Parker v. State, 179 Ark. 1064, 20 S.W.2d 113 (1929) (denying a continuance was not reversible error when the attendance of a witness, who had an outstanding warrant, could not be secured); Harris v. State, 169 Ark. 627, 629, 276 S.W. 361, 363 (1925) (denying a continuance was not reversible error when the desired witness had left town because of another charge against him and was therefore not likely to return). The bottom line is we will not reverse a court’s denial of a continuance request unless it equates to a denial of justice. Brown, 374 Ark. at 347, 288 S.W.3d at 231.
Here, Malcum argues again that the court’s decision to deny him a continuance was an abuse of discretion because he had the right to compel Jackson’s attendance, that | Jackson was a material defense witness, and the court told him the day before trial that it intended to reschedule the case. The State responds that Jackson’s testimony was immaterial and that, in any event, there was no good reason to believe that postponing the trial would have resulted in Jackson’s presence at trial.
We hold that the circuit court sufficiently protected Malcum’s legal interests under the law and that denying a continuance in this case was not an abuse of discretion tantamount to a denial of justice. The court held two hearings on the continuance issue, received much evidence on point, and engaged the parties by asking questions. The court also forthrightly told the parties to be prepared for trial “with or without Donnell Jackson.” That the court changed its mind about its intent to reschedule the ease on the day of trial does not necessarily mean that Malcum was denied justice. The circuit court is not required to absolutely ensure Jackson’s presence at trial, just that “compulsory process” be available to Malcum, and it was. Specifically, the court had sent the sheriff to find Jackson and otherwise used its power to compel Jackson’s appearance at Malcum’s trial. Malcum did not have an absolute right to delay the trial until Jackson could be rounded up, which might well have been an unreasonably long amount of time.
II. The Harmless Jury-Instruction Error
Malcum also argues on appeal that the circuit court erroneously instructed the jury — after the jury was selected but before the jurors were excused at the end of the first day of trial. Here is the instruction Malcum challenges:
As jurors, you’re the sole and exclusive deciders on who-on credibility of the witnesses who testify in the case, which means simply that it’s you who decide whether to believe or disbelieve a particular witness.
|fiIn making this determination, you will apply the test of truthfulness that you apply in your daily lives. You’re not required to believe the testimony of any witness simply because it’s given under oath. You may believe or disbelieve all or any part of the testimony of any witness.
You should not decide any issue of fact merely on the basis of the number of witness who testify on each side of that issue. The testimony of one witness believed by you is sufficient to prove any fact.
Before giving that contested instruction, the court read other instructions to the jury, including ones on reporting for duty the next morning, leaving their minds open until they heard all the evidence, not talking with anyone about the case, considering information from any source outside the courtroom, observing courtroom procedure, and taking notes during the trial. Malcum promptly objected to the instruc tion. As a substantive matter, he argued that the instruction had no legal basis. As a timing matter, he said that the jury instructions should be given after the jury has heard the parties’ cases, not before they were presented.
At a bench conference the next morning, before opening statements, Malcum renewed his objection to the instruction we have reproduced above; he argued that the instruction would allow the jury to find him guilty by applying a standard of proof less than beyond a reasonable doubt. He then asked the court to admonish the jury to disregard any instructions from the day before that were “not contained in the other Arkansas statutory law or in the jury instructions AMCI second 100A and 100B.” Malcum also moved for a mistrial based on the court’s alleged error. The court denied that motion and overruled other objections.
We review all of Malcum’s jury-instruction issues under an abuse-of-discretion standard. See Clark v. State, 874 Ark. 292, 305, 287 S.W.Sd 567, 576 (2008). Malcum is 17not required to show that prejudice arose from the court’s mistaken jury instruction. Hall v. State, 326 Ark. 318, 322, 933 S.W.2d 363, 366 (1996). In this type of case, the State must show that the erroneous instruction was, on the whole, a harmless error. Id. An erroneous instruction can be harmless if it was obviously cured by other instructions. Id.
Our supreme court has recently reiterated that a circuit court should not use a non-model instruction unless the applicable model instruction inaccurately states the law. Fincham v. State, 2013 Ark. 204, 427 S.W.3d 643. Here, the court did not use the model instruction on credibility. It told counsel that “[njothing I told this jury yesterday varies from any statement of Arkansas law. I have not heard [Defense Counsel] [cite] a single Arkansas court authority.” The court’s memory of the event was mistaken. Its rendition added a flourish here and there and clearly deviated from the model criminal jury instructions.
The important legal question, however, is whether the court’s indisputable deviation from the model instruction on credibility was so grave that a mistrial should have been ordered. Phavixay v. State, 2009 Ark. 452, at 10, 352 S.W.3d 311, 318 (2009). Malcum thinks so, mainly because he believes the court’s deviation from the model instructions diluted the potent burden of proof the State had in this criminal case. We disagree. The stray remarks related to the credibility of the witnesses or the jurors’ personal observations about them, not the State’s burden of proof. Contextually, the court had just finished talking about juror notetaking and then moved to telling the jury about their role in the criminal-trial process. More specifically, the court’s stray remarks came when it provided its own rendition of AMI Crim.2d 103 and 104 — two ^instructions that tell jurors that they may use their personal observations and experiences as they assess witnesses’ credibility.
We hold that the State has shown that the circuit court’s recitation of non-model instructions on credibility and on personal observations and experiences was harmless error in this case. Hall, supra. Right before the case was submitted to the jury for decision, the circuit court instructed the jury using the model instructions on the credibility of the witnesses, the weight of the evidence, and the burden of proof, which purged any arguable prejudice stemming from the trial’s false start. These model instructions were the same ones that Malcum had requested when he first disputed the court’s free-form version at the trial’s start. In Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994), our supreme court acknowledged that while the circuit court may have erred in instructing the jury prematurely, the error under the facts presented was harmless. We likewise acknowledge that a concerning glitch was injected into this case’s beginning, but it neither involved the State’s burden of proof nor the elements of the crime that Malcum was charged with committing. And most importantly, the error was corrected before the jury began deliberating Malcum’s legal fate, making the giving of the earlier non-AMI instruction harmless error given the facts in this case Id.
III. Conclusion
We affirm Malcum’s conviction. In doing so, we take this opportunity to remind the circuit courts to heed our supreme court’s admonition: use the applicable model instructions as a matter of course unless they misstate the law on the issues under instruction.
| ¡Petition for rehearing denied; substituted opinion issued.
GLADWIN, C.J., and WALMSLEY, WHITEAKER, VAUGHT, and HIXSON, JJ., agree. | [
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PAUL E. DANIELSON, Justice.
| ^Appellants Hotels.com, L.P.; Hotwire, Inc.; Trip Network, Inc. (d/b/a Cheaptick-ets.com); Travelport Limited; Expedia, Inc.; Internetwork Publishing Corp. (d/b/a Lodging.com); Lowestfare.com Inc.; Or-bitz, LLC; Priceline.com Inc.; Travelocity.com L.P.; Travelweb LLC; and Site59.com, LLC, who are online travel companies (collectively, “the OTCs”), appeal from the circuit court’s order granting class certification to appellees Pine LBluff Advertising and Promotion Commission (“the Commission”); Jefferson County, Arkansas (“the County”); the City of North Little Rock, Arkansas (“the City”); and all others similarly situated (collectively, “the Class Representatives”). They assert two points on appeal: (1) that the circuit court abused its discretion in certifying two classes where there had been no exhaustion of administrative remedies, as required by Arkansas law, and (2) that the circuit court abused its discretion in finding that the predominance element of Arkansas Rule of Civil Procedure 23 (2013) had been satisfied, where there existed substantial variances among the ordinances at issue. We affirm the circuit court’s order.
The instant appeal arises from class-action complaints brought by the Commission, the County, the City, and all others similarly situated, against the OTCs, online travel companies who market hotel rooms in Arkansas and elsewhere via the internet. In their complaints, the Class Representatives alleged that the OTCs had failed to collect, or collected and failed to remit, the full amount of gross-receipts taxes imposed by the government entities on hotel accommodations.
According to the pleadings filed in the circuit court, the OTCs contract with the local hotels to obtain rooms at a negotiated, discounted price. The OTCs then advertise the rooms on their websites at a price determined by the OTC. Subsequent to the reservation of a room online from the OTC, the purchaser’s credit card is charged by the OTC, and the funds for |sthat transaction are remitted to the OTC. The OTC subsequently disburses to the hotel the amount of the negotiated, discounted price of the room plus any taxes due on that discounted amount, and the hotel in turn remits the tax amounts to the appropriate taxing entity. Any difference between the total amount paid to the hotel and the amount paid to the OTC by the purchaser is presumably retained by the OTC for facilitating the reservation.
In their complaint, the Class Representatives asserted that because the OTCs were providing services falling within their tax ordinances and the authorizing statutes, the OTCs were required to collect and remit the full amount of taxes owed on the OTC-set price for the hotel rooms, not just the tax amounts on the negotiated, discounted room price. They sought a declaratory judgment that the OTCs were in violation of the tax ordinances and authorizing statutes by failing to remit the proper amount of taxes and that the OTCs’ failure to remit be deemed a debt owed to the appropriate authorities. The Class Representatives requested that the circuit court certify their claims as a class action and asserted that each of the requirements of Ark. R. Civ. P. 23 were met. The OTCs denied that the Class Representatives were entitled to any relief and denied that the claims were appropriate for class certification. They further asserted several affirmative defenses and asserted that the Class Representatives had failed to pursue administrative remedies prior to filing the lawsuit. |40n December 5, 2011, the Class Representatives moved for class certification. In the motion, the Commission proposed “to represent similarly situated advertising and promotion commissions (Class ‘A’ Members) to obtain a declaratory judgment on whether the [OTCs] are subject to the Arkansas ‘Hotel Tax’ arising from the ‘gross receipts or gross proceeds from renting, leasing or otherwise furnishing hotel or motel ... accommodations.’ Ark. Code Ann. § 26-75-602.” In turn, the County and the City proposed
to represent a class of similarly situated Arkansas cities and counties (Class “B” Members) to obtain a declaratory judgment on whether the [OTCs] are subject to the Arkansas Gross Receipts Tax arising from the sales at retail within the cities and counties of all items which are subject to the Arkansas Gross Receipts Tax, including all sales to any person of [sic ] the service of furnishing rooms or other accommodations by any provider of accommodations to transient guests. Ark.Code Ann. § 26-52-801.
They contended that each of Rule 23’s requirements had been met and that the case was one for declaratory and injunctive relief, not involving damages.
The OTCs opposed the motion, asserting four bases for denial. First, they claimed, the Class Representatives had failed to present any evidence to satisfy the predominance requirement of Rule 28, as the Class Representatives had neglected to explain how the | .^differing ordinances from around the state would not result in individual issues predominating over common questions of law or fact. Next, they contended, class certification was inappropriate because the Class Representatives and putative class members had failed to exhaust their mandatory administrative remedies. Third, the OTCs maintained, only the Arkansas Department of Finance and Administration (DFA) had standing to pursue the claims alleged by the County and the City, as DFA had sole and exclusive authority to collect, administer, and enforce the gross-receipts tax on behalf of the cities and counties. Lastly, the OTCs asserted that because DFA was currently conducting an investigation and audit of the OTCs, a class action was not the superior method for addressing the controversy.
A hearing was held on the Class Representatives’ motion to certify, and on February 19, 2013, the circuit court entered its order granting the motion, wherein it made the requisite Ark. R. Civ. P. 23 findings and certified two classes:
Class A: All Advertising and Promotion Commissions, of Arkansas cities, including the Pine Bluff Advertising and Promotion Commission that have or have had tax ordinances pursuant to Ark.Code Ann. § 26-75-602(a)(c)(Z), since 1995.
and
Class B: All counties and cities in the State of Arkansas that have or have had ordinances that provide for a tax on the gross receipts from the sale at retail within the county or city of all items which are subject to the Arkansas Gross Receipts Tax Act (Ark.Code Ann. § 26-52-301), since 1995.
The OTCs bring the instant appeal from that order, pursuant to Ark. R.App. P.-Civ. 2(a)(9) (2013).
U. Exhaustion of Administrative Remedies
For its first point on appeal, the OTCs argue that the circuit court abused its discretion in certifying Classes A and B because the Class Representatives and putative class members were required to exhaust their administrative remedies before bringing suit. They contend that the Commission had, pursuant to its own ordinance, a duty to follow the administrative process in seeking to enforce and collect the instant hotel taxes. They further assert that neither the County nor the City is permitted to enforce their respective taxes, as the statutes authorizing those entities to levy the taxes vests the power to administer, collect, and enforce those taxes in DFA. They state that none of the Class Representatives have issued assessments or provided the OTCs with notices of such assessments, nor have they provided the OTCs with the opportunity for administrative hearings, and that the Class Representatives’ failure to engage in these administrative actions bars their claims until they follow the required procedures. Finally, the OTCs urge, the Class Representatives’ failure to exhaust their administrative remedies actually precluded the circuit court from being able to make the requisite findings under Ark. R. Civ. P. 23 as the failure to do so rendered the Class Representatives unable to establish the class-action requirements. The Class Representatives respond that the exhaustion-of-administrative-remedies issue was decided by the circuit court in its denial of the OTCs’ motion to dismiss, which cannot be considered in an appeal from an order granting class certification. They further urge that the classes’ claims are appropriate for declaratory judgment.
The OTCs initially argue that the circuit court abused its discretion in certifying the |7classes, where the Class Representatives and putative class members had not exhausted their administrative remedies. We have previously held that, in an interlocutory appeal from a class-certification order, we will hear only argument on whether the circuit court abused its discretion in certifying the class and finding compliance with the requirements of Rule 23. See Arkansas State Bd. of Educ. v. Magnolia Sch. Dist. No. 14, 298 Ark. 603, 769 S.W.2d 419 (1989). However, we have also held that a circuit court lacks jurisdiction over a suit, where a party has failed to exhaust his or her administrative remedies. See Arkansas Dep’t of Health & Human Servs, v. Smith, 370 Ark. 490, 262 S.W.3d 167 (2007). See also State v. Tedder, 326 Ark. 495, 932 S.W.2d 755 (1996) (considering, in an interlocutory appeal from an order certifying a class action, whether proposed class members’ failure to comply with the statutory administrative procedure, which operated to waive State’s sovereign immunity to suit, precluded chancellor’s jurisdiction to certify the class).
The doctrine of exhaustion of administrative remedies provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. See Barr v. Arkansas Blue Cross & Blue Shield, Inc., 297 Ark. 262, 761 S.W.2d 174 (1988) (citing Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938)). The doctrine is, however, subject to numerous exceptions. See id. (citing McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969)). For example, exhaustion is not required where no genuine opportunity for adequate relief exists or where irreparable injury will result if the complaining party is compelled to pursue administrative remedies. See id. Exhaustion is also not required where an administrative appeal would be futile. See id.
|sThe Class Representatives contend that they seek merely a declaratory judgment; yet, this court has recognized that declaratory-judgment actions are intended to supplement rather than replace ordinary causes of action. See Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985). To that end, this court requires exhaustion of administrative remedies before resorting to an action for declaratory judgment. See id. In this case, however, it is evident that there was no adequate administrative remedy available.
A. The Commission
With regard to the Commission, Ark.Code Ann. § 26-75-603 (Repl.2008) authorizes the levying city to adopt ordinances consistent with and in similar form to the Arkansas Tax Procedure Act, to enable its advertising and promotion commission to “enforce the [gross-receipts] tax through examination of records, notices of proposed and final assessment, and administrative hearings on proposed assessments.” Ark.Code Ann. § 26-75-603(c). The City of Pine Bluff did so in Code of Ordinances, City of Pine Bluff, § 13-47. Pursuant to the ordinance, the Commission is charged with the administration and enforcement of its gross-receipts tax. The OTCs seem to suggest that the Commission was required “to follow the administrative process within its own ordinance,” by actually assessing the OTCs with a tax, before the Commission was allowed to file an action for declaratory judgment as to the legality of the tax it wished to assess. We disagree.
|flThe rule is indeed well established that a litigant must exhaust his or her administrative remedies before instituting litigation to challenge the action of the administrative agency. See Consumers Co-op. Ass’n v. Hill, 233 Ark. 59, 342 S.W.2d 657 (1961). In other words, where relief is available from an administrative agency, the plaintiff is ordinarily required to pursue that avenue of redress before proceeding to the courts. See 2 Am.Jur.2d Administrative Law § 474 (2013). Here, however, the Commission is in no way a plaintiff for whom relief is available from an administrative agency. It is, in effect, the agency, and it should be permitted to seek a legal declaration as to whether its tax is applicable to a certain business or includes certain business transactions before actually assessing the tax against a business. Simply put, the doctrine of exhaustion of administrative remedies had no application to the Commission and its request for a declaratory judgment in the instant case.
B. The County and the City
Turning to the County and the City, Jefferson County’s gross-receipts tax is authorized by Ark.Code Ann. § 26-74-212 (Repl.2008) and is administered and enforced by DFA according to the penalties and procedures set forth in the Arkansas Tax Procedure Act. See Ark.Code Ann. §§ 26-74-214 (Supp.2009); 26-74-216 (Repl.2008). The City of North Little Rock’s gross-receipts tax is authorized by Ark.Code Ann. § 26-75-207 (Supp.2009), and, like the County’s, is administered and enforced by DFA. See Ark. Code Ann. § 26-75-214 (Repl.2008); 26-75-219 (Repl. 2008).
While there is indeed an administrative remedy outlined in the Arkansas Tax Procedure Act, it provides a remedy solely to a taxpayer seeking administrative relief from a |inproposed assessment of taxes or from a denial of a claim for refund. See Ark.Code Ann. § 26-18^404 (Supp.2009). “Taxpayer,” as defined by the Act, means:
(A) Any person subject to or liable for any state tax;
(B) Any person required to file a return, to pay, or to withhold and remit any tax required by the provisions of any state tax law;
(C) Any person required to obtain a license or a permit or to keep any records under any state tax law; or
(D) Any person who files a return and pays a reported tax without regard to whether he or she was required to file the return.
Ark.Code Ann. § 26-18-104(16) (Supp. 2009). In the instant case, the County and the City are the levying authorities of the tax, who seek a declaration of whether their respective tax ordinances apply to the OTCs and encompass their business transactions. As the only administrative remedy pointed to by the OTCs is for taxpayers, it is clear that any request by the County and City to DFA for such a declaration would have been futile because such a remedy was simply not available. This court has recognized that inadequate or futile administrative remedies need not be exhausted before other remedies are pursued. See Cummings v. Big Mac Mobile Homes, Inc., 335 Ark. 216, 980 S.W.2d 550 (1998). To that end, when a plaintiff prays for relief that is clearly not available at the administrative level, exhaustion of other available administrative remedies is not required. See id. Accordingly, no exhaustion of administrative remedies was required by the County and City before filing the instant class action for declaratory judgment.
Because the doctrine of exhaustion of administrative remedies had no application to the Commission or the County and City, we decline to address the OTCs’ argument that the Class Representatives’ failure to exhaust rendered them unable to establish the class-action | ir requirements under Ark. R. Civ. P. 23.
II. Predominance
For their second point on appeal, the OTCs argue that the circuit court abused its discretion in finding that the predominance requirement for class actions was satisfied because any decision for the Commission or the County and City on their claims would do little to resolve the OTCs’ liability to other class members in light of the differences among the various ordinances. They assert that, while the Class Representatives claim that most of the ordinances have similar language, a review of the ordinances would reveal that there exist many differences that would be unquestionably relevant in determining whether the ordinances apply to the OTCs. As further evidence of relevant differences, the OTCs contend that the Class Representatives have failed to establish that the ordinances for which they seek to impose liability on the OTCs were even in existence and enforceable for the entire class period. Because of such differences, the OTCs aver, the Class Representatives have failed to identify any common standard that could be used to determine lia bility on a class-wide basis, and the circuit court abused its discretion in finding that the predominance requirement was satisfied. The Class Representatives counter that all of the ordinances relating to Class A, or the commissions, contain almost identical language, as do the enacted ordinances relating to Class B, the counties and cities. They contend that, even if minor word variations do exist in a few ordinances, such individual issues do not defeat class certification.
Our law is well settled that the six requirements for class-action certification as stated in Rule 23 are (1) numerosity, (2) commonality, (3) typicality, (4) adequacy, (5) | ^predominance, and (6) superiority. See DIRECTV, Inc. v. Murray, 2012 Ark. 366, 423 S.W.3d 555. In reviewing a circuit court’s decision to grant or deny class certification, we give circuit courts broad discretion and reverse only when the appellant can demonstrate an abuse of discretion. See id. When reviewing a circuit court’s class-certification order, we review the evidence contained in the record to determine whether it supports the circuit court’s decision. See id. Neither this court nor the circuit court delves into the merits of the underlying claims at this stage, as the issue of whether to certify a class is not determined by whether the plaintiff has stated a cause of action for the proposed class that will prevail. See id. On this point, this court has explained that a circuit court may not consider whether the plaintiffs will ultimately prevail, or even whether they have a cause of action. See id. This court thus views the propriety of a class action as a procedural question. See id.
Here, the OTCs take issue only with the circuit court’s finding of predominance. We have held that the starting point in examining the issue of predominance is whether a common wrong has been alleged against the defendant. See Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21. If a case involves preliminary, common issues of liability and wrongdoing that affect all class members, the predominance requirement of Rule 23 is satisfied even if the circuit court must subsequently determine individual damage issues in bifurcated proceedings. See id. We have recognized that a bifurcated process of certifying a class to resolve preliminary, common issues and then decertifying the class to resolve individual issues is consistent with Rule 23. See id. In addition, we have said that
[t]he predominance element can be satisfied if the preliminary, common issues may be resolved before any individual issues. In making this determination, we do not merely 113compare the number of individual versus common claims. Instead, we must decide if the issues common to all plaintiffs “predominate over” the individual issues, which can be resolved during the decertified stage of bifurcated proceedings.
United Am. Ins. Co. v. Smith, 2010 Ark. 468, at 11, 371 S.W.3d 685, 693 (quoting Georgia-Pacific Corp. v. Carter, 371 Ark. 295, 301, 265 S.W.3d 107, 111 (2007)).
The circuit court found that the requirement of predominance was satisfied, stating in relevant part:
The common questions set forth in the commonality analysis clearly predominate throughout the class.... A resolution of the common issues will resolve the liability of Defendants to all Class Members for both Class A and Class B. These common issues will not depend upon any individual issue of a Class Member.
It concluded that for Class A, the commissions, some of the common issues to be resolved were whether the OTCs were re ceiving gross receipts or gross proceeds from
“renting, leasing, or otherwise furnishing hotel, motel ... accommodations,” within the meaning of the Hotel Tax Statute and thus whether they are subject to the statute which creates and provides for the Hotel Tax (Ark.Code Ann. § 26-75-602); and ... whether the OTCs have a legal duty to collect and remit the Hotel Tax on the gross proceeds or gross receipts charged the consumer (retail room price) rather than the discounted room rate the OTCs negotiate and pay to the hotel (wholesale room price).
As to Class B, the counties and cities, the circuit court found that some of the common issues to be resolved were (1) whether the OTCs received gross proceeds or gross receipts derived from the sale to any person in the service of furnishing rooms; (2) whether the OTCs were “providers of accommodations to transient guests,” within the meaning of the Gross Receipts Tax Act, and “thus, whether they are subject to the statute which creates and provides the Gross Receipts Tax,” Ark.Code Ann. § 26-52-301 (Supp.2009); and (3) whether the OTCs had a legal duty “to collect and remit the Gross Receipts Tax on the gross proceeds or gross |ureceipts charged the consumer (retail room price), rather than the discounted room rate” negotiated by the OTCs and paid to the hotel.
This court has observed that, in considering the requirement of predominance, the question is whether there are overarching issues that can be addressed before resolving individual issues. See FirstPlus Home Loan Owner 1997-1 v. Bryant, 372 Ark. 466, 277 S.W.3d 576 (2008). We hold that there are in the instant case. Even if the ordinances of the commissions, counties, and cities contain any variances as is claimed by the OTCs, each ordinance was derived from the same respective statutes — Ark. Code Ann. § 26-75-602 for the commissions and Ark. Code Ann. § 26-52-301 for the counties and cities — and enacted as a result of the same legislative authority permitting the adoption of ordinances to levy such taxes. Therefore, a declaratory judgment as to whether the OTCs’ business transactions fall within the scope of sections 26-75-602 and 26-52-301’s statutory language is an overarching issue that can be resolved before a determination of whether the respective ordinances of each commission, county, or city contain the same language as the statutes on which they are premised. As we have said time and time again, the mere fact that individual issues or defenses may be raised regarding the recovery of individual class members cannot defeat class certification where there are common questions that must be resolved for all class members. See, e.g., Kersten v. State Farm Mut. Auto. Ins. Co., 2013 Ark. 124, 426 S.W.3d 455; Arkansas Media, LLC v. Bobbitt, 2010 Ark. 76, 360 S.W.3d 129; Union Pac. R.R. v. Vickers, 2009 Ark. 259, 308 S.W.3d 573; The Money Place, LLC v. Barnes, 349 Ark. 518, 78 S.W.3d 730 (2002). For these reasons, we find no merit in the OTCs’ argument that the element of predominance |1fiwas not satisfied, and we affirm the circuit court’s order granting class certification.
Affirmed.
. The original complaint was filed by the Commission and the County. The City of North Little Rock, Arkansas, moved to intervene, and the circuit court granted its motion.
. According to the complaints, the Commission had imposed a 3% tax, the County a 1% tax, and the City a 1% tax.
. The OTCs had moved to dismiss the class-action complaint of the Commission and the County prior to the City’s intervention. They did so based upon the Commission and County's alleged failure to exhaust their administrative remedies. The circuit court initially granted the motion, but later set aside its order of dismissal. After the initial circuit judge recused, the matter was transferred to the Honorable Robert H. Wyatt, Jr. The circuit court subsequently denied the OTCs' motion by its order of January 3, 2011, wherein it found that the Arkansas's declaratory-judgment statute, or Ark.Code Ann. § 16-111-104, explicitly allowed for a declaration of whether the tax statutes and ordinances at issue imposed an obligation on the OTCs to remit the amount of tax based on the actual price of the room paid to an OTC. It further found that the central issue of the litigation was whether the OTCs were subject to the tax statutes and ordinances at all, which it determined was a legal question, requiring judicial resolution, and not an administrative one. In addition, the circuit court held that the exhaustion of administrative remedies was not applicable to the case for declaratory judgment. Even were it applicable, the circuit court reasoned, exhaustion of administrative remedies was not required because administrative exhaustion would be futile, inadequate, and useless, in light of the parties’ dispute over whether the OTCs were subject to the statutes and ordinances, which was a decision that should be ultimately made by the courts.
. The gross-receipts tax itself is authorized by Ark.Code Ann. § 26-75-602 (Supp.2009). | [
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PAUL E. DANIELSON, Justice.
| Appellant Ketan Bulsara, Individually and as Administrator of the Estate of Simi Ketan Bulsara, deceased, and on behalf of the wrongful-death beneficiaries of Simi Ketan Bulsara, appeals from the judgment of the circuit court entered in favor of appellee Dr. Julia Watkins. Dr. Bulsara originally appealed to the court of appeals, and that court affirmed the judgment. See Bulsara v. Watkins, 2009 Ark. App. 409, 319 S.W.3d 274. He then petitioned this court for review, which we granted; however, we dismissed the appeal without prejudice for lack of a final order. See Bulsara v. Watkins, 2010 Ark. 453, 2010 WL 4680270. Dr. Bulsara now appeals from the final order entered by the circuit court and raises three points on appeal. Specifically, he claims that the circuit court erred in denying his motion for new trial: (1) where defense counsel engaged in ex parte contact with a nonparty, treating physician; (2) where a defense |2expert refused to disclose the information reviewed in his investigation; and (3) where defense counsel improperly acquired confidential information from an expert who previously consulted with Dr. Bulsara and his former counsel. We reverse and remand.
The facts, in brief, are these. On April 19, 2004, Dr. Bulsara, a neurosurgeon by occupation, filed a medical-malpractice and wrongful-death action against Dr. Watkins and St. Vincent Doctor’s Hospital, stemming from the stillbirth of his child, Baby Simi. The complaint was later amended to include Arkansas Women’s Center, P.A., as a defendant, but it and St. Vincent Doctor’s Hospital were later dismissed. The matter was ultimately tried by a jury, who returned a judgment in favor of Dr. Watkins, which was filed on November 3, 2006. On November 17, 2006, Dr. Bulsara filed a motion for new trial, in which he asserted that (1) the circuit court should have declared a mistrial after the defense’s expert referred to Dr. Bulsara’s settlement with a third party; (2) the defense’s expert witness, Dr. McKelvey, should have been disqualified as an expert; (3) Dr. Watkins’s counsel, Phil Malcom, should have been disqualified for misconduct relating to his contact with Dr. Rosey Seguin, Mrs. Bulsara’s treating physician and Dr. Watkins’s partner at Arkansas Women’s Center, without Mrs. Bulsara’s consent; (4) Dr. Watkins’s counsel improperly impeached Dr. Bulsara’s expert witness during closing argument; (5) Dr. Watkins violated the circuit court’s ruling on a motion in limine when she elicited certain testimony; (6) Dr. Watkins improperly impeached witnesses; and (7) the “empty chair”-defendant instruction prejudiced the jury. On November 22, 2006, the circuit court entered an order granting a motion by Dr. Watkins for an extension of time to respond to Dr. Bulsara’s new-trial motion.
On November 28, 2006, Dr. Bulsara filed a motion to vacate or set aside judgment, which he based on the grounds set forth in his motion for new trial. Dr. Watkins responded to the motion, stating that the “alleged errors, mistakes, or miscarriages of justice” asserted by Dr. Bul-sara had been previously ruled on by the circuit court and that no new law or facts were presented that would warrant vacating the jury’s verdict based on the previous rulings. On December 15, 2006, the circuit court denied Dr. Bulsara’s motion for new trial.
On January 9, 2007, Dr. Bulsara filed his notice of appeal; however, that same day, the circuit court entered its order denying Dr. Bulsara’s motion to vacate or set aside. Accordingly, Dr. Bulsara filed an amended notice of appeal. As already noted, the matter was. appealed to the court of appeals, which affirmed the judgment of the circuit court. We granted review, but then dismissed the appeal for lack of a final order. A final order was obtained, and Dr. Bulsara now appeals.
I. Dr. Watkins’s Motions
As an initial matter, we must decide two pending motions that were filed with this court and submitted with the case. In a motion to dismiss the appeal, Dr. Watkins asserts that at the time the subsequent notice of appeal was filed, following our dismissal and the circuit court’s entry of a final order, there was no personal representative pursuing the action due to Dr. Bulsara’s prior discharge as personal representative. For this reason, she contends, the notice of appeal was a nullity, and this court lacks jurisdiction to hear the instant appeal.
The exhibits attached to the motion reflect that on February 14, 2007, Dr. Bulsara petitioned the probate court to approve a settlement and authorize payment of attorney’s fees and expenses, and an order approving such was entered on February 16, 2007. On March 2, 2007, Dr. Bulsara filed a petition to authorize the final distribution of estate assets, and on March 9, 2007, the probate court entered an order approving the report of final distribution, discharging the administrator, and closing the administration of the estate.
In Brewer v. Poole, 362 Ark. 1, 207 S.W.3d 458 (2005), we observed that under Arkansas Code Annotated § 16 — 62—102(b), every cause of action for wrongful death shall be brought by and in the name of the personal representative, or, if there is no personal representative, then the action shall be brought by the heirs at law of the deceased person. In so noting, we held that, where the original complaint in the case failed to include all the heirs at law as parties to the suit, the original complaint was a nullity. See Brewer, 362 Ark. 1, 207 S.W.3d 458. Dr. Watkins relies on Brewer and other similar cases for her proposition that Dr. Bulsara’s notice of appeal was a nullity. We believe, however, that Dr. Watkins’s reliance is misplaced.
In Bailey v. Rockafellow, 57 Ark. 216, 21 S.W. 227 (1893), cited by Dr. Bulsara in his response to the motion, this court held that the discharge of an administrator, before judgment was rendered, was no bar to his prosecution of the action. There, Bailey had been appointed administrator of the estate and, in that capacity, brought an action to foreclose a deed of trust and collect a note. During the pendency of the action, after filing a final settlement, he was discharged as the administrator. Notwithstanding his discharge, he prosecuted the action, | .^without objection. On appeal, the appellees challenged Bailey’s prosecution of the action after his discharge, and this court held:
The first question to be decided is raised by the contention of appellees to the effect that Bailey had no right to prosecute the action as administrator after his discharge. Regularly the action should have been revived in the name of the proper parties, but the court did not lose jurisdiction of it. The discharge was no bar to the action. The defendants could have taken advantage of it by a supplemental answer in the nature of a plea in abatement. But they had a right to waive it, and permit the cause to be tried upon its merits, without revivor, and did so with notice of the fact, by a failure to plead it in any manner. Spalding v. Wathen [70 Ky. 659], 7 Bush 659 [(1871)]; Mansfield’s Digest, secs. 5028, 5031.
57 Ark. at 218-19, 21 S.W. at 228.
In accord with Bailey, we hold that Dr. Bulsara’s discharge as administrator did not bar his ability to obtain a final order or prosecute the instant appeal. There are, too, the facts that this is Dr. Watkins’s first objection since the discharge was entered, and it was Dr. Watkins’s failure to dismiss her cross-claim that required this court to dismiss Dr. Bulsara’s prior appeal. We therefore deny Dr. Watkins’s motion to dismiss the appeal.
Because we deny the motion to dismiss on the basis that Dr. Bulsara’s discharge did not preclude him from obtaining a final order or pursuing the instant appeal, we need not consider the effect of an order by the probate court reopening the estate and reappointing Dr. Bulsara. Accordingly, Dr. Watkins’s motion to set aside the probate court’s order is moot.
II. Ex Parte Contact with Treating Physician
For his first point on appeal, Dr. Bulsara argues that he is entitled to a new trial because Dr. Watkins’s defense counsel, Phil Malcom, violated Arkansas Rule of Civil Procedure 35(c)(2) and Arkansas Rule of Evidence 503(d)(3)(B), which prohibit ex parte contact by an adverse party with a patient’s nonparty, treating physician, when he consulted with Dr. Seguin regarding Mrs. Bulsara’s case without consent. Dr. Bulsara contends that because Dr. Seguin was a treating physician not named as a party to the lawsuit, Malcom violated the rules when he precluded Dr. Bulsara from speaking with her without Malcom present and objected, on Dr. Seguin’s behalf, to Dr. Bulsara’s discovery request. Dr. Bulsara asserts that Malcom cannot circumvent either the rules prohibiting ex parte contact or the physician-patient privilege simply by representing both Dr. Seguin and Dr. Watkins. He contends that the proper sanction for Mal-com’s actions is a new trial from which Malcom is disqualified, due to Maleom’s unfettered access to Dr. Seguin and her confidential communications, all without consent.
Dr. Watkins counters that she and Dr. Seguin, as well as the clinic at which they were partners, had the right to retain counsel of their choice. She states that Ark. R. Civ. P. 35(c)(2) and Ark. R. Evid. 503(d)(3)(B) are discovery rules designed to protect patient privacy and do not limit the rights of doctors and clinics to select their attorneys. She avers further that Dr. Bulsara has failed to present any proof of prejudice. However, Dr. Bulsara asserts that he did suffer prejudice, specifically, that Malcom restricted Dr. Bulsara’s communication with a treating physician, enjoyed improper access to confidential information, and “poisoned the well” with respect to Dr. Seguin.
This court has held that a decision on whether to grant or deny a motion for new trial lies within the sound discretion of the circuit court. See Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001). We will reverse a circuit court’s order granting a motion for a|7new trial only if there is a manifest abuse of discretion. See id. A circuit court’s factual determination on a motion for a new trial will not be reversed unless clearly erroneous. See id.
Rule 503 (d)(3)(B) of the Arkansas Rules of Evidence provides, in pertinent part, that “[a]ny informal, ex parte contact or communication with the patient’s physician or psychotherapist is prohibited, unless the patient expressly consents.” Ark. R. Evid. 503(d)(3)(B) (2011). This court has previously held that the rule “by its plain language forbids ex parte communication with the patient’s physician in the absence of the patient’s consent.” Kraemer v. Patterson, 342 Ark. 481, 492, 29 S.W.3d 684, 690 (2000). Similarly, Ark. R. Civ. P. 35(c)(2) (2011) provides, in pertinent part, that “[a]ny informal, ex parte contact or communication between a party or his or her attorney and the physician or psychotherapist of any other party is prohibited, unless the party treated, diagnosed, or examined by the physician or psychotherapist expressly consents.” Ark. R. Civ. P. 35(c)(2) (2011). At issue here is whether Malcom’s representation of Dr. Seguin and Dr. Watkins resulted in a violation of these rules. We hold that it did.
According to an affidavit of Dr. Seguin submitted to the circuit court, she and Dr. Watkins discussed the Bulsara case and decided they “needed to obtain the services of an attorney, because we were fearful that claims or a lawsuit would be filed against us over the death of his baby.” She stated that she and Dr. Watkins “agreed that we wanted Phil Malcom to represent each of us and our group, Arkansas Women’s Center, with regard to claims or litigation that could be pursued against us by Dr. and Mrs. Bulsara over the death of their baby.” She stated that Dr. Watkins later relayed to her that Malcom “had accepted the request that she and I had made to have him represent each of us as well as Arkansas Women’s Center with regard to [the possible] claims or litigation.” Notably, she also stated that she “related information to [Malcom]” that she “felt he needed to know,” that he requested her to provide information to him for use in his representation of her, and that she “provided written information to him” for use in his representation of her with regard to any claims or lawsuits filed in the Bulsara matter. It is this information with which Dr. Bulsara was concerned that serves as the basis for his arguments on appeal.
We in no way dispute Dr. Watkins’s claim that a physician can seek legal counsel on issues of concern, just as that holds true for any other person. And, Dr. Se-guin was free to seek.counsel from Mal-com. We wish to make clear, however, that she was still bound by her physician-patient privilege with Mrs. Bulsara. It is once the instant lawsuit was filed and failed to name Dr. Seguin, that a conflict in representation arose for Malcom, who also represented Dr. Watkins, a named defendant, or party, that ran afoul of our rules set forth above.
We find persuasive the reasoning of the Illinois Appellate Court in Baylaender v. Method, 230 Ill.App.3d 610, 171 Ill.Dec. 797, 594 N.E.2d 1317 (1992), cited to this court by Dr. Bulsara. In Baylaender, it was alleged that the decedent, Maria, died as a result of Dr. Method’s failure to diagnose her breast cancer. Prior to trial, Baylaender moved in limine to bar the testimony of Dr. Southwick for the defense. See Baylaender, 230 Ill.App.3d 610, 171 Ill.Dec. 797, 594 N.E.2d 1317. Dr. Southwick was a physician who treated Maria subsequent to Dr. Method’s alleged negligence. See id. Baylaender contended that Dr. Southwick violated the physician-patient privilege when he discussed Maria with an attorney assigned to repre sent him by his malpractice insurance carrier although he was not sued. See id. The same attorney was subsequently assigned by the carrier to represent the defendant, Dr. Method. See id. The circuit court denied the motion, and Baylaen-der appealed. See id.
On appeal, Baylaender argued that Dr. Southwiek should have been barred from testifying because he violated Maria’s physician-patient privilege when he, without her consent and prior to any suit being filed, discussed her care with an attorney appointed by his insurance carrier to represent him. See id. The violation was exacerbated, Baylaender claimed, when after the suit was filed, the insurer assigned another attorney to represent Dr. South-wick, and Dr. Southwick’s original attorney was assigned by the same insurance carrier to represent the defendant. See id.
The appeals court agreed with Baylaender and found that the transfer of Dr. Southwick’s attorney to represent the defendant made it impossible to build “a ‘Chinese wall’ between attorneys to prevent information sharing.” Id. at 1326. Noting that such separation would be difficult with two attorneys and the same insurer, the court found that it was “absolutely impossible” where the same attorney was to represent the defendant after having represented the treating physician and taking with him any confidential information the treating physician may have revealed. Id. The court concluded that the transfer of counsel “fatally compromised” the plaintiffs rights to protect her medical secrets from disclosure to the defendant. Id. at 1327.
Likewise, Mrs. Bulsara’s right to protect her confidential communications with Dr. Seguin was fatally compromised when Malcom continued his representation of Dr. Watkins, after the filing of the complaint, having taken with him any confidential information relayed to him by Dr. Se-guin. It was Malcom’s “taking” of this information, as counsel for a defendant-physician, that violated Ark. R. Evid. 503 and Ark. R. Civ. P. 35, and it was the “taking” of this information that served as the basis on which he should have removed himself from the representation.
While Malcom attempts to justify his communications with Dr. Seguin by virtue of the fact that he also represented Dr. Seguin’s practice, Arkansas Women’s Center, P.A., also a defendant, we are not so swayed. The policy behind the physician-patient privilege is to encourage patients to communicate openly with their physicians and to prevent physicians from revealing the infirmities of their patients. See Arkansas State Med. Bd. v. Leonard, 267 Ark. 61, 590 S.W.2d 849 (1979). Here, Dr. Seguin was Mrs. Bulsara’s treating physician, and Rule 503(d)(3)(B) explicitly forbade any communication with her, other than the furnishing of medical records and communications in the context of formal discovery, unless Mrs. Bulsara consented. See also Ark. R. Civ. P. 35(c)(2). “‘Any communication’” is an inclusive term. Harlan v. Lewis, 982 F.2d 1255, 1263 (8th Cir.1993). We therefore reject Malcom’s attempted justification, because like our federal district court, we will not permit the clear intent of our rules to be so circumvented. See Harlan v. Lewis, 141 F.R.D. 107 (E.D.Ark.1992).
Under Ark. R. Civ. P. 59(a)(1),
[a] new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party:
(1) any irregularity in the proceedings or any order of court or abuse of discretion by which the party was prevented from having a fair trial.
A party moving for new trial on this basis must show that his or her rights have been materially affected by demonstrating a reasonable possibility of prejudice. See Winkler v. Bethell, 362 Ark. 614, 210 S.W.3d 117 (2005). It is clear to this court that Dr. Bulsara demonstrated a reasonable possibility of prejudice, in light of Malcom’s continued representation of Dr. Watkins after the filing of Dr. Bulsara’s lawsuit while in possession of confidential information and in contravention of our rules. Accordingly, we reverse the circuit court’s denial of Dr. Bulsara’s motion for new trial and remand for a new trial. Because we reverse and remand on this issue, we need not address Dr. Bulsara’s remaining points on appeal.
Reversed and remanded. Motion to dismiss denied; motion to set aside moot.
BROWN, J., concurs in part and dissents in part.
HANNAH, C.J., and GUNTER and BAKER, JJ., concur in part and dissent in part.
. This court granted Dr. Bulsara permission to supplement his response to the motion with an order from the probate court, filed November 9, 2011, reopening die administradon of the estate and reappointing Dr. Bulsara as administrator.
. Indeed, any communications between Dr. Seguin and Malcom were protected under the attorney-client privilege. See Ark. R. Evid. 502 (2011); Ark. R. Prof’l Conduct 1.6 (2011).
. While Dr. Watkins relies on this court’s decision in Courteau v. St. Paul Fire & Marine Insurance Co., 307 Ark. 513, 821 S.W.2d 45 (1991), for her proposition that Malcom’s communications were permissible in light of his representation of the practice, we And Courteau inapposite. There, the attorney-client privilege was at issue, rather than the physician-patient privilege at issue in the instant case. | [
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JIM HANNAH, Chief Justice.
I, Appellant Patricia McClanahan was convicted by a Scott County jury of manslaughter and abuse of a corpse, for which she was sentenced to consecutive terms of 120 months and 72 months, respectively. McClanahan does not challenge her manslaughter conviction; her sole point on appeal is that the circuit court abused its discretion in denying her motion to dismiss the abuse-of-a-corpse charge. McClana-han asserts that her prosecution for abuse of a corpse was barred by the three-year statute of limitations.
McClanahan originally appealed her conviction for abuse of a corpse to the Arkansas Court of Appeals. The court of appeals reversed and dismissed the conviction, holding that the circuit court erred in denying McClanahan’s motion to dismiss the charge on the ground that her prosecution was not commenced within the applicable statute of limitations period. McClanahan v. State, 2009 Ark.App. 493, 324 S.W.3d 692. The State petitioned this court |2for review, contending that the court of appeals erroneously rendered a decision on an issue of first impression, specifically, whether abuse of a corpse can be construed as a continuing-course crime. We granted the State’s petition for review, pursuant to Arkansas Supreme Court Rule 2-4. When we grant review following a decision by the court of appeals, we review the case as though the appeal was originally filed with this court. See, e.g., Branning v. State, 371 Ark. 433, 267 S.W.3d 599 (2007). We reverse the circuit court and affirm the court of appeals.
The record reveals the following facts. On May 9, 2007, portions of human remains were found in a pond in Scott County. During questioning by police, McCla-nahan admitted that she had killed her husband, Joe Campiglia, during a domestic dispute on January 5, 2003. She further admitted to police that, after shooting her husband in the head, she decapitated and dismembered his body, and then disposed of his body parts by submerging them in a nearby pond.
The State initially filed a felony information alleging that the acts constituting abuse of a corpse were committed by McClanahan on or about January 5, 2003. The State subsequently amended the information to include an allegation that McCla-nahan abused the corpse “on or between” January 5, 2003, and May 9, 2007, the date that the remains were discovered.
McClanahan filed a motion to dismiss the abuse-of-a-corpse charge, contending that the three-year limitations period had run. The State argued that, by failing to properly dispose of her husband’s remains, thereby mishandling and neglecting the corpse for over four years, McClanahan’s conduct constituted a continuing course of conduct that tolled the statute of limitations until her husband’s remains were finally discovered. The circuit court agreed with the State’s interpretation of the statute and denied McClanahan’s motion to dismiss. On appeal, McClanahan contends that the circuit court abused its discretion in denying her motion to dismiss the charge of abuse of a corpse because prosecution for this charge was barred by the statute of limitations.
It is within the circuit court’s discretion to grant or deny a motion to dismiss the prosecution of a charge. See, e.g., Reeves v. State, 374 Ark. 415, 288 S.W.3d 577 (2008). When a court’s ruling on a matter is discretionary, we will not reverse unless there has been an abuse of that discretion. Id. An abuse of discretion may be manifested by an erroneous interpretation of the law. Id.
A prosecution is commenced when an arrest warrant or other process is issued based on a charging instrument. Ark.Code Ann. § 5 — 1—109(f) (Repl.2006). For statute-of-limitations purposes, “an offense is committed either when: (A) [e]very element occui’s; or (B) [i]f a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time the course of conduct or the defendant’s complicity in the course of conduct is terminated.” Ark.Code Ann. § 5-l-109(e)(l). We have stated that “[a] continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force.” Britt v. State, 261 Ark. 488, 491, 549 S.W.2d 84, 86 (1977). In determining whether a statute prohibits a continuing course of conduct, we look to the words used in the statute. For example, in State v. Reeves, 264 Ark. 622, 574 S.W.2d 647 (1978), we stated that it was clear that the General Assembly intended to make theft by receiving a continuing offense for statute-of-limitations purposes because it referred to a person’s retaining stolen property. Therefore, the person’s complicity in the crime did not end — and the limitations period did not begin to run — until the person’s possession of the stolen property ended. Id. In addition to holding that theft by receiving is a continuous offense, we have recognized that nonsupport and obtaining a license from a state medical board by false or fraudulent representations are continuing offenses. See, e.g., Hampton v. State, 357 Ark. 473, 183 S.W.3d 148 (2004); Eclectic State Med. Bd. v. Beatty, 203 Ark. 294, 156 S.W.2d 246 (1941).
Pursuant to Arkansas Code Annotated section 5-60-101(a) (Repl.2005), “[a] person commits abuse of a corpse if, except as authorized by law, he or she knowingly: (1) [djisinters, removes, dissects, or mutilates a corpse; or (2) [p]hysically mistreats a corpse in a manner offensive to a person of reasonable sensibilities.” We agree that the jury could have found that both the beheading and dismembering of the corpse and the subsequent disposing of the body parts in the pond fall within the conduct prohibited by Arkansas’s abuse-of-a-corpse statute. However, there is no dispute that the beheading and dismembering of the corpse took place in January 2003 and that McClanahan was not charged with abuse of a corpse until May 14, 2007, after the three-year statute of limitations had run. Therefore, McClana-han’s conviction can stand only if the disposing of the body parts in the pond can qualify as a continuing-course-of-conduct crime that will toll the three-year statute of limitations.
The State contends that McClanahan’s abuse of the corpse did not end in January 2003, when she submerged the body parts in the pond. Rather, the State asserts that McClanahan continued to physically mistreat the corpse so long as she concealed it. In sum, the State asserts that McClanahan’s “complicity in the physical mistreatment of her husband’s corpse continued and did not terminate until the corpse was properly handled upon its recovery on May 9, 2007.” In support of its argument, the State cites Dougan v. State, 322 Ark. 384, 393, 912 S.W.2d 400, 405 (1995), where we stated that “we believe[d] that the legislature intended that § 5-60-101 cover [appellant’s] placement of her baby’s corpse in a dumpster, as such an act constitutes a form of mishandling, abuse, or neglect.” Relying on Dougan, the State asserts that “neglect” that occurs over a period of time is a continuous offense. Accordingly, the State maintains that McClanahan’s neglect-failing to care for her husband’s corpse or give proper attention to it after dismembering and disposing of it in a pond in January 2003, in a manner offensive to reasonable sensibilities-constituted physical mistreatment that continued until the discovery of the corpse on May 9, 2007.
The Court of Appeals of Oregon was faced with a similar issue in State v. Harelson, 147 Or.App. 556, 938 P.2d 763 (1997). In Harelson, the defendant, while looting a Native American burial site in the 1980s, discovered and removed the remains of a boy and a girl. Later, the defendant buried the remains in his backyard. Upon discovery of the remains, the State charged the defendant with two counts of abuse of a corpse. The defendant appealed the convictions, arguing that the prosecution of those offenses was not commenced until after the three-year statute of limitations had expired. The court noted that, while the indictment alleged that the defendant had unlawfully and intentionally abused the bodies “on or about January, 1993 and April, 1995, [t]here [wa]s no evidence that defendant took any action in relation to the bodies during that period. Rather, they remained buried and undisturbed in defendant’s garden.” Id. at 767 (footnote omitted). The State of Oregon asserted that the defendant’s abuse of the bodies continued as long as they remained improperly buried, asserting that “a person has a continuing duty to treat dead bodies according to generally accepted community standards,” and that “[t]o the extent he or she intentionally continues to interfere with proper treatment of a corpse, including its proper burial, he [or she] commits a new crime each day that the interference continues.” Harelson, 938 P.2d at 767.
The court rejected the State’s argument that the defendant’s actions were analogous to that of a defendant committing custodial interference, an offense the court had recognized as a continuing offense, because the custodian’s rights are violated each day the child is kept from the custodian. The court opined:
The state fails to recognize that the statute defines abuse of a corpse as the performance of specific actions at specific times. Disinterring, removing, or carrying away a corpse are all discrete events that are completed once they have occurred. Treating a corpse in a manner not recognized by community standards can also be a discrete act that occurs at a specific moment. In this case, once the bodies were buried, defendant was no longer treating them in any way; his actions were completed. In contrast, a person who commits custodial interference retains control of the child every day that the interference continues and thus continualiy commits the crime, just as a person who retains stolen property continually commits the crime of theft. There can be situations in which abuse of a corpse is also a continuing crime. For instance, if there were evidence that defendant had kept a skull in his house during the period alleged in the indictment, the jury could have found that he was continuing to treat a corpse in a manner not recognized by generally accepted community standards. However, in the absence of such evidence, abuse of a corpse terminates when the defendant’s actions terminate. For that reason, the statute of limitations forecloses prosecution of these counts. We therefore reverse defendant’s convictions of abuse of a corpse.
Id.
We agree with the reasoning of the Oregon court. In the instant case, once McClanahan disposed of the body parts in the pond, she was no longer physically mistreating the corpse. She was no longer “treating” them in any way; her action of physical mistreatment — disposing of the body parts in the pond — was completed.
Finally, while we recognize that we held in Dougan that the appellant’s placement of her baby’s corpse in a dumpster constituted neglect and a form of abuse of a corpse, the question of a continuous offense was not at issue in that case. The offense of abuse of a corpse terminates when the defendant’s actions terminate. In this case, the evidence in the record is that McClanahan’s actions terminated in January 2003, some four years prior to the filing of the felony information. While there was certainly evidence that McCla-nahan abused the corpse of her husband, she was not charged with the crime of abuse of a corpse before the expiration of the limitations period and, as such, the circuit court abused its discretion in denying her motion to dismiss.
Reversed and dismissed.
Circuit court reversed; court of appeals affirmed.
DANIELSON, J., not participating.
. Abuse of a corpse is a Class D felony. Ark. Code Ann. § 5-60-101(b) (Repl.2005). A prosecution for a Class D felony must be commenced within three years after the commission of the offense. Ark.Code Ann. § 5-1-109(b)(2) (Repl.2006).
. In Beatty, we noted, "Every time such person undertakes to practice under his license he keeps up and continues the fraud initiated when he obtained by false representations his pretended authority to practice.” 203 Ark. at 300, 156 S.W.2d at 249.
. Oregon’s abuse-of-a-corpse statute is similar to our statute. In Harelson, the court noted that "ORS 166.085(1) provides that a person commits [the offense of abuse of a corpse] if the person either (a) abuses a corpse or (b) disinters, removes, or carries away a corpse. ORS 166.085(3) provides that abusing a corpse ‘includes treatment of a corpse by any person in a manner not recognized by generally accepted standards of the community.’ ” Harelson, 938 P.2d at 766-67.
. There was evidence that, in April 1992, which was prior to the period alleged in the indictment, the defendant possessed in his home a human skull that may have come from one of the bodies. Id. at 764-65, 767 n. 3. | [
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COURTNEY HUDSON HENRY, Judge.
| , Appellant CEI Engineering Associates, Inc., (CEI) appeals an order of the Washington County Circuit Court denying its motion to compel arbitration of claims asserted against it by appellee Elder Construction Company (Elder). After first finding that some of Elder’s claims were subject to arbitration and allowing Elder time to amend its complaint, the trial court ultimately found that all of Elder’s claims sounded in tort and were thus not subject to arbitration under the Arkansas Uniform Arbitration Act (AUAA). On appeal, CEI concedes that two counts of Elder’s amended complaint present legitimate tort ^claims, which are not suitable for arbitration. We agree that those claims sound in tort, and we affirm the trial court’s ruling as to those two claims. CEI argues, however, that Elder’s remaining five claims sound in contract and are, therefore, subject to arbitration. We find merit in this argument and reverse and remand for the entry of an order compelling arbitration of these claims.
In 2005, Elder engaged CEI to perform engineering services in connection with six construction projects that are referred to as Fox Creek, Sagefield, Chester, Hidden Lake, Avignon Court, and Glenstone. The parties’ agreement is contained in separate proposals submitted by CEI for each project. The proposals incorporated by reference a document entitled “Standard Terms and Conditions,” which contained the following provision:
DISPUTE RESOLUTION
Client and CEI agree to attempt to settle all claims, disputes or controversies arising out of, or in relation to the interpretation, application or enforcement of the Agreement by direct discussions; however, absent resolution by direct discussions, they agree to attempt to settle disputes by formal mediation according to the Construction Industry Mediation Rules of the American Arbitration Association. Absent resolution by mediation, they agree to binding arbitration under the Rules of the American Arbitration Association.
On October 4, 2007, Elder filed a complaint against CEI alleging negligence, fraud, and breach-of-contract claims concerning the Fox Creek and Sagefield projects. With regard to the Fox Creek project, Elder asserted that its purchase of the property was subject to a contingency that the land had access to adequate sewage; that CEI negligently | oconcluded and advised that the property had such access; and that Elder purchased the property for $600,000 in reliance on this advice, which proved to be wrong. Elder asserted that CEI’s representative, Johnie Long, the manager of the Fox Creek Project, fraudulently concealed the fact that the property did not have access to adequate sewage and that CEI continued to perform and bill for services on the project that Elder would not have authorized had it known the facts. Concerning the Sagefield project, Elder asserted claims for breach of contract and negligence. Elder alleged that CEI breached the contract by routinely over-billing for its services; that it refused to provide copies of plans; and that it threatened to halt performance of additional services unless it was paid. Elder also alleged that CEI negligently designed plans for the use of single-barrel elliptical pipe when the project required a two-barrel pipe.
In response to the complaint, CEI filed a motion to compel arbitration in keeping with the dispute resolution provision in the agreement. The trial court held a hearing on this issue on January 22, 2008, and it denied CEI’s motion to compel arbitration of Elder’s negligence and fraud claims but granted the motion to compel arbitration with respect to the breach-of-contract claims. The trial court allowed Elder thirty days to amend its complaint to assert claims with regard to the other projects.
On February 27, 2008, Elder filed an amended complaint that deleted all express reference to claims for breach of contract. In Count I of the amended complaint, Elder asserted that CEI violated the Arkansas Deceptive Trade Practices Act (ADTPA), found |4at Arkansas Code Annotated sections 4-88-101 to -503 (Repl. 2001 & Supp.2007). In stating this claim, Elder alleged that CEI represented that it would provide services in a timely manner despite knowing that it was understaffed; that CEI failed to advise that Long would be responsible for the projects despite knowing that he was not a licensed engineer; that CEI grossly over-billed for its services on all projects except Fox Creek; that it threatened to cease work until disputed billings were paid; and that it refused to provide digital copies of plans unless Elder executed a release. Elder claimed that it was entitled to recover damages for the cost of delays occasioned by CEI’s conduct and to recoup the cost of hiring other engineers to complete the projects. In Counts II and III, Elder reasserted its negligence and fraud claims against CEI with regard to the Fox Creek project. In Count IV, Elder restated its negligence claim with respect to the Sage-field project. In Count V, Elder claimed that CEI negligently created a drainage error and performed an incorrect survey of the Hidden Lake project. In Count VI, Elder alleged that CEI negligently drew plans of the Chester project depicting a water line in an incorrect location. And finally in Count VII, Elder asserted that CEI negligently advised that an eight-acre plot in the Avignon Court project was usable and that it negligently estimated the amount of fill dirt required for that project. All of the negligence counts alleged that CEI’s actions caused a delay in finishing the projects and required Elder to hire other engineers to complete CEI’s work.
The trial court conducted a second hearing to determine whether the claims asserted by Elder in the amended complaint were subject to arbitration. Applying the decision in Terminix Int’l v. Stabbs, 326 Ark. 239, 930 S.W.2d 345 (1996), the trial court found that all of Elder’s claims involved either negligence, fraud, or a violation of the ADTPA and were not subject to arbitration under Arkansas law. The court entered a written order to that effect on May 19, 2008. This timely appeal followed.
At the outset of this appeal, CEI concedes that Elder stated tort claims of negligence and fraud with regard to the Fox Creek project. CEI’s argument on appeal, however, is that the other claims asserted by Elder, though disguised as tort claims, are in reality claims for breach of contract and that the trial court erred by not compelling arbitration as to these remaining claims.
We begin by noting that an order denying a motion to compel arbitration is an immediately appealable order. Ark. R. App. P.—Civil 2(a)(12) (2008); Showmethemoney Check Cashers, Inc. v. Williams, 342 Ark. 112, 27 S.W.3d 361 (2000). We review the trial court’s order denying a motion to compel de novo on the record. Advance Am. Servicing of Ark., Inc. v. McGinnis, 375 Ark. 24, 289 S.W.3d 37 (2008). In a de novo review, we analyze the evidence and the law without giving deference to the trial court’s rulings. Terminix Int’l Co. v. Trivitt, 104 Ark.App. 122, 289 S.W.3d 485 (2008).
We are also mindful that arbitration is strongly favored as a matter of public policy. Ruth R. Remmel Revocable Trust v. Regions Fin. Corp., 369 Ark. 392, 255 S.W.3d 453 (2007). Arbitration is also looked upon with approval by courts as a less expensive and more expeditious means of settling litigation and relieving docket congestion. Carmody v. Raymond James Fin. Servs., 373 Ark. 79, 281 S.W.3d 721 (2008). Notwithstanding this judicial endorsement of arbitration, Arkansas law prohibits the arbitration of tort matters. Ark.Code Ann. § 16-108-201(b)(2) (Repl. 2006). It is true that legitimate tort claims can arise out of contractual relationships. Lehman Props. v. BB & B Constr. Co., 81 Ark.App. 104, 98 S.W.3d 470 (2003). However, Arkansas courts will not declare a matter nonarbitrable merely because of the manner in which a party chooses to characterize its action; instead, the claim must legitimately sound in tort. Terminix Int’l v. Stabbs, supra; Lehman, supra.
The supreme court has remarked that the difference between an action in contract and one in tort is not exact, but the basic distinction is that the purpose of the law of contract is to see that promises are performed, while the law of torts provides redress for various injuries. Bankston v. Pulaski County Sch. Dist., 281 Ark. 476, 665 S.W.2d 859 (1984) (citing Atkins Pickle Co., Inc. v. Burrough-Uerling-Brasuell Consulting Eng’rs, Inc., 275 Ark. 135, 628 S.W.2d 9 (1982)). Our task, on de novo review, is to determine the true character of Elder’s causes of action. See L.L. Cole & Son, Inc. v. Hickman, 282 Ark. 6, 665 S.W.2d 278 (1984).
In L.L. Cole & Son, Inc., the supreme court observed that, generally speaking, a breach of contract is not treated as a tort if it merely consists of a failure to act (nonfeasance), as distinguished from an affirmatively wrongful act (misfeasance). In that case, the supreme court noted a tendency to extend tort liability for misfeasance whenever 17the misconduct involves a foreseeable and unreasonable risk of harm to the plaintiffs interest. In Westark Specialties v. Stouffer Family Ltd., 310 Ark. 225, 836 S.W.2d 354 (1992), the supreme court applied this test and reached the conclusion that a tenant could bring a negligence action against a landlord who failed to maintain a sprinkler system where poor maintenance of the system caused flooding and resulting damage to the tenant’s inventory. The court stated that water damage from a poorly maintained sprinkler system was obviously foreseeable and involved an unreasonable risk of harm. The court thus concluded that the tenant’s claims sounded in tort, even though the requirement to maintain the facilities was noted in the parties’ lease agreement.
Similarly, in Terminix Int’l v. Stabbs, supra, the supreme court analyzed the allegations of wrongful acts of misfeasance arising out of the performance of termite service and inspection agreements pertaining to a home that sustained considerable damage from a termite infestation. The court reasoned that a termite company’s failure to properly inspect a residence and report the extent of damage involved a foreseeable and unreasonable risk of harm to potential buyers of the residence. In that case, the supreme court affirmed the trial court’s denial of a motion to compel arbitration in finding that the true character of the claims sounded in tort, despite the fact that the cause of action grew out of a contractual relationship.
On facts closely resembling those in the case at bar, in Lehman Props. v. BB & B Constr. Co., supra, we reversed an order denying a motion to compel arbitration where the |strial court found that the developer’s claims against a construction company sounded in tort. The allegations in the complaint against the construction company included claims of false and misleading statements that were made with regard to such things as the location of streets and utilities, the timeliness of performance, the completeness and accuracy of plans and specifications, the terms of compensation, and the volume of materials present. The complaint also alleged that the construction company failed to locate streets and utilities, failed to timely and correctly perform work, failed to make prompt payment, failed to complete accurate plans and specifications, and failed to estimate volumes of materials present. Upon our review, we looked beyond the developer’s characterization of its claims and concluded that the claims did not legitimately sound in tort. We held that the true character of the claims was for breach of contract.
The supreme court has also pointed out that the damages prayed for are a factor in determining the true character of a claim. Bankston v. Pulaski County Sch. Dist., supra. In Bankston, the complaint alleged that the school district had installed a defective septic tank. Although the complaint mentioned that the defect permitted the leakage of sewage, the prayer for relief sought damages only for the cost of correcting the defect, not damages occasioned by the leak. Because the complaint sought enforcement of a promise and not the redress of injury, the supreme court determined that the true character of the cause of action was for breach of contract, not tort.
| ¡¡Guided by these authorities, we now consider each count of the amended complaint in the instant case to determine its true character. In Count I of the amended complaint, Elder alleges the violation of the ADTPA. Ordinarily, the responsibility for the civil enforcement of the ADTPA rests largely with the Attorney General. Ark. Code Ann. § 4-88-113(a)-(e) (Repl.2001); Wallis v. Ford Motor Co., 362 Ark. 317, 208 S.W.3d 153 (2005). However, pursuant to subsection (f) of section 4-88-113, “[a]ny person who suffers actual damage or injury as a result of an offense or violation as defined in this chapter has a cause of action to recover actual damages, if appropriate.” See FMC Corp., Inc. v. Helton, 360 Ark. 465, 202 S.W.3d 490 (2005). In order to state a claim for an unfair business practice, Elder was required to allege facts showing that CEI engaged in an unconscionable, false, or deceptive act or practice in business, commerce or trade. Ark.Code Ann. § 4-88-107(a)(10) (Supp.2007).
Here, Elder alleged that CEI falsely represented that it would perform services in a timely manner despite knowing that it was understaffed; that CEI failed to advise that Long would be responsible for the projects despite knowing that he was not a licensed engineer; that CEI provided unrealistic bids and grossly overcharged for its services; that CEI threatened to stop performance unless paid; and that CEI refused to provide digital copies of plans unless Elder signed a release. In its prayer for relief, Elder sought damages to recover the cost of excessive billing, the costs arising from delays, and the cost to hire other engineers to reproduce the work.
| ulAlthough labeled as “deceptive” and “unconscionable,” we are not persuaded that the alleged wrongs are of the type and character as to bring them within the purview of the ADTPA. The claims of inadequate staffing and the use of unqualified personnel represent nothing more than Elder’s dissatisfaction with how CEI set about to fulfill its obligations under the agreement and with the untimeliness of CEI’s performance. In addition, the agreement provided that CEI retained ownership of the plans it created but that Elder was entitled to make and retain copies of the plans for its use. If, as alleged, CEI failed to provide copies of the plans, then it may have breached the contract. When the performance of a duty under a contract is contemplated, the nonperformance of that duty is most typically known as a breach. Taylor v. George, 92 Ark.App. 264, 212 S.W.3d 17 (2005). However, a breach of contract, in and of itself, is not tortious, even when it is alleged that the breach was motivated by malice. See Quinn Cos., Inc. v. Herring-Marathon Group, Inc., 299 Ark. 431, 773 S.W.2d 94 (1989). We also note that it has long been the law that a party may abandon further performance of a contract when the other party fails to pay for services rendered. See Tech-Neeks, Inc. v. Francis, 241 Ark. 390, 407 S.W.2d 938 (1966). With regard to the allegation that CEI over-billed for its services, we note that the contracts for each project contained fixed prices for certain services and provided that any additional 1 n services performed on the respective projects would be billed at an hourly rate in accordance with an attached schedule of charges. In alleging that it was grossly overcharged, Elder has merely tallied the fixed prices contained in each project and compared those sums to the actual amounts billed. Elder neglected, however, to take into consideration the charges for additional work and has not alleged that the additional charges were unreasonable. As such, Elder failed to allege sufficient facts to show that it was overcharged, much less grossly overcharged. Even accepting all the allegations in Count I as true, the claims made by Elder are nonetheless devoid of any factual bases on which we could conclude that CEI engaged in deceptive business practices. Accordingly, we have no choice other than to hold that the claims stated by Elder in Count I constitute ordinary breach-of-contract claims that do not rise to the level of violating the ADTPA. It is thus our conclusion the trial court erred by not compelling arbitration of these contract claims.
Moving to Count II of the amended complaint, Elder alleged that CEI negligently determined that there was adequate sewage for the Fox Creek project and that it purchased the property for $600,000 in reliance on this advice, which proved to be incorrect. Elder’s claim for damages included the diminished value of the land and the sums it has expended and will expend on the failed project. As in Westark Specialties, supra, and Stabbs, supra, Elder’s negligence claim involves misfeasance that caused injuries that were a foreseeable consequence of the alleged wrongful acts. Obviously, CEI’s failure to accurately assess the availability of sewage access involved a foreseeable and unreasonable risk of harm to Elder’s | ^interests in developing the property as it had planned, so the true character of these claims sounds in tort. CEI’s concession that the allegations of negligence represent legitimate tort claims is well taken, and we affirm the trial court’s ruling denying arbitration of this claim.
In Count III, Elder alleged that CEI’s representative fraudulently concealed the fact that the Fox Creek project did not have adequate access to sewage and that CEI continued to perform work and bill for services that Elder would not have authorized had it known that the project was in jeopardy. On this count, Elder sought to recover the cost of additional monies it expended in an effort to complete the project or the costs associated with finding other uses for the property. The elements of fraud are: (1) a false representation of a material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) in tent to induce action or inaction in reliance on the representation; (4) justifiable reliance on the misrepresentation; and (5) damage suffered as a result of the reliance. Rice v. Ragsdale, 104 Ark.App. 364, 292 S.W.3d 856 (2009). Elder clearly pled sufficient facts to state a claim for fraud. We acknowledge CEI’s concession that this claim also sounds in tort, and we affirm the trial court’s ruling denying arbitration of this claim.
In the remaining counts, Elder asserted various claims of negligence with regard to the other projects, including allegations that CEI negligently: drew plans for use of the wrong type of pipes; mislo-cated water lines; performed an incorrect survey; created a drainage error; miscalculated the amount of fill dirt needed; and advised that an eight-acre | lsplot was usable. The damages claimed for these acts of alleged negligence included the cost of delay and the expense of hiring other engineers to complete the work.
As a general proposition, we agree with Elder that a plaintiff is the master of its complaint. However, as compared to the more factually specific allegations made with regard to the Fox Creek project, the claims of negligence regarding the other projects are vague and lacking in factual detail. As pled, absent are any specific details that would support a determination that the true character of these claims lies in tort, and we cannot conclude that these claims legitimately sound in tort. Unlike the plaintiffs in Westark Specialties, supra, and Stabbs, supra, Elder did not allege that any act of misfeasance resulted in any specific harm or injury. Elder sought only to recover the expenses occasioned by delays and the cost of hiring others to complete the work, which are classic contract damages. See MDH Builders, Inc. v. Nabholz Constr. Corp., 70 Ark.App. 284, 17 S.W.3d 97 (2000). Therefore, although Elder may have couched these claims in terms of generalized negligence, its prayer for damages reveals that the basic object of the claims was to obtain compensation for damages associated with a breach of contract, not for damages to redress any tortious injury. As did the supreme court in Bankston v. Pulaski County Sch. Dist., supra, we believe that the prayer for damages reveals the true character of these claims to be contractual, not tortious. See also Lehman, supra. Accordingly, we reverse the trial court’s decision on this point as well.
[14In conclusion, we affirm the trial court’s decision that Counts II and III are not subject to arbitration. We reverse and remand the remaining counts for the entry of an order compelling arbitration of these contract claims.
Affirmed in part; reversed and remanded in part.
PITTMAN and GLADWIN, JJ, agree.
. The AUAA is found at Arkansas Code Annotated sections 16-108-201 to -224 (Repl. 2006). The trial court found that the AUAA applied, rather than the Federal Arbitration Act, because the transactions did not involve interstate commerce. CEI does not challenge that decision in this appeal.
. The parties in this case have proceeded under the assumption that any violation of the ADTPA is an action in tort. We confine our review to the parties' arguments and express no opinion on this matter. | [
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ROBERT L. BROWN, Justice.
| Appellant Thomas Lewis Travis appeals from a decision of the Arkansas Supreme Court Committee on Professional Conduct (“Committee”) finding him in violation of Rule 1.16(d) of the Arkansas Rules of Professional Conduct and reprimanding him and ordering him to pay costs in the amount of $350 and a fine in the amount of $1000.
The record reflects that Travis represented J. Matilde Martinez in various legal matters beginning in 2001. In 2005, Travis’s representation of Martinez ceased. Sometime later, Martinez retained the legal services of Misty Borkowski. On April 4, 2007, Borkowski sent Travis a letter, stating that she had been retained by Martinez and his business, Twin Brother I.N.C. The letter asked Travis for “any and all of [Martinez’s] files, personal and/or 12business, specifically, but not limited to” six immigration petitions Martinez had filed on behalf of three family members and three workers. Attached to the letter was a signed authorization from Martinez for the release of his personal and business files. Travis did not respond. Travis also did not respond to Borkowski’s telephone calls on Martinez’s behalf.
On May 18, 2007, Borkowski hand delivered a copy of her April 4, 2007 letter to Travis’s office and visited with him. During the visit, Travis informed Borkowski that it was his law firm’s policy not to provide his clients with their files and that she should get the documents from Martinez because Travis had sent him the various orders and petitions at the time of their filing. Travis did agree to provide Borkowski with approval notices and final disposition notices from the various immigration matters. On June 19, 2007, having not received any of Martinez’s documents, Borkowski sent another letter to Travis. In this letter, Borkowski memorialized her May 18, 2007 conversation with Travis and demanded that Travis release Martinez’s file immediately. After Travis failed to comply with her demand, Borkowski and Martinez contacted the Office of Professional Conduct (“the Office”).
Stark Ligón, the Executive Director of the Office, contacted Travis about Borkow-ski’s problem in obtaining the Martinez file. In a letter dated September 24, 2007, Travis responded that it was his “longstanding practice and policy” that the files in his law | :ioffice were his property. He claimed that the contents of Martinez’s file were his work product to which Martinez was not entitled. Travis further wrote that “[c]opies of applications, notices received from USCIS, orders from Immigration Court, etc. were provided to [Martinez] at the time prepared and signed ... or whenever received from the agency or court.” The following month, Travis provided a few documents from his file to Borkowski, including two approval notices concerning Martinez’s wife and mother and “a couple of personal papers.”
On January 28, 2008, Travis was served with a formal disciplinary complaint filed by the Committee and supported by affidavits from Martinez and Borkowski. The complaint alleged that he had violated Arkansas Rule of Professional Conduct 1.16(d) by failing to surrender papers and property to which Martinez was entitled after their professional relationship was terminated. Travis responded and maintained that Martinez already possessed everything to which he was entitled and that anything else in the file was his attorney work product and property; that the file did not contain any of Martinez’s original documents or property; and that “if new counsel does not know what to put on any new applications, and she is afraid of conflicting information, I can advise that I always put the truth, as it was told to me by Mr. Martinez.”
Travis also filed a personal affidavit with his answer in which he raised the issue of whether he had an obligation to protect the personal information of the individuals on htwhose behalf Martinez had filed the six immigration petitions. In addition, he asserted that Borkowski could obtain any information she needed from the U.S. Citizenship and Immigration Services, the Little Rock Immigration and Customs Enforcement Office, or through a freedom of information request. Borkowski filed a response as the complaining witness in which she claimed that “the only real issue is for [Martinez] to obtain a copy of files regarding his business and personal immigration matters,” and that “[fjocus should be on [Travis’s] refusal to provide the files and not the idiosyncrasies of immigration law.”
In April 2008, Panel B of the Committee considered the formal complaint, Travis’s response, and Borkowski’s rebuttal and concluded by ballot vote that Travis’s conduct violated Rule 1.16(d). Travis then exercised his right to a de novo public hearing befoi’e a different panel of the Committee under section 10.D.3 of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law. On July 18, 2008, the requested hearing was held before Panel A of the Committee. At the hearing, Panel A heard the testimony of Travis, Borkow-ski, and Martinez. On July 29, 2008, the panel filed its findings and order with the Clerk of the Arkansas Supreme Court, in which the panel found Travis in violation of Rule 1.16(d) of the Arkansas Rules of Professional Conduct. The panel then reprimanded him and ordered him to pay costs in the amount of $350 and a fine in the amount of $1000.
| BTravis now contends on appeal that the Committee erred in finding that his conduct violated Rule 1.16(d) of the Arkansas Rules of Professional Conduct. Travis argues, initially, that the immigration matters that he handled for Martinez involved “dual representation” and that he had a duty of loyalty and a duty of confidentiality to the six individuals on whose behalf Martinez petitioned. Next, Travis claims that Martinez had already received everything to which he was entitled because he was provided with copies of all of the documents prepared on his behalf, including the end products, during the course of his representation. Plus, he maintains that all of Martinez’s original documents were copied and returned to him. Travis points out that he does not maintain a file on Martinez’s behalf and the only documents in the file that he has not previously turned over consist of copies, internal notes, and research that he considers his work product. As a final matter, he emphasizes that he has taken the necessary steps to protect Martinez’s interests and that it has not been alleged that he was negligent in his representation or that he left any matter unfinished.
The Office responds that Rule 1.16(d) does not require a problem with an attorney’s work or that a matter be incomplete as a prerequisite to the lawyer’s duty to return a client’s file. The Office asserts that the Committee’s finding was not clearly erroneous because it was undisputed that Travis’s representation of Martinez had ceased, and when asked to provide the contents of Martinez’s file, Travis refused. Responding to Travis’s argument |fithat because he provided the documents once during the course of his representation he no longer had a duty to provide duplicates, the Office argues that the attorney, and not the client, has the duty to maintain files and documents and that this requirement goes hand in hand with the privilege of practicing law. The Office adds that Travis’s argument ignores the fact that Martinez paid for the documents in the file. As a final point, the Office notes that the problem with Travis’s “dual representation” argument is that he openly admits that he provided the immigration documents to Martinez on behalf of family members and workers at the time they were filed. In addition, he refused to provide any legal documents to Martinez upon request on matters unrelated to the immigration petitions.
This court reviews a decision of the Committee de novo on the record and pronounces judgment as if its opinion were that of the Committee. Procedures Regulating Prof'l Conduct of Attorneys § 12.B; Cortinez v. Supreme Court Comm. on Prof'l Conduct, 332 Ark. 456, 966 S.W.2d 251 (1998). This court will not reverse the Committee’s action unless its findings were clearly erroneous. Arens v. Comm. on Prof'l Conduct, 307 Ark. 308, 820 S.W.2d 263 (1991). The Committee is in a superior position to determine the credibility of the witnesses and weigh the preponderance of the evidence. Colvin v. Comm. on Prof'l Conduct, 309 Ark. 592, 832 S.W.2d 246 (1992).
In the instant case, Travis does not dispute the fact that he failed to provide Martinez with the documents from his file upon request. Instead, he offers several reasons for why he |7believes he was not required to do so. He also urges this court to define what a client is entitled to under Rule 1.16(d) and, specifically, what is encompassed by the term “papers and property.”
We turn then to the language of Rule 1.16(d):
Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.
Arkansas Rules of Profl Conduct 1.16(d) (2008).
Other states have adopted two general approaches that offer guidance for when a client is entitled to his or her file after termination of representation. The first is the “entire file” approach, which is followed by the majority of jurisdictions. Under this approach, the client is presumptively entitled to everything in his or her own file, including the attorney’s work product, subject to certain narrow exceptions. See, e.g., Iowa Supreme Court Attorney Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812 (Iowa 2007) (attorney’s conduct violated a rule providing that “a lawyer shall promptly deliver to the client or third person any funds or other property” that the client is entitled to receive); Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn L.L.P., 91 N.Y.2d 30, 666 N.Y.S.2d 985, 689 N.E.2d 879 (1997) (civil action between firm and its | ¡¡former client over right to client’s papers where court looked to other states interpreting their rules).
The Restatement (Third) of the Law Governing Lawyers has endorsed the “entire file” approach: “On request, a lawyer must allow a client or former client to inspect and copy any document possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse.” The Restatement (Third) of the Law Governing Lawyers § 46(2). Comment c to this section makes it clear that this right extends not only to documents placed in the lawyer’s possession but also to “documents produced by the lawyer.” The Restatement further provides several exceptions to this rule, noting that a lawyer may refuse disclosure when compliance would violate the lawyer’s duty to another, when the lawyer is protecting the interests of the client, or when the documents were reasonably intended only for internal review.
The second approach is the “end product” approach, which has been adopted by a minority of jurisdictions. Under this analysis, a client is entitled to documents that are the end product of an attorney’s representation, including pleadings, correspondence, and other documents “exposed to public light” by the attorney in furtherance of the client’s interests. Gottschalk, 729 N.W.2d at 820 (citing Sage Realty Corp., 666 N.Y.S.2d 985, 689 N.E.2d at 881 (quoting Fed. Land Bank v. Fed. Intermediate Credit Bank, 127 F.R.D. 473, 479 (S.D.Miss.1989))). Under an “end product” analysis, a client is not entitled to the attorney’s work product, which [ concludes the documents the attorney used “ ‘to reach the end result,’ such as internal legal memoranda and preliminary drafts of pleadings and legal instruments.” Sage Realty Corp., 666 N.Y.S.2d 985, 689 N.E.2d at 882 (quoting Fed. Land Bank, 127 F.R.D. at 479). This view holds that the client is only entitled to access the attorney’s work product “to the extent of a demonstrated need in order to understand the end product documents, with the burden of justification on the client.” Sage Realty Corp., 666 N.Y.S.2d 985, 689 N.E.2d at 882 (citing Corrigan v. Armstrong, Teasdale, Schlafly, Davis & Dicus, 824 S.W.2d 92 (Mo.App.1992)).
We further note that some states provide specific guidance to attorneys on what must be turned over to the client. For example, a comment to the North Carolina Rules of Professional Conduct provides:
Generally, anything in the file that would be helpful to successor counsel should be turned over. This includes papers and other things delivered to the discharged lawyer by the client such as original instruments, correspondence, and canceled checks. Copies of all correspondence received and generated by the withdrawing or discharged lawyer should be released as well as legal instruments, pleadings, and briefs submitted by either side or prepared and ready for submission. The lawyer’s personal notes and incomplete work product need not be released.
N.C. State Bar Revised Rules of Profl Conduct, Rule 1.16, Comment 10 (2006).
Arkansas has not formally adopted either the “entire file” or the “end product” approach, but that fact is not determinative for a resolution of this case. Here, Travis’s conduct violates either approach because he failed to provide Martinez with even the end |inproduct of his representation and argued in his defense that because he provided the documents once during the course of his representation, he no longer had a duty to provide duplicates.
In Resolution Trust Corp. v. H-, P.C., 128 F.R.D. 647, 650, (N.D.Tex.1989), the United States District Court interpreted a Texas rule that provided that a lawyer must “promptly pay or deliver to the client as requested by a client, ... other properties in the possession of the lawyer which the client is entitled to receive.” In that case, the court rejected the same duplicates argument offered by Travis and, in doing so, said:
An attorney is hired to represent the interests of his client, and every service provided by the attorney, including the creation of legal memoranda and attorney’s notes and the copying of documents, is paid for by the client. To allow the attorney to decide which materials may or may not be revealed to the client from its files would deny the client the full benefit of the services for which he paid, often dearly. Even more important, giving such a power to an attorney would fundamentally undermine the fiduciary nature of the relationship between an attorney and a client.
Resolution Trust Corp. v. H-, P.C., 128 F.R.D. 647, 650, (N.D.Tex.1989). We reject Travis’s duplicates argument because it fails to acknowledge that the client paid for the documents in the file. Nor do we believe that it is the client’s duty to maintain a file on his or her own behalf. This court has previously held that Rule 1.16(d) “places an affirmative duty on the attorney, not the client, to protect the client’s interests upon termination of representation.” Cortinez, 332 Ark. at 466, 966 S.W.2d at 256.
hiTravis further claims that he has taken the necessary steps to protect Martinez’s interests and that it has not been alleged that he was negligent in his representation or that he left any matter unfinished. Thus, he seeks to distinguish his conduct from that of the attorneys found to be in violation of Rule 1.16(d) in Arens v. Committee on Professional Conduct, 307 Ark. 308, 820 S.W.2d 263 (1991), and Cortinez v. Supreme Court Committee on Professional Conduct, 332 Ark. 456, 966 S.W.2d 251 (1998). And yet, the plain language of Rule 1.16(d) places a duty on an attorney to surrender the papers and property to which the client is entitled upon termination of representation irrespective of negligent conduct or the fact that the representation has been completed. As the Office notes, nothing in the rule requires as a condition some problem with an attorney’s work or negligent performance or that a matter be complete or incomplete before the duty to return a client’s files can be imposed. Indeed, this court in Arens and Cortinez did not provide for such a requirement.
With respect to Travis’s dual representation argument, we agree with the Office that this argument is unavailing. Travis’s representation of Martinez did not consist solely of immigration matters on behalf of third-party beneficiaries but included Martinez’s personal naturalization and citizenship matters as well as other general legal matters such as the incorporation of Martinez’s business. Yet, Travis refused to provide any documents to Martinez upon request. Furthermore, it is undisputed that Travis provided copies of the immigration documents to Martinez at the time they were filed and provided two approval 112notices concerning Martinez’s wife and mother in October 2007. In light of these facts, we agree with the Office that Travis’s “dual representation” argument is an attempt at an after-the-fact justification for his refusal to release Martinez’s file when he had made partial release of information previously.
Though having in place a specific comment to Rule 1.16(d) offering guidance under either the “entire file” approach or the “end product” approach is not essential for the resolution of the instant case, we commend the two approaches to our Professional Conduct Committee for its evaluation and study, looking toward the desirability of adopting either approach as a comment to Rule 1.16(d).
Affirmed.
. Travis's representation of Martinez consisted primarily of immigration matters but also included general legal mailers, including the incorporation of Martinez’s business. | [
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BART F. VIRDEN, Judge
h Travelers Casualty and Surety Company of America (Travelers) and Tycor Industries LLC (Tycor) appeal the circuit court’s order for Tycor to pay Cummins Mid-South LLC (Cummins) $59,115.14 plus costs, interest, and attorney’s fees on the grounds that (1) the language of the lien release was ambiguous, (2) Cummins did not waive its right to recover on the bond, and (3) Tycor was unjustly enriched. This appeal follows.
On appeal, Tycor asserts that the terms of the release were unambiguous, and that Cummins waived its right to payment under the bond by signing the release. Additionally, Tycor asserts that Cummins is not entitled to recover under the doctrine of unjust enrichment because the existence of a contract bars such recovery. We agree, and we reverse the circuit court’s order.
|⅞1. Facts
Tycor, a general contractor, bonded by Travelers, subcontracted with ARC Electrical (ARC) for installation and electrical work on the Armed Forces Reserve Center project (project). ARC purchased a generator from Cummins. ARC began to have problems performing, and Tycor fired ARC before the job was completed. On August 3, 2011, John Virden of Tycor contacted Nick Grandison, a project manager at Cummins, to ascertain if any money was owed for supplies relating to the project. Initially, Grandison ■ told Virden that Cummins was paid in full. However, on September 20, 2011, Cummins contacted Tycor and explained that it had made a mistake and their records showed that Ty-cor actually owed $59,115.14 for the generator. It was undisputed that Tycor had assumed the liabilities of ARC regarding this job. Tycor took no action. In November 2011, Tycor received written notice that a $2,748.16 bill from a September 2, 2011 service call on the generator had gone into collection. The invoice showed the date of the service call, the parts and labor charges, plus various charges related to the repair of the part. On December 1, 2011, Tycor paid the bill with a check dated December 1, 2011, and wrote “Paid in Full-RE: Armed Forces Res. Ctr.” Ty-cor prepared the release, which was dated December 13, 2011. It was entitled “SUBCONTRACTOR/MATERIALMAN ' UNCONDITIONAL WAIVER AND RELEASE UPON FINAL PAYMENT,” and was signed by Cummins’s chief financial officer, Mark Whitehead. It contained the statement “covers the full and final payment of the |scontract amount for labor, services and equipment, or material furnished on the job of Armed Forces Reserve Center.” Whitehead testified he handled unpaid accounts as a part of his job, regularly signing lien waivers and that he signed the release drafted by Tycor. He explained that he did not contact Tycor to discuss the release. Whitehead testified that he knew what a final lien waiver was, and he knew that if he signed it, Cummins was not going to get paid any more on that project. He testified that he did not check to see if any money was owed by Tycor on the job.
Three more times in January 2012, the generator required repair, which Cummins provided. ■ The total bill for the three service calls was $6,794.64, which Tycor paid. However, for these repairs, Cummins prepared its own lien release, specifically noting that the generator itself had not been paid for. On March 28, 2012, Cummins submitted a notice of subcontractors claim against the contractor’s bond for the amount of the generator, transfer switch, and start-up materials. Travelers denied the claim based on the execution of the lien release. On July 2, 2012, Cummins filed a complaint against Tycor and Travelers, asking for payment for the generator, interest, and attorney’s fees. Tycor filed a motion to dismiss with its answer, which the circuit court denied.
II. The Circuit Court’s Order
On March 7, 2014, the circuit court entered an order finding that Cummins did not waive its bond claim on the grounds that the language of the first release was ambiguous and did not indicate it was payment for anything other than the service call. The circuit court found that the language was ambiguous, considering extrinsic evidence, and construed the |4terms of the lien release in favor of Cummins:
[Tjhere was nothing in the proof, circumstantial or otherwise, to indicate that Cummins knew that by accepting the check for $2,748.16 that it was releasing its right to be paid for the generator. The definition of waiver requires full knowledge of material facts and an action which is inconsistent with the right or intention to rely upon the right.
A waiver requires consideration.... There was nothing [in the lien release] to indicate that it [the check] was consideration for payment of the generator purchased by ARC.
The circuit court found that “Cummins provided the generator and was never paid for it” and hence, Tycor was unjustly enriched. Specifically, the circuit court found Tycor was unjustly enriched in the amount of $59,115.14 by its “retention of the generator at the work site ... for the project owner, and the failure of the bonding company to pay for it.”
The circuit court also found that Cum-mins could recover under the bond based on Tycor’s unjust enrichment:
The purpose of the bond under A.C.A. section 18-44-501, et seq. was to provide for unforeseen eventualities. Tycor was obligated to provide the generator under the overall set of contracts, and for Ty-cor to not pay for it is a windfall benefit to Tyeor[.]
The circuit court denied Tycor’s defensive claims of detrimental reliance, estop-pel, and payment on the ground that Tycor did not meet its burden to assert the defenses. In its final finding, the circuit court found that the bond should have covered the generator: “The purpose of the statute requiring a bond for public works projects is to provide for payment of subcontractors of materialmen in cases such as this.” The circuit court awarded Cummins $59,115.14 plus costs, 12% penalty, prejudgment and postjudgment interest, and attorney’s fees.
IJIL The Lien Release
The release at issue in this appeal is a type of contract between the parties and is interpreted pursuant to the rules of contract interpretation. Wal-Mart Stores, Inc. v. Coughlin, 369 Ark. 365, 371, 255 S.W.3d 424, 429 (2007). The first rule of contract interpretation is to give to the language employed the meaning that the parties intended. Id. If the language of the policy is unambiguous, we will give effect to the plain language of the policy without resorting to the rules of construction. Elam v. First Unum Life Ins. Co., 346 Ark. 291, 297, 57 S.W.3d 165, 169 (2001). Whether ambiguity exists is ordinarily a question-of law for courts to resolve. Machen v. Machen, 2011 Ark. App. 47, 380 S.W.3d 497. An issue involving a question of law is reviewed de novo. Travis Lumber Co. v. Deichman, 2009 Ark. 299, 319 S.W.3d 239. 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. Machen, supra. 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. Id.
Our supreme court has set forth the function of the court when there is a question concerning the clarity of the terms of a contract:
[W]here there is a dispute as to the meaning of a contract term or provision, be it an insurance or other contract, the trial court must initially perform the role of gatekeeper, determining first whether the dispute may be resolved by looking solely to the contract or whether the parties rely on disputed extrinsic evidence to support their proposed interpretation. As Justice George Rose Smith explained, “[t]he construction and legal effect of written contracts are matters to be determined by the court, not by the jury, except when the meaning of the language depends upon disputed extrinsic evidence.” Thus, where the issue of ambiguity may be resolved by reviewing the language of the contract itself, it is the trial court’s duty to make such a determination as a | f,matter of law.
Elam, 346 Ark. at 297, 57 S.W.3d at 169-70 (internal citations omitted).
After careful examination of the lien release written by Tycor and signed by Cummins, we hold that the trial court erred in finding its language ambiguous, and we reverse.
We cannot say that the language of the lien release is ambiguous, looking only on the face of the document. The release is entitled at the top of the document: “SUBCONTRACTOR/MATERIALMAN UNCONDITIONAL WAIVER AND RELEASE UPON FINAL PAYMENT.” It contains the statements that the release “covers the full and final payment of the contract amount for labor, services and equipment, or material furnished on the job of Armed Forces Reserve Center.” The release clearly sets forth that the person who signs the document waives any bond right he or she may have: “[T]he undersigned hereby releases and waives any mechanics’ lien, stop notice, or bond right he/she/it has on the said job.” The language is clear that Cummins releases any bond right it may have against Tycor concerning the Armed Forces Reserve Center job. There is no ambiguity, and therefore no call to look beyond the plain language of the contract.
We hold that the circuit court erred in finding the language of the release ambiguous, and on this point, we reverse.
IV. Waiver and Unilateral Mistake
Waiver is the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits, and it, may occur when one, with full knowledge of the material facts, does something that is- inconsistent with the right or his intention to rely upon it. Taylor v. Hamilton, 90 Ark. App. 235, 205 S.W.3d 149 (2005). Whether a waiver occurred is a question of intent, which is usually a question of fact. Beal Bank S.S.B. v. Thornton, 70 Ark. App. 336, 19 S.W.3d 48 (2000). Therefore, on the issue of waiver, we do not reverse the circuit court’s finding of fact unless it is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Essential Accounting Sys., Inc. v. Dewberry, 2013 Ark. App. 388, 428 S.W.3d 613.
A contractual stipulation can only be withdrawn on grounds for nullifying a contract, meaning fraud or misrepresentation. Bishop v. Bishop, 60 Ark. App. 164, 961 S.W.2d 770 (1998). There can be no rescission on account of the mistake of one party only, where the other party was not guilty of any fraud, concealment, undue influence, or bad faith, and did not induce or encourage the mistake, and will not derive any unconscionable advantage from the enforcement of the contract. Lowell Perkins Agency, Inc. v. Jacobs, 250 Ark. 952, 469 S.W.2d 89 (1971). A unilateral mistake is a-subjective matter and a court will not reform or rescind a contract involving a unilateral mistake except where fraud is involved. Foshee v. Murphy, 267 Ark. 1047, 593 S.W.2d 486 (1980). The fact that a party entered into an agreement which later appeared improvident to him or her is no ground for relief. Helms v. Helms, 317 Ark. 143, 875 S.W.2d 849 (1994).
In Fitzwater v. Lambert and Barr, Inc., 539 F.Supp. 282 (W.D.Ark.1982), the court addressed the issue of unilateral mistake and release. In that case, the plaintiffs were driving when they were struck from the rear by a vehicle driven by an employee of the defendant. A few months after the accident, the plaintiffs signed a release settling their claims and |sreleasing the defendants from any claims stemming from the accident, known or unknown. The release also stated that the extent of the injuries of the plaintiffs was unknown at the time they signed the release. The plaintiffs noted on the release that they read and understood that the document settled all claims. Later, as other injuries arose from the accident, the plaintiffs filed a claim asserting mutual mistake, among other claims. The court found that the plaintiffs made a unilateral mistake, and there was no evidence of fraud on the part of the defendants. In its discussion, the court set forth the nature of unilateral mistake and how it relates to waiver:
The evidence is undisputed that the plaintiffs read the release. It is beyond question that plaintiffs knew the character of the release and understood the consequences of executing it. The release is clear, plain, simple, and unambiguous in all respects. It may indeed be true that plaintiffs failed to appreciate the seriousness of the injury, but startlingly clear hindsight will not render the acts of one laboring under erroneous foresight void ab initio. That plaintiffs’ signing of the release was perhaps unwise, and in retrospect unfortunate, is not sufficient to avoid it.
Id. at 291 (internal citations omitted). The facts in the present case are analogous. The terms of the release are unambiguous, as discussed above. The document is signed by Whitehead, who holds a master’s of business administration from Kellogg University, and at the time of trial had been the CFO at Cummins Mid-South for fourteen years where he specialized in credit-related administration, specifically handling aging accounts receivable. Prior to that, he had worked at Cummins, Inc. (a related business that led to the formation of Cummins Mid-South) for eight years. At trial, he testified that he signed releases in the everyday course of his work, that he understood the nature of release forms, and that he understood signing a release waived any claim Cummins would have on that job. He testified that he read the |9waiver and release before he signed it, but did not contact anyone at Tycor before he signed it.
Furthermore, Cummins put on no evidence that Tycor defrauded Cummins into .signing the release, and in its order the circuit court did not make any finding of fraud on Tycor’s part necessary to assert unilateral mistake as a defense. Instead, the circuit court erroneously relied upon its finding of ambiguity in the language of the release and construed the language of the release based on extrinsic evidence. The circuit court’s construction of the lien led to its erroneous finding that waiver did not occur.
The unambiguous language of the release informed Whitehead that the right to recover on the bond, a right known to him to exist, was waived upon signing, and unilateral mistake without a showing of fraud on the part of Tycor does not allow Cummins to rescind the release. Thus, we hold that the circuit court erred in finding that Cummins did not waive its right to recover on the bond, and on this point we reverse.
V. Unjust Enrichment
Tycor asserts on appeal that the circuit court erred in finding that Cum-mins was able to recover under the doctrine of unjust enrichment. We agree, and we reverse. In the present case, the issue of whether the doctrine of unjust enrichment applies is a question of law. Generally, the standard of review on appeal from a bench trial is whether the trial court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Hall v. Bias, 2011 Ark. App. 93, 381 S.W.3d 152. However, a circuit court’s conclusion on a question of law is reviewed de novo and is given no deference on appeal. Id.
Unjust enrichment is.an equitable doctrine. First Nat’l Bank of DeWitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005). It is the principle that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly. Adkinson v. Kilgore, 62 Ark. App. 247, 970 S.W.2d 327 (1998). However, the concept of unjust enrichment has no application when an express written contract exists. Id.
In Servewell Plumbing, LLC v. Summit Contractors, Inc., 362 Ark. 598, 612, 210 S.W.3d 101, 112 (2005), our supreme court addressed the issue of whether an express contract applies to claims against third parties. The court followed the Second Circuit Court of Appeals which held that it is a “settled principle” that “the existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi-contract for events arising out of the same subject matter.” See U.S. E. Telecomm., Inc. v. U.S. W. Commc’n Servs., Inc., 38 F.3d 1289, 1296 (2d Cir.1994). Our supreme court also noted that in U.S. East Telecommunications the Second Circuit held, “[A] subcontractor could recover from a landowner, even when a separate contract exists between the subcontractor and general contractor, if the owner has agreed to pay the general contractor’s debt or if the circumstances surrounding the parties’ dealings can be found to have given rise to an obligation to pay.” Id. at 1298. However, in the present case, as in Servewell, there, is no evidence of any such agreement, therefore, this exception is not applicable. The general rule is that one cannot recover in quasi-contract when an express contract exists, and governs the matter in the present case. See Servewell, 362 Ark. at 612, 210 S.W.3d at 112. A written |ncontract for the purchase and installation of the generator existed between ARC and Cummins; therefore, Cummins is barred from asserting the doctrine of unjust enrichment. Therefore, as a matter of law, we hold that the circuit court erred in applying the equitable remedy of unjust enrichment in light of the existing contract, and we reverse on this point.
Reversed.
Gruber and Glover, JJ., agree.
. John Virden is not related to Judge Bart F. Virden. | [
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M. MICHAEL KINARD, Judge
| ¡Appellant Calvin Ivory filed a negligence suit against appellee Woodruff Electric Cooperative Corporation after a fire destroyed Ivory’s house. He alleged that Woodruff was negligent in the maintenance of its electric poles, lines, and transformers located near his property in that Woodruff had refused to exercise ordinary care by taking measures to prevent known wildlife in the area from interfering with the electrical equipment. Ivory claimed that this allowed a squirrel to interfere with the electrical equipment, which caused the fire that destroyed his property. Ivory also alleged that he was entitled to recover damages under the theory of res ipsa loquitur. The trial court granted summary judgment to Woodruff. Ivory now appeals, arguing that the trial court erred in determining that Woodruff did not owe him a duty and that res ipsa loquitur did not apply. We find merit in his first point and reverse and remand.
In its motion for summary judgment, Woodruff argued that, as a matter of law, it had |2no legal duty to foresee or protect against harm caused by squirrels. Wood-ruff also argued that Ivory could not recover under res ipsa loquitur because Woodruff did not maintain control over all of the instrumentalities that led to the fire, including the squirrel and the vacant lot where the fire originated, and the injury occurred absent any negligence on its part. Ivory responded 'to the motion, and both parties attached excerpts from the deposition of Carl Horton, Woodruff s vice president of member services.
Horton testified that one of Woodruffs goals was to provide safe electrical service. He said that the fire was caused when a squirrel got on the transformer and created a fault current by touching either the top of the bushing or the wire next to the bushing. This caused a line to burn and fall to the ground dropping molten metal. A grass fire started that burned across a lot to Ivory’s house.
Horton testified that a critter guard is a device that can be put on transformers to try to keep animals from making contact with the bushing. He said that the transformer where the fire started did not have a critter guard because it was not Wood-ruffs standard practice to put critter guards on all transformers. Woodruff did put critter guards on transformers that had a history of wildlife-related outages, but this location had never had a wildlife-related outage. Woodruffs newer model transformers were equipped with critter guards and protective covered wire that prevented many contacts from animals and tree limbs. This location . did not have covered wire.
Horton said that electric companies know that squirrels can cause a fault current and that it was “pretty common” for a squirrel to cause an outage. He said that those outages | .¡sometimes cause the power lines to spark, and the lines can burn and fall to the ground. Horton said that it was not necessarily true that Ivory’s house would not have burned if this transformer had a critter guard because critter guards are not one hundred percent effective in preventing animals from causing damage. Horton said that this transformer was in compliance with all of Woodruffs policies as well as the requirements of the National Electric Safety Code, the Public Service Commission, and the Rural Utilities Service.
The trial court found that Woodruff did not have a duty to protect Ivory from damage caused by wild animals under these circumstances. The court also found that the doctrine of res ipsa loquitur did not apply because Ivory’s real- and personal-property damage was not caused by an instrumentality that was under the exclusive control of Woodruff..
Summary judgment is to be granted by the circuit court only when it is clear that there are no genuine issues of material fact to be litigated. Clark v. Transcontinental Insurance Co., 359 Ark. 340, 197 S.W.3d 449 (2004). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave’ a material fact unanswered. Id. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.
Ivory argues that the trial court erred in ruling that Woodruff did not owe a duty to him. He contends that Woodruff undertook a' duty to provide safe electrical services to him, |4noting Horton’s statement that this was a goal of Woodruffs. Citing cases from other jurisdictions for the principle that a property owner has no legal duty to guard against damages caused by wild animals, Woodruff argues that, as a matter of law, it did not have a duty to protect Ivory from the damage caused by the squirrel. Woodruff notes that Ivory did not cite a single statute, case, or regulation that imposes a duty to install a critter guard on the transformer.
The question of what duty, if any, is owed a plaintiff alleging negligence is always a question of law and never one for the jury. Central Oklahoma Pipeline, Inc. v. Hawk Field Services, LLC, 2012 Ark. 157, 400 S.W.3d 701. An electric company has a duty to inspect and maintain its power lines in proper and safe working order. Clark, supra. Prior decisions involving actions against electric companies in Arkansas are fairly consistent in holding that it is the duty of those utilities to exercise ordinary and reasonable care in the erection and maintenance of power lines. Id. (citing Stacks v. Arkansas Power & Light Co., 299 Ark. 136, 771 S.W.2d 754 (1989)). Electric companies, however, are not insurers against accident or injury and are not held liable for injuries that cannot be reasonably foreseen. Id. (citing Arkansas Power & Light Co. v. Lum, 222 Ark. 678, 262 S.W.2d 920 (1953)).
In Bellanca v. Arkansas Power & Light Co., 316 Ark. 80, 870 S.W.2d 735 (1994), an employee of appellee activated the electrical power at appellant’s mobile home, at appellant’s request, and also turned the switches on in the breaker box. Appellant was making electrical repairs and did not want the breaker switches turned on. A box sitting on an electric stove inside the mobile home ignited when the breaker switch was- turned on, and the residence | sand its contents were damaged. Appellant filed suit, and appellee filed a motion for summary judgment, which was granted. The supreme court noted that there was, without question, a duty to act reasonably when supplying power, and it reversed with regard to the existence of a duty. The supreme court held that the trial court erred in limiting its holding to deciding as a matter of law that there was no duty to inspect the customer’s premises prior to activating service and ignoring that there was a broader duty of reasonable care in supplying power. The supreme court held that whether activation of appellant’s breaker switches constituted a breach of the duty of reasonable care was a question of fact to be left to the finder of fact.
Here, while Ivory did not present evidence of a regulation requiring critter guards in these circumstances, this ignores the broader duty of reasonable care. Although a party’s compliance with industry or statutory-safety standards is proper evidence on the question of negligence, it is not conclusive because it is not necessarily a complete discharge of the party’s duties toward the public. Little Rock Land Co. v. Raper, 245 Ark. 641, 433 S.W.2d 836 (1968); see also Arkansas Power & Light Co. v. Johnson, 260 Ark. 237, 538 S.W.2d 541 (1976) (discussing testimony that, aven though the specific standards of the National Electric Safety Code were complied with, these were minimum standards that were not practical for this particular installation). It is the duty of an electric company to use ordinary care to provide and install proper electrical service equipment, AMI Civ. 1401 (2014), and ordinary care is the care a reasonably careful person would use under circumstances similar to those shown by the evidence. AMI Civ. 303 (2014); Mangrum v. Pigue, 359 Ark. 373, 198 S.W.3d 496 (2004). We reverse and remand the order of summary judgment based on the existence of a duty as a matter of law. It will be up to the trier of fact to determine whether Woodruff breached its duty to Ivory, whether the occurrence was foreseeable, and whether the negligence, if any, was a proximate cause of Ivory’s damages. Clark, supra.
Ivory also argues that the trial court erred in ruling that the doctrine of res ipsa loquitur was inapplicable. The doctrine of res ipsa loquitur was developed to assist in the proof of negligence where the cause is connected with an instrumentality in the exclusive control of a defendant. Johnson v. M.S. Development Co., LLC, 2011 Ark. App. 542, 386 S.W.3d 46. It applies where the evidence of the true cause is available to the defendant but not to the plaintiff. Id. The doctrine, when applicable, allows the jury to infer negligence from the plaintiffs evidence of circumstances surrounding the occurrence. Id. To invoke the doctrine of res ipsa loquitur, a plaintiff must show that (1) the defendant owes a duty to the plaintiff to use due care; (2) the accident is caused by the thing or instrumentality under the control of the defendant; (3) the accident that caused the injury is one that, in the ordinary course of things would not occur if those having control and management of the instrumentality used proper care; and (4) there is an absence of evidence to the contrary. Id.
Ivory argues that Woodruff owed him a duty to provide safe electrical services; that the electrical equipment was under Woodruffs control; and that the fire would not have occurred had Woodruff exercised proper care and installed a critter guard. Woodruff argues that several instrumentalities that caused or contributed to the damage were not within its control or management, including the squirrel, the lot where the grass fire started, and the 17conditions that caused the fire to spread from the lot onto Ivory’s property.
We agree that the doctrine of res ipsa loquitur does not apply here. The squirrel was clearly not within Woodruffs exclusive possession and control. Furthermore, this is not a case where the evidence of the true cause of the accident is available to the defendant but not to the plaintiff. We find no error in the trial court’s ruling on the applicability of res ipsa loquitur, but we reverse and remand the summary judgment on the claim for negligence.
Reversed and remanded.
Glover and Hixson, JJ., agree. | [
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PER CURIAM
|Ln 2001, petitioner Kedron Johnson was found guilty by a jury of rape and sentenced to 300 months’ imprisonment. The Arkansas Court of Appeals affirmed. Johnson v. State, 80 Ark.App. 79, 94 S.W.3d 344 (2002). In 2008, petitioner filed in this court a pro se petition seeking leave to proceed in the trial court with a petition for writ of error coram nobis. We denied the petition. Johnson v. State, CR-01-1015, 2008 WL 5274851 (Ark. Dec. 19, 2008) (unpublished per curiam).
On February 18, 2015, petitioner filed the petition, which is now before us in which he again asks to have jurisdiction reinvested in the trial court to consider a coram-nobis petition. After a judgment has been affirmed on appeal, a petition filed in this court for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis only after we grant permission. Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001) |2(per curiam). A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Cromeans v. State, 2013 Ark. 273, 2013 WL 3179379 (per curiam). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. McDaniels v. State, 2012 Ark. 465, 2012 WL 6218480 (per curiam). We have held that a writ of error coram nobis is available to address certain errors that are found in one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. Charland v. State, 2013 Ark. 452, 2013 WL 5968924 (per curiam). The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the circuit court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. Chestang v. State, 2014 Ark. 477, 2014 WL 6065634 (per curiam). The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Wright v. State, 2014 Ark. 25, 2014 WL 260993 (per curiam). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
In his petition, petitioner contends that the prosecution withheld exculpatory evidence from the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The evidence alleged to have been hidden was an audio recording of petitioner’s interrogation by detectives who investigated the offense.
A Brady violation is established when evidence favorable to the defense is wrongfully withheld by the State. Such a violation is cause to grant the writ. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (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 probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” 527 U.S. at 280, 119 S.Ct. 1936 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). In Strickler, the Court also set out the three elements of a true Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler, 527 U.S. 263, 119 S.Ct. 1936; Buchanan v. State, 2010 Ark. 285, 2010 WL 2210923 (per curiam). A brief account of the evidence adduced at trial is necessary to understand petitioner’s claim of a Brady violation.
In June 2000, the victim, L.P., was kidnapped at gunpoint by two men as she left her job for the evening. The men placed her in the back seat of her vehicle and drove her to a house where she was repeatedly raped. L.P. had been at the house for five or six hours when she encountered the appellant, who also had sexual intercourse with her. L.P. was eventually released, and shortly thereafter she contacted the police. Petitioner, along with the other two men, was later arrested and charged with rape.
L.P. testified that she had never seen petitioner before and that when he came into the room where she was being held, she begged him not to rape her, but he did so anyway. Petitioner testified that he had been unaware that the victim had been abducted and that he had believed the intercourse with her to be consensual. On direct appeal, the court of appeals held |4that there was substantial evidence that petitioner was guilty of rape.
Petitioner contends in the coram-nobis petition that the recording of his interrogation by police was the best evidence to prove that the transcript of the interrogation was inaccurate and that the accurate recording could have exonerated him and impeached the investigating detectives and the testimony of the victim. He alleges that, at the pretrial omnibus hearing, the detectives said that there was no audio recording made of the interrogation. While petitioner claims that the audio recording would have been exculpatory, he does not state what specific information contained in the transcript was different from that contained in the recording.
Two police investigators testified in a pretrial hearing in petitioner’s case that they interviewed petitioner for approximately an hour and then began audio taping the interview, a transcript of which was prepared from the tape recording. Petitioner testified at the hearing that the transcript was inaccurate and that there had been more than one tape recording made during the interrogation. Petitioner offered no proof in the hearing or at trial, and he offers no proof in this petition, that there had been more than one tape recording or that the transcript had been altered to conceal exculpatory evi dence from the defense. Clearly, the defense was aware at the time of trial that petitioner contested the veracity of the police officers who testified concerning the tape recorded statement, the accuracy of the transcript of the statement, and the number of tapes made during the interrogation, and the matter could have been fully addressed at that time. This court is not required to take claims of a Brady violation in a coram-nobis petition at face value without substantiation. Mackey v. State, 2014 Ark. 491, 2014 WL 6602313 (per curiam). The application for coram-nobis relief must make a full disclosure of specific facts relied upon. Maxwell v. State, 2009 Ark. 309, 2009 WL 1423908. Petitioner’s mere statements that there was another tape, or that the tape utilized at trial and the transcript of it were not accurate, do not establish that there was evidence withheld that meets the threshold requirements of a Brady violation that was both material and prejudicial such as to have prevented rendition of the judgment had it been known at the time of trial. It is petitioner’s burden to demonstrate that there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the information been disclosed at trial. Wilson v. State, 2014 Ark. 273, 2014 WL 2566110 (per curiam).
Petitioner also argues that the trial court committed “plain error” by not suppressing the transcript and in other rulings on issues raised at trial. The mere assertion of error does not constitute a showing that that the audio recording was concealed from the defense. Rather, the allegation is a claim that the trial court erred in admitting evidence. Assertions of trial error are not cognizable in a coram-nobis proceeding. By their very nature, claims of trial error could have been settled at trial and on the record on direct appeal; therefore, allegations of trial error, even if of constitutional dimension, are not within the purview of a coram-nobis petition. Id.
Petitioner also contends that he was denied effective assistance of counsel at trial and perhaps on direct appeal. Allegations of ineffective assistance of counsel are also outside the purview of a coram-nobis proceeding. Mason v. State, 2014 Ark. 288, 436 S.W.3d 469 (per curiam). Such claims are properly raised in a timely petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2001). A petition for writ of error coram nobis is not a substitute for raising an issue under Rule 37.1. Travis v. State, 2014 Ark. 82, 2014 WL 689056 (per curiam).
To the extent that the assertions advanced by petitioner in his petition could be | (¡considered a claim that the evidence was insufficient to sustain the judgment, issues concerning the sufficiency of the evidence or the credibility of witnesses are not cognizable in coram-nobis proceedings. Philyaw v. State, 2014 Ark. 130, 2014 WL 1096201 (per curiam). Those issues are to be settled at trial, and, when appropriate, on the record on direct appeal. Id.
Petition denied.
. When a judgment has been affirmed, a petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis is docketed in this court under the docket number for the direct appeal. | [
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CLIFF HOOFMAN, Judge
| TAppellants Steven Wilson and Christina Wilson appeal from the Benton County Circuit Court’s August 21, 2014 decree of foreclosure and order granting motion for summary judgment in favor of appellee Arvest Bank. On appeal, appel lants contend that (1) the trial court erred in granting summary judgment as there were contested issues of fact and |2the appellants met proof with proof and (2) the trial court erred in finding that appellee had complied with the federal statutes and regulations protecting homeowners on foreclosure. We affirm.
Arvest Bank filed a petition for foreclosure on March 13, 2014, naming Steven J. Wilson, Jr.; Christina R. Wilson; James Alan Crouse; and the Department of Finance and Administration, State of Arkansas (DF & A) as respondents. The petition alleged that the Wilsons and Crouse owned the property in question as joint tenants with right of survivorship. They executed and delivered an adjustable-rate note and mortgage on September 22, 2008. Arvest Bank further alleged that they failed to pay the installments on time and that it was electing to declare the unpaid balance due in full and foreclose on the property pursuant to the terms of the note and mortgage. Additionally, Arvest Bank alleged that it gave written notice of the default and the right to cure the default. Arvest Bank stated that it was naming DF & A as a respondent to the extent that DF & A may have had an inferior interest in the property. Copies of the note and mortgage were attached to the petition.
The Wilsons filed an answer on March 28, 2014, affirmatively pleading that after receiving notice, they tendered the payments due but were refused. Additionally, they raised the “affirmative defenses of estoppel, unclean hands, bad faith, failure to provide notice of services pursuant to 20 U.S.C. 1701x and such other defenses as may be ascertained through discovery.” DF & A filed an answer on April 9, 2014, stating that it had no interest in this matter and requesting that the action be dismissed as to it without prejudice. Arvest Bank |sresponded to requests for admission on May 7, 2014. Most notably, Arvest Bank denied that appellants attempted to make any' partial payments to reduce the amount of arrearages owed or that appellants were unable to obtain a definite amount that was owed.
On May 27, 2014, Arvest Bank filed a motion for summary judgment and memorandum of supporting authorities. Arvest Bank alleged that there were no genuine issues of material fact in dispute and that it was entitled to judgment as a matter of law. In support, it attached an affidavit from Vicki Smith, the President of Arvest Bank, and copies of the note and mortgage. Smith stated in her affidavit that the Wilsons and Crouse executed a note and mortgage. Furthermore, they defaulted in making their payments despite the demand that they do so. As of May 16, 2014, $41,086.07 for principal, $908.68 for interest, $262.57 for late fees, and $119.00 for property inspections were outstanding. Additionally, Smith stated that the bank was also entitled to attorney’s fees in the amount of $5,966.50, title-work fees in the amount of $250.00, filing fees in the amount of $180.00, and service fees in the amount of $53.16.
Appellants filed a response to the motion for summary judgment on June 10, 2014. They disputed appellee’s contention that there were no issues of material fact in dispute. Appellants argued that
they contacted the Petitioner’s Arvest Bank upon numerous occasions in order to attempt to obtain an amount due on the loan ending in 6270 and were unable to obtain a correct, amount from any authorized representative of Arvest Bank. Further, each time the Separate Respondents called, months prior to litigation being initiated, they were informed that “attorney’s fees were accruing even as they spoke.” The Separate Respondents attempted, in good faith, to reinstate the loan, but were unable to do so, due to Arvest Bank’s refusal to tender in good faith a valid reinstatement amount.
14Appellants also alleged that some of the attorney’s fees were wrongfully assessed and that this wrongful assessment increased their difficulty to cure the arrear-age. Therefore, they alleged that there were three issues of material fact: (1) whether appellants properly tendered payment that would have brought the loan current, (2) whether the bank erroneously or maliciously added improper attorney’s fees to the balance owed in January that prevented appellants from making sufficient partial payments to bring them into compliance, and (3) whether the bank acted in bad faith by repeatedly misleading appellants and providing inconsistent information that prevented appellants from making the pi'oper payment. In support of their response, appellants attached an affidavit signed by both of them that stated in pertinent part:
2. That due to circumstances beyond our control, said mortgage did become in arrears;
3. That on October 4, 2013 a partial payment of $545.00 was made in good faith to Petitioner and was accepted and a partial payment was made on December 3, 2013 in the amount of $300.00 and was accepted by the Petitioner;
4. That the Respondents attempted to make a payment to the Petitioner in a good faith effort to pay the amount of arrearages and bring the account current and the payment was refused, further, the Respondents were told by a duly authorized representative of Arvest Bank that “even as they spoke attorney’s fees ■ were accruing.”
5. That the Respondents made several more good faith attempts to find out a reinstatement amount for the loan ending in 6270, were transferred to several different individuals and were never given a definite or accurate amount;
6. That the Respondents have paid into trust with Legal Aid of Arkansas, Inc. $2,000.00 and amount in excess of the arrears and payment due. Plaintiff has in bad faith added unnecessary and excessive fees to the arrearage, rather than allow the Respondents to bring the account current.
Additionally, appellants attached a loan-history statement listing all the payments and charges | sthat occurred throughout the life of the loan, documents containing information about the property from the county assessor’s office, page two of the requests for admission from Arvest Bank, and page four of the mortgage.
Arvest Bank filed a reply to the response on June 18, 2014, alleging that appellants failed to meet proof with proof after its prima facie showing of the debt. Appellants subsequently filed a response to Arvest Bank’s reply on July 1, 2014. In their response, appellants referenced federal regulation 12 CFR 1024.38(ii) and argued that Arvest Bank failed to provide timely or adequate information regarding a loan modification or the amount necessary to bring the loan current.
Arvest Bank filed an amended reply to the response to motion for summary judgment on August 6, 2014. In addition to the arguments it previously made, Arvest Bank attached a series of letters and notices that were sent to appellants to show that it provided proper notice to appellants, yet the appellants failed to either bring the note current or accept any of the alternative work-out options that were available. A letter dated December 4, 2013, notified the Wilsons that the bank’s records indicated that the account was past due and that $1,030.03 was due plus any other future payments or late charges that might become due pending payment. The bank also provided a contact number and requested that appellants contact that number to resolve the issue. On January 8, 2014, Arvest Bank sent another letter. In this letter, Arvest Bank indicated that appellants owed a total amount of $1,282.97 plus any further payments or late charges that might become due. Additionally, the letter listed three other options that may have been available to appellants, including loan | ^modification, [short sale, or deed in lieu of foreclosure. lA phone number with instructions to ask lor the Loss Mitigation Department, ad-Iress, and email were provided in the let-ler. On January 31, 2014, Arvest Bank lent a letter indicating the payoff figures In the loan as it states was requested. Idditionally, another letter was sent on January 31, 2014, indicating that the loan las referred to an attorney for foreclosure lid providing the attorney’s contact infor-Bation with instructions that all transac-Bns would now need to be handled Brough that office. Finally, on March 31, Bl4, Arvest Bank’s attorney sent a letter ■ appellants’ attorney indicating that Ar-Kt Bank would reinstate the loan upon B/ment in the amount of $5,772.86, which included all the previous unpaid installments, late charges, inspection fees, miscellaneous fees, and attorney’s fees and costs.
A hearing was held on August 11, 2014. In addition to the arguments made in the motion, responses, and replies, counsel for appellants alleged that appellants were in a position to make the loan current in either late January or early February but were unable to do so because Arvest Bank failed to provide the specific amount owed. Counsel for appellants also pointed to a loan-history statement and stated that the document was difficult to understand because it listed “unapplied” payments, and it was unclear what that meant. Therefore, counsel argued that there was a factual dispute over whether his clients were able to make payment and that the information from the bank did not “jive with what they understood] to be owed.” Furthermore, counsel for appellants argued that “federal banking regulations” made it clear that the bank had a duty to try “to engage in some sort of a workout” and that the bank here failed to accept payments from appellants and gave differing amounts that were [7owed on the loan. At the conclusion of the hearing, the trial court made the following oral ruling:
All right. My memory from my bank representation days was these unapplied payments amount to charges to the account for funds not received, in effect. That’s what they are. So while it might be difficult for those of us not accustomed to this type of accounting or who are not accountants, I think that this is in order.
I don’t believe that you’ve met proof with proof in this regard, Mr. Pretty-man. The amount due and owing was determined by this accounting, and as I heard it very clearly and by your own admission, there’s been no tender since January.
And so I find that the motion is appropriate and I’m going to grant the motion. ■ Mr. Trantham, prepare me an order, have it to the Court within ten days with five days’ notice to Mr. Prettyman, and we’ll go from there.
Subsequently, the trial court filed a decree of foreclosure and order granting motion for summary, judgment on August 21, 2014. Specifically, the trial court found that the note and mortgage provided that in the event installments of the principal were not paid, Arvest Bank could elect to make the entire unpaid principal installments with earned and unpaid interest immediately due and payable. Furthermore, if the bank employed an attorney for collection, appellants agreed to pay attorney’s fees. The trial court found that appellants were in default and that appellants were given written notice of the default and their right to cure the default. Additionally, the trial court found that appellants were not entitled to any setoffs, counterclaims, or defenses and that any would be totally without merit. Therefore, the trial court ordered and adjudged that the motion for summary judgment was granted and granted Arvest Bank the foreclosure decree. Furthermore, a notice of sale was filed on August 29, 2014. This appeal followed.
Pursuant to Arkansas Rule of Civil Procedure 56 (2014), summary judgment is to be rendered in instances where “the pleadings, depositions, answers to interrogatories and 18admissions on file, together with the affidavits, if any, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of.law.” Once the moving party has established a prima facie entitlement to summary judgment, the non-moving party must meet “proof with proof’ and demonstrate the existence of a material fact. Allen v. Allison, 356 Ark. 403, 155 S.W.3d 682 (2004). This court’s review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Id. However, the non-moving party must not rely solely upon allegations and denials in their pleadings but must instead provide some other affirmative proof that there are material issues of fact remaining once the moving party has established that they are entitled to judgment as a matter of law. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000); Killian v. Gibson, 2012 Ark. App. 299, 423 S.W.3d 98. On appeal, this court views all proof submitted in the light most favorable to the non-moving party, with any doubts or inferences resolved against the moving party. Allen, supra. Summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. Inge v. Walker, 70 Ark. App. 114, 15 S.W.3d 348 (2000).
On appeal, appellants first contend that the trial court erred in granting summary judgment as there were contested issues of material fact and that the appellants met proof with proof. Specifically, appellants admit that they were behind in their payments. ■ However, they argue that they attempted to cure the arrearage and that appellee refused to accept their payment. I Additionally, they contest the amount of attorney’s fees that were assessed onl 13October 1, 2013, according to the loan-] history statement, and allege that tha $2,000 placed in their attorney’s trust acl count could have been used to pay thJ outstanding balance of $1,282.97 if that diii not include the October attorney’s fees ia the amount of $1,872.00. Appellants alsB question other entries in the loan-historB statement and argue that appellee did not explain what was meant by “unapplied payments.” Appellee contends that it provided appellants with notices indicating the amount due on the note and that appellants failed to bring the note current. Ap-pellee also contends that it provided sufficient evidence to establish its entitlement to summary judgment as a matter of law and that appellants failed to meet proof with proof as required. We agree.
Here, the record contains numerous written letters and notices that were mailed to appellants, including specific amounts due and contact information to discuss the resolution of the outstanding balance. Furthermore, the loan documents included an acceleration provision, which required appellants, at appellee’s election, to make payment in full and permitted appellee to invoke any other remedies permitted by applicable law. Additionally, the documents provided that appellee was entitled to collect all expenses incurred, including reasonable attorney’s fees and costs. Smith’s affidavit indicated that appellants had defaulted. According to Ar-vest Bank’s response to requests for admission, appellee specifically denied .that appellants attempted to make partial payments or that they were unable to obtain a definite amount. Appellants even openly admit that the “mortgage did become in arrears,” according to their affidavit. Therefore, appellee provided sufficient prima facie evidence of entitlement to summary judgment, and appellants were required to meet proof with proof to |inshow that there were still issues of material fact in dispute.
Although appellants argue that there were issues of material fact, each of their arguments relies on their contention that they could have brought the loan current had .it not been for appellee’s actions or lack thereof. However, appellants failed to provide specific proof in their affidavit. Even though the mortgage provided a provision that allowed appellants to reinstate the loan after acceleration, appellants failed to provide any specific proof that they could do so. Appellants’ affidavit merely restates their allegations in the pleadings that they attempted to make a payment but the payment was refused. However, appellants failed to state when they attempted to make a payment, how much they attempted to pay, how much they could have paid, at what point they would have been able to bring the loan current, or provide any other specific details as required under Rule 56. The only detail that they provided was that the bank representative stated that “even as they spoke attorney’s fees were accruing.” A letter in the record from Arvest Bank to appellants indicated that the matter was referred to an attorney by January 31, 2014. Furthermore, that letter indicated that all matters were to be discussed with the attorney assigned and provided the attorney’s contact information.
While the affidavit also restates appellants’ allegations from their pleadings that they “were transferred to several different individuals and were never given a definite or accurate amount,” appellants failed to give any specific detail about their attempts. Additionally, while they alleged that they deposited $2,000 with their attorney at some point after he was retained, appellants failed to provide any specific information regarding when this money was |17 deposited and when they obtained the $2,000 that could have been applied to the loan. As our supreme court has recognized, “an affidavit stating only conclusions, but failing to set forth specific facts is insufficient to show there is a material issue of fact.” Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992). Thus, appellants failed to meet proof with proof to show that they could have paid an amount at any given time that would have been sufficient to reinstate the loan, and the trial court did not err in granting summary judgment.
Appellants next contend on appeal that the' trial court erred in finding that the appellee had complied with the federal statutes and regulations protecting homeowners on foreclosure. Specifically, appellants cite and quote several federal regulations and argue that, had appellee complied with those regulations, appellants would have been able to bring the loan current and avoid foreclosure. Although appellants cite to several different regulations, only one regulation was cited and presented before the trial court — 12 C.F.R. § 1024.38. It is well settled that this court does not consider arguments raised for the first time on appeal; a party cannot change the grounds for an objection or motion on appeal, but is bound by the scope and nature of the arguments made before the trial court. ' Yant v. Woods, 353 Ark. 786, 120 S.W.3d 574 (2003). To the extent appellants’ argument is preserved on appeal, the argument still fails for the same reason as in the first point on appeal. Appellants’ affidavit fails to provide |12any specific proof that they could have made payment that would have brought their loan current. Therefore, we affirm the trial court.
Affirmed.
Vaught and Brown, JJ., agree.
. Appellants filed their initial timely notice of appeal on September 10, 2014, stating that they were appealing from the decree of foreclosure and order granting motion for summary judgment, but they érroneously stated that this order was entered on November 16, 2011, and filed on November 18, 2011. An amended notice of appeal was filed on September 17, 2014, correcting the inaccuracy. Thus, appellants timely appealed from the August 21, 2014 order. Subsequently, after the trial court filed an order denying a motion for stay pending appeal on September 23, 2014, appellants filed a second amended notice of appeal on November 18, 2014, stating that they were appealing from both the August 21, 2014 order and the denial of the motion for stay pending appeal. Because appellants ■filed their notice of appeal from the trial court's denial of the motion for stay pending appeal more than thirty days after the order was filed, the appeal is untimely as to that order. Ark. R. App. P.-Civ. 4(a) (2014). However, the parties do not contest the September 23, 2014 order in their arguments on appeal; therefore, appellants’ failure to timely appeal from the September 23, 2014 order is irrelevant to our discussion of the issues raised in this appeal.
. Only Steven and Christina Wilson subsequently appealed.
. 12 C.F.R. § 1024.38 generally provides that "[a] servicer shall maintain policies and procedures that are reasonably designed to achieve the objectives set forth in paragraph (b) of this section.” Paragraph (b) includes the objective of "[a]ccessing and providing timely and accurate information.” | [
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RITA W. GRUBER, Judge
h Michael Webb has complied with our order to supplement the record before us, see Webb v. State, 2014 Ark. App. 637, 2014 WL 5849234, and we now address the merits of his appeal. On November 15, 2010, the circuit court sentenced Webb to three years’ probation on, his negotiated plea of guilty to possession of marijuana with intent to deliver and possession of drug paraphernalia — Class C felonies. In a sentencing order entered on December 2, 2013, his probation was revoked and he was sentenced to concurrent terms of six years’ imprisonment on each count. Webb appeals the revocation, raising two points. He contends (1) that the court’s finding that he violated terms of his probation was clearly against the preponderance of the evidence and (2) that his due-process rights were violated because the court considered matters not contained in the State’s petition to revoke. We affirm.
| gWebb’s probation was subject to written conditions, and the circuit court provided him the opportunity to have his record expunged if he successfully completed drug court. On August 8, 2013, the State filed a petition to revoke his probation based on violations of the following conditions: “# 1 Laws, # 5 Weapons, # 6 Controlled Substances, # 14 Fines, # 15: Court costs, # 16 Public Defenders Fee, and #23 Additional Costs.” A violation report that accompanied the petition further specified:
1. Not commit any felony, misdemeanor or other criminal offense punishable by confinement in jail or prison. On August 6, 2013, Webb was arrested for the offenses of Driving on Suspended License, Theft by Receiving — 2 cts, and Possession of Firearm by Certain Persons in Stuttgart, Arkansas.
5. Not purchase, own, possess, or control any deadly weapons [or] firearms. According to reports received from the Stuttgart Police Department, on August
6, 2013, Webb was in possession of a Smith & Wesson .38 Revolver Stainless. 6. Not possess, buy, consume, sell or distribute any alcoholic beverages, or controlled substances. Do not enter places where alcoholic beverages or controlled substances are used, sold or permitted.
Webb tested positive for THC on 7/29/2011.
14.Pay a fine in the amount of $100.00, payment to be made to the Drew County Sheriff’s Office at the rate of $_ per month, and pay $5.00 monthly installment fee to the sheriff’s office for each month you have a fine balance.
Webb has failed to make any payments to the sheriffs office as directed on this account.
15. Pay $165.00 Court Costs to the Sheriff’s Office.
Webb has failed to [make any] payments on this account as directed.
16. Pay $100.00 Public Defender fee to the Sheriffs Office.
Webb has failed to make any payments on this account as directed.
23. Additional Conditions: $250.00 DNA Fee, $20.00 Booking Fee, $125.00 Drug Crime Fee
Webb has failed to make any payments on this account as directed.
I?,The State presented the following testimony at the revocation hearing, conducted on December 2, 2013. Webb’s probation officer, Sharon Anderson, testified that she became involved in the case after he was arrested in Stuttgart, Arkansas, for driving on a suspended license, theft by receiving, and possession of a firearm. She testified that although Webb made no payments on his court-ordered obligations and tested positive for THC in July 2011, the Stuttgart “incident” was the only reason the revocation petition was filed. The circuit court noted, “Clearly, we’re here because of what happened in Stuttgart.”
Sgt. Kyle Stokes of the Stuttgart Police Department testified that on August 6, 2013, he made a traffic stop of a car that Webb was driving, in which Webb’s friend Tracy Wright was the sole passenger. According to Sergeant Stokes, Webb was arrested for driving on a suspended license and police conducted an inventory search of the vehicle before towing it. There was a .38 revolver under the front passenger seat and a small, locked safe in the back seat; officers detected the strong smell of marijuana emanating from the safe, which “had a combination and possibly a key, too.” Capt. Dean Mannis of the Tri-County Drug Task Force testified that the safe was in plain view in the back seat and that a check of the revolver’s serial number revealed that the firearm had been stolen in Jacksonville, Arkansas. When Captain Mannis asked Webb about the safe, he replied that he did not have a key, did not know what was in the safe, and “was just making a delivery for somebody.” After obtaining a search warrant and opening ‘the safe with a screwdriver, Captain Man-nis discovered what he suspected to be cocaine and marijuana. Webb, who had $460 cash on his person, was jailed on charges of theft by receiving and felon in possession of a firearm.
|4The State concluded its case, and the court asked Webb if he wished to present his own proof. Webb responded, “[BJefore I do, I would move ..., since it was not alleged in the revocation petition anything about possession of drugs or any charges relating to drugs, that the Court disregard any testimony about the safe.... It’s not alleged in the revocation petition at all.” The following colloquy then occurred:
The Court: Well, why didn’t you make your objection [on cross examination] when you started bringing it out? You didn’t think about it then; you thought about it just then. The objection would have probably been overruled. The police report that you were furnished, did it have anything about drugs in it?
Defense Counsel: No.
Prosecutor: Your Honor, it talks about the safe had a strong odor of marijuana coming from it.
The Court: Okay. That’s all I need to hear.
Defense Counsel: But it does not say he was arrested for—
The Court: It doesn’t matter if he was arrested for it. The police report puts you on notice—
The Court: If you had had any — If you had wanted to, you’d call the officer long before now and ask him, “What did you find?”
Defense Counsel: The police report said he was arrested for theft by receiving and firearm by a certain person. It does not say anything about being arrested for any type of drugs or what was found in any safe.
The Court: But drugs were smelled in the car. I’m saying, it just can’t come as a complete surprise to you. What would you have done differently in this case, if he would have put it in big, bold caps, “And by the way, they found some pot in the safe,” how would you have tried this case any differently? You wouldn’t have; and you |sknow it and I know it. Thank you. You’re overruled.
In the case for the defense, Tracy Wright testified that the gun was his and that Webb was unaware of its being in the vehicle. Webb also testified, denying any knowledge that the gun or drugs were in the vehicle, which belonged to his brother. He said that he did not enroll in a drug-court program because it would have caused him to lose his job, and he explained that the money he was carrying at the time of his arrest came from a workers’ compensation check for a recent injury.
The court found that both Webb and Wright were in constructive possession of a firearm and of drugs. The court noted that the gun whs found under the passen ger seat where Wright was riding; that Webb was driving the car, allegedly owned by his brother; and that
with respect to the drug, or drugs, in the backseat and in .the safe ... there was the smell of marijuana in the vehicle and marijuana was found in the safe. Further, Mr. Webb was found in possession of a substantial amount of cash: four hundred and something dollars. It may have come from a workers’ comp, check. But of course if he was working, he wouldn’t have been getting a workers’ comp, cheek. But there’s no proof that he, here today, other than his testimony, unsupported, that he was working at the time or receiving' any pay stubs. He certainly was not paying anything he owed to the State because he’s behind on all of that. Hadn’t made any payments. ...
And the stuff I heard on the stand is a bunch of baloney today. ... And what this Court is faced with is just not failure to pay fees and stuff. I’ve got drugs, and firearm, and a substantial amount of cash. And I think two years, if you’re caught in that situation — With three in the car, four in the car, six in the car, it' doesn’t matter, you’re the driver — it’s your brother’s car — and you’re streetwise and you know what’s going on. Three years is not enough when you’ve got a stolen gun, drugs— And you’ve already been given every opportunity in the world to straighten up and fly right — and you’ve got cash on you.
On these findings, the circuit court concluded that Webb had violated condition No. 1, which required that he not commit any felony, misdemeanor, or other criminal offense | (¡punishable by confinement in jail or prison. The court then stated, “I don’t need to make any findings on' any other conditions.” Webb’s probation was revoked, and he was sentenced to six years’ imprisonment in the Arkansas Department of Correction.
I. Whether the Court’s Finding that Webb Violated Terms of His Probation Was Clearly Against the Preponderance of the Evidence
In revocation proceedings, the circuit court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of probation. Ark. Code Ann. § 16-93-308(d) (Supp. 2013). Evidence that may not be sufficient to convict can be sufficient to revoke due to the State’s lower burden of proof. Newborn v. State, 91 Ark. App. 318, 210 S.W.3d 153 (2005). A circuit court’s finding in revocation proceedings will not be reversed on appeal unless it is clearly against the preponderance of the evidence. Id. Because the preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the superior position of the trial court to decide these matters. Boyd v. State, 2014 Ark. App. 336, 2014 WL 2442998.
Constructive possession may be implied when contraband is in the joint control of the accused and another. Risper v. State, 2012 Ark. App. 658, at 4, 2012 WL 5834650. Joint occupancy alone is insufficient to establish possession or joint possession; the State must also prove that the accused exercised care, control, and management over the contraband and that the accused knew the matter possessed was contraband. Id. There must be some other factor linking the accused to the contraband, such as whether it is in plain view, whether it is found with the accused’s personal effects, whether it is found on the same side of a car seat where the accused was sitting or in near proximity, and whether the accused is the owner of the automobile or |7exercises dominion and control over it. Id. at 4-5.
Webb argues that there was no evidence of additional facts and circumstances indicating that he had knowledge and control over the gun found under the passenger seat or the drugs that were locked in the safe in the back seat. However, the evidence is as follows. The safe was in plain view in the back seat of the car Webb was driving, and the stolen gun was under the passenger seat next to him. A noticeable odor of marijuana was emanating from the safe, which he admitted that he was delivering. He was on probation for possession of marijuana with intent to deliver and for possession of drug paraphernalia, supporting the circuit court’s statement that he was “streetwise,” and he was carrying a significant sum of money. Although Webb and his passenger claimed that Webb had no knowledge of the gun under the seat, the trial court found their testimony not to be credible.
Again, the credibility of witnesses and the weight of testimony are matters for the trial court rather than the appellate court. Boyd, supra. The facts and circumstances of this case, as determined by the trial court, are such that we cannot say that the court clearly erred in finding that Webb constructively possessed the gun and the safe, or that — based upon the smell in the car — he knew that the safe contained marijuana
II. Whether Webb’s Due-process Rights Were Violated Because the Court Considered Matters Not Contained in the Petition to Revoke
Webb argues on appeal, as he did to the trial court, that the petition to revoke did not notify him of the allegation regarding possession of drugs in the car. We agree, noting that the allegation that he violated condition No. 1, regarding “laws,” was based only on his arrest for driving on a suspended license, two counts of theft by receiving, and possession of a | «firearm by certain persons. However, because the court did not clearly err in finding that Webb constructively possessed the revolver under the passenger seat — a finding that independently supports the violation of conditions — the lack of notice regarding drugs does not require reversal.
Affirmed.
Gladwin, C.J., and Glover, Hixson, and Brown, JJ., agree.
Abramson, Virden, Kinard, and Hoofman, JJ., dissent.
. The State responds that the court did not err by finding that Webb violated terms of his probation; it does not respond to the second point.
. The better course for the circuit court to have taken, particularly in light of evidence that Webb tested positive for THC and failed to make court-ordered payments, would have been to additionally make findings and base the revocation decision on violation of other conditions. | [
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M. MICHAEL KINARD, Judge
|, Appellant Karen Hubbard appeals from the Arkansas Board of Review (Board) decision denying her unemployment benefits upon finding that she was discharged from her last work for misconduct in connection with the work. On appeal, Hubbard argues that the Board’s decision is not supported by substantial evidence. We agree and reverse this finding. The Board’s decision also found that Hubbard was not eligible for benefits from May 11, 2014, through August 5, 2014, under Arkansas Code Annotated section 11 — 10—507(3)(A) (Repl. 2012) because she was not available to perform suitable work due to a childcare situation. Hubbard does not challenge this portion of the decision, and the denial of benefits for these weeks' is affirmed.
12Hubbard was employed as a customer-service associate at Walmart for over seven years until she was discharged in May 2014 for selling alcohol to a customer prior to 7:00 a.m. in violation of company policy. Paula Burns, the store manager, testified that Hubbard had received training regarding the company’s policies on the sale of alcohol. Hubbard was working the self-checkout line the day of the incident and testified that this was her first time working before 7:00 a.m. as a cashier since the store had started selling alcohol. When a customer attempting to purchase beer scanned the item, the register displayed a message stating that the “item cannot be found.” Hubbard called a supervisor for assistance. When no one came to assist her and the line behind the customer grew, Hubbard decided to manually key in the price of the beer and complete the sale. She testified that she considered the fact that the customer was not a minor and that it was not a day when alcohol sales were prohibited; she thought that the barcode was simply not scanning correctly. Shortly thereafter, a supervisor arrived and informed Hubbard that the beer did not scan because it was not yet 7:00 a.m. Hubbard refunded the purchase price and retrieved the beer before the customer left the store.
Burns testified that Hubbard manually overrode the safeguard in place to prevent the sale of alcohol at certain times. Hubbard testified that the register did not indicate that the item could not be sold, but instead informed her that the item was not found. Hubbard said that any item in the store will generate this message if the barcode is not working properly. | sThe Board concluded that Hubbard had committed an “intentional violation of the employer’s known and reasonable rules” and was discharged for misconduct.
A person shall be disqualified from receiving unemployment benefits if it is determined that the person was discharged from his or her last work for misconduct in connection with the work. Ark. Code Ann. § 11 — 10—514(a)(1) (Supp. 2013). The employer has the burden of proving by a preponderance of the evidence that an employee engaged in misconduct. Spencer v. Director, 2014 Ark. App. 479, 2014 WL 4635672. “Misconduct,” for purposes of unemployment compensation, involves (1) disregard of the employer’s interest, (2) violation of the employer’s rules, (3) disregard of the standards of behavior the employer has a right to expect of its employees, and (4) disregard of the employee’s duties and obligations to the employer. Id.
Our appellate jurisprudence makes clear that to constitute misconduct, there must be the element of intent. Id. 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 errors in judgment or discretion. Id. To constitute misconduct, 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.
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. Director, 2013 Ark. App. 205, 2013 WL 1232103. Substantial evidence is.such relevant evidence that a reasonable mind might |4accept as adequate to support a conclusion. Id. Even when there is evidence upon 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 upon the evidence before it. Id. Our function on appeal, however, is not merely to rubber stamp decisions arising from the Board. Id.
In Price, the appellant worked for a bank and forgot to place a hold on a check in violation of a known policy. We held that her conduct amounted to an isolated instance of ordinary negligence or unsatisfactory conduct that did not establish wrongful intent or evil design. We conclude that Hubbard’s policy violation is a similar isolated instance of negligence where the required proof of intent is lacking. Therefore, we reverse the disqualification of benefits based on the finding of misconduct. We remand for further proceedings as necessary based on Hubbard’s eligibility to receive benefits under Ark. Code Ann. § 11-10-507(3)(A).
Affirmed in part; reversed and remanded in part.
Abramson and Vaught, JJ., agree.
. The Board denied Hubbard’s application for appeal from the decision of the Appeal Tribunal; therefore, for purposes of judicial review, the Tribunal’s decision serves as the decision of the Board. See Ark. Code Ann. § 11 — 10— 525(f) (Repl. 2012).
. Hubbard reported that the customer returned after 7:00 a.m. and purchased the beer. | [
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JIM HANNAH, Chief Justice
11 Petitioner Sherman D. Noble filed in this court a petition to reinvest jurisdiction with the Jefferson County Circuit Court to hold a hearing on his petition for writ of error coram nobis. Noble argues that the circuit court erroneously dismissed his petition for lack of jurisdiction. We deny Noble’s petition.
I. Facts
A brief history of this case was set forth in Noble v. Norris, 368 Ark. 69, 243 S.W.3d 260 (2006) (“Noble VIII”), as follows. In 1992, Noble and two other men attempted to steal a BMW from a woman, Tresia Jester. As she drove off to avoid the robbery, she was shot and killed by Noble. Subsequently, on Sunday, October 25, ’ 1992, Noble entered a plea of guilty to the crime of capital-felony murder to avoid the possibility of receiving a sentence of death. As a result of the plea agreement, he was sentenced to life imprisonment without parole in the Arkansas Department of Correction. On Monday, October 26,1992, the circuit court entered its judgment and commitment order. On November 6,1992, Noble’s attorney, |?Mark Hampton, filed a notice of appeal. We dismissed Noble’s direct appeal because he failed to reserve his right to appeal, pursuant tó Arkansas Rule of Criminal Procedure 24.3(b), after entering a guilty plea. See Noble v. State, 314 Ark. 240, 862 S.W.2d 234 (1993) (“Noble I”).
Since his direct appeal, Noble has been a party to numerous cases involving his guilty plea. See Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995) (“Noble II”) (holding Noble was not entitled to postcon-viction relief based on his contention that he received ineffective assistance of counsel at trial and on appeal); Noble v. State, 326 Ark. 462, 932 S.W.2d 752 (1996) (per curiam) (“Noble III”) (holding that the issuance of a writ of mandamus would be a vain and useless act, despite the fact that the circuit court erred in sua sponte dismissing the appeal, because the notice of appeal was untimely); Noble v. State, 326 Ark. 912, 934 S.W.2d 525 (1996) (per curiam) (“Noble IV”) (allowing Noble to proceed with a belated appeal); Noble v. State, CR 96-1442, 1998 WL 313723 (Ark. June 11, 1998) (unpublished per curiam) (“Noble V”) (holding that Noble was not entitled to file a second petition for post-conviction relief under Rule 37 and, even if he was entitled to file, he could not have prevailed); Noble v. Norris, 04-524, 2005 WL 3008676 (Ark. Nov. 10, 2005) (unpublished per curiam) (“Noble VI”) (ordering rebriefing); Noble v. Norris, 04-524, 2005 WL 3436788 (Ark. Dec. 15, 2005) (unpublished per curiam) (“Noble VII ”) (granting Noble’s motion for extension of time); Noble v. Norris, 368 Ark. 69, 243 S.W.3d 260 (2006) (“Noble VIII ”) (affirming the circuit court’s denial of the petition for writ of habeas corpus and rejecting Noble’s argument that the circuit court was without subject-matter and statutory jurisdiction because of his guilty | splea on a Sunday). Noble also was unsuccessful in seeking federal habeas relief. See Noble v. Norris, H-C-99-98 (E.D. Ark. 1999).
On August 1, 2013, Noble filed another petition for postconviction relief in the Jefferson County Circuit Court, and the State responded. On August 26, 2013, Noble asked the circuit court to consider his Rule 37 petition as a petition for writ of error coram nobis. In support of his petition, Noble filed an affidavit of Mark Hampton, his defense attorney at trial, and his own affidavit. On October 18, 2013, the circuit court dismissed Noble’s petition and ruled [that it lacked jurisdiction because Noble lhad not provided any evidence that the ^Arkansas Supreme Court had reinvested Ihe circuit court with jurisdiction to enter-lain his petition for writ of error coram ■obis.
I On June 6, 2014, Noble filed with this Bourt a petition to reinvest jurisdiction fcth the Jefferson County Circuit Court, Bleging that (1) he was unaware at the Hne of his guilty plea that his attorney Hid not received the consent of the prose-Htor and the circuit court for Noble to Hpeal the denial of his motion to suppress Hi statement; (2) he had been inearcerat-H since his arrest and had relied on his Horneys to know the applicable law; and ■ he was unaware that his plea was not voluntarily, knowingly, or intelligently made until his present attorney advised him. The State responded that his claims are not cognizable because he raised multiple ineffective-assistance-of-counsel claims in a coram-nobis proceeding under the guise that his guilty plea was coerced. On June 26, 2014, we accepted Noble’s petition to reinvest jurisdiction with the Jefferson County Circuit Court as a case and now consider his petition.
|4II. Jurisdiction
Noble argues that we should reinvest jurisdiction in the Jefferson County Circuit Court to hold a hearing on his petition for writ of error coram nobis. Specifically, Noble contends that his October 25, 1992 guilty plea was coerced and that the circuit court should now hold a hearing to consider any evidence of coercion. The State responds that Noble should have filed his petition for a writ of error coram nobis directly in the circuit court, and that because he failed to do so, we should dismiss his petition. The State alternatively asserts that this court should deny Noble’s petition to reinvest jurisdiction because the writ of error coram nobis lies to correct a judgment by the court that rendered it. See State v. Hudspeth, 191 Ark. 963, 88 S.W.2d 858 (1935).
This court has articulated the rules for a writ of error coram nobis as follows:
A writ of error coram nobis is an extraordinarily rare remedy more known for its denial than its approval. Mackey v. State, 2014 Ark. 491 [2014 WL 6602313] (per curiam). Coram-no-bis 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). 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 the judgment. Id. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Burks v. State, 2013 Ark. 188 [2013 WL 1858857] (per curiam).
The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Mackey, 2014 Ark. 491 [2014 WL 6602313]; Cromeans v. State, 2013 Ark. 273 [2013 WL 3179379] (per curiam). A writ of error coram nobis is available for addressing 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. Wright v. State, 2014 Ark. 25 [2014 WL 260993] (per curiam); Greene, 2013 Ark. 251 [2013 WL 2460096].
Rhoades v. State, 2015 Ark. 54, at 3-4, 455 S.W.3d 291 (per curiam).
|fiAs a threshold, jurisdictional matter, we address whether Noble must petition this court for leave to reinvest jurisdiction in the circuit' court or whether the Jefferson County Circuit Court had jurisdiction of his petition in the first instance. The general rule is that, when a conviction was entered on a plea of guilty or nolo contendere or when the conviction was not appealed, a petition for writ of error coram nobis is filed directly in the trial-court. Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001). However, this rule does not apply when the record is filed with the appellate court. See Green v. State, 2015 Ark. 25, 453 S.W.3d 677 (per curiam). In Green, appellant filed a petition for writ of error coram nobis in the' circuit court challenging a 2008 judgment reflecting his guilty pleas in three separate cases. The circuit court denied the petition for the writ of error coram nobis, and appellant appealed the court’s denial of the petition. We stated as follows:
A prisoner who appealed his judgment and who wishes to attack his conviction by means of a petition for writ of error coram nobis must first request that this court reinvest jurisdiction in the trial court because the filing of the transcript in an appellate court deprives the trial court of jurisdiction. Maxwell v. State, 2012 Ark. 251 [2012 WL 1950253] (per curiam).... The 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. Mackey v. State, 2014 Ark. 491 [2014 WL 6602313] (per curiam).
Green, 2015 Ark. 25, at 2, 453 S.W.3d 677 (emphasis added). Appellant Green did not appeal the 2008 judgment at issue; however, we considered Green’s appeal of the circuit court’s denial of his error-co-ram-nobis petition and ultimately dismissed it.
In the present case, Noble, unlike appellant Green, filed a direct appeal in 1992 and argued in Noble I, 314 Ark. 240, 862 S.W.2d 234, that the circuit court should have granted his motion to suppress his in-, custody statement made to the police. We dismissed the appeal on the basis bthatj Noble did not condition his guilty plea byl reserving in writing his right to appeal.! Id. Years later, in 2013, Noble filed hisl petition for writ of error coram nobis witli the Jefferson County Circuit Court, ancl the circuit court dismissed the petition ami ruled that “[t]he petitioner has not providl ed any evidence that the Supreme Com* has reinvested this [circuit] court with jurisdiction to hear his petition for writ of error coram nobis.” As such, we agree that the circuit court properly dismissed Noble’s petition for lack of jurisdiction, as two important facts in this case pertain to this court’s jurisdiction. First, we dismissed Noble’s direct appeal in Noble I, and throughout his subsequent appeals, the record for CR-93-427 remained on file in this court. Second, Noble’s record in this court deprived the circuit court of jurisdiction to entertain Noble’s petition at the circuit-court level. Green, 2015 Ark. 25, 453 S.W.3d 677 (citing Maxwell, 2012 Ark. 251, 2012 WL 1950253). Thus, based on the facts specific to this case, Noble must first ask this court to reinvest jurisdiction in the circuit court, as he has done in the instant petition.
III. Merits
For purposes of determining whether to grant Noble leave to proceed in the circuit court with his petition for writ of error coram nobis, this court must first determine whether the allegations in the petition fall within one of the four categories of error that may be addressed through co-ram-nobis proceedings. See Wright, 2014 Ark. 25, 2014 WL 260993. In his petition to reinvest jurisdiction, Noble makes the same allegations that he made in his 2013 petition for writ of error coram nobis. These allegations include ineffective-assistance claims directed toward counsel’s representation of Noble, particularly counsel’s failure (1) to discuss with |7NobIe the witnesses who would testify on his behalf; (2) to provide the State with a list of defense witnesses; (3) to notify Noble of the plea minutes before the October 25, 1992 hearing on a Sunday afternoon; (4) to obtain the consent of the prosecutor and the court prior to the conditional plea; (5) to tell Noble that his guilty plea could not be appealed; (6) to obtain Noble’s consent to enter the plea; (7) to give Noble the false promise of an appeal from his guilty plea; (8) to advise the State of witnesses regarding Noble’s alcohol abuse; (9) to advise Noble that the prosecutor refused to give its consent to his appeal; (10) to advise Noble that he would withdraw his appeal; (11) to advise Noble to appeal the court’s denial of his motion to suppress; (12) to deprive Noble of the voluntariness of the plea because counsel did not properly assert any known defenses; (13) to tell prosecutors that Noble’s plea would be a conditional plea with the right to appeal the denial of his suppression motion; and (14) to admit that counsel had done nothing to prepare for trial. Further, Noble alleged, inter alia, that his Sunday-afternoon guilty plea was not made knowingly, voluntarily, and intelligently because (1) he relied on-counsel’s promise that he would be able to appeal his guilty plea, and (2) “[counsel’s] unfamiliarity with the facts and law relevant to Noble’s case made him so ineffective that Noble’s guilty plea was not knowingly, voluntarily, or intelligently made.”
To the extent that Noble intends to raise allegatiohs of ineffective assistance of counsel, such allegations are not cognizable in a coram-nobis proceeding. Assertions of inadequate counsel are properly brought pursuant to Arkansas Rule of Criminal Procedure 37.1. Schrader v. State, 2014 Ark. 379, 441 S.W.3d 1 (per curiam). We have consistently | sheld that a petition for writ of error coram nobis is not a substitute for raising claims of ineffective assistance of counsel under Rule 37.1. Mason v. State, 2014 Ark. 288, 436 S.W.3d 469 (per curiam). Although Noble attempts to couch these claims in terms of a coerced guilty plea, they are in reality claims of ineffective assistance of counsel. Further, our review of the petition reveals no substantiated, claims that Noble’s guilty plea was coerced or that the plea was the result of fear, duress, or threats of mob violence. See Weekly v. State, 2014 Ark. 365, 440 S.W.3d 341. Accordingly, because Noble’s claims do not fall within one of the four recognized categories subject to coram-nobis relief, his petition to reinvest jurisdiction with the Jefferson County Circuit Court is denied.
Petition denied.
Baker, Goodson, and Hart, JJ., dissent. | [
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PER CURIAM
|TIn 2013, appellant Tommy Bowden was found guilty by a jury of first-degree murder of his mother and sentenced to life imprisonment without parole. On appeal, appellant did not challenge the sufficiency of the evidence. Instead, he argued that the trial court erred in granting the State’s motion in limine and excluding the testimony of Dr. Bradley Diner, a psychiatrist. Appellant contended that'Dr. Diner’s testimony that he had a mental disease or defect should have been allowed as relevant in determining the occurrence of an “extreme emotional disturbance,” as referenced in the statutory definition of manslaughter, because the defense had intended to request that the jury be permitted to consider manslaughter as a lesser-included offense of first-degree murder. We concluded that the “extreme emotional disturbance” |2necessary to satisfy the definition of manslaughter is not the type of disturbance that is internally caused by mental disease or defect. We also rejected any argument that Dr. Diner’s testimony was relevant to prove that an “extreme emotional disturbance” was caused by appellant being provoked to commit the murder based on his belief that his mother was poisoning him and his stepfather. We held that, because the circumstances surrounding the murder did not evidence that the murder occurred “in the heat of passion” or in the “moment following provocation,” any such belief by appellant was not an event of provocation that could result in the type of disturbance that would reduce a homicide from murder to manslaughter. Appellant did not challenge on appeal the trial court’s ruling that Dr. Diner’s opinion failed to provide him with an affirmative defense of mental disease or defect. Bowden v. State, 2014 Ark. 168, 2014 WL 1515871.
Appellant subsequently filed in the trial court a timely, verified pro se petition for relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013), alleging that he had not been afforded effective assistance of counsel and that he was denied a fair trial stemming from a motion to change venue. The trial court denied the petition without a hearing. Appellant |stimely lodged this appeal. Now before us are appellant’s motions for extension of time to file his brief.
We need not consider the merits of the motions because it is clear from the record that appellant could not prevail if an appeal were permitted to go forward. An appeal from an order that denied a petition for postconviction relief will not be allowed to proceed where it is clear that the appellant could not prevail. Jordan v. State, 2013 Ark. 469, 2013 WL 6046053 (per curiam); Holliday v. State, 2013 Ark. 47, 2013 WL 485726 (per curiam); Bates v. State, 2012 Ark. 394, 2012 WL 4848963 (per curiam); Martin v. State, 2012 Ark. 312, 2012 WL 3372998 (per curiam). Accordingly, the appeal is dismissed, and the motions are moot.
A review of the petition and the order reveals no error in the trial court’s decision to deny relief. When considering an appeal from a trial court’s denial of a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel’s performance was not ineffective. Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29.
The benchmark for judging a claim of ineffective assistance of counsel must be “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment |4to the United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). There is a strong presumption that trial counsel’s conduct falls within the wide range of professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when-viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam). Second, the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel’s performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner must show that there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in sentencing. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. “[Tjhere 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.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.
| ..¡In his petition, appellant argued that counsel did not provide effective assistance because he failed to provide appellant with a “motion for discovery,” presumably the State’s response to discovery requests, in a timely manner so that appellant could assist with his defense; that, despite appellant’s request for a toxicology report, counsel did not provide him with the report or present a copy to the jury; that counsel did not allow appellant to assist with the appeal of the judgment. With regard to the toxicology report, appellant did not state the purpose of the report or otherwise advance any argument concerning how he was prejudiced. The burden is entirely on the petitioner in a Rule 37.1 proceeding to provide facts that affirmatively support the claims that counsel’s conduct prejudiced him under the standards set out in Strickland. Nickelson v. State, 2013 Ark. 252, 2013 WL 2460147 (per curiam). As appellant did not state how the defense was prejudiced by any inaction on counsel’s part at trial or on appeal, he did not meet the second prong .of the Strickland test. See Young v. State, 2015 Ark. 65 S.W.3d 6 (holding that a claim of ineffective assistance of counsel was conclusory where appellant failed to demonstrate the requisite prejudice).
Appellant also raised a series of allegations stemming from his contention that, despite evidence that he had filed a police report against his mother alleging that she was poisoning him, brought suspected poisoned items to the sheriffs office, and visited a physician’s office for treatment for ingesting poison, counsel failed to adequately present mitigating fac tors and advance at trial the theory that he had killed his mother as a result of provocation causing extreme, emotional disturbance due to her efforts to poison him and his stepfather. Appellant acknowledged that the defense theory advanced by counsel was that appellant’s “psychological | fiproblems” were a contributing factor causing him to commit the murder, but he argued that he wanted counsel to argue that he was provoked to commit the crime because his mother was actually poisoning him. Appellant argued that, because the jury did not hear evidence that his mother was poisoning him, a longer sentence than he deserved was imposed. Specifically, appellant claimed that counsel provided ineffective assistance because he failed to obtain a witness statement from his stepfather to show that his mother had been abusing and poisoning him; did not ask a deputy sheriff during cross-examination why the suspected poisoned food items were not examined when appellant made a report to the sheriff s office in which he alleged that he was being poisoned; failed to obtain a witness statement from the physician’s office receptionist, who would have stated that, when appellant came to his appointment, he believed that he had been poisoned; and did not inform the jury that police officers turned off the recorder during his confession when he talked about his suspicions that his mother was poisoning him.
The record does not support appellant’s allegations that testimony regarding his suspicions was not elicited by counsel. In fact, the record reflects that counsel repeatedly examined witnesses with regard to appellant’s suspicion that he was being poisoned by his mother. As to the specific testimony referenced by appellant in his petition, the record includes |7testimony that appellant’s stepfather had suffered a stroke resulting in a limited ability to communicate and was in a rehabilitation nursing home; that counsel repeatedly questioned officers at trial about appellant’s attempt to report to the sheriffs office that he was being poisoned by his mother; that the physician who examined appellant at his appointment testified that appellant indicated to his office staff that he believed that he had been poisoned; that counsel elicited testimony from an investigating officer that appellant stated during his statement that he believed that his mother was poisoning him and his stepfather.
To the extent that appellant was contending that counsel was remiss in failing to argue that he killed his mother as a result of provocation resulting from her poisoning him and that such an argument would have supported the submission of the lesser-included offense of manslaughter to the jury, this argument must fail. As stated, we rejected the argument that testimony regarding appellant’s suspicions was admissible to support submission of manslaughter as a lesser-included offense to the jury, finding that, based on the circumstances surrounding the murder, appellant’s belief that the victim had been poisoning him and his stepfather was not an event of provocation that could cause an “extreme emotional disturbance” necessary to reduce a homicide from murder to manslaughter. Bowden, 2014 Ark. 168, 2014 WL 1515871. To the extent that appellant was alleging that counsel was ineffective because, if counsel had advanced the theory during the sentencing phase of the trial that his mother was poisoning him and his stepfather, a lesser sentence would have been imposed, this argument must also fail. Matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel’s professional judgment and are not grounds for a finding of ineffective assistance of counsel. Anderson v. State, 2015 Ark. 18, 454 S.W.3d 212 (per curiam); Mister v. State, 2014 Ark. 446, 2014 WL 5494016. While the decisions must be based on a reasonable professional judgment, counsel is allowed great leeway in making strategic and tactical decisions. Stewart v. State, 2014 Ark. 419, 443 S.W.3d 538. Appellant acknowledges that the defense theory was based on his “psychological problems,” and the record is clear that counsel advanced the theory that, as a result of his mental illness, appellant believed that his mother was attempting to poison him and that he ultimately murdered her in response to this delusional thinking. During the sentencing phase, counsel called as a witness Dr. Diner, who testified that he had diagnosed appellant with paranoid schizophrenia and that appellant murdered his mother as a result of his psychotic, delusional thinking that included the belief that his mother was poisoning him. Thus, any argument or evidence that the murder was provoked by the victim’s actual poisoning of appellant would have been inconsistent with counsel’s trial strategy. It was appellant’s burden to show that specific acts or omissions by counsel could not have been the result of reasonable professional judgment. He- did not demonstrate that the chosen strategy was unreasonable and thus did not meet his burden to overcome the presumption that trial counsel’s conduct fell within the wide range of professional assistance. See Anderson, 2015 Ark. 18, 454 S.W.3d 212.
Finally, appellant summarily alleged that he was denied a fair trial because he had made a motion for change of venue. To the extent that appellant was alleging that a motion for change of venue was erroneously denied by the trial court, appellant did not raise that issue on appeal. Claims of mere trial error that could have been addressed at trial or on appeal are not grounds for relief under Rule 37.1. Stewart v. State, 2014 Ark. 419, 443 S.W.3d 538 (per curiam); Armstrong v. State, 2014 Ark. 127, 2014 WL 1096302 (per curiam).
Appeal dismissed; motions moot.
. Pursuant to Arkansas Code Annotated section 5-10-104(a) (Supp. 2011),
(a) A person commits manslaughter if:
(1)(A) The person causes the death of another person under circumstances that would be murder, except that he or she causes the' death under the influence of extreme emotional disturbance for which there is reasonable excuse.
(B) The reasonableness of the excuse is determined from the viewpoint of a person in the actor’s situation under the circumstances as the actor believed them to be.
. Arkansas Rule of Criminal Procedure 37.3(c) provides that an evidentiary hearing should be held in postconviction proceedings unless the files and record of the case conclusively show that the prisoner is entitled to no relief. Eason v. State, 2011 Ark. 352, 2011 WL 4092485 (per curiam); Hayes v. State, 2011 Ark. 327, 383 S.W.3d 824 (per curiam). Where the circuit court dismisses a Rule 37.1 petition without an evidentiary hearing, it "shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court’s findings." Ark. R.Crim. P. 37.3(a); see Eason, 2011 Ark. 352, 2011 WL 4092485. In the instant case, the circuit court's order denying postconviction relief complies with the requirements of Rule 37.3.
. While appellant also alleged that the physician who examined him at his appointment did not testify that he recommended that appellant take charcoal tablets for ingestion of toxins, he does not claim that counsel was ineffective in his examination of the physician. In any event, the record reflects that counsel did question the physician as to whether he had recommended that appellant purchase charcoal tablets, and the physician responded that he did not remember making that recommendation and doubted that he did so. | [
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CLIFF HOOFMAN, Judge
| Appellants Raymond and Patricia Edwards appeal from the circuit court’s denial of their motion for custody of their granddaughter, M.A.E., who had been adjudicated dependent-neglected and placed in the custody of appellee, the Arkansas Department of Human Services (DHS). On appeal, appellants argue (1) that their appeal was timely pursuant to Rule 2(c) of the Arkansas Rules of Appellate Procedure — Civil and (2) that there was insufficient evidence that the order denying them custody of M.A.E. was in her best interest. Because the circuit court’s order did not comply with Arkansas Rule of Civil Procedure 54(b), we dismiss the appeal without prejudice for lack of a final, appealable order.
M.A.E. (12/26/07), along with her two brothers, A.E. (2/27/04) and M.E. 12(11/18/05), were removed from the custody of their parents, Trish Edwards and Bruce Allen, in March 2011 due to environmental neglect. The children were adjudicated dependent-neglected on May 3, 2011, and the case goal was set as reunification with the parents. Appellants, the children’s maternal grandparents, filed a motion to intervene in the case, which was granted on July 6, 2011.
Appellants filed a motion for custody of all three children on May 9, 2012, arguing that the children were currently placed in separate foster homes and that it was in their best interest to be placed together in appellants’ custody. A petition to terminate parental rights was filed on November 13, 2012. A.E. and M.E. were temporarily placed with appellants on June 20, 2013, while M.A.E. remained in the same foster home where she had initially been placed. However, the siblings participated in court-ordered supervised visitation with each other once per week. After a hearing held on November 4, 2013, the circuit court granted permanent custody of A.E. and M.E. to appellants but reserved ruling as to the placement of M.A.E., finding that it was in her best interest at that time to remain in foster care and continue in the custody of DHS.
A second hearing on appellants’ motion for custody of M.A.E. was held on April 30, 2014. DHS and the attorney ad litem recommended that appellants’ motion for custody be denied based on evidence that M.A.E. had been adversely impacted by visits with her brothers and that she did not wish to live with appellants. Appellants, however, testified that it was in M.A.E.’s best interest to live with them and claimed that DHS, the attorney ad litem, and M.A.E.’s foster parents had engaged in systematic efforts to sever the child’s ^relationship with her biological family so that she could be adopted by her foster parents. After hearing all the evidence, the circuit court found that, while appellants were good people that loved and cared for M.A.E. deeply, it was not in the child’s best interest, nor was it best for her health, welfare, and safety, to be placed in appellants’ custody. The court noted that it based this decision on M.A.E.’s testimony, as well as the testimony of the other witnesses. The court ordered that sibling visitation cease immediately, as it was not in the children’s best interests, and that M.A.E. was to remain in her current foster home.
In the written order entered on July 31, 2014, the circuit court stated that appellants were dismissed from the case and that this was a final hearing on their motion for custody of M.A.E., with a termination hearing date to be set. By agreement of the parties, the court also included an Arkansas Rule of Civil Procedure 54(b) certificate indicating that there was no just reason for delay and that the judgment was final. Appellants filed a notice of appeal from this order on August 26, 2014, and an amended notice of appeal was filed on August 27, 2014.
Appellants first argue on appeal that them notice of appeal from the July 31, 2014 order was timely, even though it was not filed within the shortened twenty-one-day time period required for notices of appeal in dependency-neglect cases under Arkansas Supreme Court Rule 6-9 (2014). They assert that this appeal was not from one of the orders specifically listed |4in Rule 6-9 and that it was therefore governed by Arkansas Rules of Appellate Procedure — Civil 2(c) and 4(a) (2014). We do not address this issue, however, nor do we reach the merits of appellants’ second argument on appeal concerning whether the denial of their motion for custody was in M.A.E.’s best interest, as we hold that the appeal must be dismissed for lack of a final, appealable order.
The issue of whether an order is final is a jurisdictional matter, and it is one that this court must consider even if the parties do not raise it. May Constr. Co. v. Town Creek Constr. & Dev., 2010 Ark. App. 711, 2010 WL 4254455; Foreman v. Ark. Dep’t of Human Servs., 78 Ark. App. 48, 82 S.W.3d 176 (2002). An order or judgment is not considered final if it does not adjudicate all of the claims or all of the rights and liabilities of all parties in a case. Ark. R. Civ. P. 54(b) (2014); Ark. R.App. P.-Civ. 2(a)(ll) (2014). Where multiple parties or claims are involved, a trial court may direct the entry of final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by factual findings, that there is no just reason for delay and upon its express direction for the entry of final judgment. Ark. R. Civ. P. 54(b)(1). If the court makes such a determination, it must execute a certificate in compliance with the requirements of Rule 54(b). Stouffer v. Kralicek Realty Co., 81 Ark. App. 89, 98 S.W.3d 475 (2003).
Here, as appellants themselves agree, the denial of their motion for custody was not one of the orders specifically listed as a final, appealable order in Arkansas Supreme Court Rule 6-9(a) or Arkansas Rule of 15Appellate Procedure — Civil 2(c). In addition, it was not a final order awarding custody that is immediately appealable pursuant to Arkansas Rule of Appellate Procedure — Civil 2(d), as it instead maintained M.A.E.’s placement in the foster home pending a subsequent termination hearing. Because the dependency-neglect case involving M.A.E. continued, not all of the claims or rights of all of the parties had been adjudicated at the time of the July 31 order. Recognizing that this order was not a final, appealable order, appellants requested that the circuit court execute a Rule 54(b) certificate.
While the circuit court did include a Rule 54(b) certificate in its July 31 order, we conclude that it was not in compliance with the requirements of the Rule. We have stated that the trial court must include specific factual findings in its order explaining why a hardship or injustice would result if an immediate appeal is not permitted. Kowalski v. Rose Drugs of Dardanelle, Inc., 2009 Ark. 524, 357 S.W.3d 432; Stouffer, supra. The Rule 54(b) certificate in this case states as follows:
Upon the basis of the foregoing factual findings, the court hereby certifies, in accordance with Rule 54(b)(1), Ark. R. Civ. P., that it has determined that there is no just reason for delay of the entry of a final judgment and that the court has and does hereby direct that the judgment shall be a final judgment for all purposes.
The court does refer to the factual findings contained in its prior order; however, these findings state only that appellants are dismissed from the case and that the hearing was a final hearing as to their motion for custody. The order does not include specific findings or facts establishing that a hardship or injustice is likely to occur in the absence of an immediate appeal. Kowalski, supra. Further, while the parties did discuss the need for a Rule 54(b) certification at the conclusion of the hearing, such discussions on the record alone are insufficient to cure a defective certification, as the factual findings must be set out in the circuit court’s order. Id. Thus,- the Rule 54(b) certificate in this case is ineffective to certify | (¡the appeal as final, and we therefore dismiss the appeal without prejudice.
Appeal dismissed without prejudice.
Vaught and Brown, JJ., agree.
. Appellees, DHS and the attorney ad litem on behalf of the minor children, filed a joint motion to dismiss the appeal on January 7, 2015. We denied the motion on January 28, 2015.
. In their addendum, appellants have also included the circuit court's subsequent August 28, 2014 order granting the petition to terminate parental rights with respect to M.A.E. However, appellants did not amend their notice of appeal to designate that they were appealing from the order of termination. Thus, we cannot consider this order in our decision. See Hall v. Ark. Dep’t of Human Servs., 101 Ark. App. 417, 278 S.W.3d 609 (2008). | [
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PER CURIAM
pin 2014, appellant Anthony White filed a petition for writ of habeas corpus in the circuit court of the county where he was incarcerated. In the petition, appellant challenged a 2006 judgment that reflected his jury convictions for possession of cocaine, simultaneous possession of drugs and firearms, and possession of a firearm by a felon. The judgment also reflected that the jury sentenced appellant as a habitual offender to consecutive sentences of 240 months’ imprisonment, 720 months’ imprisonment, and 360 months’ imprisonment, respectively, for an aggregate sentence of 1320 months’ imprisonment in the Arkansas Department of Correction. Appellant asserted two grounds for the writ that were based on allegations of double-jeopardy violations resulting from the convictions for possession of cocaine and simultaneous possession of drugs and firearms. The circuit court found that the claims were not cognizable in a petition for the writ and dismissed the petition. This appeal followed.
A circuit court’s denial of habeas relief will not be reversed unless the court’s findings are |2clearly erroneous. Henderson v. State, 2014 Ark. 180, 2014 WL 1515878 (per curiam). On appeal, appellant combines and reasserts his two arguments for double-jeopardy violations and contends that the circuit court erred in denying relief on the claims. We hold that the circuit court did not err in denying relief and affirm.
Under our statute, a petitioner for the writ who does not allege his actual innocence and proceed under Act 1780 of 2001 Acts of Arkansas 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 is illegally detained. Ark.Code Ann. § 16-112 — 103(a)(1) (Repl. 2006). The burden is on the petitioner in proceedings for a writ of habeas corpus to establish that the trial court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Arnett v. Hobbs, 2014 Ark. 540, 2014 WL 7225013 (per curiam).
Some claims of double jeopardy are cognizable in a habeas proceeding. Mur phy v. State, 2013 Ark. 155, 2013 WL 1504318 (per curiam). But, where a double-jeopardy claim does not allege that, on the face of the commitment order, there was an illegal sentence imposed on a conviction, the claim does not implicáte the jurisdiction of the court to hear the case, and the claim is not one cognizable in a habeas-corpus proceeding. Id. Appellant alleged an illegal sentence, but his claims nevertheless fail.
Appellant first alleged in his petition that the convictions for possession and simultaneous possession violated double jeopardy because the jury had acquitted him of possession with intent to deliver cocaine when it returned the conviction on the lesser-included offense of possession |sof cocaine. He contended that the possession-with-intent-to-deliver conviction was necessary as an underlying element of the simultaneous-possession charge, and he also asserted that the underlying felony must be a Class Y felony in order to support the Class Y simultaneous-possession charge. He further contended that the jury could not, after it acquitted him on the possession-with-intent-to-deliver charge, convict him of the simultaneous-possession charge based on possession of the same drugs. In his second ground for the writ, appellant also alleged that the simultaneous-possession conviction could not stand because it contained all of the elements in the simple-possession conviction.
Appellant’s first claim for relief is at odds with the language of the statute defining the crime of simultaneous possession as in effect when he committed the crime. Under our criminal code, the governing statute is that which is in effect at the time the crime was committed. Cody v. State, 326 Ark. 85, 929 S.W.2d 159 (1996). The judgment reflects that the offense date was September 4, 2005, so the applicable version of the simultaneous-possession statute was Arkansas Code Annotated section 5-74-106 (Repl. 2005), which states that “no person shall unlawfully commit a felony violation of § 5-64-401” while in possession of a firearm. Ark. Code Ann. § 5-74-106(a). There was no restriction on the level of the offense under section 5-64-401 noted in the statute. The statute also makes no distinction between those committing a violation of section 5-64-401(c) for simple possession of a controlled substance and those committing a violation of section 5-64-401(a) for possession with intent to deliver a controlled |4substance.
The first rule of statutory construction is to construe a statute just as it reads, giving the words their ordinary and usually accepted meaning. State v. Thomas, 2014 Ark. 362, 439 S.W.3d 690. We construe criminal statutes strictly, resolving any doubts in favor of the defendant. Hart v. State, 2014 Ark. 250, 2014 WL 2465343. We also adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. Id. 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. The language of section 5-74-106 concerning appellant’s first argument is plain and unambiguous in that any violation of section 5-64-401, whatever its class or under any of its provisions, was sufficient to trigger application of the simultaneous-possession statute.
Appellant’s second ground for the writ also fails because, as this court has previously held, the legislature intended for the two offenses to be separate offenses, although the same conduct violates the two provisions. See Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000). The General Assembly has made it clear that it wishes to assess an additional penalty for simultaneous possession of controlled substances and a firearm over those penalties imposed in the referenced drug-possession statutes, and there is no double-jeopardy violation for convictions on both a simultaneous-possession charge and a possession charge, even though a violation of section 5-64-401 is a lesser-included offense of the simultaneous-possession offense. See id.
While appellant’s claims of a double-jeopardy violation alleged facts that may support a Isdaim that there was an illegal sentence imposed on the face of the commitment order, this court has previously considered appellant’s argument in a similar case and found no double-jeopardy violation. Applying the same analysis used in Rowbottom to the facts in this case, we hold that there was no double-jeopardy violation in appellant’s convictions on the charge of simultaneous possession of a controlled substance and a firearm and the charge of possession of a controlled substance. Because the two convictions did not impose an illegal sentence, the circuit-court did not err in denying relief and dismissing appellant’s petition for the writ. This court may affirm the circuit court if it reached the right decision albeit for the wrong reason. Smith v. State, 2014 Ark. 204, 2014 WL 6092264; see also Nalls v. State, 2014 Ark. 434, 445 S.W.3d 509 (per curiam).
Affirmed.
. As of the date of this opinion, appellant remains incarcerated in Lincoln County.
. The current version of section 5-74-106 requires that the violation of sections 5-64-419 through 5-64-442 of the Code must be a felony in order to trigger application of the simultaneous-possession statute. It does not require the violation to be a Class Y felony. | [
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JIM HANNAH, Chief Justice
| tAppellant Linda J. Earls (“Linda”) appeals an order of the Greene County Circuit Court denying Linda’s motion to set aside default judgment in favor of ap-pellee Harvest Credit Management VI-B, LLC (“Harvest”). For reversal, Linda argues that the circuit court erred in granting default judgment because Harvest’s summons was defective. Pursuant to Arkansas Supreme Court Rule 1 — 2(b)(1) (2014), we have jurisdiction of this case, as this appeal involves an issue of first impression. We reverse.
Linda and Tony L. Earls (“the Earlses”) received a Chase credit card, and Harvest is |2the assignee of the credit-card account. The Earlses made numerous charges on the card, leaving an outstanding balance of $4678.21. When the Earlses’ account remained past due, Harvest placed demands for payment, but the account went unpaid. On August 30, 2006, Harvest filed a complaint seeking a judgment against the Earlses in the amount of $4678.21, prejudgment interest of $2448.56, and attorney’s fees. On November 14, 2006, the Earlses were served with process. Harvest’s summons, which accompanied the complaint, stated that the answer must be filed, “within (20) TWENTY DAYS from the day you were served this summons; OR THIRTY (30) days if you are a nonresident of this state or a person incarcerated in any jail, penitentiary, or other correctional facility in this state” (emphasis added). According to Arkansas Rule of Civil Procedure 12(a) in effect at the time filed, the summons correctly stated that an in-state defendant had twenty days to answer and that an out-of-state defendant had thirty days to answer, but the summons incorrectly stated that an incarcerated defendant had thirty days, instead of sixty days, to file an answer. The Earlses were not incarcerated. The Earlses did not answer Harvest’s complaint. On March 13, 2007, the circuit court entered a default judgment in favor of Harvest in the amount of $4678.21, prejudgment interest of $2980.73, attorney’s fees of $500, and court fees of $240.
On December 14, 2012, Linda filed a motion to set aside the default judgment, arguing that Harvest’s summons was defective on its face and did not strictly comply with Rule 4 of the Arkansas Rules of Civil Procedure because of the incorrect response time related to incarcerated defendants. She also asserted that the default judgment was void and unenforceable. In support of her position, Linda relied on an unreported federal district court ^decision that held that the summons, which was identical to the one in the 'present case, was defective. See Charkoma Res., LLC v. JB Energy Explorations, LLC, No. 09-02118, 2009 WL 4829014 (W.D.Ark. Dec. 8, 2009). In response, Harvest argued that the federal case was not binding on this court and that the Earlses’ response time was listed in its summons and, therefore, it complied with Rule 4. On March 8, 2013, the circuit court entered its order denying Linda’s motion to set aside default judgment. Linda appealed to the court of appeals, which reversed the circuit court’s decision. See Earls v. Harvest Credit Mgmt., 2014 Ark. App. 294, 2014 WL 1856733. In Earls, the court of appeals held that the summons was defective because it stated that an incarcerated defendant had only thirty days to respond instead of the correct sixty days, even though the error did not apply to the Earlses.
On May 23, 2014, Harvest filed a petition for review. In its petition, Harvest argued that the court of appeals’ holding conflicted with the plain language of Rule 4, which, Harvest claimed, does not expressly require a summons to list the correct response time for every potential defendant. Harvest maintained that Rule 4 requires only that a summons state the time within which the actual defendant is required to respond. Citibank, N.A. and Unifund OCR Partners filed amicus curiae briefs in support of Harvest’s argument. This court accepted Harvest’s petition for review. When we grant a petition for review, we consider the appeal as though it had been originally filed in this court. Bohannon v. Robinson, 2014 Ark. 458, 447 S.W.3d 585.
On appeal, Linda argues that the circuit court erred in entering a default judgment and |4in refusing to set aside the default judgment because Harvest’s summons did not strictly comply with Rule 4. Specifically, Linda asserts that the summons was defective because it listed “the defendant,” as set forth in the language of Rule 4(b), when there were actually two defendants; that each one could have chosen a different response time listed in the summons; and that the response time of incarcerated defendants was in error.
Harvest responds that the incorrect information on the summons was not applicable to the Earlses. In support of its position, Harvest cites Talley v. Asset Acceptance, LLC, 2011 Ark. App. 757, 2011 WL 6064975 (reversing the circuit court’s refusal to set aside the default judgment because the circuit court’s zip code was incorrect), for the proposition that Rule 4 requires substantial compliance and that any incorrect information that is superfluous will not render the summons deficient. Harvest also relies on this court’s ruling in Nucor Corporation v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (2004), in which this court held that the summons at issue was not fatally defective' because Nucor, the party at issue, was correctly identified in the summons; that the summons in no way failed to apprise Nucor of the pen-dency of the lawsuit; and that a literal application of adhering to a strict compliance of Rule 4(b) would lead to an absurd result.
The issue on appeal is whether an error, which does not apply to the actual defendant, or defendants in this case, renders the summons defective. Our standard of review for an order denying a motion to set aside default judgment depends on the grounds upon which the appellant claims the default judgment should be set aside. Steward v. Kuettel, 2014 Ark. 499, 450 S.W.3d 672. In eases in which the appellant claims that the default judgment is |svoid, our review is de novo, and we give no deference to the circuit court’s ruling. Id. Further, a circuit court’s interpretation of a court rule is reviewed de novo by this court. Gatson v. Billings, 2011 Ark. 125, 2011 WL 1206500.
Rule 4(b) governs the form of summonses and provides as follows:
(b) Form. The summons shall be styled in the name of the court and shall be dated and signed by the clerk; be under the seal of the court; contain the names of the parties; be directed to the defendant; státe the name and address of the plaintiffs attorney, if any, otherwise the address of the plaintiff; and the time within which these rules require the defendant to appear, file a pleading, and defend and shall notify him that in case of his failure to do so, judgment by default may be entered against him for the relief demanded in the complaint.
Ark. R. Civ. P. 4(b) (2014) (emphasis added). This court adopted an “Official Form of Summons,” on May 24, 2001, and it became effective on July 1, 2001. See In re Implementation of Amend. 80: Amendments to Rules of Civ. P., 345 Ark. App’x 606 (2001) (per curiam) (mandating that specific language appear in a summons regarding the defending parties’ time for filing a responsive pleading).
The law in Arkansas is well settled that service of valid process is necessary to give a court jurisdiction over a defendant. Patsy Simmons Ltd. P’ship v. Finch, 2010 Ark. 451, 370 S.W.3d 257; Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003). This court has explained its service requirements as follows:
Our case law is well settled that statutory service requirements, being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. This court has held that the same reasoning applies to service requirements imposed by court rules. More particularly, the technical requirements of a summons set out in Ark. R. Civ. P. 4(b) must be construed strictly and compliance with those requirements must be exact. Actual knowledge of a proceeding does not validate defective process. The reason for this rule is that service of valid process is necessary to give a court jurisdiction over a defendant.
[fiWe have made it clear in a long line of cases that compliance with Rule 4(b) must be exact. The bright line standard of strict compliance permits cer- . tainty in the law; whereas, a substantial compliance standard would lead to ■ an ad hoc analysis in each case in order to determine whether the due-process requirements of the Arkansas and U.S. Constitutions have been met.
Trusclair v. McGowan Working Partners, 2009 Ark. 203, at 3-4, 306 S.W.3d 428, 430 (emphasis added) (citations omitted). In applying our strict-compliance standard, this court has held that a summons that provides an incorrect number of days within which the defendant must file an answer after service of the summons is defective and will deprive the circuit court of jurisdiction over a defendant. See Patsy Simmons Ltd. P’ship, 2010 Ark. 451, 370 S.W.3d 257 (summons incorrectly informing the defendant, a domestic partnership, that it had thirty days, instead of twenty days, to answer); Trusclair, 2009 Ark. 203, 306 S.W.3d 428 (summons incorrectly notifying the defendant, a foreign corporation, that it' had twenty days, instead of thirty days, to answer).
With this precedent in mind, we turn to the present case. Here, Harvest’s summons stated in pertinent part that the answer
must be filed within (20) TWENTY DAYS from the day you were served this summons; OR THIRTY (30) days if you are a non-resident of this state or a person incarcerated in any jail, peni tentiary, or other correctional facility in this state.
As previously noted, Harvest’s summons incorrectly stated that an incarcerated defendant had thirty days, instead of sixty days, to file an answer. See Ark. R. Civ. P. 12(a).
Here, the circuit court stated in its order that service upon the Earlses was proper. However, the language of Rule 4(b) requiring that the summons be directed to “the defendant,” or in this case, the Earlses, must be read in conjunction with Rule 12(a), which |7provides for varying response times for in-state, out-of-state, and incarcerated defendants. Given that Rule 4 and Rule 12 govern summonses and the response times therein, we cannot ignore our case law that states that a summons must comply exactly and not substantially with the requirements of Rule 4(b). See Patsy Simmons Ltd. P’ship, 2010 Ark. 451, 370 S.W.3d 257. Thus, we conclude that the response times for each category of defendant — in-state, out-of-state, and incarcerated defendants — must be correct and exact. Further, pursuant to our holding in Trusclair, 2009 Ark. 203, 306 S.W.3d 428, the fact that the Earlses had knowledge of the proceedings, notwithstanding the error in the summons, did not validate process. This holding comports with our holding in Trusclair in which this court adhered to a bright-line standard, rejected a substantial-compliance standard, and refused to engage .in an ad-hoc analysis of deciding the validity of a summons on a case-by-case basis.
Because Harvest’s summons contained an incorrect response time, it failed to meet the requirements of Rule 4(b) and Rule 12(a) by incorporation. We hold that Harvest’s summons falls short of strict compliance, as required by Rule 4(b). Accordingly, we reverse the circuit court’s grant of default judgment in favor of Harvest and its denial of Linda’s motion to set aside default judgment on the basis that service upon the Earlses was proper.
Reversed and remanded; court of appeals opinion vacated.
Special Justice James Arnold joins this opinion.
Hart, J., concurs.
Baker and Goodson, JJ., dissent.
Wood, J., not participating.
. The circuit court granted default judgment in favor of Harvest against Linda J. Earls and Tony L. Earls. Linda J. Earls filed the motion to set aside the default judgment. Linda J. Earls filed the notice of appeal, appeals the circuit court's default judgment, and its order denying the motion to set aside the default judgment. Thus, we treat Linda as the appellant in this case.
. In Harvest’s argument, it refers to the appellant as the Earls.
. For this reason. Harvest’s reliance on Nucor, 358 Ark. 107, 186 S.W.3d 720, is misplaced. Unlike Harvest’s summons in this case, the Nucor summons did not contain an erroneous statement of any of the provisions of either Rule 4(b) or Rule 12(a). | [
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DAVID M. GLOVER, Judge.
|, This is an appeal from summary judgment entered on August 29, 2012. Judgment was entered in favor of appellee, Federal Home Loan Mortgage Company (Freddie Mac), concerning property that belonged to appellants, Kenneth and Karen Brown (the Browns), before a February 8, 2011 foreclosure sale. We affirm.
Background
In April 2009, the Browns were not able to pay their 2007 mortgage, which had been assigned to CitiMortgage, Inc. The Browns and CitiMortgage entered negotiations to modify the Browns’ obligation; eventually the Browns’ monthly payment was reduced to $2,709.22 under a Home Affordable Modification Trial Period Plan (HAMP). Though the parties disagree about the start date of the trial plan, that disagreement does not affect 12the outcome of this appeal. They do agree that the Browns made reduced payments under HAMP through January 2011 but that the October 2010 through January 2011 payments were returned to the Browns by CitiMortgage with offers to assist them in bringing their mortgage current. On December 6, 2010, ■ CitiMortgage filed a “Mortgagee’s Notice of Default and Intention to Sell,” declaring the entire indebtedness due and setting a sale date of February 8, 2011. CitiMortgage submitted an affidavit of mailing and compliance with statutory notice. By letter dated December 14, 2010, CitiMortgage informed the Browns that “Because you have not kept the terms of the Forbearance Plan with us, we have cancelled it.”
The foreclosure sale on the Browns’ property was held, and a deed from Citi-Mortgage conveying the property to Freddie Mac was executed on February 11, 2011. Freddie Mac mailed the Browns a notice to quit and demand for possession of the property. When the Browns did not relinquish the property, Freddie Mac filed a complaint in forcible entry and detainer on March 2, 2011. The trial court filed an order for writ of assistance on March 28, 2011, and a writ of assistance was filed on May 3, 2011.
On May 16, 2011, the Browns sought and were granted a preliminary injunction. Incorporated in the Browns’ petition for injunctive relief was a petition to set aside the foreclosure, asserting that a modification had occurred and the sale should be set aside because of fraud, improper process, promissory estoppel, and part performance. Freddie |sMac then filed its motion for summary judgment. Following a hearing on the motion, the trial court granted summary judgment and this appeal followed.
Standard of Review
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, responses to requests for admission, and affidavits show that there is no genuine issue of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Welsher v. Mercy Health Sys., 2012 Ark. App. 394, 2012 WL 2337804. The burden of proving that there is no genuine issue of material fact is upon the moving party. Id. However, “[wjhen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Ark. R. Civ. P. 56 (2012). The question on appeal is whether the evidence presented left a material question of fact unanswered. Welsher, supra. In conducting our appellate review, we view the proof in the light most favorable to the party resisting the motion, resolving any doubts and inferences against the moving party. Id. Questions of statutory interpretation are reviewed de novo. Meadows v. Ferrell, 2013 Ark. App. 106, 2013 WL 627013. In determining the meaning and effect of a statute, we construe it just as it reads, giving the words their ordinary and 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.
14Piscussion
The Browns raise several points, with numerous subpoints, in this appeal. As their primary point of appeal, however, they contend that the trial court erred in not setting aside the foreclosure sale because they were not in default at the time of foreclosure, alleging that the mortgage agreement had been previously modified. In order to understand why we agree with the trial court’s rejection of this argument as barred under Arkansas Code Annotated section 18-50-116(d)(2)(B), it is first important to understand the statutory framework within which this case must be decided. We therefore begin our discussion with the statutes applicable to setting aside a foreclosure sale, and then incorporate the Browns’ arguments into that discussion.
Arkansas Code Annotated section 18-50-lll(a)(2) (Repl.2003) makes clear that the recitals contained in the mortgagee’s deed serve as prima facie evidence of the truth of the matters set forth therein. It provides in pertinent part:
18-50-111. Form and effect of trustee’s or mortgagee’s deed.
(a)(1) The ... mortgagee’s deed shall contain recitals of compliance with the requirements of this chapter relating to the exercise of the power of sale and sale of the trust property, including recitals concerning mailing and publication of notice of default and intention to sell and the conduct of the sale.
(2) Upon the filing of the deed for record with the recorder of the county in which the trust property is situated, the recitals shall be prima facie evidence of the truth of the matters set forth therein, but the recitals shall be conclusive in favor of a purchaser for value in good faith relying upon them.
ls(Emphasis added.) In addition, Arkansas Code Annotated section 18-50-116(d) (Supp.2011) provides in pertinent part:
(d) Nothing in this chapter shall be construed to:
(2)(A) Impair the right of any person or entity to assert his or her legal and equitable rights in a court of competent jurisdiction.
(B) However, a claim or defense of a person or entity asserting his or her or its legal and equitable rights, shall be asserted before the sale or it is forever barred and terminated, except that the mortgagor may assert the following against either the mortgagee or trustee:
(i) Fraud; or
(ii) Failure to strictly comply with the provisions of this chapter, including without limitation subsection (c) of this section.
(Emphasis added.) This statutory framework makes clear that legal or equitable rights must be asserted before a foreclosure sale is held or the claim will be “forever barred or terminated,” except in cases where fraud or the failure to strictly comply with the applicable statutory provisions can be established.
Here, the foreclosure sale took place; the property was thereafter conveyed by deed to Freddie Mac; but only when Freddie Mac demanded possession of the property did the Browns begin asserting their legal and equitable claims; and then Freddie Mac sought summary judgment, asserting its rights to the property pursuant to its deed. According to the statutory framework set forth above, the only way the Browns could successfully set | (¡aside the foreclosure sale was to establish either fraud or the failure to strictly comply with the applicable statutory provisions. See Ark.Code Ann. § 18-50-116(d)(2)(B).
At the hearing, the trial court did an exemplary job of explaining to the Browns the rationale for, and the type of, proof it needed in order to deny Freddie Mac’s motion for summary judgment. For example,
The Court: I guess what I’m telling you is, I think they’ve made their prima facie case unless you have a defense that says you were defrauded into not acting. And I see that as y’all’s last escape to get past this sale that’s already happened.
And I’m trying to give you an opportunity to give me that information in a form that I can use it. But I don’t think the rules allow me to just take your answer or your arguments, absent some testimony in the form of an affidavit or emails from the company which wouldn’t be hearsay because they would be admissions of a party opponent. I know there’s issues about whether or not they’re true and accurate. But that’s not the issue here.
I don’t have anything in that post-October window in the way of any documents, whether they’re — whether they have a foundation — admissible foundation or not. Evidentiary foundation, is the word I was looking for. But all I have is comments during negotiations and things prior to them starting to send their checks back. And things changed when they started sending their checks back because you can’t — I think they made a prima facie case that they gave them notice at that point. Now, the notice reads for itself. It is what it is. But I don’t know that I can do anything but say, do you have anything that fits that?
The trial court concluded that the Browns did not present adequate proof to demonstrate either statutory basis for setting aside the foreclosure sale.
|7The Browns argue that they were not obligated to meet proof with proof because Freddie Mac did not demonstrate a prima facie entitlement to summary judgment, i.e., “that [Freddie Mac] had not met their burden of proof by establishing a prima facie case of no fraud.” In essence, they contend that Freddie Mac did not establish a prima facie entitlement to summary judgment because it did not prove the absence of fraud on its part. We find no merit to the argument. Freddie Mac’s motion for summary judgment and accompanying exhibits made a prima facie case that it was entitled to possession of the Browns’ property. It was then up to the Browns to meet that proof with proof of their own demonstrating either fraud or the failure to strictly comply with the applicable statutory requirements. We agree with the trial court that the Browns did not do so. In short, once Freddie Mac established its prima facie rights to the property, which it did, the burden of demonstrating one or both of the statutory exceptions fell to the Browns. The trial court concluded that the Browns did not satisfy that burden, and we agree.
Consequently, as noted at the outset of our discussion, we agree with the trial court’s conclusion that the Browns’ primary argument was barred by Arkansas Code Annotated section 18-50-116(d)(2)(B). That is, the Browns’ overall position is that the trial court erred in not setting aside the foreclosure sale because they were not in default at the time Freddie Mac foreclosed, having allegedly modified the mortgage agreement prior to the foreclosure sale. The problem with this argument is that they did not make it before the foreclosure sale. As explained previously, after the sale, they were limited by statute to ^demonstrating either fraud or a failure to strictly comply with the statutes as bases for setting aside the sale; there is no statutory exception for setting aside a sale based on a legal or equitable claim that there had been a prior modification of the mortgage agreement. Because the Browns did not present adequate proof of fraud or a failure to strictly comply with the statutes, their other claims were “forever barred and terminated.” The trial court concluded that the Browns “failed to present sufficient proof to overcome the bar established by Arkansas Code Annotated § 18 — 50—116(d)(2)(B).” We agree, and, consequently, it is not necessary to further address the Browns’ sub-points underlying their basic contention.
A remaining argument asserted by the Browns is that Freddie Mac pled “a 12(b)(6) motion, not a summary judgment.” We find no merit to the argument. Freddie Mac acknowledges that its supporting brief for its motion for summary judgment also contained a 12(b)(6)-type challenge, but contends that the motion was clearly also one for summary judgment. We agree. Freddie Mac’s motion for summary judgment moved “for summary judgment in its favor, pursuant to Rule 56 of the Arkansas Rules of Civil Procedure. There are no material facts in dispute and, as such, summary judgment is appropriate.” The trial court treated the motion as one for summary judgment and, following the hearing on the motion, granted summary judgment. The fact that Rule 12(b)(6) arguments were also raised does not change the basic nature of what was sought by Freddie Mac and granted by the trial court.
IsAffirmed.
GLADWIN, C.J., and WHITEAKER, J., agree.
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Wood, J.
The appellant appealed from a judgment of conviction on an indictment which, omitting formal parts, reads as follows:
“The grand jury of Union County, in the name and by the authority of the State of Arkansas, on oath accuse the defendant, C. O. Turner, of the crime of running a gambling house, committed as follows, to-wit: The said defendant, on the 7th day of November, 1921, in Union County, Arkansas, did unlawfully and feloniously run, maintain and operate and suffer and permitted gaming tables to ¡be maintained and gambling to be carried on and exhibited in a certain house or building then and there owned, used and controlled by him, the said C. O. Turner, said building then and there being situated on a lot on South Washington Street in the city of El Dorado, and commonly known as the Willis Jones place, against the peace and dignity of the State of Arkansas.”
At the trial the sheriff of the county testified that when the building known as the Willis Jones place was raided by him for gambling and parties were arrested for that offense, the appellant generally put up bonds for them, and when they were short of money appellant would put up additional amounts necessary “to get up for the men who were gambling in that place.” This occurred in Union County, Arkansas, since the first of the year 1921. The appellant had rooms in the house, and he rented rooms to others. The gambling was carried on in the shed back of the house. There was a dwelling house, a barn and stable and a little shed. The shed was used for gaming. The back yard was surrounded by a high board fence. In going into the Willis Jones residence from the street there is a continuous floor space all the way back where there is a poolroom and gaming going on all the time. The witness, with others, made a number of raids on the place. The parties who were arrested for gambling in that place when the raids were made never put up their money for their fines. They didn’t want to go to jail, and sometimes they would request the appellant to put up the money and stand good for them. When Willis Jones left the place, the appellant moved into the property vacated by Jones, and then the gambling started. In the various raids made by witness on the place he found a great amount of paraphernalia such as is used in gambling houses.
There was other testimony corroborating the testimony of the above witness to the effect that the premises known as the Willis Jones place, while under the control of appellant, was being maintained as a gambling house. One witness testified that he went there on one occasion after complaint was made to him that it was being run as a gambling house, and found two hundred men in there. Some man invited the witness to come in, and witness replied that he did not have any money. Whereupon the party said that witness’ check would be good. Witness handed his check to a certain party, who took it up to appellant in the front part of the house and brought back the money. A few days later witness went to the bank and got the check, and it was indorsed C. Turner. Witness did not know whether it was C. 0. Turner, the appellant’s signature, or not. The place where the gaming was going on was a shed 100 feet or more from the house. He entered the house from the street — went into a hallway a little north of the room where he saw appellant standing.
Another witness testified that he went down to the Willis Jones place and saw gambling going on. He didn’t know who owned the place — -saw appellant there, working there — saw him in the office. At the time gambling was going bn in the house and in the livery stable. Witness never saw appellant exercising any authority. He saw him in the office in the front, and they said it was his place.
■ Another witness stated that he was present at the Willis Jones place on a certain occasion when some deputy sheriff raided same; as they started to the back, some one ran up and pushed a little signal button that runs to the gambling room and they began to pour out. Witness didn’t remember seeing the appellant. Witness had been deputized as constable and was asked by the prosecuting attorney to go down there. When witness arrived at the place there was no gambling going on. Witness walked on back and found whiskey and chock beer in a suitcase. Appellant was in there and assumed charge of the place. The appellant objected to the witness stating that appellant assumed charge of the place. Appellant told witness on that occasion that he did not ■allow whiskey in the building and did not know how it got there. In the trial about the whiskey, appellant admitted that he had charge of the place, but was turning it back to Willis Jones, as he didn’t want to get Jones into trouble. When witness went there and found the whiskey, appellant said he was in control, and didn’t know how the whiskey got there; that some one had slipped it in and left it. Witness did not find any gambling devices there. The appellant stated that all the gaming devices had been moved out. Appellant made the statement that he was in charge of the place. He assumed charge and directed witness to the different places —seemed to have charge of the whole building. It was shown that the appellant was renting the building from Willis Jones.
The appellant testified in his own behalf that he rented some rooms from Willis Jones on a lot on South Washington Street known as the Willis Jones place. He had four rooms in the building in the front yard of that house. He had nothing to do with any other part of the building. He didn’t participate in the games in the place known as the gambling house — had no interest in it. He stated that he did not run any of the games and did not gamble. After the raids were made he made bonds three times for parties who called on him — that is, put up the money. The people who were in the games for whom he made bonds were playing poker. There was no gambling carried on in the rooms rented by appellant. Appellant rented out these rooms.
On cross-examination, over the objection of appellant, the court permitted the attorney for the State to ask the witness if he had not been convicted of a felony and sent to the penitentiary, to which question witness replied that he was convicted in 1909 for selling whiskey and sent to the Federal prison at Atlanta, Georgia, for eighteen months.
1. The’ appellant contends that the testimony was not sufficient to sustain the verdict. The testimony sneaks for itself. It was sufficient to sustain the verdict. It tended to prove the allegation of the indictment charging the appellant with running, maintaining and operating a gambling house.
2. The appellant contends that there was no direct evidence to show that he was running a gambling house and it was therefore error for the court to allow witnesses to say that they understood it was appellant’s place and that he seemed to be in charge. There was no error in the ruling of the court. The above statements were not strictly opinion evidence. The witnesses were rather stating a conclusion of fact drawn from appearances which they detailed. As was said by Chief Justice Cockrill of similar testimony in the case of Fort v. State, 52 Ark. 180-87, “This, however, was only a conclusion of fact drawn from appearances. It was with reference to an ordinary transaction which any man of common understanding was capable of comprehending, but which could not be reproduced or described to the jury precisely as it appeared to the witness; and while it may not be the right of a party to demand an expression of opinion of a witness under such circumstances, it is not reversible error to permit it.” See other cases there cited. Prewitt v. State, 150 Ark. 279.
3. The court did not err' in permitting the prosecuting attorney to ask the appellant on cross-examination if he had not been convicted of a felony and sent to the penitentiary. When appellant took the witness stand, he was subject to the same rules of cross-examination as any other witness, and to test his credibility as a witness it was proper to ask him on cross-examination whether or not he had been convicted and sent to the penitentiary. Hollenberg v. State, 53 Ark. 387; Vance v. State, 70 Ark. 272; Ware v. State, 91 Ark. 555; Hunt v. State, 114 Ark. 239; Powell v. State, 149 Ark. 311.
4. It is next contended that the indictment does not charge the appellant with running a gambling house. Section 2632, Crawford & Moses’ Digest reads as follows : “Every person who shall keep, conduct or operate, or who shall be interested, directly or indirectly, in keeping, conducting or operating any gambling house or place, or place where gambling is carried on, or who shall set up, keep or exhibit, or cause to be set up, kept or exhibited, or assist in setting up, keeping or exhibiting any gambling device, or who shall be interested, directly or indirectly, in running any gambling house, or in setting up and exhibiting any gambling device, or devices, either by furnishing money or other articles for the purpose of carrying on any gambling house, shall be deemed guilty of a felony, and, on conviction thereof, shall be confined in the State penitentiary for not less than one year1 nor more than three years. ’ ’
The charging part of the indictment set out above, while not phrased in the precise terms of the statute, was nevertheless sufficient to charge the offense under the statute of “keeping, conducting or operating a gambling house, or place where gambling is carried on.” To “run, maintain and operate” and suffer and permit gaming tables to be exhibited and gambling to be carried on in a house or building by a person who owns or controls such house or building for gambling purposes, and who knowingly .permits it to be used for the purpose of .exhibiting gaming tables and for gambling to be carried on, is but to “keep, conduct or operate a gambling house” within the purview of the above statute. The appellant is accused in the indictment of the crime of “running a gambling house.” While this designation of the offense is not controlling, yet, taken in connection with the facts set forth in the charging clause, it advises the appellant that he is charged with the offense of “running a gambling house” by permitting gaming tables to be exhibited and gambling to be carried on in a certain house or building owned and controlled by 1dm for gambling purposes. The appellant did not demur, or challenge the sufficiency of the indictment by motion in arrest of judgment. The indictment as a whole does not omit any essential allegation of fact necessary to constitute the crime designated therein. Therefore, although clumsily drawn, the indictment cannot be questioned here for the first time. McIntire v. State, 151 Ark. 458. On the sufficiency of the indictment, see also Riley v. State. 120 Ark. 450, and cases there cited.
This statute is leveled at the specific offense of “keeping, conducting or operating a house or place” for the purpose of allowing gambling to be carried on therein, or any gambling device or devices to be set up and exhibited therein. The gravamen of the offense is the maintaining of a house or place where those who desire to engage in gambling or to exhibit any gambling device or devices, may resort and find shelter, so to speak, while indulging in their gambling practices. The gist of the offense is the keeping of the house or place for the purposes named therein.
There is no conflict between this section of the statute and sections 2630 and 2631, Crawford & Moses’ Digest, as the Attorney G-eneral suggests, nor between this section and section 2635, as contended by counsel for the appellant. Sections 2630-31 and 35, supra,, constitute the offenses named in those respective sections misdemeanors; whereas, the offense under section 2632 is a felony. The offenses designated in the other' sections do not have reference to the keeping, conducting or operating a house or place set apart and devoted to gambling purposes, whereas sec. 2632 has reference to just such house or place. Sections 2630-31 and 35, supra, are provisions of the Revised Statutes. Section 2632 is the first section of act 152, page 613, Acts of 1913. There is no repealing* clause to the act of 1913, and unless there is an irreconcilable conflict between sec. 2632 and the other sections mentioned, the latter are not repealed by the former. We find no such conflict.
5. The court instructed the jury at the request of the State as follows: “If the jury believes from the evidence, beyond a reasonable doubt, that the defendant is guilty of knowingly suffering and permitting a gaming table to be maintained and gambling to be carried on and exhibited in a certain house used and controlled by said defendant, as set out in the indictment, then it will be your duty to find him guilty and assess his punishment at some period in the penitentiary not less than one year nor more than three years.”
The appellant objected to the above instruction on the ground that it omits the word “owned” used in the indictment. The word “owned” was not an essential description of the offense. The offense consists in “keeping, conducting or operating” a gambling house, or being interested therein, and is complete, whether the accused owned the house or not, if he keeps, conducts and operates it as a gambling house. The word “owed” as employed in the indictment obviously was not intended to designate legal title to the property, but only to indicate that the appellant had control over the house or building — that is, that he was keeping, conducting and operating the same as a gambling house. It was not essential to the validity of the indictment that the pleader use the precise terms of the statute. It is sufficient, although different words are employed, if they have the same import as those used in the statute to define the offense. State v. Scroggins, 85 Ark. 43; Blevins v. State, 85 Ark. 195; Parker v. State, 98 Ark. 575.
The appellant complains because the court refused to grant his prayer for instruction as follows: “You-are instructed that it is not sufficient, under this indictment, to find that defendant suffered and permitted gambling tables to be maintained, and gambling to be carried on and exhibited in the house therein referred to, but you must also, before you will be warranted in finding the defendant guilty, find from the evidence beyond a reasonable doubt that the defendant himself ran, maintained and operated said gaming tables.” •
There was no error in refusing this prayer. As we have shown, under sec. 2632, supra, the section under which appellant was indicted, the appellant would be guilty if he suffered and permitted gaming tables to be exhibited and gambling to be carried on in a house which he controlled and kept and conducted for gambling purposes, whether he himself engaged in gambling or maintained and exhibited gaming tables and other gambling devices or not. He would also be guilty if he kept and conducted a house for gambling purposes and he himself engaged in gambling or operated and exhibited gaming devices therein. As we have seen, the indictment charges the offense of keeping a gambling house set forth in sec. 2632, supra. The jury returned a verdict of guilty of the crime charged. We are not, therefore, called upon to determine whether or not lesser crimes — misdemeanors—of the same generic' class are embraced in the indictment.
6. The undisputed evidence proved that the house or building which it is alleged that the appellant kept as a gambling house was situated on Washington Street.
There is no error in the record, and the judgment is therefore affirmed. | [
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McCulloch, C. J.
Appellant was convicted in the trial below under an indictment charging him with selling and being interested in the sale of intoxicating liquor.
In the trial of the case the State relied upon testimony tending to establish the sale of intoxicating liquor at appellant’s place of business in the city of Blytheville, and there was evidence legally sufficient to warrant the jury in finding that whiskey was sold at that place, and that appellant had knowledge of the sale and was interested therein.
The first ground argued here for a reversal of the judgment is that the court erred in holding that one of the talesmen summoned by the sheriff was competent for service as a juror. After the court ruled upon the competency of the juror, appellant exercised a peremptory challenge, and thereafter exhausted his statutory number of peremptory challenges in making up the jury.
The talesman in question, Mr, Oberste, stated that in a general way he had an opinion concerning the guilt or innocence of the accused of the defense embraced in the indictment. On further examination by the court, he stated, however, that he knew nothing of the facts of this case or of any other particular charge of liquor-selling against appellant, and that he could try the case upon the testimony adduced, disregarding entirely his general opinion concerning the guilt or innocence of appellant.
The state of mind of Mr. Oberste, as established in substance by his statement made to the court, was that he had an opinion on his mind that appellant had been guilty of violating the laws against the sale of intoxicants, and that he would go into the jury box with that impression on his mind, but that he was not informed as to any facts upon which a charge of this kind against appellant was or could be predicated, and that he could try this case upon the testimony adduced. He was not asked to state, and did not state, the source of his information upon which his opinion was based. The ‘juror was therefore not disqualified.
In the first place, it is not shown that the opinion of the juror was not based on mere rumor, and his statements of his mental attitude with respect to the matter showed that his opinion was necessarily based upon rumor, and not upon a statement of facts concerning appellant’s guilt or innocence. There was no error of the court therefore in its ruling in this regard.
It is next insisted that the court erred in admitting certain testimony.
Appellant was the owner and occupant of a business house in the city of Blytheville, where he operated a cold-drink stand. The ground floor consisted of a room about twenty-one feet in width and seventy-odd feet in length, with a small room cut off in the back end. There were rooms above, which appellant rented out to roomers. There was a man named Manning employed by appellant to run a hamburger stand in the main room of the store, and the State was permitted to prove that Manning sold whiskey at that place, and that he usually went back to the small room in the rear and brought out the bottles and delivered them to customers and collected the price.
One witness, Durham by name, testified that he bought whiskey from Manning at that place. Another witness, a carpenter who was working at the place, testified that he saw Manning make sales of whiskey, and that appellant wa,s passing in and out of the room from time to time.
The sheriff of the county, Mr. Blackwood, testified that he raided the place several times and found fruit jars in the little room in the rear which smelled of whiskey, and that he found a funnel there which had the whiskey odor in it. Blackwood also testified that he lay in wait in the rear of the store' one night and detected a person coming out of the back door with a bottle of liquor.
It is insisted that the court erred in admitting this testimony as to sales without showing that appéllant was present at the time the sales were made, but we are of the opinion that the testimony was competent under the circumstances proved in the case, as the jury were warranted in drawing the inference from the facts proved that appellant was interested in the sale and had knowledge of the fact that Manning was selling whiskey. The place Of business was owned and operated by appellant, and Manning was his employee. Appellant gave his personal attention to the .operation of the business there, and, even though he was not present when Manning made the sales, if he was interested and knew that the sales were being made by Manning, he was guilty under the statute. Robinson v. State, 38 Ark. 641.
Of course, the fact alone that Manning was the employee of appellant and sold intoxicants without appellant’s knowledge or consent would not render appellant guilty of unlawful participation or interest in the sales (Partridge v. State, 88 Ark. 267); but, as before stated, if appellant was in fact interested in the sale and was aware of the fact that Manning was making the sales, he was equally guilty with Manning.
The court was therefore correct in permitting proof of sales made by Manning under the circumstances shown in the evidence.
Objections were made to remarks made by the court in overruling appellant’s objections to this testimony, wherein the court stated, in substance, that the grounds for overruling the objections were that the testimony of the witnesses showed that the whiskey came out of appellant’s house and tended to show that appellant was operating and controlling the house. The basis of the' objection to this statement of the court is that it amounted to an expression of the opinion of the court on the weight of the evidence. When the objection to the remark was made, the court turned to the jury and gave the following admonition:
“You need not pay any attention to what the court said. I am simply making a ruling, and anything the court said you will pay no attention to, for the facts are for you to determine. And the court further states to you, with reference to the parties coming out of the back door of this place, as to what force and effect it has and the weight to attach to it, under the evidence, it is solely in your province to determine.”
We do not think that the court’s statement, when considered in connection with the admonition given to the jury, could be treated as an expression of the opinion of the court upon the weight of the evidence.
Again, it is insisted that the court erred in refusing to permit appellant’s counsel to ask a witness on cross- examination, where he got “white mule whiskey” on another occasion. The court held that it was unimportant where or from whom the witness had gotten liquor on other occasions, and appellant saved his exceptions to this ruling.
The court was undoubtedly right, for it is unimportant to inquire of the witness concerning the purchase of liquor from other persons at other times and places.
Appellant made a general objection to the following instruction given by the court:
“If you find that any witness has wilfully sworn false as to any material fact in issue in this case, then you may disregard, if you so see fit, all of the evidence of any such witness, or you may give regard to that portion of the evidence of such witness which you may believe to be true or disregard that portion which you believe to be false.”
This instruction, when interpreted literally, was not a correct statement of the law on.the subject, but, in the absence of a specific objection to it, appellant is not in an attitude to complain. Bruder v. State, 110 Ark. 402; Johnson v. State, 120 Ark. 193; Griffin v. State, 141 Ark. 43.
Error of the court is assigned in modifying the following instruction requested by appellant:
“The bare presence of the defendant at the time of the commission of the crime in question, if he were present, would not justify his conviction unless the evidence shows that he was by some act aiding, abetting, assisting or encouraging the person who actually committed the crime. ’ ’
The change in the instruction was slight and merely changed the verbiage, which did not in anywise change the meaning of the instruction, and there was no error committed in this respect.
Finally, it is contended that the court committed error which, was prejudicial to the rights of appellant in remarks made to the jury, after long deliberation over the case, which tended to coerce the jury into rendering a verdict..
It appears from the recitals of the bill of exceptions that, after the jury had been deliberating for a time, the court called the jury in and made inquiry of the foreman in the presence of the other jurors as to how the jury stood, and the foreman replied, “eleven to one.” The court then stated that the jury would not be discharged, but would be required to deliberate further, and the court then gave further instructions concerning the form of the verdict and handed the jury forms for a verdict either for an acquittal or conviction. The jury came in again just before the noon recess, and, after announcing that a verdict had not been agreed upon, the court discharged them until the reconvening of the court, with the customary admonition not to discuss the case among themselves or permit any one else to speak with them concerning the case until they reconvened after the noon recess for further deliberation. After the recess, when the jury had assembled in the court room, the court made the following statement to the jury:
“Gentlemen of the jury, I just want to say that hung juries don’t get the courts anywhere. It just means additional time taken up by the court and additional burden of expense on the public, and the court sees no reason why there should be no verdict reached in this case, one way or the other. As to how it goes, is a matter for you to determine, and I want you to take these forms of verdict and retire to the jury room and further consider this case.”
It is insisted that this language of the court was calculated to operate as compulsion on the single juror who was holding out for acquittal to go over to the majority and join in a verdict of conviction. It will be observed, however, that the court in its statement admonished the jury that it was their duty to reach a verdict ‘ ‘ one way or the other, ’ ’ and did not direct the attention of the jury to the particular verdict which should be rendered. Tt has been held in some of our decisions that a similar admonition given by the trial court to a jury does not constitute compulsion and is not reversible error. Johnson v. State, 60 Ark. 45; Jackson v. State, 94 Ark. 169; St. L. I. M. & S. Ry. Co. v. Carter, 111 Ark. 272.
In Johnson v. State, supra, Judge Battle, speaking for the court, said:
“In the language objected to, no opinion as to the facts in the case is indicated, nor was the jury advised to yield their honest convictions for the purpose of arriving at a verdict. The court sought to impress them with the importance of a decision, and, while it did not ask them ‘to yield up any question of conscience,’ advised them to not be obstinate or too tenacious of their opinions. What, from this, were they reasonably to understand? Manifestly, that they should not be stubborn or unreasonable in adherence to their opinions. And this is the duty of jurors.”
In the instance now before us for review, the court, by inquiry, elicited a statement from the foreman as to how the jury stood numerically, and it appeared from the statement that the jury stood eleven to one. It is generally a question of discretion with the court to determine how long a jury should be held together in an effort to agree upon a verdict, and there is no impropriety in the trial judge making inquiry as to the probability of the jury being able to arrive at a verdict if kept together for further deliberation. It is the opinion of the majority of this court that it is not improper for the trial court to inquire how the jury stands numerically, but the writer and Mr. Justice Wood think that the practice is not one to be commended, for it is calculated to single out a juror or a small minority of the jurors as being especially in the mind of the court in any admonition that is given. In other words, the remarks of the court are rendered personal to some extent when the fact is openly brought to the attention of the court in the presence of the jury that a small minority is holding out against the majority. It is far better that whatever the court has to say to the jury in an admonition concerning the duty to arrive at a verdict should be entirely impersonal, and a single juror should not be made to feel that he is the sole object of the court’s remarks. However, we do not say that under all circumstances it constitutes reversible error for the court to thus elicit information concerning the standing of the jury and then to further give proper admonition as to the duty of the jurors in an effort to arrive at a verdict. .The inquiry should, we think, be considered in determining the probable effect of the court’s remarks and it might not, under some circumstances, be without controlling force.
In the present instance, when the whole of the court’s remarks are considered together, we do not think that they amount to coercion or to an expression of opinion on the weight of the evidence, and that they do not call for a reversal of the judgment.
We find, after careful consideration of the record, that there was no error committed by the court, and the judgment is therefore affirmed. | [
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RAYMOND R. ABRAMSON, Judge
| Jennifer Steele appeals from the order of protection filed September 10, 2013, in Pulaski County Circuit Court, granting a two-year protective order to John Lyon. On appeal, Steele argues that the trial court erred by allowing Lyon to testify when he was not listed as a witness and by not considering her argument that Lyon had other remedies outside the Domestic Abuse Act, Arkansas Code Annotated § 9-15-101 (“The Act”). She also contends that the trial court erred in allowing certain testimony and that there was insufficient evidence to support the ruling in favor of Lyon. We affirm.
The parties dated roughly eight months, but never lived together. After their relationship ended, the parties ran into each other at a parade and had an altercation. Lyon claimed that he received numerous text messages from Steele harassing and threatening him. |2He filed a petition for an order of protection under the Act on June 5, 2013, and an ex parte order was granted with a hearing set for June 27, 2013. The hearing was held, but continued until August 29, 2013. The final order of protection was entered on September 10, 2013.
On September 16, 2013, Steele filed a notice of appeal. On September 20, 2013, she filed a “Brief in Support of Motion for Relief Pursuant to Rule 59 and/or Rule 60” to amend the order to reflect that she did not own or carry a firearm; it was granted on October 17, 2013. Steele filed a motion to extend time for filing the record on appeal on December 11, 2013. The record was lodged with this court on January 16, 2014. Over a year later and after several other extensions, this matter is now before us again.
On appeal, Steele argues that the trial court erred in allowing Lyon to testify even though he was not listed as a witness in discovery and in admitting certain evidence during his testimony. However, Steele provides no citation to authority or convincing argument in its support. It is well established that we will not consider an argument when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. See Yankaway v. State, 366 Ark. 18, 22, 233 S.W.3d 136, 139 (2006); Hollis v. State, 346 Ark. 175, 179, 55 S.W.3d 756, 759-60 (2001); Dougan v. State, 330 Ark. 827, 957 S.W.2d 182 (1997); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996).
Steele’s second point on appeal is that the trial court erred in ruling that the case fell within the scope of the Domestic Abuse Act. On August 29, 2013, as a preliminary motion, Steele moved for the court to dismiss the case for lack of jurisdiction over the subject matter. She argues that this was clearly a case in which other adequate remedies existed outside the Domestic Abuse Act in which to address Lyon’s complaint. Steele cites the general assembly’s [ointent of the statute and asserts that the legislature did not envision this Act would be used as it was under circumstances like this case presents. Steele argues that there is no pattern in the instant case of any domestic abuse nor is there a pattern of threats. She cites the following language of the statute:
The General Assembly hereby finds that this chapter is necessary to secure important governmental interests in the protection of victims of abuse and the prevention of further abuse through the removal of offenders from the household and other injunctive relief for which there is no adequate remedy in current law.
Ark. Code Ann. § 9-15-101.
Steele contends that Lyon used an adequate remedy by calling the police on June 2, 2013 — the day of the incident. She maintains that because Lyon advised the police as to what happened when the parties saw each other at the Conway Pride Parade, and told them that he had received a text that Steele intended to kill herself, that there was an adequate remedy other than filing an order of protection, and as such, the Domestic Abuse Act is not applicable to the instant case.
Her interpretation and application of the statutory language is inaccurate. The sentence in the statute does not mean that a petitioner who alleges domestic abuse or the threat of domestic abuse is precluded from seeking an order of protection if he or she could also seek other remedies, such as criminal charges or civil damages. Steele also contends that the statute does not apply in this case because the parties never lived together and only dated for roughly eight months. The Act’s purpose does not in any way indicate that it should be utilized only when there are no other adequate remedies or that the parties must reside together. Arkansas Code Annotated Section 9-15-103 defines “family or household member” to include anyone in a past or present dating relationship regardless of whether they live together.
This court reviews issues of statutory interpretation de novo. Claver v. Wilbur, 102 Ark. App. 53, 280 S.W.3d 570 (2008). In reviewing issues of statutory interpretation, a court will determine the meaning and effect of a statute first by construing the statute just as it reads, “giving the words their ordinary and usually accepted meaning in common language.” Mississippi River Transmission Corp. v. Weiss, 347 Ark. 543, 550, 65 S.W.3d 867, 872-873 (2002). When the statute’s language is clear and unambiguous, there is no need to look further and apply the rules of statutory construction. Id. This court has previously ruled that a relationship “clearly comes within the definition of the applicable statute”, even when the parties dated for less than two months. Pablo v. Crowder, 95 Ark. App. 268, 274, 236 S.W.3d 559, 563 (2006). Here, it is clear that the,statute is applicable in this case. Lyon and Steele were in a dating relationship for eight months, and the fact that Lyon had other remedies available to him does not preclude him from seeking relief under the statute.
Steele’s next argument on appeal is that the trial court erred in allowing Lyon’s Exhibit 1, a series of text messages, into evidence. A circuit court’s decision to admit evidence will not be reversed absent a manifest abuse of discretion. Laswell v. State, 2012 Ark. 201, 17, 404 S.W.3d 818, 828. The abuse-of-discretion standard “is a high threshold that does not simply require error in the trial court’s decision, but requires that the trial court act improvidently, thoughtlessly, or without due consideration.” Gully v. State, 2012 Ark. 368, 423 S.W.3d 569, 578 (quoting Grant v. State, 357 Ark. 91, 93, 161 S.W.3d 785, 786 (2004)). Further, this court will not reverse a circuit court’s decision absent a showing of prejudice. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002).
Steele argues that the text messages should not have been admitted into evidence because: (1) the text messages did not have names on the documents, (2) the text messages |Bwere not a complete record of the communication between the parties, (3) the text messages were not the originals and were taken from a source that was not provided during discovery. We hold that the trial court did not err by allowing the exhibit into evidence because it had been properly authenticated. Further, Arkansas Rule of Evidence 1001(3) defines “original” as the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. If data are stored in a computer or similar device, an “original” includes any printout or other output readable by sight that accurately reflects the data. Ark. R. Evid. 1001(3). As such, the trial court did not abuse its discretion by allowing screenshots of the text messages taken from the phone to be admitted as evidence.
Steele next argues that the trial court erred in allowing testimony by forcing her to read text messages into the record that she could not authenticate. This point on appeal fails for the same reason her first argument on appeal does. Steele does not cite any applicable statuto ry or case law to support her argument. We have long held that we will not consider an argument when the appellant presents no applicable authority or convincing arguments in its support. See Polston v. State, 360 Ark. 317, 201 S.W.3d 406 (2005); Hathcock v. State, 357 Ark. 563, 182 S.W.3d 152 (2004); Stivers v. State, 354 Ark. 140, 118 S.W.3d 558 (2003). Accordingly, we affirm the trial court’s decision on this point.
Steele’s fifth and final point on appeal is that the trial court erred in ruling in favor of Lyon because there was insufficient evidence to support the ruling. Our standard of review following a bench trial is whether the circuit court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Newton v. Tidd, 94 Ark. App. 368, 231 S.W.3d 84 (2006). A finding is clearly erroneous when, although there is evidence to support it, the previewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Simmons v. Dixon, 96 Ark. App. 260, 240 S.W.3d 608 (2006). The appellate court gives due deference to the superior position of the trial court to view and judge the credibility of the witnesses. Robinson v. Ford-Robinson, 362 Ark. 232, 236, 208 S.W.3d 140, 141 (2005).
At the hearing, the trial court heard testimony from both sides, and it was well within the lower court’s discretion to weigh the credibility of each witness. Lyon testified that Steele sent forty-six text messages in one day and acted erratically. Lyon’s witness, Christina Harrison, confirmed Lyon’s belief that Steele was following him around at the Conway Pride Parade and testified that Steele was suicidal and had threatened to kill Lyon. Steele admitted that she “ran her mouth” to Lyon at the parade. When Steele raised her arm to adjust her sunglasses, Lyon told her not to hit the woman standing next to him, and grabbed her arm. Steele then hit Lyon.
Lyon also testified that he continued to receive harassing text messages and offensive comments from Steele even after he had asked her to stop contacting him. Steele threatened to come to his apartment, and Lyon feared for his safety.
From the testimony presented at the hearing, the trial court could reasonably find that Steele committed domestic abuse under the statute by inflicting fear of imminent physical harm, bodily injury or assault. There was'sufficient evidence for the trial court to find that an order of protection should be entered against Steele, and as such the circuit court’s decision was not clearly erroneous.
Affirmed.
Gladwin, C.J., agrees.
Harrison, J., concurs.
. This matter was previously before this court on February 11, 2015, and a supplemental addendum was ordered because it was not in compliance with Arkansas Supreme Court Rule 4-2(a)(8). See Steele v. Lyon, 2015 Ark. App. 70, 2015 WL 585490. | [
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JOSEPHINE LINKER HART, Associate Justice.
|!Lonoke County and its county judge and quorum-court members (“the County”) appeal from the Lonoke County Circuit Court’s order issuing a writ of mandamus requested by the City of Lonoke and the Lonoke District Court (“the City”). The County argues that the circuit court erred in issuing the writ, as the circuit court misconstrued both a 1991 order entered by the circuit court and statutory amendments to Arkansas Code Annotated section 16-17-115. Further, the County argues that the circuit court erred in awarding attorney’s fees to the City. We affirm the circuit court’s issuance of the writ but reverse the court’s award of attorney’s fees.
|2A “writ of mandamus” is “an order of the circuit court granted upon the petition of an aggrieved party or the state when the public interest is affected, commanding an executive, judicial, or ministerial officer to perform an act or omit to do an act, the performance or omission of which is enjoined by law.” Ark.Code Ann. § 16-115-101(1) (Repl.2006). A writ of mandamus is issued to enforce an established right or to enforce the performance of a duty. Brown v. Gibson, 2012 Ark. 285, at 2, 423 S.W.3d 34, 35. The writ is issued where (1) the duty to be compelled is ministerial and not discretionary, (2) the petitioner has shown a clear and certain right to the relief sought, and (3) the petitioner lacks any other adequate remedy. Id., 423 S.W.3d at 35-36. As an applicant for an extraordinary writ, the petitioner carries the burden to demonstrate that the relief he seeks is merited. Id., 423 S.W.3d at 36.
The record establishes that in 1991, the cities of Carlisle and Lonoke requested a writ of mandamus to require Lonoke County to pay one-half of the judicial and clerk salaries and a portion of the expenses of the municipal courts in those cities. In support of its petition, the cities cited Arkansas Code Annotated section 16-17-115 (Supp.1989) (the “1987 statute”), which provided in part as follows:
Except as authorized otherwise, the county wherein a municipal court is held shall pay one-half (1/2) of the salaries of the judge and the clerks of the municipal courts organized in that county ... and the quorum court ... shall, at its annual meeting, make an appropriation of a sum sufficient to pay the county’s proportion of the expenses of all such municipal courts.
On March 29, 1991, the circuit court entered an order (the “1991 order”) that stated in pertinent part as follows:
Now on this 29th day of March, 1991 ... the court hereby finds:
|32. That the cities of Carlisle and Lonoke and Lonoke County have entered into an agreement to resolve and fully and finally settle this Lawsuit and the issues raised therein as follows:
a. Beginning January 1, 1991, the County shall pay one-half of the municipal judges and clerks’ salaries and its proportionate share of expenses based upon the salaries which the Municipal Judges and Clerks of said cities receive.
e. County shall pay a proportionate share of cities’ municipal court expenses.
5. It is the intent of the parties herein to follow the statutory authority in Arkansas as it pertains to ... the sharing of court costs between counties and municipalities. In the event that law is amended or voided, then this agreement shall be amended to reflect then existing statutory law.
The 1987 statute was amended in 2007 with an effective date of January 1, 2012. Arkansas Code Annotated section 16-17-115 (Kepl.2010) (the “2012 statute”), provides in pertinent part as follows:
(a) Except as authorized otherwise, the county wherein a district court is held shall pay one-half (1/2) of the salaries of the district judge and each chief court clerk of any district court organized in that county ... and the quorum court ... shall, at its annual meeting, make an appropriation of a sum sufficient to pay the county’s proportion of the expenses of any such district court....
(b)(1)(A) Except as authorized otherwise, the town or city in which a district court is held shall pay:
(i) One-half (1/2) of the salaries of the district judge and the chief court clerk; and
(ii) The operational expenses of the district court organized in that town or city ... unless otherwise agreed to by the political subdivisions which contribute to the expenses of the district court.
(B) The governing body of the town or city in a town or city ... shall make at its annual meeting an appropriation of a sum sufficient to pay the town’s or city’s proportion of the salaries and operational expenses of the district court.
In its 2012 petition for writ of mandamus, the City asserted that it was seeking a writ “directing the County of Lonoke to obey the [1991 order] as it relates to funding the Lonoke District Court.” The City’s petition alleged that the County now contended that the 2012 statute allowed the County “to ignore the [1991 order] and reduce its obligation to require it to pay only one-half of the judge’s salary and one-half of the chief clerk’s salary and nothing more.” The City asserted in its petition that “[n]othing in the law invalidates the existing agreement incorporated into the [1991 order].” The City asked that a writ of mandamus be issued commanding the County “to pay the county’s proportionate share of expenses for the Lonoke DDistrict Court as ordered by the Circuit Court of Lonoke County in [the 1991 order].” The City further asked that the court “sanction” the County by an award of attorney’s fees and costs.
The County filed an answer and moved to dismiss the petition. After a hearing, the circuit court issued a writ of mandamus and awarded attorney’s fees. In the order, the court found as follows:
This Court finds and Orders the County of Lonoke to abide by the March 29, 1991, Order ... as it relates to the sharing of costs and expenses ... for the District Court. This Court finds that the Lonoke County Quorum Court on March 26, 1991, approved the settlement and agreed to pay its proportionate share of the salaries and expenses as set forth in the Court Order. Nothing in the current law changes that agreement.
The Quorum Court of the County of Lonoke should pay one-half the costs for the District Court Judge’s salary, one-half of the two court clerk’s salaries and a proportion of the court’s expenses as specified in that Order....
Further, this Court finds that the City has expended legal fees in furtherance of its legal action [and] ... [t]he County should reimburse the City for those fees in the amount of [$5,350] for the expenses in enforcing the Agreement between the parties.
The County appeals, arguing that the circuit court misconstrued both the 2012 statute and the 1991 order, and thus it erred in issuing the writ of mandamus and in awarding attorney’s fees to the City. In its argument, the County asserts that the 2012 statute, in | .^conjunction with the 1991 order, reduced the County’s funding obligations from that set out in the 1991 order. Specifically, the County asserts that, giving effect to the specific language of the 1991 order that it was the “intent of the parties herein to follow the statutory authority in Arkansas as it pertains to ... the sharing of court costs between counties and municipalities,” and that “[i]n the event that law is amended or voided, then this agreement shall be amended to reflect then existing statutory law,” we should apply the 2012 statute. The County asserts that the 2012 statute requires a county to pay only one-half of the salaries of the district judge and each chief court clerk and a city is required to pay the other one-half of the salaries, as well as the operational expenses of the district court. The County acknowledges that the 2012 statute permits a city to “otherwise agree[]” with “the political subdivisions which contribute to the expenses of the district court.” The County argues, however, that the 1991 order could not constitute such an agreement, as the County could not, in 1991, have “otherwise agreed” to a division of payments provided for in a statute that was not in effect until 2012.
In this case, we are required to construe the 2012 statute. We review issues of statutory construction de novo. Brock v. Townsell, 2009 Ark. 224, at 9, 309 S.W.3d 179, 185. In construing a statute, meaning and effect are given to every word in the statute if possible. Id., 309 S.W.3d at 186. We reconcile statutory provisions to make them consistent, harmonious, and sensible. Id., 309 S.W.3d at 186.
We hold that the circuit court properly issued the writ, and we agree with the circuit court’s conclusion that the County was required to abide by the 1991 order and that nothing |fiin the 2012 statute changed the effect of the 1991 order. The 1987 statute and the 2012 statute are virtually the same regarding a county’s obligations, as under both versions a county is required to “make an appropriation of a sum sufficient to pay the county’s proportion of the expenses.” Thus, in our view, both statutes allowed for a county to pay a proportion of the district court’s expenses in addition to the salaries. We agree with the County that the 1991 order reflected that it was the intent of the parties to follow statutory law as amended by the 2012 statute. In doing so, the 1991 order incorporated the language of the 2012 stat ute — “unless otherwise agreed to by the political subdivisions which contribute to the expenses of the district court.” This language in the 2012 statute was new statutory language, as it was not in the 1987 statute, but was contemplated by the 1991 order. Likewise, this language in the 2012 statute anticipated that there could be or were agreements between a county and a city regarding division of payments. Thus, this new language in the 2012 statute preserved existing agreements between a county and a city. Accordingly, we conclude that the circuit court properly issued a writ of mandamus ordering the County to abide by the 1991 order, and we affirm the circuit court on this point.
In the second point on appeal, the County challenges the award of attorney’s fees to the City. In its argument, the County asserts that there is no statute expressly authorizing the award of attorney’s fees following the issuance of a writ of mandamus. The City contends that |7the action sounded primarily in contract, and attorney’s fees may be awarded in a civil action for breach of contract. Ark. Code Ann. § 16-22-308 (Repl.1999). Particularly, the City notes that the 1991 order provided that the City and the County “entered into an agreement to resolve and fully and finally settle this Lawsuit,” and because the underlying cause for the writ of mandamus is an action to enforce an agreed order, attorney’s fees were warranted.
Attorney’s fees are not allowed except where expressly provided for by statute. Hanners v. Giant Oil Co. of Ark, Inc., 873 Ark. 418, 425, 284 S.W.3d 468, 474 (2008). The Hanners court held that attorney’s fees were not recoverable in declaratory-judgment cases, even when the underlying dispute arose from a contract, as nothing in Arkansas’s statutory law governing declaratory judgments allowed the court to award attorney’s fees, “even where the underlying dispute arises from a contract,” and because the party “prevailed in a declaratory-judgment action, and not a breach-of-contract action, the circuit court did not have discretion to award attorney’s fees pursuant to § 16-22-308.” Id. at 426, 284 S.W.3d at 475. Similarly, the City prevailed on its petition for a writ of mandamus, not a breach-of-contract action, and nothing in Arkansas’s statutory law on mandamus actions permits recovery of attorney’s fees even if a writ of mandamus is an action to enforce an underlying agreed order. Accordingly, we hold that the circuit court erred in awarding attorney’s fees and reverse the award.
Affirmed in part; reversed in part.
DANIELSON, J., concurs.
BAKER and GOODSON, JJ., dissent.
. A 2003 amendment to the statute changed "municipal court” to "district court.”
. The County attempts to bolster its argument by citing article 12, section 5 of the Arkansas Constitution and stating that a county cannot "agree to pay an amount to any entity that it is not legally required to pay,” and that the County "could not and did not agree to make a gift of public funds by paying amounts it is not required to pay.” The 2012 statute, however, preserved the division of payments set out in the 1991 order. | [
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KENNETH S. HIXSON, Judge.
|!Appellant Robert G. Zepeeki, DVM, appeals from a decision of the circuit court, which affirmed in part and modified in part a decision by the Arkansas Veterinary Medical Examining Board (the Board). The Board imposed sanctions against Dr. Zepeeki for violating two of the Board’s regulations, and the sanctions included suspension of Dr. Zepecki’s license for two months, a civil penalty of $6000, and the requirement that Dr. Zepeeki complete 15 hours of continuing veterinary education. Dr. Zepeeki appealed the Board’s decision to the circuit court. The circuit court upheld the Board’s decision, except that it lowered the civil penalty to $4500. On appeal to this court, Dr. Zepeeki argues that the sanctions imposed were arbitrary and capricious, and that the Board erred in denying his request for a continuance. The Board cross-appeals, arguing that the circuit court erred Rin reducing the civil penalty from $6000 to $4500. We affirm on direct appeal, and we modify the circuit court’s decision on cross-appeal, thus reinstating the $6000 civil penally. As a result, we affirm the sanctions as originally imposed by the Board.
The Board is an agency created to regulate the licensure of veterinarians. Ark. Code Ann. §§ 17-101-201 et seq. (Repl. 2010). The Board has authority to conduct examinations and license those applicants who meet the qualifications to practice veterinary medicine in this state. Ark.Code Ann. § 17-101-203. The Board also has the authority to revoke or suspend a veterinarian’s license, or to impose a civil penalty for violations of a regulation promulgated by the Board. Ark.Code Ann. § 17-101-305(a)(ll).
Our review of the decisions of administrative agencies is limited in scope, specifically to determine whether a decision is supported by substantial evidence and is not arbitrary, capricious, or constitutes an abuse of discretion. Holloway v. State Bd. of Architects, 352 Ark. 427, 101 S.W.3d 805 (2003). The limited scope of judicial review is premised on the recognition that administrative agencies are better equipped than courts by specialization, insight through experience, and more flexible procedures, to determine and analyze legal issues affecting their agencies. Ark. Bd. of Exam’rs in Counseling v. Carlson, 334 Ark. 614, 976 S.W.2d 934 (1998). Our appellate review is directed not to the circuit court’s decision, but rather to the decision of the administrative agency. Ark. Dep’t of Human Servs. v. Bixler, 364 Ark. 292, 219 S.W.3d 125 (2005).
This is the second appeal in this matter. The case began in May 2006, when Trisch Marcino, NMD, PhD, filed a complaint against Dr. Zepeeki that arose out of Dr. Zepecki’s | ¡¡care of her dog, Nikki. After a hearing held on January 16, 2007, the Board concluded that Dr. Zepeeki violated six regulations. Based on these findings, the Board originally suspended Dr. Ze-pecki’s license for a minimum of six months.
Dr. Zepeeki filed a petition for judicial review, and the circuit court entered an order on December 3, 2008, which affirmed in part and reversed in part the decision of the Board. The circuit court concluded that there was substantial evidence to support the Board’s decision that Dr. Zepeeki violated four regulations, but reversed the Board’s decision on two other violations. The circuit court upheld the six-month suspension of Dr. Zepecki’s license, concluding that this sanction was reasonable and was not arbitrary, capricious, or unduly harsh.
Dr. Zepeeki appealed the circuit court’s decision to the court of appeals, arguing that certain findings of the Board were not supported by substantial evidence and that the sanctions imposed by the Board were too harsh. The Board cross-appealed, arguing that the findings of the Board that were reversed by the circuit court were supported by substantial evidence. In the first appeal to this court, Zepecki v. Ark. Veterinary Med. Examining Bd., 2010 Ark. App. 187, 375 S.W.3d 41 (Zepecki I), we set forth the following facts surrounding Dr. Marcino’s complaint about Dr. Ze-pecki’s treatment of Nikki:
At the hearing, Dr. Marcino testified that she traveled from her home in Arkansas to Florida, and that she left Nikki and her other dog, Sam, in Dr. Zepecki’s care on March 31, 2006. At the time, Nikki had diabetes. Dr. Mar-cino asked Dr. Zepecki |4to clean Nikki’s teeth without putting her under sedation. She testified that Dr. Zepecki put Nikki under sedation against her instructions. Nikki was under Dr. Ze-pecki’s care for five days, and Dr. Marci-no testified that each day she called and Dr. Zepecki told her that Nikki was fine. Dr. Marcino testified that Dr. Zepecki told her that Nikki’s back might be sore for awhile from being in a single position during the teeth cleaning. According to Dr. Marcino, when she retrieved Nikki on April 5, 2006, the dog could not walk. Dr. Marcino was then informed by Dr. Zepecki’s assistant that Dr. Zepecki had performed adjustments to Nikki’s shoulders, hips, and spine while Nikki was under sedation. Dr. Marcino stated that Dr. Zepecki’s technician told her that Nikki’s back was injured when she came out of sedation. Carmella Small, a veterinary assistant for Dr. Zepecki, testified that Nikki was dragging her back legs after her dental cleaning. Dr. Ze-pecki told Dr. Marcino to administer Toradol, which resulted in some improvement, according to Dr. Marcino.
On April 6, 2006, Dr. Marcino allowed Dr. Zepecki’s office to take Nikki to Dr. Larsen, a local chiropractor, for treatment. Carmella Small took Nikki to see Dr. Larsen; Dr. Zepecki was not present for the treatment. Dr. Marcino testified that she never authorized any chiropractic procedure other than that performed by Dr. Larsen. On April 11, 2006, Dr. Marcino noticed that Nikki was bleeding, so she took the dog to another veterinarian, Dr. Edwards. According to Dr. Marcino, Dr. Edwards told her that Nikki was going to die, and that damage to her spinal column caused all the problems. On April 14, 2006 Nikki was euthanized.
2010 Ark. App. 187, at 2-3, 375 S.W.3d at 43-44.
In Zepecki I, we affirmed the cross-appeal, and we affirmed in part and reversed and remanded in part on direct appeal. We held that there was substantial evidence that Dr. Zepecki violated two regulations. Dr. Zepecki violated Board Regulation 9A pertaining to record keeping, and we noted that Dr. Zepecki did not challenge his violation of Board Regulation 19B involving aiding and abetting an unlicensed person in the practice of veterinary medicine. We recited the following evidence supporting these two violations:
Dr. Zepecki admitted that he was not present during Dr. Larsen’s treatment of Nikki and that he was aware that he was supposed to be present during the treatment. He stated that he was unaware that Dr. Larsen was supposed to be licensed to treat animals. Dr. Ze-pecki admitted that Dr. Larsen’s treatment of Nikki was not contained in his records. He further admitted that his records did not reflect the treatment and | condition of Nikki during the time she was boarded at his clinic. There were also records pertaining to Dr. Mar-cino’s other dog, Sam, interspersed with Nikki’s records.
Zepecki, 2010 Ark. App. 187, at 4, 375 S.W.3d at 44. However, we held that the remaining violations found by the Board were unsupported by substantial evidence. We remanded the matter to the Board to redetermine the issue of sanctions for the two remaining violations.
After our mandate was issued in Zepecki /; the Board scheduled a hearing to consider sanctions on December 8, 2010, but the hearing was continued multiple times at Dr. Zepecki’s request. The hearing was eventually held on November 9, 2011, after the Board denied Dr. Zepecki’s counsel’s motion for another continuance, which was requested due to counsel’s illness. The hearing proceeded with Dr. Zepecki unrepresented by counsel, and the Board entered an order on November 10, 2011. The Board determined that the appropriate sanctions for the two remaining violations were a suspension of Dr. Zepecki’s license for only two months, an assessment of a civil penalty of $8000 for each of the two violations, totaling $6000, and the Board also ordered Dr. Zepecki to complete fifteen hours of additional continuing education on the topic of recordkeeping.
Dr. Zepecki again filed a petition for review to the circuit court, arguing that the Board erred in holding the hearing without Dr. Zepeeki’s counsel present, and that the penalty imposed by the Board was arbitrary and capricious. After a hearing on the matter, the circuit court entered an order on August 28, 2012, affirming and modifying the decision of the Board. The circuit court found that the Board’s denial of the continuance was not an abuse of discretion. The circuit court upheld the two-month suspension, fifteen hours of continuing education, and the $8000 civil penally for the violation of Board Regulation 9A | ^However, the circuit court determined that the $3000 civil penalty for violating Board Regulation 19B was arbitrary and unreasonable, and modified it to $1500 for a total civil penalty of $4500.
Dr. Zepecki’s first argument on appeal to this court is that the sanctions imposed by the Board for these two violations were arbitrary and capricious. Our supreme court held in Collie v. Arkansas State Medical Board, 370 Ark. 180, 258 S.W.3d 367 (2007), that under certain circumstances the penalty imposed by an administrative agency may be so harsh that its imposition may be described as arbitrary and capricious. In this case the Board imposed a two-month suspension, a civil penally of $6000, and fifteen hours of additional continuing education. Dr. Zepecki submits that his violations were unintentional, and that under the circumstances of this case these penalties were unduly harsh.
Dr. Zepecki notes that the only two violations to survive the first appeal were violations for aiding an unlicensed person in practicing veterinary medicine and defective recordkeeping. With regard to the finding that he aided an unlicensed person, Dr. Zepecki testified that he was unaware that the chiropractor, Dr. Larsen, had to be certified before treating an animal. Although Dr. Zepecki testified that he was aware that he was required to be present when a chiropractor treated an animal, he testified that his absence during Dr. Larsen’s treatment of Nikki was due to an emergency at his clinic involving another dog. As for the recordkeeping violations, Dr. Zepecki contends that these were relatively minor omissions for which he had legitimate reasons. Dr. Zepecki argues that there is nothing in the record indicating that he embarked on a calculated course of willfully violating the law |7with respect to either of these violations found by the Board. He further asserts that nothing in the record demonstrates that these violations resulted in any harm to the dog.
Dr. Zepecki also questions the fact that, while the Board initially imposed a six-month license suspension for the original six violations, the initial sanctions did not at that time include a civil penalty or continuing education. After the violations were reduced from six to two, the Board did reduce the license suspension from six months to two months, but it added a $6000 penalty and fifteen hours of additional continuing education. In some ways, Dr. Zepecki contends, this penalty was harsher than the original penalty imposed. Moreover, because he is a solo practitioner, Dr. Zepecki asserts that a suspension of any length of time has the effect of shutting down his practice, and that these sanctions should be reversed.
As we previously stated, we review the decision of the Board and not the decision of the circuit court. See Bixler, supra. In Arkansas State Board of Cosmetology v. Roberts, 28 Ark.App. 249, 772 S.W.2d 624 (1989), we held that neither the appellate court nor the trial court may substitute its judgment for that of the Board in assessing a penalty. A court may set aside the penalty only if the agency decision was “willful and unreasoning” as opposed to being merely wrong. Roberts, supra. Under the facts of this case, we conclude that the sanctions imposed by the Board were not “willful and unreasoning,” and not so harsh as to be described as arbitrary and capricious.
Although Dr. Zepecki argues that the penalties were too harsh because his actions were not willful and the dog was not injured by his conduct, there is no requirement that a veterinarian act willfully or that an animal be injured in order for there to be a violation of the | ¿rules governing the practice of veterinary medicine. And contrary to Dr. Zepecki’s argument, there was some evidence that his violations were willful.
As for the records violation, Dr. Zepecki admitted at the January 2007 hearing that his medical records did not reflect the condition and treatment of Nikki throughout the week, including a lack of any record of the insulin injections, the medication prescribed, or the treatment provided by Dr. Larsen. With regard to the violation of aiding an unlicensed person in the practice of veterinary medicine, Dr. Zepecki admitted that he was fully aware that he was supposed to be present when Dr. Larsen was treating Nikki, although he denied knowing that Dr. Larsen was required to have a license. Arkansas Code Annotated section 17-101-307(b)(9) authorizes a chiropractor who is licensed and certified by the American Veterinary Chiropractic Association to perform chiropractic treatment on animals only if the treatment is performed under the immediate supervision of a licensed veterinarian. Arkansas Code Annotated section 17-101-102(b) defines “immediate supervision” as “observation, in the immediate vicinity, with the opportunity for the supervising veterinarian to advise or physically intervene in each procedure.” The record reflects that Dr. Ze-pecki willfully procured Dr. Larsen in treating Nikki without being present to supervise and physically intervene if necessary. And although Dr. Zepecki testified that he was unaware that Dr. Larsen was required to be certified, that he was unable to be present for the chiropractic treatment due to an emergency, and that he had legitimate reasons for the omissions in his records, the credibility and weight of the evidence are within the administrative agency’s |3discretion. See Ark. Bd. of Registration for Prof'l Geologists v. Ackley, 64 Ark.App. 325, 984 S.W.2d 67 (1998).
Dr. Zepecki relies on our supreme court’s decision in Arkansas State Board of Pharmacy v. Patrick, 243 Ark. 967, 423 S.W.2d 265 (1968), and argues for leniency because he had not embarked on a calculated course of willfully violating the law. However, his reliance is misplaced because in Patrick, the Pharmacy Board had revoked a pharmacist’s license, and the supreme court reduced the penalty to a one-year suspension on the grounds that to permanently bar an individual from his profession requires proof that makes it clearly evident that he embarked on a calculated course of willfully violating the law. Although Arkansas Code Annotated section 17-101-305(a)(ll) does authorize the Board to revoke a veterinarian’s license for violation of the Board’s regulations, in this case Dr. Zepecki’s license was not revoked but instead was only suspended for two months. Moreover, the Board has the authority to impose a civil penalty of up to $5000 for each violation, see Ark. Code Ann. § 17-101-811, and in this case it imposed civil penalties of $8000 for each violation. Given the evidence that Dr. Ze-pecki ignored the rules and regulations regarding the use of a chiropractor and the keeping of records, and recognizing the specialization and experience of the Board in determining issues affecting its agency, we uphold the sanctions imposed by the Board because these sanctions were not arbitrary or capricious.
Dr. Zepecki’s remaining argument is that the Board erred in refusing to grant his motion for a continuance, which he claims denied his due-process right to be represented by counsel. Dr. Zepecki cites Abshire v. Cline, 193 W.Va. 180, 455 S.E.2d 549 (1995), for the proposition hnthat, although a person subject to a penalty by an administrative agency is not entitled to appointed counsel, due process requires that he be given an opportunity to have retained counsel at any hearings on the charges. In this case the hearing was scheduled for November 9, 2011, and two days before the hearing Dr. Zepecki’s counsel filed a motion for a continuance on the grounds that she had recently been released from the hospital on pain medication and could not attend. On the day of the hearing, appellant’s counsel sent a letter to the Board stating that she had been dealing with kidney stones. Despite this information, the Board denied Dr. Ze-pecki’s request for a continuance and proceeded with the hearing. Dr. Zepecki argues that neither he nor his counsel were at fault for requesting the delay, and he claims that the Board abused its discretion in denying the continuance.
The standard of review on appeal of a denial of a continuance is whether the tribunal abused its discretion. Collins v. Ark. Bd. of Embalmers & Funeral Dirs., 2009 Ark. App. 498, 324 S.W.3d 716. The burden of establishing an abuse of discretion falls squarely on the shoulders of the appellant. Hayes v. State, 2009 Ark. App. 663, 2009 WL 3210640. An appellant must not only demonstrate that the trial court abused its discretion by denying a motion for continuance, but must also show prejudice that amounted to a denial of justice. Id. We hold under the circumstances presented here that Dr. Zepecki has failed to meet his burden of establishing an abuse of discretion, nor has he shown prejudice.
After our remand for the Board to reconsider sanctions was delivered in Ze-pecki I, a hearing was scheduled for December 8, 2010. However, prior to that date Dr. Zepecki changed counsel and he requested a continuance, which was granted. The hearing was ^rescheduled for March 23, 2011, but was again continued at Dr. Zepecki’s request. After being rescheduled for June 15, 2011, the hearing was continued at appellant’s request because his counsel had a schedule conflict. The hearing was reset for July 13, 2011, and on the morning of the hearing Dr. Zepeeki’s counsel faxed a letter stating that she was ill and could not attend. At the July 13, 2011 hearing, Dr. Zepecki stated that if the ease were continued and his attorney did not show up at the next hearing, he would “be here without one” and “I’ll represent myself.” The hearing was continued to November 9, 2011, at Dr. Zepecki’s request. The record shows that the Board made numerous attempts for nearly a year to schedule a remand hearing acceptable to Dr. Zepecki, and that Dr, Zepecki failed to provide acceptable dates and repeatedly requested continuances. On this record, we cannot say that the denial of an additional continuance request was an abuse of discretion.
Moreover, Dr. Zepecki has failed to show that he was prejudiced by the denial of a continuance. This case was remanded for the limited purpose of determining sanctions for two violations of the Board’s regulations. There was no additional evidence taken at the hearing on remand, and in reaching its decision the Board relied on the testimony from the initial hearing prior to the first appeal, during which Dr. Ze-pecki had the opportunity to present any mitigating evidence. The law of the case prevented the Board from reconsidering the findings that Dr. Zepecki committed these violations, and because its only duty on remand was to reconsider sanctions based on the violations being reduced from six to two, appellant has not shown that there was a denial of justice.
112Finally, we turn to the Board’s cross-appeal. The Board argues that the circuit court erred in reducing the civil penalty from $3000 to $1500 for Dr. Zepecki’s violation for aiding and abetting the unlicensed practice of veterinary medicine. We agree with the Board. As we stated on direct appeal, we review the decision of the Board, and in this case we have concluded that none of the sanctions imposed by the Board, including the $3000 civil penalty for violating Board Regulation 19B, were arbitrary or capricious. Therefore, all of the sanctions imposed by the Board are affirmed.
Agency affirmed; circuit court affirmed as modified.
GLOVER and WOOD, JJ., agree.
. The circuit court granted Dr. Zepecki's request to present additional evidence to the Board, and after the remand the Board reached the same conclusions and entered an identical order. | [
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KENNETH S. HIXSON, Judge.
| jThis is a contract interpretation case. The contract was not ambiguous. The trial court considered post-contract course of conduct between the parties to determine the meaning of the unambiguous contract and awarded Barry Davis a judgment for breach of contract in the amount of $5,055.20 plus pre- and postjudgment interest and attorney’s fees. Crittenden County appeals, and we reverse.
Richard Busby was the sheriff of Crit-tenden County and appellee, Barry Davis, was a deputy. In July 2002, Davis was assigned to drug-interdiction duties. Davis became involved in a scheme with other law enforcement officers where they would “skim” money off the top from drug money seized from arrests. Davis was indicted by a federal grand jury in case number CR127. Davis was suspended from employment with the Crittenden County 12Sheriff s Department and on July 30, 2002, Sheriff Busby sent Davis a letter that is at the heart of this appeal. The key provisions state:
This indictment and the investigation that preceded it has created a lot of negative publicity for you and the Crit-tenden County Sheriffs Office Drug Task Force, that in my judgment for the good of the Sheriffs Department and for the effectiveness of the other Crittenden County Officers makes it necessary for you to be relieved of your duties as a Deputy Sheriff for Crittenden County so long as you are under indictment for these charges.
I am therefore proposing that you be suspended without pay pending your trial on this indictment. You will be eligible to continue your insurance coverage (individual or family) with the county during this period conditioned upon your paying your part of the premium when it comes due. You will be allowed to draw any accrued vacation time that becomes due. In the event that you are acquitted of these charges you will receive backpay at your regular salary plus you will accrue vacation pay during the period. If you are convicted you will be discharged without any backpay or reinstatement of other benefits. (Emphasis added.)
Davis signed the agreement stating that he accepted the suspension without pay on these terms and conditions.
Within a couple of months, on September 24, 2002, the federal prosecutor moved to dismiss the indictment in case number CR127, and that indictment was dismissed on September 26, 2002. On September 25, Davis was allowed to return to work as a deputy. Davis received regular pay. He was not paid the backpay for the period of suspension during the pendency of CR127. After returning to work for three weeks, on October 16, 2002, Davis was indicted again and was charged with confiscating money from suspected interstate drug traffic and not reporting all of the money confiscated on three different occasions, as well as possession of a stolen firearm. This case was assigned case number CR181.
|3On October 31, 2002, Sheriff Busby prepared another letter agreement whereby Davis would be suspended without pay while under indictment and, in' the event he was acquitted of the charges, he would receive backpay for the period of his suspension. However, if he was convicted, he would be discharged without backpay. This agreement was virtually identical to the July 30, 2002 agreement for the previous indictment. Davis accepted these conditions and was again suspended.
Four days later, on November 4, 2002, Davis was indicted again by the federal grand jury and charged, along with his wife and his father, with conspiring with each other to mislead investigators and the grand jury investigating whether Davis was spending sums in excess of his means as evidence of him taking money from suspected interstate drug traffickers. This case was assigned ease number CR187.
A superseding indictment was issued in ease number CR181 on July 2, 2003, charging Davis with three counts of illegal possession of a firearm and making false statements regarding the firearms. There were two on-going indictments pending. On July 25, 2003, Davis pleaded guilty to Count IV in case number CR187 in consideration of the government agreeing to dismiss the remaining counts in case number CR187, dismissing the charges in case number CR181, and not seeking forfeiture of his residence.
Upon this plea being entered, Davis was found guilty of mail fraud, a Class C felony, and on November 17, 2003, he was sentenced to serve six months in community confinement and three-years’ probation. Following his conviction, Davis was terminated as a deputy sheriff without payment of any backpay.
14Almost two years later on September 9, 2005, Davis filed a civil lawsuit against Crittenden County. The complaint set forth the background leading up to the July 30, 2002 letter agreement, and alleged that Davis should have been paid backpay and other sums pursuant to that agreement. Davis sought the sum of $5,055.20, together with pre- and postjudgment interest and reasonable attorney’s fees. The County answered, denying liability on the basis that it was not required to pay Davis any backpay under the parties’ agreement.
Seven years later on March 5, 2012, the case proceeded to a bench trial before the circuit court. Barry Davis testified that he was indicted in July 2002 and that he and Sheriff Busby ultimately entered into the July 30, 2002 agreement. Davis testified that the agreement set forth what would hgppen if he were convicted or acquitted. Davis did not testify to what would happen if the indictment was dismissed. According to Davis, after the indictment was dismissed on September 24, 2002, he went back to work the next day. After dismissal of the first indictment, Davis worked for approximately three weeks before he was indicted again. Davis received his regular pay during this three-week period. Davis claimed that he was entitled to backpay for his period of the first suspension from July 30 through September 24, 2002. Davis said that he was not seeking any relief for the second suspension.
Sheriff Busby testified that he entered into the July 30, 2002 letter agreement with Davis. After the first indictment was dismissed, Davis returned to work on September 25, 2002, and Busby testified that “[i]f Mr. Davis had been convicted of something I would not have put him back to work.” The sheriff said that when Davis was indicted, his position was that Davis could not work while under indictment and he suspended Davis. Busby said that |fihis intention was that if Davis was exonerated from all the charges, he would put Davis back to work and pay backpay. He said that Davis returned to work for a brief time before being indicted and was suspended again. Busby said that he felt that he was very fair with Davis, and he thought that he carried out their bargain. Busby said that he did not think Davis was entitled to any backpay under the July 30, 2002 agreement. There was no testimony regarding the effects of a dismissal of the federal indictment.
The circuit court ruled from the bench and found that there were two separate agreements (the July 30, 2002 agreement and the October 31, 2002 agreement) because no one could have predicted there would be a subsequent indictment. The court found that the parties, by their conduct, treated the dismissal of the first indictment as tantamount to an acquittal when Davis returned to work following dismissal of that indictment. The trial court thus found that, pursuant to the July 30, 2002 agreement, Davis should have been paid backpay for the period of suspension related to the initial indictment in case number CR127. Prior to the judgment being entered, the County filed a motion for reconsideration, which the trial court denied. On May 10, 2012, the trial court entered an order awarding the amount sued for in the complaint, and also awarded Davis attorney’s fees, prejudgment interest, and postjudgment interest.
On appeal, the County argues that the circuit court erred in (1) granting Davis backpay because Davis was not acquitted on charges set forth in the original indictment; (2) not construing the two letter agreements together to find that the County and Davis had agreed that Davis would be discharged without backpay if he were convicted of any charges |Rset forth in the indictments against him; (3) its award of attorney’s fees because Davis should not have prevailed on his claim for backpay, and the court also failed to set forth the basis for its award of fees; (4) its award of postjudgment interest; and (5) its award of prejudgment interest.
The County’s first two points challenge the circuit court’s determination that Davis was entitled to backpay under the July 30, 2002 letter agreement. In civil bench trials, the standard of review on appeal is whether the circuit court’s findings were clearly erroneous or clearly against a preponderance of the evidence. Rooke v. Spickelmier, 2009 Ark. App. 155, 314 S.W.3d 718. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a firm conviction that a mistake has been committed. Id.
This appeal also involves our review of the circuit court’s construction of the terms of the letter agreement. Accordingly, our standard of review for contract interpretation is implicated as well. As explained by our supreme court in Wal-Mart Stores, Inc. v. Coughlin, 369 Ark. 365, 371, 255 S.W.3d 424, 429 (2007):
Our standard of review for contract interpretation has been stated often:
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.
|7When a contract is free of ambiguity, its construction and legal effect are questions of law for the court to determine. Tri-Eagle Enters. v. Regions Bank, 2010 Ark. App. 64, 373 S.W.3d 399. When contracting parties express their intentions in a written instrument in clear and unambiguous language, it is the court’s duty to construe the writing in accordance with the plain meaning of the language employed. Id. 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. Roberts Contracting Co. v. Valentine-Wooten Rd. Pub. Facility Bd., 2009 Ark. App. 437, 320 S.W.3d 1. The determination of whether an ambiguity exists is ordinarily a question of law for courts to resolve. Id.
One of the arguments raised by the County is that the trial court should have construed the July 30, 2002 and October 31, 2002 agreements together, so as to find that Davis was not entitled to backpay for his initial suspension because backpay was not required if he were convicted of any of the charges in any of the indictments. The County notes that Davis pleaded guilty to one of the felony charges in case number CR187. However, we conclude that the July 30, 2002 agreement was a separate instrument and the language employed was tailored specifically to what would happen in the event of an acquittal or conviction for “these charges,” meaning only the charges in case number CR127 and not the subsequent charges resulting in Davis’s guilty plea. Therefore, we conclude that the July 30, 2002 agreement stands alone and that Davis’s conviction on other charges not identified in that agreement was not a valid basis to deny him backpay. In deciding whether Davis’s backpay should have been awarded, we must look to the provisions in the July 30, 2002 Iscontract and determine whether the dismissal of the charges in CR127 entitled Davis to backpay under that agreement.
We agree with the County’s argument that, under the plain language employed in the July 30, 2002 letter agreement between the sheriff of Crittenden County and Barry Davis, the trial court erred in finding that the dismissal of the charges equated to an acquittal thereby binding the County to pay Davis’s back-pay. In case number CR127 the indictment was dismissed pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure, which was a dismissal without prejudice to bring a subsequent prosecution. See U.S. v. Mendenhall, 597 F.2d 639 (8th Cir.1979). In contrast, an acquittal, the term used in the July 30 agreement, means being found not guilty and bars further jeopardy. See Reaves v. City of Little Rock, 25 Ark.App. 14, 751 S.W.2d 18 (1988). These are distinct dispositions, and the parties’ agreement made no provision for paying backpay to Davis in the event of a dismissal.
The trial court used the course of conduct between the parties to interpret the contract. This course of conduct used by the court was the evidence that Davis was allowed to return to work following the dismissal of the indictment. “Course of Conduct,” resorted to by the trial court in the present case, is a contract interpretation device that the factfinder may use in interpreting an ambiguous contract. See AMI Civ. 2415 (2013). However, prior to using contract interpretation devices, the contract must be ambiguous. In Foundation Telecommunications, Inc. v. Moe Studio, Inc., 341 Ark. 231, 16 S.W.3d 531 (2000), our supreme court held that an uncertain agreement may be supplemented by subsequent acts, agreements, or declarations of the parties so as to make it certain and valid, and that the acts of practical ^construction placed upon a contract by the parties may be resorted to in order to relieve it from doubt and uncertainty. Moreover, parol evidence is admissible to explain an ambiguity, either latent or patent. C. & A. Constr. Co. v. Benning Constr. Co., 256 Ark. 621, 509 S.W.2d 302 (1974).
However, in the case at bar the agreement is neither ambiguous nor uncertain, and therefore it was improper for the trial court to resort to rules of contract interpretation. When, as here, the parties have expressed their intentions in clear and unambiguous language, it is the court’s duty to construe the writing in accordance with the plain meaning of the language employed. See Tri-Eagle, supra. The contract plainly provided that Davis would be discharged without backpay if convicted, but that he would receive backpay if acquitted. The contract entered into by the parties did not cover the contingency that actually occurred, and the County did not contract to give Davis backpay if his indictment was dismissed.
A court cannot make a contract for the parties but can only construe and enforce the contract that they have made. Found. Telecomm., supra. Moreover, we will not read into the contract words that are not there. See Seidenstricker Farms v. Doss, 372 Ark. 72, 270 S.W.3d 842 (2008). And we will not rewrite a contract or approve additional terms that would in effect enforce a contract that the parties might have made, but did not make. Rector-Phillips-Morse, Inc. v. Vroman, 253 Ark. 750, 489 S.W.2d 1 (1973).
Finally, even assuming ar-guendo that the agreement was ambiguous, parol evidence cannot be introduced to change or alter a contract in writing. The test of admissibility is |inwhether the evidence offered tends to alter, vary, or contradict the written contract or only to prove an independent collateral fact about which the contract was silent. We can all agree that the contract was silent on whether Davis was entitled to backpay in the event of a dismissal. However, the “dismissal” of the indictment as entitlement for backpay is not an independent collateral fact.
Our supreme court’s decision in Rainey v. Travis, 312 Ark. 460, 850 S.W.2d 839 (1993), is instructive on what constitutes independent collateral facts or agreements. In Rainey, the parties were arguing over the right to possess the marital home post-divorce. An antenuptial agreement gave the wife the unconditional right to live in the house after the husband’s death. The husband argued that the wife could live in the marital home only if she were alone and not to use the home for any immoral purpose. The supreme court determined that the husband was attempting to add a morals term to the antenuptial agreement and that this additional requirement was neither independent nor collateral. The court held “[b]ecause the extrinsic evidence proposed by [the husband] does not concern independent collateral agreements, it must be offered to alter the antenuptial agreement. As such, the evidence is excluded by the parol evidence rule.” 312 Ark. at 464, 850 S.W.2d at 841. Similarly, here, the course of conduct between the parties does not concern an independent collateral fact or agreement. The agreement covered the subject, ie., when, and if, Davis was entitled to back-pay. The course of conduct should not have been introduced to alter the terms of the written agreement.
|nIn this case, we hold that the trial court clearly erred in construing the contract to include a promise by the County to pay Davis’s backpay in the event of a dismissal. The contract was unambiguous, and the trial court effectively rewrote the contract to add a term that was not agreed to by the parties. Therefore, we reverse the trial court’s award of backpay to Davis.
The County’s remaining arguments challenge the trial court’s awards for attorney’s fees, prejudgment interest, and post-judgment interest. Because Davis is no longer the prevailing party and is not entitled to any damages, we also reverse each of these awards.
Reversed.
WALMSLEY, HARRISON, and WHITEAKER, JJ., agree.
GRUBER and BROWN, JJ., dissent. | [
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DAVID M. GLOVER, Judge.
h The City of Little Rock appeals from sanctions imposed against it in a January 16, 2013 order from the Pulaski County Circuit Court. In addition to imposing sanctions, the trial court also denied the City’s motion to recuse from the case. In this appeal, the City contends 1) that the trial court erred in awarding sanctions under Arkansas Rules of Civil Procedure 1 and 11 in the absence of any pleading, motion, or other paper alleged to have been in violation of Rule 11; and 2) that the trial court created impropriety or the appearance of impropriety in failing to re-cuse. We reverse the trial court’s imposition of sanctions and affirm its denial of the motion to recuse.
| ^Background
A history of this litigation is necessary. The present appeal follows a 2004 nuisance action initiated by the City of Little Rock against Gurmeet “George” Nerhan. At all relevant times, Nerhan has owned property known, as Heritage House Inn, located on South University Avenue in Little Rock. In the original action, the City alleged that criminal conduct at Heritage House Inn was disturbing the use and enjoyment of nearby properties and sought remedies to enjoin and abate the nuisance. Following a hearing, the trial court entered an order in August 2005, finding that the City was entitled to relief, ordering certain remedial measures, and setting a status hearing in November 2005.
At the November hearing, the court determined that Nerhan’s property remained in noncompliance, but granted him an extension until December 2005 to satisfy applicable code requirements. The court’s order further specified that Nerhan could elect not to repair the violations in the rooms of Buildings 1 and 2 (which the City had previously notified him were in a state of disrepair and did not meet the minimum code standards), but that if he so elected, he was prohibited from renting or otherwise allowing occupancy of those rooms. In a December 2005 order, the trial court set a time line for Nerhan to accomplish various tasks designed to bring the entire properly into compliance.
It is unclear from the record before us what actions, if any, were taken by Nerhan and/or the City between the December 2005 order and a motion to appear and show cause |sfiled by the City on March 6, 2012. What is clear, however, is that on February 28, 2012, the matter came back into focus when the City’s police department investigated a report of an unattended child left in a rented room at the Heritage House Inn, followed by subsequent inspections revealing numerous code violations and the “discovery that there were two rooms in the rear of Building 1 that Heritage House Inn was renting as of February 28, 2012, one of which was rented on a permanent basis to a Heritage House Inn employee.” These revelations resulted in the City’s March 6 motion to appear and show cause.
In its April 3, 2012 order entered after a March 29 contempt hearing, the trial court concluded that the City had met its burden of proving a willful and intentional violation of the court’s August 2005 and November 2005 orders. The trial court further ordered closure of the Heritage House Inn and evacuation of tenants “for a period of time to allow the Defendant to bring all structures and rooms into compliance with the Fire, Maintenance, Building, Electrical, Mechanical, and Plumbing Codes.” The order then specifically provided: “After the City has inspected and determined that all structures and rooms at the Heritage House Inn are in compliance with [City codes] either party may petition the Court for a status hearing. The structures and rooms at the Heritage House Inn shall remain closed until the Court issues a ruling otherwise.”
On May 4, 2012, the City filed another motion to appear and show cause because it had been reported to the City that the rooms had not yet been evacuated. On May 7, 2012, the trial court ordered Ner-han to appear on May 15 and show cause why he should not be held in contempt. It is not clear from the record whether this hearing took place; however, [4the record reflects that Nerhan entered a negotiated plea on August 13, 2012, and paid a $1000 fine.
Several days earlier, on August 10, 2012, Nerhan filed a petition to reopen Heritage House Inn, alleging that he believed the properly was in compliance based on an inspection conducted by Hall Engineering, Ltd., but the petition was withdrawn later that same day after consultation with the City “to allow time for all necessary city departments and inspectors to perform a walkthrough.”
On December 6, 2012, Nerhan filed a second petition to reopen in which he requested an expedited hearing, alleging to-wit: that the City had determined two weeks earlier that Heritage House Inn was in compliance yet had refused to sign a joint motion to reopen or to submit a joint proposed order for the court to allow reopening; that the City was asking for new items to be performed that are not required by any City code; that he had installed a gate in an “attempt to go above and beyond” to satisfy the City; that the City still refused to sign off; that in “light of the [City’s] delaying tactics,” he requested an expedited hearing; and that in light of his full compliance with all applicable City codes, he requested permission to reopen. In its response to the petition, the City admitted it had inspected Heritage House Inn and determined that all structures and rooms met the minimum requirements set forth in the codes; acknowledged that it had not signed a joint motion to reopen nor signed a proposed joint order for submission to the trial court; asserted that the determination as to whether Nerhan met the trial court’s requirements, and whether Nerhan should be allowed to reopen, lay with the trial court; and admitted that it had requested the installation of a gate 15on the properly, which had been installed. Finally, the City denied engaging in any delaying tactics.
A hearing on the petition to reopen was held on December 19, 2012. At the outset of the hearing, Nerhan’s counsel stated his belief that the City was willing to stipulate that Heritage House Inn was in full compliance, and the City’s counsel stated he was perfectly willing to stipulate that the property was in compliance with all the fire, electrical, and building codes as required under the court’s order. The trial court then asked what prevented the submission of an agreed order to the court indicating that the property was in compliance with court’s April 3, 2012 order so that the property could have opened sooner rather than later. Answering the trial court’s inquiry, the City’s counsel advised that with his more or less corporate client, he had had some trouble getting the authority to do so. Nerhan’s counsel interjected that he believed the dilemma was beyond the City’s counsel’s pay grade, offering his opinion that he thought counsel’s hands were tied, but nonetheless Nerhan had been frustrated that he was in full compliance, with no issues, yet the City had refused to allow him to reopen. Ner-han’s counsel acknowledged that he knew the property could reopen only subject to the court’s order, but surmised that the court would not have any trouble signing off on an agreed order if the City stipulated that everything was in compliance.
The court stated that in preparing for the hearing, it had the impression that, notwithstanding the property’s compliance with the court’s order, the City was demanding additional action above and beyond what was required in the court’s order as a condition | (¡precedent to agreeing for the property to reopen. The court also expressed its concern that a governmental entity that had requested the closure of private property, because it was out of compliance with codes, would drag its feet in allowing the property to reopen even after confirming that the property had been brought into compliance. In addition, the court noted Rules 1 and 11 of the Arkansas Rules of Civil Procedure, which it said strive to secure just, speedy, and inexpensive determinations of actions and certification that documents signed by counsel are well grounded in fact and warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law. The court stated its opinion that it had inherent power to issue sanctions on motion or sua sponte. It stated, however, that it was not going to resort to Rule 11 sanctions against the City but- that it appeared to the court that the facts in the instant case came trou-blingly close to the court’s understanding of the meaning of needless delay and harassment. The court also noted that the property had been a long-running problem and expressed its hope to Nerhan that the property would remain in compliance because the court had the authority and the will to close it if it did not. Finally, the court noted the witnesses and court personnel who unnecessarily had to be present for a hearing that was resolved by stipulation. Then, by order entered in open court on December 19, 2012, and filed the same day, the trial court ruled that all of the structures and rooms at the Heritage House Inn were in compliance with City codes and ordered that it be permitted to reopen for business.
Precipitating this appeal, however, in the days following entry of the December 19 order, the trial court entered additional orders by which it reconsidered its Rule 11 concerns |7and imposed sanctions on the City for “unnecessary delay and harassing conduct.” By letter dated December 20, 2012, the trial court informed the parties of its decision to impose sanctions, explained its basis for doing so, enclosed a proposed order to that effect for the parties’ information, and instructed them to acknowledge receipt of the letter and to notify the court of any objections. On December 21, 2012, the trial court entered its order that imposed sanctions for unnecessary delay and harassing conduct, explained its rationale for doing so, instructing Nerhan to submit a statement setting forth designated costs and attorney’s fees on or before January 3, 2013, instructed the City to respond or otherwise object to the statement of costs and attorney’s fees on or before January 10, 2013, and informed Nerhan that he could file a reply on or before January 17, 2013.
Nerhan filed his statement of fees and costs on December 31, 2012; the City filed its objection to imposition of sanctions and a motion for recusal on January 11, 2013. The trial court filed its order imposing sanctions for unnecessary delay and harassing conduct on January 11, 2013, and on January 16, 2013, it filed its order that awarded fees, costs, and expenses and denied the motion to recuse. This order found the submitted statement of fees, litigation costs, and travel expenses to be reasonable and ordered the City to pay Nerhan $1,603.33 for attorney’s fees and litigation costs incurred, and $794.30 for travel expenses sustained in connection with the December 19, 2012 hearing. The order also denied the City’s motion for recusal. This appeal followed.
|sDiscussion
I. The trial court erred in awarding sanctions against appellant in the absence of any pleadings, motions, or other papers in violation of Rule 11 of the Arkansas Rules of Civil Procedure.
The primary purpose of Rule 11 sanctions is to deter future litigation abuse, and the award of attorney’s fees is but one of several methods of achieving this goal. Parker v. Perry, 355 Ark. 97, 131 S.W.3d 338 (2003)(quoting Pomtree v. State Farm Mut. Auto. Ins. Co., 353 Ark. 657, 121 S.W.3d 147 (2003)). When a trial court determines that a violation of Rule 11 has occurred, the Rule makes sanctions mandatory. Id. The moving party has the burden to prove a violation of Rule 11. Id. The imposition of sanctions pursuant to Rule 11 is a serious matter to be handled with circumspection, and the trial court’s decision is due substantial deference. Id. We review a trial court’s determination of whether a violation of Rule 11 occurred under an abuse-of-discretion standai’d. Id. In deciding an appropriate sanction, trial courts have broad discretion not only in determining whether sanctionable conduct has occurred, but also what an appropriate sanction should be. Id. Rule 11 is not intended to permit sanctions just because the trial court later decides that the attorney against whom sanctions are sought was wrong. Id. In exercising its discretion under Rule 11, the trial court is expected to avoid using the wisdom of hindsight and should test the lawyer’s conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted. Id. The essential issue is whether the attorney who signed the pleading or other document fulfilled his or her duty of reasonable inquiry into the relevant law, and the indicia of reasonable inquiry into the law include the plausibility of the legal 19theory espoused in the pleading and the complexity of the issues raised. Id. The moving party establishes a violation of Rule 11 when it is patently clear that the nonmoving party’s claim had no chance of success. Id.; see also Ver Weire v. Arkansas Dep’t of Human Servs., 71 Ark.App. 11, 26 S.W.3d 132 (2000).
The major thrust of the City’s abuse-of-discretion argument on appeal is that Rule 11 does not apply because it filed no pleadings, motions, or other papers in violation of Rule 11 and that simply failing to stipulate to an adversarial party’s position is not actionable under Rule ll. We do not agree with this basic premise of the City’s argument because it is clear that Rule 11 does apply. The City filed a response to Nerhan’s petition to reopen. Pursuant to Rule 11, the signature on that response certified that to the best of the attorney’s “knowledge, information, and belief formed after reasonable inquiry it [was] well grounded in fact and [was] warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, that it [was] not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation .... ” The trial court was clearly not invoking Rule 11 based solely on the City’s refusal to stipulate to its adversary’s position; the City filed a document signed by counsel.
While we do not agree with the major thrust of the City’s argument, we do find an abuse of discretion in the trial court’s award of sanctions in this case. An abuse of discretion may be manifested by an erroneous interpretation of the law. Craig v. Carrigo, 340 Ark. 624, 12 S.W.3d 229 (2000).
In its January 16, 2013 order, the trial court relied in part upon the case of Arkansas Judicial Discipline & Disability Commission v. Simes, 2011 Ark. 193, 381 S.W.3d 764, as support for the position that a trial court may determine if sanctions are warranted, even in the absence of a motion, because it was consistent with the trial court’s inherent authority to protect the integrity of the proceedings pending before it. However, we note that the rationale relied upon by the trial court was quoted from the dissenting opinion in Simes. While we agree that the language of Rule 11 seems to authorize the court to impose sanctions upon its own initiative, and that view is certainly advocated by the dissenting opinion in Simes, supra, we have determined that is not what the majority opinion in the Simes case provides when reviewed in conjunction with the underlying case of Weaver v. City of West Helena, 367 Ark. 159, 238 S.W.3d 74 (2006).
In Weaver, supra, our supreme court reversed sanctions that had been imposed by Judge Simes under Rule 11 of the Arkansas Rules of Civil Procedure. At the outset of the Weaver opinion’s discussion of the Rule 11 issue, the supreme court quoted Rule 11 “in pertinent part.” In doing so, however, the Rule 11 quote sets forth only a portion of section (a) and |n only a portion of section (b), without indicating any omissions within either section. The resulting quote leaves the impression that there is not authority under the rule for a trial court to act on its own initiative, and, accordingly, that the only way for Rule 11 violations to be handled under the rule is by motion, following the procedural steps outlined in section (b). Later in the Weaver opinion, the supreme court explained:
There was no separate motion for sanctions made in this case, and such a motion is required by Rule 11 before sanctions may be imposed. At the January 7 hearing, which was scheduled as a recusal hearing, Judge Simes immediately began a protracted inquiry into possible Rule 11 violations by the appellant. The appellant was given no notice that Rule 11 would be addressed at the hearing. Judge Simes had Weaver removed from the court-room initially, and he then conducted an intensive inquiry into Murray’s knowledge and application of the Rules of Professional Conduct. The examination generally consisted of Judge Simes reading sizable passages from the rule book aloud, and then questioning Murray on the extent of his knowledge thereof. Murray stated that he was familiar with the rules and had adhered to them in the present case, although he admitted that he could not recite the rule book verbatim. Weaver was then returned to the courtroom and similarly quizzed, as if he were an attorney and familiar with the rules. All this occurred prior to any real inquiry into the veracity of Weaver’s allegations supporting the motion to recuse. Judge Simes seemed to presume the falsity of the allegations throughout the proceedings.
In summation, the procedural requirements for the imposition of sanctions under Rule 11 were disregarded by Judge Simes, and the appellant was subjected to a de facto Rule 11 hearing of which he was given no notice. That hearing occurred before the court attempted to establish the falsity of the allegations in the motion for recusal, and the court ultimately failed to establish that the allegations were false. Judge Simes abused his discretion by imposing sanctions upon the appellant under Rule 11. Based on the record before us, it appears that Judge Simes has violated the Arkansas Code of Judicial Conduct. Accordingly, we direct the clerk of this court to forward a copy of this opinion to the Arkansas Judicial Discipline and Disability Commission.
367 Ark. at 164-65, 238 S.W.3d at 78-79 (emphasis added & citations omitted).
| ^Following the supreme court’s referral of the matter in Weaver to the Arkansas Judicial Discipline and Disability Commission, the Commission investigated Judge Simes’s conduct in the Weaver case and proceeded to a formal adjudication. After a hearing before a three-member panel of the Commission to develop the facts surrounding the Weaver case, the panel con- eluded that Judge Simes had violated some of the canons of the Arkansas Code of Judicial Conduct and recommended that he be removed from office. The full Commission adopted the panel’s report and recommended to the supreme court that he be removed from his position as circuit-court judge. The supreme court was then faced with the task of deciding whether to accept the Commission’s recommended findings and recommendation of removal. The supreme court accepted some findings and rejected others.
For purposes of the instant appeal, however, Justice Karen Baker wrote an extensive dissent in Simes, supra, in which she criticized the supreme court’s opinion in the earlier Weaver case that resulted in the referral of Judge Simes to the Commission. She quoted the language from Weaver that declared that a separate motion for sanctions was required by Rule 11 before sanctions could be imposed. Justice Baker declared that the Weaver opinion was “simply wrong” in that regard. She then quoted the language from Rule 11(a) that provides that “the court, upon motion or upon its own initiative,” (emphasis added) shall impose appropriate sanctions if a document is signed in violation of Rule 11, and she noted that the rule’s provision in this regard, ie., for a court to determine if sanctions were warranted absent a motion was consistent with the trial court’s inherent authority to protect the integrity of the proceedings pending before it.
11sRule 11 is divided into two sections. Section (a) explains the significance of signing a pleading, motion, or other paper, and it sets forth the consequences of failing to sign or signing in violation of the rule. It further provides that appropriate sanctions shall be imposed by the court, upon motion or upon its own initiative, when the rule is violated. Moreover, our case law establishes that when a court determines that a violation of Rule 11 has occurred, the Rule makes sanctions mandatory. Parker v. Perry, supra; Pomtree v. State Farm Mut. Auto. Ins. Co., supra. Section (b) sets forth the procedural requirements that are necessary in filing a motion that asserts Rule 11 violations, but it provides no guidance for situations in which a court acts “upon its own initiative.”
In the instant case, we have concluded that we are constrained to follow our supreme court’s interpretation of Rule 11 in Weaver, supra, even though that interpretation seems to | Hignore the rule’s specific language authorizing a trial court to act on its own initiative. Consequently, we conclude that the trial court’s reliance upon the rationale offered by Justice Baker in her dissenting opinion in Simes, supra, which criticizes the Weaver opinion, was misplaced because it represents an erroneous interpretation of the law as set forth by our supreme court in Weaver, supra, and, therefore, constitutes an abuse of discretion. See Craig v. Carrigo, supra.
II. The trial court created impropriety or the appearance of impropriety in failing to recuse from the case.
For its final point of appeal, the City contends that the trial court exhibited personal animosity toward the City in imposing sanctions under Rule 11 and created impropriety or the appearance of impropriety in denying the City’s motion to recuse. We disagree.
It is a long-established rule that there is a presumption of impartiality on the part of judges. Searcy v. Davenport, 352 Ark. 307, 100 S.W.3d 711 (2003). A judge’s decision to recuse is within the trial court’s discretion and will not be reversed absent abuse. Id. The party seeking recusal must demonstrate bias. Id. Unless there is an objective showing of bias, there must be a communication of bias in order to require recusal for implied bias. Id. We do not consider evidence that is not included in the record on appeal. Id. The mere fact that a judge rules against a party is not sufficient to demonstrate bias. Id. Whether a judge has become biased to the point that he should disqualify himself is a matter to be confined to the conscience of the judge. Id.
Here, in support of its position that the trial court should have recused, the City basically contends that the trial court ruled in such a manner as to create impropriety or the | ^appearance of it by, for example, imputing to the City motives of harassment, imposing sanctions where none had been requested, and recharacterizing the City’s “request” to Nerhan as a “demand.” Our review of the record does not convince us that the trial court was motivated by bias and should have recused. We are simply not persuaded that the trial court demonstrated bias and find no abuse of the trial court’s discretion in denying the motion to recuse.
Reversed in part; affirmed in part.
WYNNE, J., agrees.
VAUGHT, J„ concurs.
. Although the style of this case identifies two appellees, the record reflects that the trial court in its April 3, 2012 order identified Gurmeet "George” Nerhan as the sole defendant in the City’s show-cause action initiated on March 6, 2012.
. While we have grave concerns about the trial court’s actions under a due-process analysis, which is the basis for the concurring opinion, the City did not raise any due-process arguments in this appeal.
. Rule 11(a) provides in pertinent part: “If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.” (Emphasis added.).
. An examination of 2005 and 2006 versions of Rule 11 confirms that both included the language, "If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose....” (Emphasis added.).
. As explained by our supreme court in Ward v. Dapper Dan Cleaners & Laundry, Inc., 309 Ark. 192, 194, 828 S.W.2d 833, 835 (1992), "Our Rule 11 mirrors Fed.R.Civ.P. 11, and on occasion, we have looked to how the federal courts have interpreted their Rule when considering whether to award sanctions.” In looking to how federal courts handle court-initiated actions under Rule 11, however, it appears that our rule no longer mirrors Rule 11 under the federal rules — at least with respect to procedural guidelines for court-initiated actions under Rule 11. That is, federal Rule 11 provides procedural guidelines for a federal court acting on its own initiative: "(3) On the Court’s Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).” Fed.R.Civ.P. 11(c)(3). And, further, "(5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction: ... (B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned." Fed. R.Civ.P. 11(c)(5). Moreover, the federal rule also specifically incorporates the need for notice and a reasonable opportunity to respond: "(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.” Fed.R.Civ.P. 11(c)(1). | [
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KAREN R. BAKER, Justice.
| tThis appeal stems from the death of L.C. Taylor and the appointment of a special personal representative of his estate. L.C. died on February 2, 2009. On March 16, 2009, the Union County Circuit Court — Probate Division appointed L.C.’s son, Bobby Taylor, special personal representative of the estate for the limited pur pose of investigating and prosecuting all claims which the estate may pursue having arisen out of nursing-home abuse. On June 3, 2010, on behalf of his father’s estate, Bobby sued the appellees in a wrongful-death action in the Union County Circuit Court. The wrongful-death action is a | ^companion case to this probate appeal, Case No. CV-13-12. The appellees in both cases are MCSA, LLC; Courtyard Rehabilitation and Health Center, LLC; JEJ Investments, LLC; Union Assets, LLC; Summit Health Resources, LLC; Procare Therapy Services, LLC; John Ponthie; Ross M. Ponthie; and Mark A. Thompson (the appellees will be collectively referred to as “MCSA”).
On June 8, 2011, Bobby was deposed in the wrongful-death action and for the first time, revealed that he was a convicted felon. The parties agreed that, pursuant to Ark.Code Ann. § 28^48 — 101(b)(3) (Repl. 2004), a convicted felon is not qualified to serve as a special personal representative. Accordingly, on July 15, 2011, Bobby moved to substitute Ronnie Taylor, another son of L.C. Taylor’s, as special personal representative. On July 28, 2011, the court removed Bobby and substituted Ronnie as the special personal representative for the estate.
On August 1, 2011, MCSA filed a motion to intervene in the probate case, filed a motion requesting that the probate court vacate the March 16, 2009 order appointing Bobby, and challenged Ronnie’s substitution as a special personal representative. MCSA sought to intervene asserting that the appointment issue would determine whether Bobby’s wrongful-death claim was timely filed. MCSA also asserted that Bobby’s appointment was invalid thereby invalidating Ronnie’s substitution. On August 31, 2011, the probate court allowed MCSA to intervene in the probate case and denied MCSA’s challenge to Ronnie’s | (¡appointment. The probate court also denied MCSA’s request to vacate its order appointing Bobby as special personal administrator, finding the issue moot because it had appointed Ronnie.
On May 8, 2012, MCSA filed a motion for reconsideration again challenging the appointment of Ronnie, and requested that the probate court vacate its March 16, 2009 order appointing Bobby as special personal administrator. On July 11, 2012, the probate court held a hearing on the motion for reconsideration, and on July 12, 2012, vacated its March 16, 2009 order appointing Bobby. The probate court found that its order was invalid from its inception and that there was no valid order appointing Bobby as special personal representative. From that vacation order, Ronnie appeals and presents one issue, whether the circuit court erred when it found that the March 16, 2009 order was void ab initio. Stated differently, the question is whether the circuit court erred in finding that the order was void and not voidable. This court has jurisdiction pursuant to Ark. Sup.Ct. R. l-2(b)(5)(6) (2013) as the case presents a significant issue in need of clarification or development of the law.
This court reviews probate proceedings de novo but will not reverse the decision of the probate court unless it is clearly erroneous. Seymour v. Biehslich, 371 Ark. 359, 266 S.W.3d 722 (2007). A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left on the entire evidence with the firm conviction that a mistake has been committed. Id. Furthermore, while we will not overturn the probate judge’s factual determinations unless they are clearly erroneous, we are free in a de novo | ¿review to reach a different result required by the law. Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991).
The issue on appeal requires us to construe the relevant statutes, Ark. Code Ann. §§ 28-1 — 115(b) and 28-48-105(b) (Repl.2004). The question of the correct application and interpretation of an Arkansas statute is a question of law, which this court decides de novo. Broussard v. St. Edward Mercy Health Sys., Inc., 2012 Ark. 14, 386 S.W.3d 385. The basic rule of statutory construction to which all interpretive guides must yield is to give effect to the intent of the General Assembly. Falcon Cable Media LP v. Ark. Pub. Serv. Comm’n, 2012 Ark. 463, at 3, 425 S.W.3d 704, 706. “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.” Voltage Vehicles v. Ark. Motor Vehicle Comm’n, 2012 Ark. 386, at 7, 424 S.W.3d 281, 286. We construe the statute so that no word is left void, superfluous, or insignificant, and meaning and effect are given to every word in the statute if possible. Id. “When a statute is clear, we give it its plain meaning, and this court will not search for legislative intent; rather, that intent will be gleaned from the plain meaning of the language used.” Id. at 7, 424 S.W.3d at 286. It is for this court to decide what a statute means, and we are not bound by the probate court’s interpretation. Chase Bank USA, N.A. v. Regions Bank, 2013 Ark. 129, 2013 WL 1279089.
At issue here is the probate court’s July 12, 2012 order, which provides in pertinent part as follows:
Said Order of appointment [of Bobby Taylor] shall be and is hereby vacated pursuant to A.C.A. § 28-1-115 as the Order was, from its inception, invalid. IT IS | .THEREFORE ORDERED and ADJUDGED that the ... Order of March 16, 2009, was invalid and that there was no valid Order appointing Bobby Taylor as Personal Representative.
The parties agree that the probate court was vested with the power to vacate its order appointing Bobby, but disagree as to the effect of the vacation of the order. Ronnie asserts that Bobby’s acts prior to his removal remain valid, and MCSA takes the position that all of Bobby’s acts from his appointment forward are void, o
The two applicable statutes from our Probate Code are Ark.Code Ann. §§ 28-1-115(b) and 28-48-105(b) (Repl.2004).
First, Ark.Code Ann. § 28-1-115, “Orders and rehearings” provides in pertinent part:
(a) For good cause and at any time within the period allowed for appeal after the final termination of the administration of the estate of a decedent or ward, the court may vacate or modify an order or grant a rehearing.
(b) No vacation or modification under this section shall affect any act previously done or any right previously acquired in reliance on such an order or judgment.
Second, the Probate Code addresses the removal of a personal representative in Ark.
Code Ann. § 28-48-105(b), “Removal Generally.” Subsection (b) provides as follows:
(b) The removal of a personal representative after letters have been duly issued to him or her does not invalidate his or her official acts performed prior to removal.
Ronnie contends that the language of § 28-48-105(b) is clear, and as applied to Ronnie’s case would render Bobby’s appointment voidable, leaving Bobby’s acts from his appointment until his removal valid and in effect. Ronnie further contends that to find otherwise would require this court to ignore the statute’s clear language.
MCSA responds that the probate court’s interpretation of Ark.Code Ann. § 28-1-Isl 15(b) should be affirmed because the initial appointment was invalid thereby invalidating the appointment in its entirety. MCSA relies on Ark.Code Ann. § 28^48-101(b)(3), which provides that “no person is qualified to serve as domiciliary personal representative who is a convicted and un-pardoned felon,” and asserts that the probate court did not strictly comply with this statute and therefore exceeded its jurisdiction. MCSA contends that because Bobby was disqualified from the initial filing, this court does not need to reach the effect of his removal because he was unqualified to ever serve. Stated differently, Bobby was never qualified, his appointment was invalid, and therefore any act he performed prior to his removal on July 28, 2011, is a nullity.
We now turn to our interpretation of the applicable statutes. With our rules of statutory construction in mind, in reviewing Ark.Code Ann. §§ 28 — 1—115(b) and 28^8-105(b), we hold that the probate court erred. Ark.Code Ann. § 28-l-115(b) plainly and unambiguously states that “no vacation or modification under this section shall affect any act previously done or any right previously acquired in reliance on such an order or judgment.” Additionally, Ark.Code Ann. § 28-48-105(b) plainly and unambiguously states “[T]he removal of a personal representative after letters have been duly issued to him or her does not invalidate his or her official acts performed prior to removal.” These two statutes proscribe the same language: the removal of a personal representative or a vacation of an order does not invalidate or affect any acts prior to the removal of the personal representative or the vacation of the order. We also note that Ark.Code Ann. § 28-48-102, “Letters — Issuance—Form,” of the Probate Code also provides that Bobby’s acts prior to his removal remain valid. 17Subsection (d)(2) states that “the order appointing the administrator empowers the administrator to act for the estate, and any act carried out under the authority of the order is valid.”
Although MCSA urges this court to hold that all of Bobby’s acts are void, we find that this interpretation would require us to ignore the plain language of our statutes. Further, we note that MCSA’s argument hinges on its position that Bobby’s appointment was invalid from the initial date of appointment because he was an unpar-doned felon and unqualified to serve thereby voiding all of his acts. However, the flaw with this argument is, from the record before the court, there is no evidence that either the court or the parties, or even Bobby was aware that he was unqualified to serve as special personal administrator for his father’s estate. Thus, at the time of Bobby’s appointment, the court acted within its jurisdiction and appointed Bobby in compliance with Ark.Code Ann. §§ 28-48-101 to -103. Here, the knowledge of the need for removal did not occur until Bobby’s deposition on June 8, 2011, when it was first revealed that Bobby was unqualified to serve. Thereafter, Ronnie was substituted as the special personal representative. However, this substitution does not invalidate or affect the probate court’s jurisdiction to initially appoint Bobby, it simply removes him as the representative.
We also find support for our statutory interpretation from our holding in Nickles v. Wood, 221 Ark. 630, 255 S.W.2d 433 (1953). In Nickles, we addressed whether the acts of the former special administrator were valid. In that case, there was an automobile accident between Nickles and Stein. Nickles died in the accident, and Stein and his wife were injured. | sOn August 29, 1952, pursuant to Ark. Stats. § 66-2210 (1949) (currently Ark.Code Ann. § 28-48-103, “Appointment of Special Administrators”), Stein petitioned the probate court to appoint a special administrator to Nickles’s estate to serve a summons and to defend a cause of action arising from the accident. The probate court granted the petition, and Stein served Nickles’s special administrator on that same date with a suit for damages in circuit court. Approximately two weeks later, on September 12, 1952, Nickles’s father filed a petition with the probate court to be appointed general administrator of his son’s estate. The probate court granted the petition and revoked the August 29 appointment of the special administrator. Niekles’s father then filed a motion in the circuit court action to quash the summons in the suit for damages from the accident. The circuit court denied the motion to quash. Nickles filed a writ of prohibition with this court, asserting that the probate court’s appointment of the general administrator invalidated the special administrator’s appointment; therefore service in the civil action was not valid and the circuit court lacked jurisdiction over the case. We dismissed the writ, and we affirmed the circuit court’s finding -that the cancellation of the special-administrator appointment did not affect the validity of the service of the summons that had previously been served. Citing Ark. Stats. § 62-2203 (currently Ark.Code Ann. § 28-48-105), we held that the acts of the special administrator prior to the revocation were valid.
Although MCSA contends that Nickles is not on point because we did not address an unqualified representative, we disagree. In Nickles, we addressed the effect of the revocation of a special personal representative and the validity of the acts of the revoked representative. | ^Accordingly, we find that Nickles supports our statutory interpretation that the acts of a revoked special personal representative are not void.
Therefore, in accordance with our interpretation of Ark.Code Ann. §§ 28 — 1—115(b) and 28-48-105(b), we hold that Bobby’s acts as a special personal representative were valid until the date of his removal as special personal representative, July 28, 2011. Accordingly, the probate court erred by finding that the order of appointment was void ab initio.
Reversed and remanded.
HART, J., not participating.
. On August 24, 2011, the Union County Circuit Clerk issued letters of special administration to Ronnie.
. We also note that although both parties cite to Edwards v. Nelson, 372 Ark. 300, 275 S.W.3d 158 (2008) and Kelly v. Estate of Edwards, 2009 Ark. 78, 312 S.W.3d 316, we do not find these cases applicable to the case before us. In those cases, we did not reach the issue presented here but disposed of both cases on other grounds. | [
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ROBERT L. BROWN, Justice.
This is an interlocutory appeal from the circuit court’s disqualification of Reggie Koch as counsel for appellants, Ae Samontry and Pornpiemon Phouangmany. We dismiss the appeal with respect to Samontry and reverse Koch’s disqualification as counsel for Phouangmany.
We first address whether an interlocutory appeal is the proper procedure. In civil matters, an interlocutory appeal may be taken from an order disqualifying an attorney from further participation in the case. See Ark. R.App. P. — Civ. 2(a)(8) (2012). There is no corresponding rule in the Arkansas Rules of Appellate Procedure — Criminal. In Price v. State, 313 Ark. 96, 852 S.W.2d 107 (1993), however, our decision implied that had the removal of counsel in that case been based on a motion filed by opposing counsel on ethical grounds, the interlocutory appeal in that criminal case would have been proper under Rule 2(a)(8).
This court also has applied the civil rules of appellate procedure to civil and criminal cases in certain specific circumstances. See, e.g., Roy v. State, 367 Ark. 178, 238 S.W.3d 117 (2006) (stating that, when determining the timeliness of a record on appeal, the Arkansas Supreme Court clerk applies Arkansas Rule of Appellate Procedure — Civil 5(b)(1) to both civil and criminal cases); see also Byndom v. State, 344 Ark. 391, 404, 39 S.W.3d 781, 788 (2001) (quoting favorably Osborn v. State, 340 Ark. 444, 448, 11 S.W.3d 528, 531 (2000) (Glaze, J., concurring) (recognizing that “[w]hile our Rules of Appellate Procedure—Criminal do not specifically mention cross appeal, as such, our Rule of Appellate Procedure—Civil clearly do (see Ark. RApp. P.—Civ. 3(d))), and these civil appellate rules have commonly been referred to and applied when necessary in criminal appeals”). Using Arkansas Rule of Appellate Procedure—Civil 2(a)(8) as authority for this interlocutory appeal in this criminal case, we hold that Samontry and Phouangmany properly filed an interlocutory appeal from the order disqualifying their counsel.
The facts leading up to this interlocutory appeal began on May 12, 2010, when Sa-montry and Phouangmany were arrested for prostitution and promoting prostitution. Jerry Richard, Samontry’s ex-husband, was also arrested and charged with promoting prostitution. Samontry and Phouangmany, who were represented by Dan Hancock, and Richard, who was represented by Reggie Koch, were tried by the Cabot District Court in Lonoke County. On October 4, 2010, Samontry was found guilty of prostitution and second-degree promoting prostitution by the district court, and Phouangmany was found guilty of prostitution. Richard, however, was acquitted of all charges. Samontry and Phouangmany then retained Koch as their attorney and appealed their convictions to the Lonoke County Circuit Court.
On January 12, 2011, the plea and arraignments for Samontry and Phouangma-ny were rescheduled for February 22, 2011. On February 22, 2011, Koch entered an appearance as counsel for both defendants, entered pleas of not guilty, and requested a jury trial. The trial was then set for June 21, 2011. On June 7, 2011, two weeks prior to trial, the State moved to disqualify Koch as counsel for defendants. In its motion, the State con tended that Koch represented Jerry Richard, Samontry’s ex-husband, in the original proceedings before the district court. The State alleged that under Arkansas Rules of Professional Conduct 1.6, 1.7, and 1.9, it would be impossible for Koch to represent Phouangmany faithfully while also cross-examining Richard, whom he represented in this matter in the original proceedings and from whom he received confidential attorney-client information. The State further asserted that the interests of Koch’s former client and his current clients were directly adverse, which required that Koch be disqualified.
On June 16, 2011, Samontry and Phou-angmany filed a response and brief in opposition to the State’s motion to disqualify counsel. The same day, in chambers, the circuit court orally granted the State’s motion to disqualify Koch as counsel for the defendants in this case, but this discussion took place off the record. Also during the in-chambers meeting, the defendants moved for the return of certain funds and property, which had been seized by the State after their arrest. That motion was denied. On June 17, 2011, the circuit court entered an order granting the State’s motion to disqualify Koch as defense counsel based on his previous representation of a material witness, Richard, in the matter. The court also sent a letter to Koch and the deputy prosecutor on the same date, informing them of the court’s decision and enclosing the orders granting the State’s motion to disqualify.
On July 7, 2011, the circuit court held a hearing to permit Koch, who was continuing to act as counsel for the defendants with the circuit court’s permission for the limited purposes of the July 7th hearing, to put the arguments, motions, and rulings made in chambers on June 16, 2011, on the record. Koch filed a renewed motion for the return of his clients’ funds and property and made arguments, for the record, in opposition to his disqualification as counsel. Koch also presented the circuit court with the affidavits of Richard and Samon-try, which stated that they denied that any conflict existed, and further averred that in the event that one did, they waived any such conflict. Koch further represented to the court that although he was unable to obtain a written affidavit from Phouang-many prior to the hearing, she too was ready, willing, and able to waive any actual or potential conflict of interest.
On July 7, 2011, the circuit court sent a letter to counsel confirming what occurred at the hearing of the same date. In that letter, the court stated that its previous order filed |fiJune 17, 2011, which granted the State’s motion to disqualify defense counsel, stands. The court took under advisement the defendants’ renewed motions for the return of their property and granted their request for a stay pending an interlocutory appeal from the decision to disqualify Koch as counsel.
The sole issue on appeal is whether the circuit court erred in disqualifying Koch as counsel for Samontry and Phouangmany. This court reviews a circuit court’s decision to disqualify an attorney under an abuse-of-discretion standard. Wilburn v. State, 346 Ark. 137, 56 S.W.3d 365 (2001). An abuse of discretion may be manifested by an erroneous interpretation of the law. Id. This court has recognized that the Rules of Professional Conduct are applicable in disqualification proceedings. Id. Disqualification is an available remedy to a circuit court “to protect and preserve the integrity of the attorney-client relationship.” Craig v. Carrigo, 340 Ark. 624, 633, 12 S.W.3d 229, 235 (2000) (quoting Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990)). We have said that disqualification of counsel is a drastic measure to be imposed only where clearly required by the circumstances. Id.
We initially observe that the interlocutory appeal relating to Samontry is not properly before this court. The State’s motion to disqualify Koch as counsel and the order doing so were filed under case number CR10-387-2 and only reference Phouangmany. There is no comparable motion or order in the record of this interlocutory appeal that relates to Samontry and her case, CR10-387-1.
As already referenced in this opinion, Arkansas Rule of Appellate Procedure—Civil 2(a)(8) permits an interlocutory appeal from an order disqualifying an attorney as counsel, and we now apply that rule to this criminal appeal. Implicit in Rule 2(a)(8) is the requirement that there first be an order from which a party may appeal. See Ark. Lottery Comm’n v. Alpha Marketing, 2012 Ark. 23, 386 S.W.3d 400. In addition, Arkansas Supreme Court Rule 3-4(a) reads that the record on appeal in a criminal case shall include the “[f]inal judgment and commitment or order appealed.” Because there is no order contained in the record of this interlocutory appeal disqualifying Koch as counsel for Samontry, we dismiss the appeal as it relates to Samontry.
Turning to the merits of Phouangmany’s appeal, she claims that the circuit court abused its discretion by disqualifying Koch as her counsel for the following reasons: (1) the right to counsel of one’s choice is a fundamental constitutional right; (2) there was no conflict of interest requiring disqualification; (3) even if there was a conflict, it was waived; (4) disqualification of counsel is a drastic measure; (5) the State’s motion to disqualify, filed so close to the trial date, was filed for an improper purpose; and (6) even if there was a conflict that could not be waived, there were less drastic measures than disqualification that could have been used.
In response, the State urges that Koch’s prior representation of Richard creates a serious potential for conflict between Koch’s duty to Phouangmany and his duty to Richard, as a former client. The State maintains that the interests of Phouangmany are materially adverse to the interests of Richard because the testimony of Richard is critical to the prosecution of Phouangmany, even though it may not directly inculpate her. As a final point, the State claims that the circuit court has substantial latitude to refuse to accept a defendant’s waiver of his or her chosen counsel’s actual or potential conflict of interest. Thus, even if there was a waiver on Phou-angmany’s part, according to the State, the circuit court did not abuse its discretion in declining to accept the waiver and in disqualifying Koch.
There is no question that criminal defendants have a constitutional right to effective assistance of counsel. U.S. Const. Amend. VI; Ark. Const. art. II, § 10. This guarantee includes the “right to ‘the assistance of an attorney unhindered by a conflict of interest.’” United States v. Agosto, 675 F.2d 965, 969 (8th Cir.1982) (quoting Cuyler v. Sullivan, 446 U.S. 335, 355, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (Marshall, J., concurring in part and dissenting in part)), overruled on other grounds by Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984).
In Agosto, 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 explained that “successive representation” is “where an attorney representing a defendant has previously represented codefendants or trial witnesses.” Agosto, 675 F.2d at 970. As explained by that court, a major source for a conflict in successive-representation cases is the attorney’s receipt of privileged information from a witness or codefendant. Id. at 971. “When an attorney attempts to represent his client free of compromising loyalties, and at the same time preserve the confidences communicated by a present or former client during representation in the same or a substantially related matter, a conflict arises.” Id.
According to the Eighth Circuit, there are two types of conflicts that may arise in Successive-representation cases: (1) the 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) the 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. Id.
In its motion to disqualify Koch as counsel, the State relied on Rules 1.6, 1.7, and 1.9 of the Arkansas Rules of Professional Conduct. Rule 1.6 prohibits a lawyer from revealing information relating to the representation of a client unless the client gives informed consent. Ark. R. Profl Conduct 1.6(a) (2011). Rule 1.7, entitled “Conflict of Interest: Current Clients,” provides that a lawyer shall not represent a client if the representation involves a concurrent conflict of interest where the representation “will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person.” Ark. R. Prof’l Conduct 1.7(a)(2) (2011) (emphasis added). Finally, Rule 1.9 reads that a “lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.” Ark. R. Profl Conduct 1.9(a) (2011) (emphasis added).
In our jurisprudence, this court has recognized that if an attorney’s representation of a current client is substantially related to the attorney’s representation of a former client, “a presumption arises that confidences of the former client were disclosed to the former attorney.” Sturdivant v. Sturdivant, 367 Ark. 514, 519, 241 S.W.3d 740, 745 (2006) (citing Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986)). This court has further explained that, in those situations, the court will entertain the presumption and will not inquire into the nature and extent of the confidences; the confidential disclosures, whether actual or presumed, command the disqualification of the attorney when he or she represents an adverse interest in a related matter. Id. (emphasis added).
Yet, it is also clear that the burden of proof regarding disqualification of counsel rests with the moving party. See, e.g., Engineered Products Co. v. Donaldson Co., Inc., 290 F.Supp.2d 974 (N.D.Iowa 2003); Olson v. Snap Products, Inc., 183 F.R.D. 539 (D.Minn.1998). In the criminal context, the Eighth Circuit requires that “disqualification on the basis of the attorney’s receipt of privileged information from a codefendant formerly represented by that attorney should only be considered upon a clear showing that the present and former clients’ interests are adverse.” Agosto, 675 F.2d at 973. Due to the potential for abuse by opposing counsel, the Eighth Circuit further requires disqualification motions to be subjected to strict scrutiny by the courts. Droste v. Julien, 477 F.3d 1030 (8th Cir.2007).
In the instant case, as was the case in Agosto, we are concerned with the authority of the circuit court to disqualify counsel before trial and before a conflict results in ineffective assistance of counsel. At this stage in the proceedings, there is less certainty as to whether conflicts will actually arise and the nature of those potential conflicts. See Agosto, 675 F.2d at 970. Both our rules of professional conduct and our case law demonstrate that a conflict of interest occurs where the attorney is representing a current client whose interests are materially adverse to those of a former client. See, e.g., Ark. R. Prof’l Conduct 1.9(a); see also Sturdivant, 367 Ark. at 519, 241 S.W.3d at 745. Here, although the State urges otherwise, the State has offered no proof that the interests of Phouangmany and Richard are adverse for purposes of Koch’s representation.
Richard and Samontry, on the other hand, submitted affidavits to the circuit court. Richard said in his affidavit that his “testimony is not adverse to ... Phou-angmany in any way.” In fact, he added that his testimony would be “favorable to [her] and adverse to the prosecution.” He further averred that he did “not have any information that will incriminate either defendant in the charges against them.”
Similarly, Samontry said in her affidavit that she did “not believe that any such conflict exists.” Samontry explained that she was previously married to Richard and said that she did “not believe he has any information that would incriminate me in any way, nor will his testimony be adverse to my testimony or adverse to my interests in this ease.”
Following that, Koch also represented to the circuit court at the hearing that although he was unable to obtain a copy of Phouangmany’s affidavit prior to the hearing due to her residence in another state, Phouangmany had made a knowing and intelligent waiver of any conflict of interest in regard to his successive representation. Koch further explained that Phouangmany was willing to be questioned and examined by the court, with an interpreter present if needed, if the court determined that her affidavit was not sufficient. The circuit court accepted Koch’s representation that Phouangmany would file an affidavit waiving any alleged conflict of interest. The court, however, found that even if he had Phouangmany’s | ¶ 1 affidavit and she appeared before the court to be questioned, the ruling regarding the disqualification of Koch as counsel would still stand.
Furthermore, in Phouangmany’s brief in opposition to the State’s motion to disqualify counsel, she asserted that Koch would state on the record that he was aware of “no confidential information that he has received from his former client, Jerry Richard, that is likely to present any sort of conflict or that is likely to put Richard’s interests at odds with the defendants’ interests in this case.” The Eighth Circuit Court of Appeals has said that courts “give substantial weight to defense counsel’s representations regarding conflicts of interest.” Agosto, 675 F.2d at 972; see also United States v. Flynn, 87 F.3d 996, 1001 (8th Cir.1996) (citing Agosto, 675 F.2d at 972) (“In determining whether a conflict of interest exists, substantial weight is given to defense counsel’s representations.”).
The State admits in its brief in this appeal that Richard’s testimony may not directly inculpate Phouangmany. It is also relevant to note that Richard has been considered by Phouangmany as a strong witness for the defense and that it was not until June 7, 2011, two weeks prior to trial, that the State subpoenaed him to provide testimony for the State at the trial. In the brief in support of her opposition to the State’s motion to disqualify, Phouangmany pointed out that Richard has always maintained his innocence, as well as her own. She explained that Richard has never made any statements to the prosecution, law enforcement, or Koch to the contrary.
Furthermore, in her appellate brief and her brief before the circuit court, Phouang-many claimed that the State can point to no evidence that Richard’s interests are adverse to her own. As noted above, the Eighth Circuit in Agosto requires that “[i]n the criminal context, disqualification on the basis of the attorney’s receipt of privileged information from a codefendant formerly represented by that attorney should only be considered upon a clear showing that the present and former clients’ interests are adverse.” Agosto, 675 F.2d at 973. The State’s conelusory assertions that “the testimony of Richard is critical to the prosecution of [Phouangmany], even though it may not directly inculpate [her]” and that there is a “serious possibility that Richard could testify against [Phouangmany’s] interests on some point” are simply not enough to establish a clear showing that Phouangmany and Richard’s interests are adverse. We, of course, recognize the principle that the presumption in favor of a party’s choice of counsel may be overcome by the demonstration of an actual conflict of interest or by a showing of a serious potential for a conflict. See Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Here, however, the State has shown neither.
In sum, we conclude that the State has failed to meet its burden of proof to support Koch’s disqualification in Phouangma-ny’s case. Accordingly, we hold that the circuit court abused its discretion when it disqualified Koch as counsel for Phouang-many. We reverse the disqualification of Koch as it pertains to Phouangmany and remand to the circuit court for further proceedings.
Dismissed in part; reversed and remanded in part.
. The only motion included in the record of this appeal is the State’s motion to disqualify Koch as attorney for Phouangmany in case number CR10-387-2. Samontry’s case number in circuit court was CR10-387-1, but no similar motion is found in the record concerning her case.
. The record in this appeal only contains the circuit court’s order granting the State’s motion to disqualify Koch as counsel in Phou-angmany’s case, case number CR10-387-2. This order makes no reference to Samontry, and a separate order in Samontry's case, case number CR10-387-1, is not included in the record. | [
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JIM HANNAH, Chief Justice.
| Appellants, Opal and L.B. Corn, pursued a claim for underinsured motorist (“UIM”) coverage against their insurer, appellee Farmers Insurance Co., Inc. The circuit court granted summary judgment in favor of Farmers, finding that, based on both the exhaustion requirement of UIM coverage and the policy language, the Corns were not entitled to UIM benefits. We affirm.
On March 3, 2008, Opal was driving on Interstate 540 in Rogers, with L.B. as her passenger, when she encountered debris in the roadway. She slowed down suddenly to avoid hitting the debris and was rear-ended by a vehicle driven by Martha Gaf-ford. The debris was later determined to have fallen off an Eden’s Home Repair and Remodeling truck, which was driven by Kenneth Eden.
The Corns filed claims against Gafford. Gafford’s insurer, Allstate Insurance Company, offered her policy limits of $25,000 each to Opal and L.B., and Farmers consented to the ^settlements. The Corns then filed a UIM claim with Farmers for the remaining damages from the accident. When the expiration of the statute of limitations was imminent without resolution of the UIM claim, the Corns filed suit against Farmers and Kenneth Eden and Eden’s Home Repair and Remodeling (collectively referred to as “Eden”). The Corns settled their claims with Eden through mediation by accepting proceeds from an auto-liability policy issued by Eden’s insurance carrier. That policy provided for $1 million of liability coverage per accident; however, the Corns’ settlements with Eden were for less than the policy limits. Farmers refused to offer any UIM benefits and moved for summary judgment, contending that because the Corns had failed to exhaust Eden’s liability policy, they had not triggered UIM coverage under their policy with Farmers. In support, Farmers pointed to the following language in its policy:
We will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.
Farmers argued that the policy language, together with this court’s holding in Birchfield v. Nationwide Insurance, 317 Ark. 38, 875 S.W.2d 502 (1994), required the Corns to exhaust all policies against all tortfeasors before receiving UIM benefits.
In response, the Corns contended that the modification of joint and several liability by Act 649 of 2003 invalidated the holding in Birchfield and, as such, in multiple-tortfeasor cases, insured persons are no longer required to exhaust all policies of all tortfeasors before receiving UIM benefits. They also argued that the policy terms allow for payment of UIM benefits after only one tortfeasor’s policy has been exhausted or, alternatively, that the policy | ¡¡terms are ambiguous. In addition, the Corns argued that Farmers failed to object to the settlement with Gafford and was therefore precluded from refusing to remit UIM benefits to them. The circuit court rejected the Corns’ arguments and entered summary judgment in favor of Farmers. The Corns appeal.
An appeal from an order of summary judgment typically concerns the issue of whether a material question of fact is left unanswered; however, the issues presented in this appeal involve questions of law. This court reviews questions of law de novo. E.g., Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21.
The Corns first contend that the circuit court erred in granting summary judgment in favor of Farmers because, given the modification of joint and several liability in Arkansas, insured persons are no longer required to exhaust all liability insurance policies of all tortfeasors before they are entitled to receive UIM benefits. They also contend that this court’s decision in Birchfield is invalid. Farmers responds that the modification of joint and several liability has no effect on UIM coverage and that the Birchfield decision is controlling.
To address the Corns’ first argument, we must consider the UIM statute, our decision in Birchfield, and the modification of joint and several liability. We begin with the statute.
UIM coverage is governed by Arkansas Code Annotated section 23-89-209. The coverage
shall enable the insured ... to recover from the insurer the amount of damages for bodily injuries to ... an insured which the insured is legally entitled to recover from the owner or operator of another motor vehicle whenever the liability insurance limits of the other owner or operator are less than the amount of the damages incurred by the insured.
|4Ark.Code Ann. § 23-89-209(a)(3) (Repl. 2004). UIM coverage applies when the tortfeasor has at least the amount of insurance required by law, but not enough to fully compensate the victim. Clampit v. State Farm Mut. Auto. Ins. Co., 309 Ark. 107, 109-10, 828 S.W.2d 593, 595 (1992). This coverage is designed to provide compensation to the extent of the injury, subject to the policy limit. Id. at 110, 828 S.W.2d at 595.
In Birchfield, a case involving multiple tortfeasors, this court held that the insurance policy at issue required the insured to exhaust all liability policies of all tortfea-sors before receiving UIM benefits. 317 Ark. at 40-42, 875 S.W.2d at 503-04. Stephen Birchfield, a minor, was injured while riding as a passenger in a vehicle involved in an accident. Id,, at 39, 875 S.W.2d at 503. He subsequently filed a joint lawsuit against two tortfeasors-the driver of the car in which he was riding and the driver of the other vehicle involved in the accident. Id., 875 S.W.2d at 503. The combined limits of the two tortfeasors’ policies was $125,000, and Birchfield claimed damages of $250,000. Id, 875 S.W.2d at 503. At the time of the accident, Birchfield had UIM coverage under a policy that Nationwide Insurance had issued to his mother. Id, 875 S.W.2d at 503. The policy limited underinsurance coverage as follows:
No payment will be made until the limits of all other liability insurance and bonds that apply have been exhausted by payments.
Id, 875 S.W.2d at 503.
Birchfield settled with the tortfeasors’ insurance companies for $75,000, which was less than their combined policy limits of $125,000. Id, 875 S.W.2d at 503. He claimed that because his injuries resulted in damages of $250,000 — an amount greater than the combined | .^policy limits of the tortfeasors — Nationwide should honor his claim for UIM benefits. Id, 875 S.W.2d at 503. Nationwide denied Birchfield’s claim and moved for summary judgment, contending that because Birchfield had settled with the tortfeasors for less than their policy limits, he was not entitled to UIM benefits. Id, 875 S.W.2d at 503. Birchfield claimed that the language in the policy, which purported to deny coverage unless the limits of all other liability insurance that applied had been “exhausted by payments,” was ambiguous. Id, 875 S.W.2d at 503. We disagreed, holding that the plain meaning of the language “exhausted by payments” regarding limits of other liability insurance was that all other available liability insurance had to be paid in full before Birchfield was entitled to receive UIM benefits from Nationwide. Id, 875 S.W.2d at 503. We also rejected Birchfield’s argument that it was against public policy to allow Nationwide to avoid paying UIM benefits in a case where the insured had settled with the tortfeasors’ carriers for less than the tortfeasors’ policy limits. Id at 40-41, 875 S.W.2d at 504. Birchfield argued that, even if he had fully exhausted both tortfeasors’ policies, his damages would have exceeded their coverage, and that fact should trigger coverage, not exhaustion. Id. at 41, 875 S.W.2d at 504. This court disagreed, noting that UIM benefits are recoverable from the owner or operator of another motor vehicle whenever the insurance limits of such other owner or operator are less than the amount of damages incurred by the insured. Id., 875 S.W.2d at 504. We reiterated in Hartford Insurance Co. v. Mullimos, 336 Ark. 335, 341, 984 S.W.2d 812, 815 (1999), that the Birchfield decision stood for the proposition “that the limits of the liability coverage from the tortfea-sors must be paid in full before the insured is entitled to underinsurance benefits.”
|6The Corns contend that the complete-exhaustion requirement announced in Birchfield was based on the applicability ofjoint and several liability and that, because the legislature has modified joint and several liability, Birchfield is not controlling and complete exhaustion is no longer required. In Arkansas, judicial recognition of the common-law doctrine of joint and several liability dates back to at least 1895. See Robert B Leflar, The Civil Justice Reform Act and the Empty Chair, 2003 Ark. L. Notes 67, 69 (citing City Elec. St.-Ry. Co. v. Conery, 61 Ark. 381, 33 S.W. 426 (1895); Van Troop v. Dew, 150 Ark. 560, 234 S.W. 992 (1921); and Applegate v. Riggall, 229 Ark. 773, 318 S.W.2d 596 (1958)) (stating that Van Troop and Applegate explain that joint and several liability is not confined to tortfeasors acting in concert). Under joint and several liability, “where concurrent negligent acts result in a single injury, each tortfeasor is jointly and severally liable, and a plaintiff can institute an action against any or all tort-feasors, individually or jointly.” Woodward v. Blythe, 249 Ark. 793, 801-02, 462 S.W.2d 205, 210 (1971). ‘Where there are joint defendants and a judgment is against them jointly, ... all or any one of such defendants is liable to the plaintiff for the entire judgment.” Dunaway v. Troutt, 232 Ark. 615, 623, 339 S.W.2d 613, 618 (1960), overruled on other grounds by United Ins. Co. of Am. v. Murphy, 331 Ark. 364, 961 S.W.2d 752 (1998). In 2003, the General Assembly modified joint and several liability, making the liability of defendants in personal injury, medical injury, property damage, or wrongful-death cases several only, rather than joint. See Civil Justice Reform Act of 2003, No. 649, § 1, 2003 Ark. Acts 2130, codified at Ark.Code Ann. § 16-55-201(a) (Repl.2005). Accordingly» “[ejach defendant shall be liable only for the amount of damages allocated to that defendant |7in direct proportion to that defendant’s percentage of fault,” and “[a] separate several judgment shall be rendered against that defendant for that amount.” Ark.Code Ann. § 16-55-201(b).
The Corns assert that, because liability is now apportioned between multiple tort-feasors and each tortfeasor is liable only for the amount of damages allocated to him or her, it is no longer logical to require exhaustion of all liability policies in multiple-tortfeasor cases and doing so guts UIM coverage in those cases. They contend that because joint and several liability has been modified, it is against the public policy of this state to require insured persons to exhaust all liability policies before they are entitled to receive UIM benefits. This contention is problematic because the Corns have failed to demonstrate that the public policy underlying UIM coverage has changed since our decision in Birchfield.
In Birchfield, we reviewed the legislative intent of the UIM statute in effect at the time of the accident, see Ark. Code Ann. § 23-89-209(a) (1987), as well as an amended version of the statute, see Ark.Code Ann. § 23-89-209(a)(S) (1993), and held that the legislature had established that the public policy of this state is to require that the limits of .the liability coverage from all tortfeasors be paid in full before the insured is entitled to under-insurance benefits. 317 Ark. at 41-42, 875 S.W.2d at 504. It is well settled that any interpretation of a statute by this court subsequently becomes a part of the statute itself. E.g., Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002). The General Assembly is presumed to be familiar with this court’s interpretations of its statutes, and if it disagrees with those interpretations, it can amend the statutes. Id. Without such amendments, however, our interpretations of the statutes remain the law. Id. Although aware of this court’s interpretation of the public policy underlying the UIM statute, the General Assembly has not amended that statute. Specifically, the General Assembly did not amend the UIM statute when it enacted section 16-55-201, which modified joint and several liability. In construing a statute, we will presume that the General Assembly, in enacting it, possessed the full knowledge of the scope of its powers, full knowledge of prior legislation on the same subject, and full knowledge of judicial decisions under preexisting law. See, e.g., Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001). We do not make light of the Corns’ contention that, given the modification of joint and several liability, it is unreasonable to require exhaustion of all liability policies in a multiple-tortfeasor case before UIM coverage is triggered. But the statutes at issue do not appear to contemplate the Corns’ contention. We do not know if this was a legislative oversight or whether it was the General Assembly’s intent that the joint-and-several-liability modification statute have no effect on UIM coverage. In any event, the Corns’ contention implicates many public-policy concerns, and public policy is for the General Assembly to establish, not the courts. E.g., Carmody v. Raymond James Fin. Servs., Inc., 373 Ark. 79, 281 S.W.3d 721 (2008). With this in mind, we strongly encourage the General Assembly to revisit the UIM statute and the joint-and-several-liability modification statute to address the | f,issues involved in the instant case and those that have not evolved but will likely evolve.
The Corns next contend that the circuit court erred in granting summary judgment because their insurance policy does not require complete exhaustion of all liability policies. Alternatively, they contend that the policy language is ambiguous and should be construed in their favor.
Insurance terms must be expressed in clear and unambiguous language. Castaneda v. Progressive Classic Ins. Co., 357 Ark. 345, 351, 166 S.W.3d 556, 560 (2004). If the language of the policy is unambiguous, we will give effect to the plain language of the policy without resorting to the rules of construction. Id., 166 S.W.3d at 560. On the other hand, if the language is ambiguous, we will construe the policy liberally in favor of the insured and strictly against the insurer. Id., 166 S.W.3d at 560-61. Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one reasonable interpretation. Id., 166 S.W.3d at 561. Whether the language of the policy is ambiguous is a question of law to be resolved by the court. Id., 166 S.W.3d at 561. The terms of an insurance contract are not to be rewritten under the rule of strict construction against the company issuing it so as to bind the insurer to a risk which is plainly excluded and for which it was not paid. Id., 166 S.W.3d at 561.
l1(tAt issue is the meaning of “any” in the following policy language:
We will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.
The Corns contend that the use of “any” means that UIM coverage is available if even one policy has paid out its limits and, as such, UIM coverage is available to them because Gafford’s policy paid out its limits. Alternatively, they contend that “any” is ambiguous. Farmers contends that, in this policy, “any” means “all” and, therefore, all policies must be exhausted before UIM coverage is triggered.
The “[w]ord ‘any’ has a diversity of meaning and may be employed to indicate ‘all’ or ‘every’ as well as ‘some’ or ‘one’ and its meaning ... depends upon the context and subject matter.” Black’s Law Dictionary 86 (5th ed.1979); see, e.g., State v. Gray, 322 Ark. 301, 306, 908 S.W.2d 642, 645 (1995) (construing “any” in the phrase “any other property” as used in forfeiture statute to mean “all,” “every,” or “of every kind”). “It is often synonymous with ‘either,’ ‘every,’ or ‘all,’ ” and “[i]ts generality may be restricted by the context.” Black’s Law Dictionary 86; see, e.g., Freeo Valley R.R. Co. v. Hodges, 105 Ark. 314, 317, 151 S.W. 281, 282 (1912) (concluding that statute allowing “any corporation” to surrender its charter without the consent of the state did not apply to each and every corporation, specifically, a railroad corporation, due to limiting words in the statute).
In this case, when read within the context of the policy, it is clear that the word “any” means “all” and not “one” as the Corns contend. “Any” modifies the plural words “bonds” and “policies,” signifying that “any” is not used to restrict exhaustion of the limits to only None bond or policy. We conclude that the policy language is not ambiguous and that, under the terms of the policy, UIM coverage is not triggered until all policy limits have been exhausted.
Finally, the Corns contend that, because Farmers consented to the settlement with Gafford, it waived its ability to object to any settlement with Eden and the right to withhold UIM benefits. Here, although the Corns filed their suit against Farmers and Eden after they had settled with Gaf-ford, they contend that Farmers “knew of the possibility of a recovery from Eden” when they settled with Gafford and, therefore, Farmers “should have objected to the settlement with Gafford if it intended to require complete exhaustion.” The Corns cite no authority in support of this proposition, however, and it is well settled that this court will not consider arguments advanced without citation to convincing authority. E.g., Matsukis v. Joy, 2010 Ark. 403, 377 S.W.3d 245.
Affirmed.
HART and HOOFMAN, JJ„ dissent.
. We note that there is no discussion ofjoint and several liability in Birchfield.
. The current version of section 23-89-209(a)(3) is identical to the 1993 version of section 23-89-209(a)(3).
. We are mindful that the obligation to pay underinsurance benefits cannot be triggered until it is determined whether the insured is in fact underinsured. Hartford Ins. Co. v. Mullinax, 336 Ark. 335, 341, 984 S.W.2d 812, 815 (1999). That necessarily entails knowing the extent of the insured's damages and the liability benefits that have been paid by the tortfeasor’s carrier. Id., 984 S.W.2d at 815. While the Corns have not submitted proof of their total amount of damages, we have assumed, for the purposes of our discussion, that Gafford was underinsured. | [
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PAUL E. DANIELSON, Justice.
| Appellant Steve Rose appeals from the circuit court’s order granting summary judgment to separate appellees Harbor East Property Owners Association (“the POA”) and Recreational Management, Inc. (“Recreational”), and dismissing Rose’s complaint for foreclosure with prejudice. On appeal, Rose asserts (1) that the POA and Recreational were estopped from collaterally attacking Rose’s order of revivor because it was not void; (2) that the requirements of Arkansas Code Annotated § 16-65-501 (Repl.2005), pertaining to writs of scire facias, were satisfied; (3) that the service requirements of Arkansas Rule of Civil Procedure 4 have no application to the requirements set forth in the statute; and (4) that equity demands his judgment be revived. We affirm the circuit court’s order.
On August 4, 2010, Rose filed a complaint in foreclosure against the POA, | gRecreational, and other separate defendants. The complaint alleged that, on April 21, 1989, in the Montgomery County Chancery Court, Case Number 89-26, Rose and Harbor East, Inc., had entered into a consent judgment, which awarded Rose $176,000, plus interest at eleven and one-half percent, commencing May 1, 1989. Rose stated in his foreclosure complaint that he had filed a motion to revive the 1989 judgment on March 18, 1999, and that an order reviving the judgment was entered on June 27, 2001. He further asserted that on February 25, 2009, he filed a subsequent motion to revive the judgment and that an order reviving the judgment was entered on March 11, 2009. Rose maintained that the judgment had not been satisfied and prayed that he be granted judgment in rem, that the judgment lien be foreclosed, that a sale effectuating the foreclosure be declared, and for costs and attorney’s fees. An amended complaint was filed on May 13, 2011.
On June 26, 2012, the POA filed a motion for summary judgment. In it, the POA asserted that, because no writ of scire facias had been issued prior to the 2009 order of revivor, Rose’s judgment was not revived in accord with section 16-65-501. Consequently, the POA contended, the 2009 order of revivor was void ab initio for lack of jurisdiction. Rose | .^responded that the statute in no way required that a writ of scire facias be issued and that he had properly complied with the statute by filing his petition for writ before his lien expired. He further countered that Arkansas courts had not previously held that personal service, as required for service of a summons under Ark. R. Civ. P. 4, was required in the service of a scire facias. For these reasons, he asserted that his service was proper and, therefore, the court’s 2009 order of revivor was valid.
A hearing was held on the motion on September 21, 2012, at which the circuit court heard the arguments of the POA, Recreational, and Rose. On October 5, 2012, the circuit court filed its letter opinion in the matter, wherein it found that the summary-judgment motion “must be granted” and reasoned, in pertinent part, as follows:
The basis for the decision is that the order of revivor of March 17, 2009 should not have been entered. First, A.C.A. § 16-65-501 mandates that a writ of scire facias be served on the defendant or other specified parties. The record in E-89-26 does not reflect that this was done. A petition was filed but the statute requires more. The purpose of the writ is to put interested parties on notice and to advise them to “show cause” why the judgment should not be revived. (An alternate method under A.C.A. § 16-65-501 is to permit service by publication.) Since no writ was issued (only a petition filed), the order of revivor was improperly entered.
Second, although there is no set time within which a writ of scire facias must be served, an order entered prior to any proof of service (even if the writ was issued) is also improper. This court apparently failed to check the file for proof of service before signing the order, violating a normal practice of the court.[ ]
An order memorializing the circuit court’s decision was filed on December 18, 2012, and Rose filed a timely motion to reconsider on December 20 and a timely notice of appeal on January 23, 2013. Rose now appeals the circuit court’s order granting summary judgment.
|4On appeal, Rose argues that, because a revivor action is not a new action, but the continuation of an old one, the court was not without jurisdiction when it issued the 2009 order of revivor. For this reason, he claims, the order was not void and could not be the subject of a collateral attack. Even assuming arguendo that the 2009 order of revivor was subject to collateral attack, Rose asserts that the order was valid in light of the fact that he complied with the requirements of the apposite statute, Ark.Code Ann. § 16-65-501. Specifically, he claims, he timely filed his petition for writ of scire facias in 2009 and he served the petition, thereby giving the judgment debtor notice of his intent to revive the judgment. Rose contends that the statute does not differentiate between a petition for writ of scire facias and a writ of scire facias; thus, compliance with the statute was had when he timely filed his petition. He further maintains that the statute does not require that proof of service be filed and that Ark. R. Civ. P. 4’s requirements are inapplicable. Finally, he urges, should this court find that the 2009 order of revivor was subject to collateral attack and that he failed to properly comply with the requirements of the statute, he should be given the opportunity to correct any deficiencies as equity demands that such an opportunity be provided.
The POA and Recreational similarly counter Rose’s contentions. They initially argue that, because the circuit court did not affirmatively and expressly rule on Rose’s collateral-attack argument, the issue is not preserved for appeal. Alternatively, they contend that, because no writ of scire facias was issued in 2009, Rose failed to strictly adhere to the method of obtaining the court’s jurisdiction as set forth in the statute. They further contend that their attempt to have the 2009 order of revivor declared void is a direct attack and not a collateral |Bone. They maintain that Rose’s filing of his petition for the writ did not satisfy the statute’s requirement that a writ be issued by the clerk prior to the order of revivor being entered, and they aver that this court is not able to provide Rose with any equitable relief, even if it was warranted.
Our law is well settled that summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. See City of Malvern v. Jenkins, 2013 Ark. 24, 425 S.W.3d 711. Normally, we determine if summary judgment is proper based on whether evidentiary items presented by the moving party leave a material fact unanswered, viewing all evidence in favor of the nonmoving party. See Massey v. Fulks, 2011 Ark. 4, 376 S.W.3d 389. Here, however, the facts are not in dispute, and the circuit court decided the case purely as a matter of statutory interpretation.
The question of the correct application and interpretation of an Arkansas statute is a question of law, which this court decides de novo. See McLemore v. Weiss, 2013 Ark. 161, 427 S.W.3d 56. We are not bound by the circuit court’s decision; however, in the absence of a showing that the circuit court erred, its interpretation will be accepted as correct. See id. The basic rule of statutory construction to which all other interpretive guides defer is to give effect to the intent of the drafting body. See id. In reviewing issues of statutory interpretation, we first construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. See id. When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to resort to rules of |fistatutory construction. See id. It is axiomatic that this court strives to reconcile statutory provisions to make them consistent, harmonious, and sensible. See id.
As an initial matter, we conclude that the issues raised by Rose on appeal are sufficiently preserved for this court’s review. This court recently held that, in an order of summary judgment, a “circuit court was not required to make specific findings of fact and conclusions of law, and the failure to do so does not preclude our appellate review of the order granting summary judgment.” Hardin v. Bishop, 2013 Ark. 395, at 5, 430 S.W.3d 49, 53. Further, despite the POA and Recreational’s objection during the hearing to Rose’s argument that they were estopped from challenging the 2009 order as void, the circuit court did permit Rose to cite cases related thereto and stated in its order that
[t]he Motion for Summary Judgment was presented to and considered by the Court upon the Pleadings on file, including the Motion for Summary Judgment together with the exhibits attached, the Response filed thereto by the Plaintiff together with the exhibits attached, and the Reply together with the exhibits attached ... together with the oral arguments advanced by counsel for all of the parties.
In light of the foregoing, we conclude the issue is preserved for our review.
Here, the POA and Recreational sought to have Rose’s judgment set aside as void due to his alleged noncompliance with the statute in obtaining the 2009 order of revivor. This court has drawn a distinction between direct and collateral attacks, stating as follows:
A direct attack on a judgment is usually defined as an attempt to reform or vacate it in a suit brought in the same action and in the same court for that purpose. On the |7other hand, a collateral attack upon a judgment has been defined to mean any proceeding in which the integrity of a judgment is challenged, except those made in the action wherein the judgment is rendered, or by appeal, and except suits brought to obtain decrees declaring judgments to be void ab initio.
Hooper v. Wist, 138 Ark. 289, 294, 211 S.W. 143, 145 (1919). We have further quoted with approval that
[a]s a general rule, an attack upon a judgment is regarded as collateral if made when the judgment is offered as the basis of the opponent’s claim. This rule has been applied where the attack is made upon a judgment offered in evidence in a subsequent action or proceeding, as, for example, where the judgment is offered in support of a title, or as a foundation for the application of the doctrine of res judicata.... The distinction between a direct and collateral attack upon a judgment is sometimes based upon the purpose of the proceeding or action in which the attack is made. Under this distinction, an attack is regarded as direct where the proceeding in which it is made is brought for the purpose of impeaching or overturning the judgment, and as collateral if made in any manner other than by a proceeding the very purpose of which is to impeach or overturn the judgment.
Brooks v. Baker, 208 Ark. 654, 661, 187 S.W.2d 169, 172 (1945) (quoting 31 Am.Jur. § 204). Because the POA and Recreational were attacking the 2009 order’s validity in the context of another proceeding, the very purpose of which was not to impeach or overturn the judgment, but to foreclose, their attack was a collateral one. Judgments, however, may not be collaterally attacked unless the judgment is void on the face of the record or the issuing court did not have proper jurisdiction. See Council of Co-Owners for the Lakeshore Resort & Yacht Club Horizontal Prop. Regime v. Glyneu, LLC, 367 Ark. 397, 240 S.W.3d 600 (2006). Accordingly, the threshold question is whether the 2009 order of revivor was void since only under such a circumstance were the POA and Recreational allowed to collaterally attack the order.
The POA and Recreational challenged the 2009 order of revivor, asserting that it was void for lack of jurisdiction due to the fact that no writ of scire facias was issued prior to the order’s entry. Section 16-65-501 of the Arkansas Code governs the issuance of a writ for scire facias and provides, in pertinent part:
(a) The plaintiff or his or her legal representatives may, at any time before the expiration of the lien on any judgment, sue out a scire facias to revive the judgment.
(b) The scire facias shall be served on the defendant or his or her legal representatives, terre-tenants, or other person occupying the land, and may be directed to and served in any county in this state.
(d) If upon service or publication of the scire facias, ... the defendant or any other person interested does not appear and show cause why such judgment or decree shall not be revived, the judgment shall be revived and the lien continued for another period often (10) years and so on from time to time as often as may be necessary.
(e) If a scire facias is sued out before the termination of the lien of any judgment or decree, the lien of the judgment revived shall have relation to the day on which the scire facias issued. However, if the lien of any judgment or decree has expired before suing out the scire facias, the judgment of revival shall be only a lien from the time of the rendition of the judgment.
(f) No scire facias to revive the judgment shall be issued except within ten (10) years from the date of the rendition of the judgment, or if the judgment shall have been previously revived, then within ten (10) years from the order of revi-vor.
Ark.Code Ann. § 16-65-501 (Repl.2005). Scire facias is not the institution of a new suit but is a continuation of the old one, and its object is not to procure a new judgment for the debt but execution of the judgment that has already been obtained. See Middleton v. Lockhart, 2012 Ark. 131, 888 S.W.3d 451.
|9In the instant case, it is undisputed that, while Rose filed a petition for writ of scire facias on February 25, 2009, no writ was issued by the court’s clerk prior to the court’s 2009 order of revivor. Rose contends that by serving the petition itself, he complied with the statute. We disagree.
The plain language of the statute makes clear that a plaintiff may “sue out” a scire facias to revive the judgment. See Ark. Code Ann. § 16-65-501(a). Clearly, Rose did so when he filed his petition for writ of scire facias. See, e.g., Black’s Law Dictionary 1474 (8th ed.2004) (defining “sue out” as “[t]o apply to a court for the issuance of (a court order or writ)”). The statute next requires that the scire facias be served on the defendant. See Ark.Code Ann. § 16-65-501(b). This did not occur. Because it did not, we conclude that the court’s 2009 order of revivor was void.
A writ of scire facias is a writ issued requiring a person against whom it is brought to show cause why a judgment should not be revived. See Middleton, 2012 Ark. 131, 388 S.W.3d 451. This court has previously recognized that the writ of scire facias has been deemed to occupy both the place of a declaration and a summons. See Bohnsack v. Beck, 294 Ark. 19, 740 S.W.2d 611 (1987). We have further observed that the issuance of the writ by the clerk starts the process of reviving a judgment. See id.
Arkansas law is long settled that service of valid process is necessary to give a court jurisdiction over a defendant. See Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001). Our case law is equally well settled that statutory service requirements, being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. 110See id. See also 78A C.J.S. Scire Facias § 8 (2013) (“Statutory provisions with respect to service of the writ of scire facias must be strictly construed and followed.”). Our statute setting forth the procedure under scire facias to revive a judgment has established the service requirements for the writ. See, e.g., Bohnsack, 294 Ark. 19, 740 S.W.2d 611 (holding that Ark. R. Civ. P. 4(i) was not intended to govern writs of scire facias). While we have recognized that the statute does not place a time limit on the service of the writ, it is clear that the statute in fact requires service of the writ to be had. See id. See also Ark.Code Ann. § 16-65-501(b) (providing, in pertinent part, that “the scire facias shall be served”) (emphasis added). And, as already noted, there is no dispute that the writ, which serves as a summons in these matters, was not issued by the clerk in 2009.
Arkansas Code Annotated § 16-65-108 (Repl.2005) provides that “[a]ll judgments, orders, sentences, and decrees made, rendered, or pronounced by any of the courts of the state against any one without notice, actual or constructive, and all proceedings had under judgments, orders, sentences, or decrees shall be absolutely null and void.” And as this court has observed, a judgment rendered without notice to the parties is void. See Sides v. Kirchoff, 316 Ark. 680, 874 S.W.2d 373 (1994). When there has been no proper service and, therefore, no personal jurisdiction over the defendants in a case, any judgment is void ab initio. See id. See also 50 C.J.S. Judgments § 867 (2013) (“In a proceeding by scire facias to revive a judgment the issuance of a writ of scire facias is essential to the validity of the judgment of revival.”). Because there was no issuance or service of the writ of scire facias in accord with our statute’s service requirements, we cannot say that the circuit court erred in finding that the court’s |n2009 order of revivor was void. For these reasons, the circuit court’s order granting summary judgment is affirmed.
Affirmed.
. The other separate defendants are not parties to the instant appeal.
. The record reflects that the consent judgment was filed on April 24, 1989. Amendment 80 to the Arkansas Constitution merged the chancery and circuit courts of the state. See First Nat'l Bank of DeWitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005).
. The record reflects that the order was filed on July 19, 2001.
. The record reflects that the order was filed on March 17, 2009.
. Recreational filed a motion to adopt and join the POA’s summary-judgment motion; the motion to adopt was granted by the circuit court in its order of summary judgment.
. The circuit judge who granted summary judgment in this case was same judge who entered the order of revivor in 2009.
. There is no initial assertion by Rose that neither the POA nor Recreational has any interest that would permit either to bring such a challenge. To the extent he raises the question in his reply brief, this court has held that it will not address arguments made there for the first time. See, e.g., Coleman v. Regions Bank, 364 Ark. 59, 216 S.W.3d 569 (2005).
. We have drawn no distinction between an ordinary judgment and a judgment entered upon scire facias: "The effect of a judgment entered upon a scire facias as an adjudication does not differ from that of other judgments. It cannot be collaterally avoided for mere error or irregularity and until set aside by some proper proceeding, it conclusively establishes the facts necessary to support it as against all persons properly made parties thereto.” Lewis v. Bank of Kensett, 220 Ark. 273, 276, 247 S.W.2d 354, 356 (1952) (quoting 2 Freeman on Judgments § 448). See also Gen. Amer. Life Ins. Co. v. Cox, 215 Ark. 860, 223 S.W.2d 775 (1949).
. As a final matter, Rose urges this court that equity demands that his judgment be revived; however, Rose neglects to cite us to any convincing authority for his proposition. The failure to provide convincing authority precludes our review on appeal. See Brennan v. Wadlow, 372 Ark. 50, 270 S.W.3d 831 (2008). | [
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PAUL E. DANIELSON, Justice.
| Appellant Mark David Johnson negotiated a plea of guilty in the instant case conditioned upon being sentenced by a jury. He now appeals his sentence to two consecutive terms of life imprisonment for murder in the first degree, a term of thirty years’ imprisonment for attempted murder in the first degree, and a term of twenty years’ imprisonment for battery in the first degree. Johnson argues on appeal that the circuit court erred in admitting certain 404(b) evidence in the sentencing phase and by failing to grant a mistrial after certain comments were made by the prosecutor during closing arguments. We find no error and affirm.
The pertinent facts are these. On October 4, 2010, Johnson’s estranged wife, Heather Johnson, served him with divorce papers. Two days later, on October 6, 2010, Johnson crashed his Dodge pick-up truck into Heather’s Jeep Cherokee. At the time of the collision, | ¡.Heather was in the back seat of her Jeep. The Jeep was being driven by Heather’s friend, Shelly Paccio, and Paccio’s niece, Austin Paccio, was riding on the passenger side. Austin was twenty years old and eight months’ pregnant with a baby girl. As a result of the collision, Austin and her unborn daughter died. Both Heather and Shelly suffered serious injuries.
Johnson was charged in a felony information; however, a negotiated plea was entered before trial. He pled to two counts of murder in the first degree, one count of criminal attempt to commit murder in the first degree, and one count of battery in the first degree. The agreement allowed for a jury to determine his sentence. Therefore, a jury was empaneled, and a sentencing hearing was held to establish the factual circumstances of the crime for the jury and to address sentencing.
Johnson now appeals the sentence imposed; however, we do not find his arguments persuasive, and we affirm the sentence.
At the sentencing hearing, several witnesses testified on behalf of both the State and the defense. Testimony was presented from victims, witnesses, accident-reconstruction experts, and family and friends of both parties. Heather testified on behalf of the State. Her testimony revealed that, at the time of the collision, she was in the process of divorcing Johnson because she had caught him molesting her minor daughter. For his first point on appeal, Johnson asserts that the circuit court erred in allowing this evidence to be presented to the jury as it was not proper 404(b) evidence. However, this argument was not preserved with a contemporaneous objection.
| «Although Johnson filed a pretrial motion regarding this testimony, and the objection was discussed at a pretrial hearing, the court never gave a definitive ruling. The court explained to counsel that it was generally the court’s position that the sentencing phase is much different from the guilt phase and that sufficient testimony would be allowed to show motive, purpose, and “those kinds of things.” However, the court specifically stated that it would proceed and “should a question be asked which the parties — you certainly may make your objections at the time.”
Johnson failed to object and make his record at the time that Heather gave testimony regarding the alleged molestation. A defendant’s failure to make a contemporaneous objection to testimony prevents him from asserting on appeal any error on the part of the trial court for admitting the evidence. See, e.g., Hardman v. State, 856 Ark. 7, 144 S.W.3d 744 (2004). Although a contemporaneous ob jection at trial is not required when the objection was made in the form of a motion in limine and was overruled, see Banks v. State, 2009 Ark. 488, 347 S.W.3d 31, the court here did not clearly overrule the objection and specifically told the parties that they may object at the time. Therefore, we do not reach this issue on appeal.
For his second point on appeal, Johnson argues that the circuit court erred by failing to grant him a mistrial because during the State’s closing argument, comments made by the prosecuting attorney equated to discussing the defendant’s choice not to testify. The State avers that the comments were simply an observation that none of the testimony presented demonstrated remorse on behalf of Johnson and were made in response to the defense |4claiming that Johnson exhibited remorse and had accepted responsibility for the crime. The State claims that it was not a comment in reference to Johnson not testifying as the appellant claims, and we agree with the State.
We have made it clear that a mistrial is a drastic remedy that should only be granted when justice cannot be served by continuing at trial, or when the error cannot be cured by an instruction or admonishment. See Jackson v. State, 368 Ark. 610, 249 S.W.3d 127 (2007). We have also explained that “some leeway is given to counsel in closing argument and that counsel are free to argue every plausible inference which can be drawn from the testimony.” Newman v. State, 353 Ark. 258, 290, 106 S.W.3d 438, 459 (2003). Therefore, a circuit court is given broad discretion in controlling the arguments of counsel, such that, absent an abuse of that discretion, the court’s decision will not be disturbed on appeal. See Jackson, 368 Ark. at 615-16, 249 S.W.3d at 130.
The prosecutor specifically commented during the State’s closing arguments:
He set out to do what he did. And what remorse have you heard for what was done? What remorse have you heard anybody express? None.
Johnson objected at that time and moved for a mistrial, arguing that the prosecutor’s statement was a direct comment on Johnson’s absolute constitutional right not to testify.
An allegedly improper comment on the defendant’s failure to testify usually occurs during the prosecutor’s closing argument, when the evidence is closed and the defendant’s opportunity to testify has passed. See Howard, v. State, 348 Ark. 471, 79 S.W.3d 273 (2002). Under those circumstances, a comment that draws attention to the defendant’s failure to | Stestify is improper because it creates the risk that the jury will surmise that the defendant’s failure was an admission of guilt. See id. Consequently, the comment has the effect of making the defendant testify against himself in violation of the Fifth Amendment. See id. Under the Fifth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, a defendant has the privilege of deciding whether to testify.
However, the comment here did not refer to Johnson’s failure to testify. Rather, it referred to the State’s observation that Johnson never expressed remorse to the witnesses that testified, not that he failed to express remorse to the jury. The State even questioned one witness specifically about Johnson’s behavior in the moments right after the collision. The pawn-shop owner, Michael Keith Matthews, knew Johnson and was at the scene of the collision. Matthews testified that he was outside helping in the moments after the collision. His testimony was that Johnson, while in his presence, had not done any thing to indicate he was concerned for the passengers in the vehicle — did not ask about them nor did he personally go over to them. The State had a right to comment on this in closing argument.
The facts presented to us in the instant case are similar to the facts in Howard, supra. In Howard, the prosecutor said the following during closing arguments:
Ladies and Gentlemen, the only comment that I guess I would make on the Defendant’s witnesses and its testimony, and I listened very carefully and even discussed it with Mr. Cooper. Did you ever once hear the word of remorse? Did you hear it just once? You’ve been here for four days ...
348 Ark. at 488-89, 79 S.W.3d at 284. The defendant objected to that statement, arguing that it was an improper comment on Howard’s right not to testify. See id. While this court |fiheld that Howard did not seek further relief by moving for a mistrial or requesting an admonition to the jury, we went on to conclude that even had he done so, the comment did not refer to Howard’s failure to testify and instead referred to the fact that he had never expressed remorse to the witnesses that testified. See id. We conclude the same in the instant case and affirm.
Compliance with Rule k-S(i)
As previously noted, Johnson was sentenced to life imprisonment. Pursuant to Arkansas Supreme Court Rule 4 — 3(i), the record has been reviewed for all objections, motions, and requests that were decided adversely to Johnson, and no prejudicial error was found.
Affirmed.
BAKER and HART, JJ., concur. | [
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KAREN R. BAKER, Justice.
hOn May 9, 2012, appellant, Billy Dale Green, was convicted by a Randolph County Circuit Court jury of four counts of capital murder and one count of kidnapping. Billy was sentenced to four terms of life imprisonment without the possibility of parole for the capital-murder convictions and forty years for the kidnapping conviction. Billy’s convictions and sentences are the result of his second trial. Billy’s original convictions and sentences were re versed and remanded by this court in Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006) (Green I), based on the circuit court’s error in allowing the State to present reputation and other bad-acts evidence. In 2011, we denied Billy’s subsequent appeal, affirming the circuit’s denial of his motion to dismiss for alleged Brady violations. Green v. State, 2011 Ark. 92, 380 S.W.3d 368 (Green II). Thereafter, in May 2012, Billy was tried again and convicted and, |2he now brings this appeal.
Billy’s son, Chad Green, was originally a co-defendant and was also charged with the murders. Chad entered a guilty plea to a reduced charge and testified against Billy in Billy’s first trial. However, after Billy’s case was reversed in 2006, Chad refused to cooperate, his plea agreement was revoked, and he was charged as a co-defendant. Chad was tried separately, convicted and sentenced, and is not part of this appeal.
Billy now appeals from his 2012 convictions and sentences and raises ten points on appeal: (1) the circuit court erred when it denied Billy’s motion for directed verdicts for capital murder and kidnapping, (2) the circuit court erred when it admitted Chad Green’s out-of-court statements, (3) the circuit court erred when it denied Billy’s motion for mistrial based on Bonnie Hensley Cantrell’s statement, (4) the circuit court erred when it denied Billy’s motion for mistrial after Mary Green Wilson’s statement, (5) the circuit court erred when it denied Billy’s motion for mistrial after Billy’s own testimony, (6) the circuit court erred when it denied Billy’s motion for mistrial based on cumulative error, (7) the circuit court erred when it gave AMI Crim.2d 401 and 404 jury instructions on accomplice liability, (8) the circuit court erred when it denied Billy’s challenge to Juror Pyles, (9) the circuit court erred when it failed to rule on Billy’s motion to settle the record and (10) the circuit court erred when it amended its judgment-and-sentencing order.
This court has jurisdiction pursuant to Ark. Sup.Ct. R. 12(a)(2) (2013). We find no error and affirm.
|SA summary of the facts is as follows. On July 30, 1998, Lisa Elliott and her six-year-old son, Gregory, were found dead at their home in Dalton, Arkansas. Both had been killed by multiple sharp-force and blunt-force injuries. At that time, Lisa’s husband, Carl Elliott, and their eight-year-old daughter, Felicia, were missing. On August 1, 1998, Carl’s body was found floating in the Eleven Point River. An autopsy ruled his death a homicide as a result of two small-caliber gunshot wounds to the head, with cutting wounds to his face and neck. Felicia’s remains were found two years later, on September 7, 2000, in Mud Creek in the Warm Springs area about .5 miles from Billy’s home at the time. Green I, 365 Ark. 478, 231 S.W.3d 638. All four deaths were ruled as homicides.
Members of the Green family testified that on the night of the murders, Billy received a call from Chad and left the house to “go help clean up a mess, Chad’s mess.” They further testified that Billy called a family meeting and told the family that if anyone asked, he and Chad were both home the entire night on the night of the murders. They also testified that Billy always carried a side knife, and Chad always carried a .22. Billy’s ex-wife, Mary Green Wilson, testified that after Billy received the phone call from Chad, she witnessed Billy put on gloves and a trench coat and leave the house. She testified that she never saw the trench coat again. Mary also testified that Carl came to their home frequently up until approximately a month before the murders. Mary also testified that around this same time, ap proximately a month before the murders, she overheard Billy and Chad discussing that Billy had a disagreement with Carl, and had to take care of it.
UPhillip Shockey, an inmate at a federal correctional facility in Fort Worth, Texas, testified that while housed together with Billy at the Arkansas Department of Correction’s Varner Unit, Billy told Shockey that he had killed Felicia.
Billy testified in his own defense that he was not involved with the murders, which Chad committed, and only helped Chad cover them up.
The jury convicted Billy as set forth above, and this appeal followed.
Points on Appeal
I. Sufficiency of the Evidence
For his first point on appeal, Billy asserts that the circuit court erred when it denied his motions for a directed verdict on the capital-murder and kidnapping charges. Billy argues that the evidence presented at trial does not support his capital-murder or kidnapping convictions. Further, Billy contends that the record fails to demonstrate that he committed the murders or was an accomplice to the crimes, but only demonstrates that he acted after Chad, alone, had committed the crimes. Billy asserts that Shockey’s testimony is the only testimony that connects him to Felicia’s murder and kidnapping, and this court should treat Shockey’s “snitch testimony” like accomplice testimony, requiring corroboration. Stated differently, we should remove Shockey’s testimony, and, if it is not corroborated hold that the testimony is unreliable.
We treat a motion for a directed verdict as a challenge to the sufficiency of the |5evidence. Whitt v. State, 365 Ark. 580, 232 S.W.3d 459 (2006). When reviewing a challenge to the sufficiency of the evidence, this court assesses the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Gillard v. State, 366 Ark. 217, 234 S.W.3d 310 (2006). We will affirm a judgment of conviction if substantial evidence exists to support it. Id. Substantial evidence is evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Ricks v. State, 316 Ark. 601, 873 S.W.2d 808 (1994). We need consider only that testimony which supports the verdict of guilty. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Further, circumstantial evidence may provide a basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Edmond v. State, 351 Ark. 495, 95 S.W.3d 789 (2003). Whether the evidence excludes every other hypothesis is left to the jury to decide. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). Finally, the credibility of witnesses is an issue for the jury and not the court. Burley v. State, 348 Ark. 422, 73 S.W.3d 600 (2002). 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.
Billy was convicted of capital murder and kidnapping. Ark.Code Ann. § 5-10-101(a)(4) (Repl.1997) states in pertinent part:
(a) A person commits capital murder if:
|6(4) With the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person.
“Premeditation and deliberation may be formed in an instant. Winston v. State, 372 Ark. 19, 269 S.W.3d 809 (2007). Intent can rarely be proven by direct evidence; however, a jury can infer premeditation and deliberation from circumstantial evidence, such as the type and character of the weapon used; the nature, extent, and location of wounds inflicted; and the conduct of the accused. Id.” Stephenson v. State, 373 Ark. 134, 136-37, 282 S.W.3d 772, 776-77 (2008).
Our kidnapping statute, Ark.Code Ann. § 5-ll-102(a)(4) (Repl.1997), provides in pertinent part:
(a) A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of:
(4) Inflicting physical injury upon him, or of engaging in sexual intercourse, deviate sexual activity, or sexual contact with him.
The State’s theory of the case was that Billy was Chad’s accomplice. In cases where the theory of accomplice liability is implicated, we affirm a sufficieney-of-the-evidence challenge if substantial evidence exists that the defendant acted as an accomplice in the commission of the alleged offense. Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002). Our accomplice-liability statute, Arkansas Code Annotated § 5-2-403 (Repl.1997), provides that,
(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1)Solicits, advises, encourages, or coerces the other person to commit it; or
|7(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
(b) When causing a particular result is an element of an offense, a person is an accomplice in the commission of that offense if, acting with respect to that result with the kind of culpability sufficient for the commission of the offense, he:
(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the result; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or engaging in the conduct causing the result; or
(3) Having a legal duty to prevent the conduct causing the result, fails to make proper effort to do so.
Ark.Code Ann. § 5-2-403(a)(l)(3), (b)(l)(3) (Repl.1997).
Accordingly, one can be an accomplice if he solicits, advises, encourages, or coerces the other person to commit the offense; or aids, agrees to aid, or attempts to aid the other person in planning or committing the offense. Id. Under the accomplice-liability statute, a defendant may properly be found guilty not only of his own conduct, but also the conduct of his accomplice; when two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Clark v. State, 358 Ark. 469, 192 S.W.3d 248 (2004). There is no distinction between principals on the one hand and accomplices on the other, insofar as criminal liability is concerned. Id.
Turning to the facts in Billy’s case, we must review the testimony presented.
At trial, Eddie Rose, a 911 operator for Randolph County, testified that he received |sa call on July 30, 1998, at 12:22 a.m. from Lisa Elliott’s mother, Mary Thomas. Rose received the call from Thomas on the dispatch office’s regular-business telephone line with a request to conduct a welfare check at the Elliott home after it was reported that screams were heard from the Elliott home. Rose also testified that there were thunderstorms in the area that night, but he did not receive reports of flooding in Dalton. Deputy Sheriff Randy Barber arrived at the Elliott home at 1:15 a.m. and at 1:18 a.m. reported back to dispatch “all [was] quiet and he had no contact at the residence.” Rose further testified that he received a second call from Thomas around 6:31 a.m. with a report regarding the El-liotts’ residence again. Rose testified that Thomas was hysterical and that it took him some time to get the information from Thomas, but the report was that Lisa was dead on the front porch. Rose further testified that he received a third call at 6:50 a.m. from Virginia DuBois reporting that Lisa was dead on her front porch and she could not open the door to leave the home because Lisa’s body was blocking the door.
Rob Samons, the Randolph County Sheriff at the time of the murders, testified that on the early morning of July 30, 1998, he was dispatched to the Elliott home after receiving a report that “someone had found their dead daughter on their front porch” at the Elliotts’ address. Sa-mons arrived at the scene at 7:09 a.m. Samons testified that immediately upon 19entering the home he saw Gregory lying on the living room floor, deceased. The house was quiet except for a television that was on, and there was blood and indications of a struggle in the kitchen, on the Venetian blinds, the windows, the floors, and the heat-and-air-conditioning unit in one of the windows. Samons also testified that there was evidence of a struggle on an intercom system inside the Elliott home. The intercom system was connected to the DuBois housetrailer adjacent to the Elliott home. While he was outside the Elliott home with other investigators, discussing the search with another officer, Samons testified that he saw Lisa’s body on the porch of the DuBois house-trailer across from the Elliott home. He believed Lisa had crawled through the window of the Elliott home, reached the DuBois house-trailer across from her home, and had been banging on the door.
Steve Huddleston, an investigator in the criminal division with the Arkansas State Police at the time of the murders, testified that he arrived at the scene and assisted in the investigation. He testified that there was blood throughout the house, including but not limited to the dining room, the kitchen, the appliances in the kitchen, the windows, the Venetian blinds, and the window unit. Huddleston also testified that he found a tire tool in the children’s bedroom on the floor under one of the beds.
Kermit Channel, a forensic State Crime Laboratory investigator in serology and DNA at the time of the murders, testified that he processed the evidence submitted to the crime lab during the Elliot family’s murder investigation. Channel testified that only Lisa’s and Gregory’s DNA and blood were found at the home. He further testified that the tire tool was tested and DNA and blood were consistent with Lisa’s and Gregory’s. Channel testified that 110he would reason that a third party was handling the tire tool, but the individual either did not shed DNA or was wearing gloves because there was no other DNA found on the tool. Channel also testified that a sample of material from one of the seats in the Elliotts’ vehicle was also tested, and the Green males could not be excluded from that sample.
Dr. Frank Peretti, a forensic pathologist with the Arkansas State Crime Lab, performed autopsies on each of the Elliotts, and all four deaths were determined to be homicides. Carl’s death was the result of two gunshot wounds to the head, with one at point-blank range, and the other shot from farther away. Carl also had cutting wounds to his face and neck. Peretti testified that Carl’s wounds were consistent with being inflicted by a knife and a small caliber gun. Dr. Peretti next testified that Gregory’s death was caused by at least nine blunt-and-sharp-force trauma wounds, and that the wounds were consistent with wounds that could have been caused by a tire tool and by a knife. Dr. Peretti also testified that Gregory suffered cutting wounds that, among other things, cut through his trachea and his carotid artery, consistent with being inflicted by a knife. Dr. Peretti testified that Lisa Elliott died from multiple blunt-force trauma wounds, at least twenty-seven, and also suffered stabbing and cutting wounds. Lisa had defensive wounds to her hands and suffered multiple wounds to her head and neck. Lisa’s cutting wounds were consistent with a knife, and the blunt-force trauma wounds could have been caused by a tire tool. The stabbing wounds Lisa suffered cut her trachea completely in half, cut her carotid artery in half, and cut her jugular vein in half. Finally, Dr. Peretti testified that Felicia’s death was a homicide by undetermined means.
Phillip Shockey, an inmate in federal prison in Fort Worth, Texas, serving time for | nwire fraud, also testified. At the time Shockey testified, he had been paroled in Arkansas and was serving time for his federal conviction, but testified that he was not offered a reduction of time or leniency from Arkansas authorities or federal authorities in exchange for his testimony.
Shockey testified that he had previously been incarcerated in Arkansas and was housed at the Varner Unit of the Arkansas Department of Correction in the same barracks with Billy. Shockey testified that he had a friend, Canah, from the same hometown who was much younger than Shock-ey. At that time, Canah was in his midtwenties, and Shockey in his midforties. Canah received mail regularly from his girlfriend. Shockey asked Canah if his girlfriend had a friend that would send letters to Shockey. Canah responded that Shockey was an old man and too old for his girlfriend’s friends. Shockey responded that he liked young girls, the younger the better. As Shockey made this comment, Billy walked up and overheard the end of their conversation and smiled. Shockey testified that a few days later, Billy approached him and told Shockey that he liked young girls as well. Shockey explained to Billy that the girls he was referencing were in their twenties. He testified that Billy stated “there ain’t no pussy like young pussy. And I mean young pussy. You know what I am talking about.”
Shockey testified that Billy then asked Shockey if he knew what Billy was incarcerated for and told Shockey about the Elliott murders. Shockey testified that Billy explained the murders as follows: everyone thought the Elliott murders were about drugs but it was actually about Chad “messing” with Felicia and that Carl and Lisa Elliott knew about it. Shockey | ^testified that Chad set up a meeting with Carl by the creek to discuss the issue, shot Carl in the head, then went to the Elliott house, beat the brother to death, killed the mom, and was looking for Felicia when he heard banging on a door. Chad realized the mom had crawled through the window to the trailer next door and he finished killing her by cutting her throat. Chad went back and got Felicia and put her in the back of his truck and called Billy, reporting that he had messed up. Billy told Chad, “Don’t say another word” and went to meet Chad. They took Felicia to a house, kept her in a trash can with a bungee cord across the lid, and then raped her for two days. They kept her in the trash can on the back porch with a bungee cord on it so she could not get out, sometimes for hours. Billy then told Chad “All good things must come to an end” but because Chad “loved” Felicia, he could not kill her — so Billy carried her into the woods. Billy told Shockey that Felicia said “please don’t hurt me.” Billy took her into a creek in the woods, and when the water was at a level over Felicia’s head, Billy held her under and cut her throat.
Shockey further testified that he thought Billy told him the story because Billy thought that Shockey liked young girls, and they were “kindred spirits.” Shockey went on to testify that Billy explained that he had not raised his son to be a pedophile, but “if someone crossed you, you take them out, even if it meant taking out the whole family. [That] is how they do things in Pocahontas.” He said everybody knows Billy as “Wild Man,” and “[t]hey knew not to cross Billy Green.” Shockey testified that the story made him sick, that he had a daughter Felicia’s age, and that no child deserved what Billy and Chad had done.
Bonnie Hensley Cantrell, Chad’s former girlfriend, also testified. Bonnie testified that | iashe had known Chad her entire life and had known Billy since she was a teenager. She testified that Chad always carried a .22 and Billy always carried a knife on his belt loop. Bonnie testified that the morning after the murders, she received a call from Chad at her workplace, Archer’s Cafe, at approximately 8:00 a.m. Chad did not have a ride and told her to pick him up at his great-grandmother’s house on Allen Trail. Bonnie testified that she left work and went and picked up Chad. Chad came out from behind the house, got in the car, and said, “Quick let’s get out of here before somebody sees us.” Bonnie testified that Chad was wearing long-sleeved coveralls and when they arrived at her home, he took the coveralls off. She testified that he was scratched and torn up like “somebody had beat him with saw-briars,” and was a bloody mess. Chad went to shower and Bonnie returned to work. Bonnie testified that when she came home from work that day, Chad was gone. Bonnie testified that several days later, she went to Chad’s parents’ house where he lived off and on to pick up some of her belongings. Bonnie testified that when she arrived, Billy was outside the home. Once Chad came out of the home, Billy looked at Chad and Bonnie with his hands on his hips and said, “[W]hat are you doing telling lies that-telling them lies that Chad was with you the other night when you know damn well he wasn’t.” Bonnie testified that she re sponded, Chad had told her to tell people he was with her the night of the murders. Bonnie further testified that Billy intimidated and scared her and said something to the effect of “get the hell out of here and don’t come back.” Bonnie testified that as a result of that conversation, she went to law enforcement.
Several of the Green family members also testified at trial. Mary and Billy have five |14children. Three of those children were in Randolph County at the Green home on the night of the murders, Jason, Amber and Josh. Mary and those three children testified.
Mary testified that she knew Carl and Lisa Elliott and their children. She testified that Carl ran around with Billy and Chad, and Carl came to their home frequently, approximately two or three times a week. She further testified that approximately one month before the murders, Carl had stopped coming around. Mary also testified that during this time she overheard Billy telling Chad that Carl had ripped him off and they were going to have to take care of it. Mary testified that Billy was mad about the situation. She testified that she paid attention to the conversation because she had noticed that Carl had stopped coming by their house. Mary further testified that Billy was a drug dealer.
Mary’s testimony with regard to the night of the murders is as follows. She worked the 3:00 p.m.-ll:00 p.m. shift at Pocahontas Nursing and Rehabilitation, drove her regular route home which took 15-20 minutes, and arrived home around 11:20 p.m. Mary testified that she drove her regular route, and not the longer route she drove when the roads were flooded. She testified that when she arrived home, Billy, Jason, Amber, and Josh were all at the home. Mary testified that the phone rang, Amber answered it, announced it was Chad, and she and Billy both headed for the phone. Mary testified that she wanted to talk to Chad because she had not done so in a while; however, Billy went to the phone, talked to Chad for a few minutes but would not let Mary talk to Chad. Mary testified that as soon as Billy hung up the phone with Chad, he then headed to the bedroom and Mary followed upset that she was not able to talk to Chad. When they got to the bedroom, Billy grabbed his trench | [5coat and some gloves. She testified that Billy said he had to “go clean up a mess, Chad’s mess,” got in his truck and took off. She testified that Billy usually carried a knife and a pistol and kept a rifle or shotgun in his truck.
Mary further testified that they always had a police-scanner on in their home and later that night after Billy had left she heard a report of a domestic disturbance at the Elliott home in Dalton. She testified that the first thought in her mind was that she hoped Billy and Chad were not involved because they had plenty of time to get to the Elliotts’ home. Mary testified that she did not see Billy again until the next day and she never saw the trench coat again.
Mary further testified that she next saw Billy around daybreak the following day when he asked her to go get Chad to meet him and the other Green sons at an intersection so they could go to work. Mary testified that Chad was relying on them for transportation and Billy asked her to go get Chad because Billy did not have enough gas in his truck. Mary went to get Chad, but she could not wake him and he never came out. She then continued to the intersection to meet Billy. Mary testified that once she met up with Billy, Billy instructed her to tell the police that Billy was home all night with her and that “when you went to get Chad for work he had a toothache or was sick and couldn’t go to work.”
Mary testified that some time after the murders, the police came to her workplace and questioned her. She testified that within twenty or thirty minutes after she met with law enforcement, Billy called her at work and said he had heard “you had company” and they needed to have a family meeting. Mary testified that she called all of the kids and arranged for everyone to come meet at their home after she got off work. That evening Billy gathered | lfithe family and told them they needed to tell people he was home all night the night of the Elliott murders.
Jason Green testified that he was at the Green home the night of the murders, that he went to bed around 9:00 p.m. or 10:00 p.m., and that his dad was at home when he went to bed. Jason testified that Chad always carried a .22 with him and Billy carried a side knife. Jason further testified that some time after the murders, Billy called a family meeting and instructed everyone to tell the authorities that the family were all at home that night, including Billy and Chad. Jason also testified that his brother, Josh, and Josh’s girlfriend, Tracy, were ousted from the family meeting because Tracy was not family and Billy got mad and made Josh and Tracy leave.
Amber Green, one of Billy’s daughters, testified that she was also at home on the night of the murders, and that Chad called the house. She testified that her dad, Billy, talked to Chad and then left to go help Chad, and she did not see her dad until the following day. Amber also testified that she heard the police-scanner report of a domestic-disturbance call in Dalton on the night of the murders.
Billy testified in his defense that he had known Carl Elliott. He further testified that he was at home in Warm Springs on the night of the murders, did not receive a phone call from Chad that night, and had not seen Chad for several days. Billy testified that his wife, Mary, called that night prior to leaving work to check on the road status and to make sure that the roads were not flooded. Billy further testified that on August 1, 1998 Chad called him to come pick him up, and as they were driving Chad admitted to killing the Elliott family 117and that Chad began to cry. Billy testified in detail that Chad had committed the murders but that he did not have anything to do with the murders, only the cover-up. Billy testified that he and his family were aware that Chad had committed the murders but they did not turn Chad in because they feared he would be executed.
Based on the preceding facts and circumstances, we hold that there is substantial evidence to support Billy’s convictions and sentences and the circuit court did not err in denying Billy’s motions for directed verdicts.
First, the State offered proof through Samons that the deaths were homicides. Samons testified that he was dispatched after the DuBoises’ and Thomases’ report of “their dead daughter on their front porch” at the Elliotts’ address. Samons found the body of Gregory Elliott inside the Elliotts’ home, and Lisa Elliott on the front porch of a nearby house-trailer. Sa-mons also testified that on August 1, 1998, deputies found Carl Elliott’s body floating in the river. Samons further testified that on September 7, 2000, Felicia’s remains were found in Mud Creek in the Warm Springs area about .5 miles from where Billy lived.
Second, the State offered proof through Huddleston’s testimony that he found a tire tool with blood on it in the Elliott children’s bedroom.
Third, with regard to causes of death, Peretti testified that all four were homi cides, with Carl’s, Lisa’s, and Gregory’s deaths consistent with having been caused by a small-caliber gun, a knife, and a tire tool. Carl had cutting wounds from a knife and had been shot twice, once pointblank and once from farther away, with a small-caliber gun. Lisa and Gregory were both severely beaten and killed with a tool consistent with a tire tool and a knife had 11sbeen used to cut each of their throats. Felicia’s remains were found approximately .5 miles from Billy’s home.
Fourth, Shockey’s testimony is sufficient to allow the jury to conclude that Billy was a principal or an accomplice in the crimes. Shockey testified that Billy was aware Chad had a disagreement with the Elliotts, and also offered proof that Billy concealed the crimes from law enforcement. He further testified that Billy admitted killing Felicia.
Fifth, Bonnie testified that Billy always carried a side knife and Chad carried a .22. Bonnie also testified that Billy intimidated her by telling her that she better quit lying about Chad’s whereabouts on the night of the murders because Chad and Billy were at home together that night.
Sixth, Mary’s testimony established Billy’s relationship with the Elliotts, the disagreement between Billy and Carl, and Billy’s anger about the situation. Mary further testified that she arrived home at 11:20 p.m., after driving her regular 15-20 minute drive home as there was no flooding to send her on a longer alternate route. Mary testified Billy received a phone call from Chad, left to help clean up Chad’s mess, put a trench coat and gloves on, left the home, and had plenty of time to get to the Elliotts’ home before she heard the call on the police-scanner about the disturbance in Dalton. Mary also testified that Billy carried a knife and a pistol with him. She testified she never saw Billy’s trench coat again and that after the murders, Billy instructed his family to lie concerning his whereabouts the night of the murders and to manufacture an alibi that he was in fact home that evening. Mary also testified that the morning following the murders, Billy sent her to pick up Chad, and when |13she reported that Chad was not there, Billy told her that if she was asked, to say that Billy was home all night and that Chad had a toothache or was too sick to come to work.
Seventh, the State offered proof of Billy’s concealment of the crimes when Jason testified about the family meeting and that Billy told him that, if he was asked, to say that everyone was at the house on the night of the murders, including Billy and Chad. Jason further testified that Billy carried a side knife and Chad carried a .22.
Eighth, the State offered proof of Billy’s connection to the crimes when Amber testified that on the night of the murders, Billy received a phone call from Chad and, shortly thereafter, left to go help Chad. Amber also testified that she heard the police-scanner report a domestic disturbance in Dalton that night.
Upon review, the testimony presented at trial, viewed in the light most favorable to the State, establishes the crimes were committed and connects Billy to the crimes. Evidence was offered to establish Billy’s relationship with the victims and the disagreement between Carl and Billy. Evidence was also offered that Billy always carried a knife and a small-caliber pistol with him. Evidence was further offered to establish Billy’s whereabouts on the night of the murders including evidence that Billy received the phone call from Chad, left to go clean up a mess, Chad’s mess, and that Billy left in a trench coat and gloves. Evidence was offered that Billy had the time to reach the El-liotts’ home in Dalton and commit the murders before the disturbance report on the police-scanner. Evidence was further offered of Billy’s attempt to conceal the crimes and to manufacture an alibi. Finally, evidence was offered that Billy killed Felicia.
| 2qA family member’s testimony that he or she was asked to lie about an appellant’s whereabouts during the commission of a crime is sufficient to connect the appellant to the crimes. See Green I, 365 Ark. at 487-88, 231 S.W.Sd at 647-48. Further, we have held that,
[t]he jury is not required to lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant’s guilt from improbable explanations of incriminating conduct. Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001); Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001). [Additionally,] ... false and improbable statements may be considered as evidence of guilt. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000).
Martin v. State, 346 Ark. 198, 205, 57 S.W.3d 136, 141 (2001).
Finally, the credibility of witnesses is a matter for the jury’s consideration. Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007). “This court does not attempt to weigh evidence or assess the credibility of the witnesses, as that determination lies within the province of the trier of fact. 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.” Id. at 32, 263 S.W.3d at 481. “Where the testimony is conflicting, we do not pass upon the credibility of the witnesses and have no right to disregard the testimony of any witness after the jury has given it full credence, where it cannot be said with assurance that it was inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon.” Davenport v. State, 373 Ark. 71, 73, 281 S.W.3d 268, 270 (2008). The trier of fact is free to assess inconsistencies in witness testimony. Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975).
Accordingly, when viewed in the light most favorable to the State, the evidence is sufficient evidence for the jury to convict Billy. We hold that substantial evidence supports | ⅞1 Billy’s convictions and the circuit court properly denied Billy’s motions for directed verdicts.
II. Chad Green’s Out-of-Court Statements
For his second point on appeal, Billy asserts that the circuit court erred when it admitted Chad’s out-of-court statements and violated his Sixth Amendment rights under the Confrontation Clause to confront his accuser. Billy asserts that Sa-mons’s testimony regarding Chad’s prior statements to Samons were used to prove that they were in fact false and to prove that Chad was involved in the murder of the Elliotts. Billy contends that the circuit court erred because Samons’s testimony concerning Chad’s statement violated the Confrontation Clause and was impermissible testimony. The State agrees that the statement was testimonial in nature but is not subject to the Confrontation Clause because the statement was admitted only to show police action.
At issue is Sheriff Ron Samons’s testimony regarding his investigation of the Elliott deaths. The following colloquy occurred:
ProsecutoR: On August 8th, some nine days after the homicides, did you have the occasion to speak with Chad?
Sheriff Samons: I did.
PROSECUTOR: And again, this is taking the steps in the investigation on this that you talked to him?
Sheriff Samons: Yes.
Prosecutor: Was he a suspect ...
Sheriff Samons: No.
ProseCutor: ... at that time?
| ^Sheriff Samons: No.
Prosecutor: Okay. Can you tell us did he indicate to you whether he knew the Elliotts?
Sheriff Samons: Yes.
Prosecutor: What did he say?
Sheriff Samons: He said he — he said, I know Allen Elliott — who is Carl Allen Elliott. He said, I know Allen Elliott, but not real well. I’ve known him for a pretty good while.
Prosecutor: Did he indicate to you when was the last time he had seen— and again ...
Defense Counsel: Can we approach?
The circuit court overruled Billy’s objection to testimony about Chad’s statement and admonished the jury:
The Court: All right. Ladies and gentleman of the jury I am going to give you a limiting jury instruction. And that is that the testimony about Charles Wayne Green -with regards to the sheriff that he is testifying to is not offered for the truth of the matter asserted in this trial but is simply offered as to the furtherance of his investigation and how it proceeded.
The circuit court allowed Samons to continue testifying about his investigation. Samons went on to testify about Chad’s statements regarding his whereabouts on July 30, 1998, and that Chad may have been stranded at his grandparents’ house on Allen Trail without transportation. Sa-mons then testified regarding his meeting with Bonnie Hensley Cantrell, Chad’s former girlfriend.
In order for hearsay statements to be admissible against a defendant at a criminal trial, l^two separate requirements must be met. See Crawford v. Washington, 541 U.S. 36, 60, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). First, an exception to the general rule prohibiting hearsay must be demonstrated. Second, the admission of the hearsay cannot violate the defendant’s Sixth Amendment right “to be confronted with the witnesses against him.” Chambers v. State, 2012 Ark. 407, at 4, 424 S.W.3d 296, 299 (internal citations omitted). Thus, for the Confrontation Clause to be invoked, the statement must be testimonial in nature, and admitted for its truth. Id.
Here, the testimony was not admitted for its truth but was admitted to explain a series of police actions in the police investigation. Further, the jury was instructed to consider the statements only for that purpose. We are unpersuaded by Billy’s argument, and we affirm the circuit court on its ruling regarding Chad’s out-of-court statements.
III. Bonnie Hens ley Cantrell’s Statement
For his third point on appeal, Billy asserts that the circuit court erred when it denied Billy’s motion for mistrial based on Bonnie Hensley Cantrell’s statement that she traded “sex for drugs” with Billy when she was fifteen years old. Billy contends that Bonnie’s statement was highly prejudicial and could not be cured by a limiting instruction, and the circuit court erred in not granting a mistrial. The State responds that Billy has failed to demonstrate unfair prejudice, and the instruction cured any error; it urges this court to affirm the circuit court.
At issue is the following testimony from Bonnie on direct examination:
Prosecutor: Approximately, how long have you known Billy Green?
Bonnie: Since I was probably ten, twelve years old.
_[^PROSECUTOR: So . . .
Bonnie: Pretty much all of my life.
Prosecutor: Okay. How old are you now?
Bonnie: Forty-seven.
Prosecutor: And how long have you know Chad Green?
Bonnie: Pretty much all his life.
Prosecutor: Now Pve — I need for you to explain to the jury, how did you get to know Billy Green?
Bonnie: I met him in a bar parking lot.
Prosecutor-. Would it be fair to say that at one point in time you were romantically involved with Billy Green?
Bonnie: Not romantically. We traded sex for drugs.
Prosecutor: Ah — and approximately how long ago was that?
Bonnie: When I was about fifteen.
Prosecutor: And in the course of knowing Billy Green, have you known him to be ...
Defense Attorney: Your Honor, may we approach?
Defense Attorney: Your Honor, I move for a mistrial based on that last statement. She testified that she knew Billy by trading sex for drugs.
Billy asserts that there is no remedy for curing Bonnie’s testimony, it was too prejudicial, and the circuit court erred by not granting a mistrial. We disagree. The record demonstrates that after the objection, the circuit court found that the statement was not elicited in bad faith, and denied the motion for mistrial. The circuit court admonished the Injury that the statement was inadmissible and to disregard the statement.
Further, the record demonstrates that after much debate and consideration, the circuit court sent the jury home at the end of the day, came back the following morning and made his ruling after the circuit court had time to review case law and think about its decision. The circuit court explained his ruling to the attorneys as follows:
The Court: The Court is going to rule that this was not solicited in bad faith. That, while egregious, the Court is not going to declare a mistrial. And I will admonish the jury to the extent of saying that the last response by the witness was inadmissible as evidence and they are not to consider this evidence in their deliberations.
Over Billy’s continued objections that an instruction would not cure the testimony, and that a mistrial should be granted, the circuit court then gave the following admonishment to the jury:
Okay. We broke yesterday with Bonnie Hensley Cantrell on the witness stand. And her last response — I am limiting the jury. The last response by the witness — that response the Court has ruled that that is an inadmissible response or inadmissible testimony.
Therefore, you are not to consider that in any way in your consideration of this case. Is that understood?
Jurors nod
I need everybody to nod. Is everybody with me? Does everybody know what I am talking about?
All jurors nod and some respond verbally with yes.
Turning to our law regarding mistrials, a mistrial is an extreme and drastic remedy to be resorted to only when there has been an error so prejudicial that justice cannot be served 12r,by continuing the trial. Russell v. State, 306 Ark. 436, 815 S.W.2d 929 (1991). The granting or denial of a motion for mistrial lies within the sound discretion of the trial judge, and the exercise of that discretion should not be disturbed on appeal unless an abuse of discretion or manifest prejudice to the complaining party is shown. King v. State, 298 Ark. 476, 769 S.W.2d 407 (1989). Further, in dealing with issues relating to the admission of evidence pursuant to Arkansas Rule of Evidence 404(b), a trial court’s ruling is entitled to great weight and this court will not reverse absent an abuse of discretion. Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004); Barnes v. State, 346 Ark. 91, 55 S.W.3d 271 (2001).
In Hall v. State, 314 Ark. 402, 862 S.W.2d 268 (1993), we reviewed a challenge to the denial of a mistrial regarding a police officer’s comments about Hall’s previous illegal conduct. We explained:
This Court has observed that there is always some prejudice that results from the mention of a prior bad act in front of the jury. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). In instances where the infraction creates minimal prejudice the proper remedy is an objection to the evidence and an admonition or instruction to the jury to disregard the remark. Salinger [Sullinger] v. State, 310 Ark. 690, 840 S.W.2d 797 (1992). A motion for mistrial is only appropriate where the error is beyond repair and cannot be corrected by any curative relief. Id.; Enos v. State, 313 Ark. 683, 858 S.W.2d 72 (1993). The trial court has wide discretion in granting or denying a motion for mistrial, and the decision of the trial court will not be reversed except for abuse of discretion or manifest prejudice to the complaining party. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992).
Id. at 405-06, 862 S.W.2d at 270.
In Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991), we addressed a police officer’s testimony about Strawhaeker’s prior illegal conduct. The following testimony regarding Strawhacker was challenged:
127DETECTIVE: We began to research through our department files to see what information we might have on Mr. Strawhacker. The only thing that we could find there was that he had been involved in a fight in May of 1989. We didn’t have any current photographs of him on file, but we did have a misdemeanor arrest warrant for him for failure to answer a summons on a failure to pay fines and costs on an original charge of third degree battery.
Id. at 728, 804 S.W.2d at 722.
We affirmed the circuit court’s denial of Strawhacker’s motion for mistrial, and explained that there was no deliberateness on behalf of the prosecutor, and the prosecutor’s action was inadvertent and did not specifically elicit the response from the detective. We stated, “[a]ny prejudice ... was sufficiently cured by the trial court’s admonishment, and the trial court was correct in denying the mistrial motion under these facts.” Id. at 728, 804 S.W.2d at 722.
Finally, in Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985), we discussed several cases dealing with testimony regarding the defendant’s previous illegal conduct and revisited our case law and explained, “We have said in a myriad of cases that mistrial is a drastic remedy and rests with the discretion of the trial judge. It should be granted only when the prejudice is so manifest that the trial cannot in justice continue.” Id. at 277, 698 S.W.2d at 503 (citing McFarland v. State, 284 Ark. 538, 684 S.W.2d 233 (1985)); see also Sanders v. State, 277 Ark. 159, 639 S.W.2d 733 (1982) (affirming the trial court’s denial of a mistrial motion in a rape trial where one police officer mentioned seeing what he believed to be controlled substances in the defendant’s bedroom and another officer said he remained in the house “collecting evidence on the other charge”); Hill v. State, 275 Ark. 71, 85, 628 S.W.2d 284, 291 (1982) (we affirmed a psychiatrist for the prosecution, testifying on the defendants sanity, when asked what he relied on for his opinion, mentioned certain test results and added, “I also had access to his prison records.”); Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984) (upholding the trial courts’ refusal to order a mistrial where a police officer, asked by the prosecutor if these fingerprints were the first taken of the defendant, answered, “No, sir, that’s all I took. We do have a prior arrest record on him, which we do have a fingerprint on.”); see Mitchael v. State, 309 Ark. 151, 155, 828 S.W.2d 351, 354 (1992) (denying mistrial after statement regarding previous arrest warrant for rape because the jury probably believed the warrant had been issued on the current rape charge).
After a careful review of the testimony at issue, our case law, and with our standard of review in mind, we are not convinced that Bonnie’s testimony rises to the level of requiring the granting of a mistrial. Here, the jury already knew of Billy’s issues with drugs as it was referenced in opening statements without objection. The trading sex-for-drugs portion of Bonnie’s testimony was impermissible; however, the circuit court admonished the jury to disregard the statement. The judge was careful not to repeat Bonnie’s prejudicial remark in case the jurors did not hear it the first time. The trial court is in a better position to determine the effect of such remarks on the jury, and the judge concluded that Bonnie’s remarks about her relationship with Billy was insufficient to warrant a mistrial. We cannot say that the trial court abused its discretion in denying Billy’s motion for a mistrial. From a thorough review of this record, we are satisfied that Billy received a fair trial and affirm the circuit court on Billy’s third point on appeal.
| ¡>8rV. Mary Green Wilson’s Statement
For his fourth point on appeal, Billy asserts that the circuit court erred by not granting a mistrial with regard to three statements made by Mary regarding her conversations with law enforcement during their investigation of the Elliott murders. We will address each of Mary’s statements individually.
First, on direct examination, Mary testified that law enforcement came to her work and met with her regarding the Elliott murders. She testified as follows:
It wasn’t twenty or thirty minutes after I got out of that meeting with them that Billy called me at work. And he said, “I heard you had some company.”
Billy argues that this testimony was inadmissible as it goes to demonstrate Billy’s control over Mary. However, the record demonstrates that Billy did not object to this statement at trial. Failure to object at the first opportunity waives any right to raise the point on appeal. Gibson v. State, 316 Ark. 705, 875 S.W.2d 58 (1994). Because he did not make a timely objection below, this court cannot reach the issue.
Second, during cross-examination, Mary testified that she initially did not tell the police the truth when they came to visit her at work. The following colloquy occurred:
Defense Attorney: So you lied to the police?
Mary: I guess I did. I evaded the truth because I was not free to tell the truth.
Defense counsel then moved for a mistrial, stating,
That is a mistrial. She — it goes right back to the statement she testified before. It goes to the control issue. The Supreme Court specifically said they can’t testify to Billy’s control. And her testimony was, T wasn’t free to tell the truth.’
IsoThe circuit court overruled the objection, denied the motion for mistrial, struck Mary’s answer, and instructed the jury to not consider it.
Billy asserts that Mary’s statement was highly prejudicial and goes to Billy’s control over Mary, which was inadmissible per Green I.
We hold that any error regarding this statement constitutes invited error. Under the doctrine of invited error, one cannot be heard to complain of that error for which he was responsible. McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997). Here, although Billy’s counsel did not intend for Mary to make such a statement, it nevertheless was made in response to his questioning. Where a witness’s answer was a legitimate response to a question posed by defense counsel, such testimony was invited by the appellant and the circuit court did not abuse its discretion in refusing to declare a mistrial. See Woods v. State, 342 Ark. 89, 27 S.W.3d 367 (2000); Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984). As a result, Billy cannot complain of any error that may have resulted from his counsel’s questioning of Mary. Further, the circuit court instructed the jury to not consider the testimony, and we presume that a jury follows the circuit court’s instructions in deciding the case. Hall v. State, 315 Ark. 385, 391-92, 868 S.W.2d 453, 456-57 (1993). We do not find error with regard to Mary’s second statement.
Third, Billy asserts that Mary’s statement on redirect was also prejudicial error. Prior to redirect, Billy and the State had conferenced with the judge at the bench concerning this line of questioning. Billy objected to the questioning and said it went to Billy’s control or influence and objected to the questions. The circuit court overruled the objection and | S1 allowed the question. On redirect the following colloquy occurred:
ProseCUtor: With regard to all of the statements ... to the police officers ... from you early on in this investigation of the case; before you gave any of those statements, who was the only person who ever told you what to tell the police in case they ask.
Mary: Billy Green
Billy asserts that it was error for the circuit court to allow this questioning and the testimony was error because it served only to reiterate that she was not free to tell the truth because of Billy’s influence. Billy argues that Mary’s testimony implicated the issue of Billy’s “control” over her.
This court reviews evidentiary rulings using an abuse-of-discretion standard; trial courts are afforded wide discretion in evidentiary rulings. See Hawkins v. State, 348 Ark. 384, 72 S.W.3d 493 (2002). In issues relating to the admission of evidence a trial court’s ruling is entitled to great weight and will not be reversed absent an abuse of discretion. Cook v. State, 345 Ark. 264, 45 S.W.3d 820 (2001); Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000).
Although Billy asserts that the circuit abused its discretion, we disagree. Mary testified that Billy told her to lie to the police, which is evidence that he was creating a false alibi to cover up his involvement.
In reviewing all of Mary’s statements with our standard of review for mistrials, we find no error. A mistrial is a drastic remedy that should be granted only when justice cannot be served by continuing the trial. Taylor v. State, 2010 Ark. 372, 372 S.W.3d 769. The trial court has the sound discretion to decide whether to grant a mistrial, and this decision will not |S2be overturned absent a showing of abuse or upon manifest prejudice to the complaining party. Green I, 365 Ark. 478, 231 S.W.3d 638; Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000). Additionally, even where a remark is improper, the trial court may deny the mistrial motion and cure any prejudice by admonishing the jury to disregard the remark. Smith v. State, 351 Ark. 468, 95 S.W.3d 801 (2003); Dandridge v. State, 292 Ark. 40, 727 S.W.2d 851 (1987).
We find no error and affirm the circuit court’s rulings regarding Mary’s testimony.
V. Billy Dale Gh-een’s Testimony
For his fifth point on appeal, Billy asserts that the circuit court erred when it did not grant a mistrial during his own testimony during cross-examination. Billy asserts that during his cross-examination the State violated Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and used Billy’s right to silence against him in violation of Doyle.
At issue is the following colloquy:
PROSECUTOR: Now, you know that Chad was tried in September of 2011, right? Billy: Yes, sir.
Proseoutor: So who did you contact even after Chad’s trial when you knew exactly ...
Defense AttorNEY: Objection. Can we approach your honor?
The circuit court sustained the objection to the question, denied the motion for mistrial and gave the jury a cautionary instruction. Billy objected to a cautionary instruction and asserted that it would not cure the alleged error. The circuit court overruled the objection and gave the following instruction:
_|^[T]he last question that was asked, who did you contact then after Chad’s trial, being objected to, the court has sustained the objection and is instructing you to disregard that utterance ... in rendering your decision.
The Court in Doyle held that “the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.” Id. at 619, 96 S.Ct. 2240. This court similarly held in Jarrean v. State, 291 Ark. 60, 722 S.W.2d 565 (1987), and in Clark v. State, 256 Ark. 658, 509 S.W.2d 812 (1974). In Holden v. State, 290 Ark. 458, 462, 721 S.W.2d 614, 616 (1986) we stated that the “issue ... is whether [the statement] was a comment on the right of a defendant to remain silent.” We concluded that the case was not exactly the same as in Doyle. “There was no direct reference by the State to the defendant’s silence or emphasis that the defendant refused to make a statement, which is the error addressed in Doyle.” Id., 721 S.W.2d at 616.
As stated previously, a mistrial is an extreme and drastic remedy to be resorted to only when there has been an error so prejudicial that justice cannot be served by-continuing the trial. Russell v. State, 306 Ark. 436, 815 S.W.2d 929 (1991). Because the record fails to demonstrate that the circuit court abused its discretion in denying Billy’s motion for mistrial on this point, we affirm the circuit court on Billy’s fifth point on appeal.
VI. Cumulative Error
For his sixth point on appeal, Billy asserts that the circuit court erred when it denied his motion for a mistrial based on cumulative error. Specifically, Billy made three motions for mistrial during the trial and asserts that in three instances the circuit court allowed impermissible Rule 404(b) testimony with regard to Bonnie’s testimony, Samons’s testimony, l^and Mary’s testimony. Additionally, Billy asserts that the circuit court erred when it denied his motion for a mistrial during Billy’s cross-examination on his allegation that his rights under Doyle were violated. Billy asserts that the circuit court erred in denying these motions and the limiting instructions did not cure the errors. Citing Dillon v. State, 311 Ark. 529, 844 S.W.2d 944 (1993), he asserts that the cumulative effect of these alleged errors denied him his right to a fair trial.
Having found that Billy’s allegations of error were not errors we hold that Billy’s cumulative-error argument is without merit. “This court does not recognize the cumulative-error doctrine when there is no error to accumulate.” See Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000); Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). We affirm the circuit court on Billy’s sixth point on appeal.
VII. AMI Crim. 2d 101 and U0U Jury Instructions on Accomplice Liability
For his seventh point on appeal, Billy asserts that it was error for the circuit court to instruct the jury on accomplice liability. Billy contends that the State failed to demonstrate that more than one person was involved with the Elliott murders, and therefore it was error to give the accomplice instructions. Further, Billy contends that we should not consider Shockey’s testimony, as he is unreliable, but we should remove his testimony as we do an accomplice’s testimony, and then determine whether the evidence supported giving the accomplice instruction. Billy contends that once Shockey’s testimony is removed, the State has not demonstrated that Billy was an accomplice. However, Billy cites no authority to support his assertion that Shockey’s testimony should be treated as accomplice testimony. |ss “We do not address arguments that are not supported by authority or convincing argument.” Sweet v. State, 2011 Ark. 20, 18, 370 S.W 3d 510, 523.
At issue are AMI Crim.2d 401 and 404, which instruct the jury on accomplice liability. The following instruction was given to the jury:
In this case, the State does not contend that Billy Dale Green acted alone in he commission of the offense of Capital Murder of Carl Elliott, Lisa Elliott, Gregory Elliott or Felicia Elliott. A person is criminally responsible for the conduct of another person when he is an accomplice in the commission of an offense.
An accomplice is one who directly participates in the commission of an offense or who, with the purpose of promoting or facilitating the commission of an offense:
Solicits, advises, encourages or coerces the other person to commit the offense, or aids, agrees to aid, or attempts to aid the other person in planning or committing the offense.
“Our case law is clear that a party is entitled to a jury instruction when it is a correct statement of law and when there is some basis in the evidence to support giving the instruction.” Wilson v. State, 364 Ark. 550, 554, 222 S.W.3d 171, 175 (2006). Further, “[a]n instruction should only be excluded when there is no rational basis for giving it. A trial court’s ruling on whether to submit a jury instruction will not be reversed absent an abuse of discretion.” Grillot v. State, 353 Ark. 294, 318, 107 S.W.3d 136, 150 (2003).
With regard to accomplice liability, when two or more persons assist one another in the commission of a crime, each is an “accomplice” and is criminally liable for the conduct of both, and one participant cannot disclaim responsibility because he did not personally take part in every act that went to make up the crime as a whole. Ark.Code Ann. § 5-2-403. Further, “[w]hen two persons assist one another in the commission of a crime, each is an | ¡¡(-.accomplice and criminally liable for the conduct of both.” Parker v. State, 265 Ark. 315, 325, 578 S.W.2d 206, 212 (1979). Finally, as discussed previously, “we do not pass upon the credibility of the witnesses and have no right to disregard the testimony of any witness after the jury has given it full credence, where it cannot be said with assurance that it was inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon.” Davenport, 373 Ark. at 73, 281 S.W.3d at 270.
Here, the testimony from Peretti, Shockey, Mary, Jason, Amber, and Billy all support the theory that Billy was either a principal or an accomplice in the Elliott murders. Dr. Peretti testified that one or more persons could have committed the homicides, and three different weapons, a small-caliber gun, a knife, and a tire tool, were used to kill the Elliotts. Shockey testified that Billy confessed to killing Felicia and to concealing the other three homicides from law enforcement. Mary testified as to Billy’s relationship with the Elliotts, Billy’s disagreement with Carl, that Billy always carried a knife and a pistol, that Billy received a phone call from Chad the night of the murders, and that Billy left to join Chad to clean up “Chad’s mess” in a trench coat the night of the murders with plenty of time to reach the Elliotts before the police-scanner report of the disturbance in Dalton. Billy later told Mary to lie about his whereabouts on the night of the murders. Jason testified that Billy always carried a knife and told the family to tell police that Billy was home on the night of the murders. Amber told police that Billy received the phone call from Chad the night of the murders and went to help Chad. She also testified that she heard on the police-scanner about the domestic-disturbance call in Dalton that night. Finally, Billy’s own testimony supports that 137Billy was an accomplice.
In reviewing the testimony supporting the accomplice instructions, it cannot be said with assurance that the testimony, including Shockey’s, was inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ. See id. Accordingly, we hold that the circuit court did not abuse its discretion in giving the accomplice instruction. We affirm the circuit court on this point.
VIII. Juror Pyles
For his eighth point on appeal, Billy asserts that the circuit court erred by denying his motion to remove Juror Pyles, a part-time 911 operator, for cause because she worked at the sheriffs office and was biased. After the circuit court denied Billy’s request to remove Pyles for cause, Billy used a peremptory strike and re moved Pyles. Billy now asserts that he was forced to use his peremptory strike on Pyles, forcing him to accept Juror Blevins, whose brother-in-law was a reserve officer in the Randolph County Sheriffs Office. Billy argues on appeal that the circuit court erred in not removing Pyles for cause.
In order to challenge a juror’s presence on appeal, the appellant must have exhausted his peremptory challenges and must show that he was forced to accept a juror who should have been excused for cause. Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). In other words, Billy “must have asked the court to remove the juror for cause, and the court must have improperly denied the request.” Id. at 415, 977 S.W.2d at 894-95.
Here, the record demonstrates that Billy did not challenge Juror Blevins for cause. Accordingly, Billy has failed to prove that the seated juror was forced on him or that she | ssShould have been excused for cause. Thus, Billy’s eighth point on appeal is without merit and we affirm the circuit court.
IX. Motion to Settle the Record
For his ninth point on appeal, Billy asserts that the circuit court erred by not ruling on his motion to settle the record as to portions of the bench conference regarding his challenge to Juror Pyles for cause.
In Jacobs v. State, 327 Ark. 498, 939 S.W.2d 824 (1997), we stated that the trial court has an affirmative duty to see that the court reporter performs satisfactorily in order to provide an adequate record for appeal. “When life sentences are involved, the record must be sufficient to review all errors prejudicial to the defendant under Supreme Court Rule 4 — 3(h), which necessitates that the appellant abstract all rulings adverse to him.” McGehee v. State, 328 Ark. 404, 413-14, 943 S.W.2d 585, 590 (1997).
Here, in reviewing the record, we hold that Billy’s ninth point lacks merit. Billy fails to show how any inaudible portions of the record affected the merits of his claim. The record and the supplemental record demonstrate Billy’s challenge to Pyles for cause after she told them she worked at the sheriffs office part-time. It further demonstrates that Pyles specifically stated that she could be fair and impartial despite her position as a 911 operator for the State. Also, as discussed in the previous point on appeal, Billy’s claim regarding Juror Pyles fails because he did not challenge Juror Blevins for cause. Thus, the inaudible portions of the record have no bearing on the merits of Billy’s claim. Therefore, we affirm the circuit court |S9on this point.
X. Amended Order
For his final point on appeal, Billy asserts that the circuit court erred by amending its judgment and conviction order because the circuit court lacked jurisdiction. He requests that this court strike the circuit court’s amended order.
On October 12, 2012, the circuit court entered an amended order to add the requirement that Billy register as a sex offender and pay fees pursuant to Ark. Code Ann. §§ 12-12-903, 905 and 910 (Repl. 2003). Billy does not challenge the sexual-offender registration requirements.
In McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999), we addressed a similar situation with regard to an amended order. In that case, the circuit court entered a judgment-and-commitment order nunc pro tunc in which he stated that a $30,000 fine had been “inadvertently omitted” from the original judgment. We affirmed the corrected order and explained that “a subsequent judgment entered nunc pro tunc to correct an erroneous judgment to speak the truth was the appropriate course for the trial judge to take.” McCuen, 338 Ark. at 635, 999 S.W.2d at 684.
McCuen is on point. In Billy’s case, we hold that the circuit court did not abuse its discretion in entering the amended order, and affirm on this point.
Conclusion
Based on the foregoing discussion, we find no error and affirm Billy’s convictions and 14()sentences.
In compliance with Ark. Sup.Ct. R. 43(i), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Billy, and no prejudicial error has been found.
Affirmed.
HANNAH, C.J., CORBIN and DANIELSON, JJ., concurring in part and dissenting in part.
. To aid the reader, we will refer to Billy Dale Green by his first name, Billy, as several members of the Green family testified as witnesses in this case.
. We will address Billy’s argument regarding treating Shockey’s testimony as accomplice testimony in his seventh point on appeal.
. Mary Thomas did not testify at trial. Thomas relayed messages to 911 dispatch as she received information from Virginia DuBois. DuBois is Lisa Elliott’s ex-stepmother and lived in a house-trailer on the same property adjacent to the Elliotts’ home with her husband Kenny DuBois. The DuBoises did not testify at trial. Sheriff Rob Samons testified that the DuBoises were "not right.”
. In the record, Virginia DuBois is also referred to as Virginia Miller.
. Bonnie Hensley Cantrell testified at the first trial as Bonnie Hensley. | [
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DAVID M. GLOVER, Judge.
|! Phillip Freeman appeals from a divorce decree entered by the Clark County Circuit Court. We affirm.
I. Jurisdiction
Phillip argues that the circuit court lacked jurisdiction to enter the divorce decree because appellee, Mary Freeman, did not prove residency in Arkansas for the sixty days preceding the filing of her divorce complaint. He contends that her presence in Arkansas dated only from September 10, 2010, fifty-one days before the complaint was filed on November 1, 2010.
The plaintiff in a divorce case must prove Arkansas residence by either the plaintiff or the defendant for sixty days next before the commencement of the action, and for three full months before the final judgment granting the decree of divorce. Ark.Code Ann. § 9-12-307(a)(l)(A) (Repl.2009). Without proof of Arkansas residency, a circuit court has no [¿jurisdiction to enter a divorce decree. See Roberts v. Roberts, 2009 Ark. 567, 349 S.W.3d 886. Residence, as used in section 9 — 12—307(a)(1)(A), means
actual presence, and upon proof of that the party 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(b) (Repl.2009). Phillip maintains that Mary did not prove an “actual presence” in Arkansas for the “sixty days next before the commencement of the action.”
Despite the fact that our supreme court once indicated that subsection (b) designates actual presence as the sole basis for jurisdiction, Wheat v. Wheat, 229 Ark. 842, 318 S.W.2d 793 (1958), the court subsequently clarified that domicile “is still and always has been sufficient” to confer jurisdiction. Weaver v. Weaver, 231 Ark. 341, 344, 329 S.W.2d 422, 424 (1959). The proper inquiry, therefore, is whether Mary was domiciled in Arkansas during the relevant period. We conclude that she was.
Domicile focuses on a party’s subjective intent to remain more or less permanently in a particular state. See Wheat v. Wheat, 229 Ark. 842, 318 S.W.2d 793 (1958). It is a person’s true, fixed, and permanent home, the place to which, when absent, he intends to return and from which he has no present purpose to depart. David Newbern, John J. Watkins, & D.P. Marshall, Jr., Ark Civ. Prac. & Proc. § 6:3, at 128 (5th ed.2010). Once established, domicile continues until it is superseded by a new domicile. Oakes v. Oakes, 219 Ark. 363, 242 S.W.2d 128 (1951). To effect a change of domicile, there must be actual abandonment of the first domicile, coupled with the intention not to return to it, and there must be a new domicile acquired in |3another jurisdiction with the intention of making it a permanent home. Id., 242 S.W.2d 128. A party’s intention to abandon his domicile and take up another must be ascertained from all the facts and circumstances in a particular case. Id., 242 S.W.2d 128.
The evidence in this case reveals that Mary and Phillip were married in Arkansas in 1986 and owned a home on Shiloh Road in Arkadelphia, where they lived from 1995 through mid-2007. They also owned acreage in Caddo Valley and a separate house on Shiloh Road, where Phillip’s mother lived. In July 2007, they began working and living in Tennessee. They maintained ownership of their Arkansas realty and did not rent their home to third parties or disconnect the utilities. Mary continued to receive mail in Arkansas, and she maintained her driver’s license and voter registration here. She described the move to Tennessee as temporary and said she had no intention of remaining there.
In 2009, Mary continued to work in Tennessee while Phillip took a job in Arkansas. She lived at an extended-stay hotel during the work week and returned to the Shiloh Road home in Arkadelphia each weekend, or every other weekend. She looked for employment in Arkansas but found none.
Phillip eventually returned to Tennessee for work, and he and Mary bought a house there in June 2010. Mary testified that she had been looking for an apartment as an alternative to the extended-stay hotel, and the house was an attractive deal financially. She stated that she and Phillip considered the house an investment, which they could rent or sell when they returned to Arkansas.
On or about September 10, 2010, Phillip and Mary traveled from Tennessee to |4Arkansas to attend a football game. They stayed with Phillip’s mother in Arka-delphia. During an argument, Phillip attacked Mary and injured her shoulder. Thereafter, Mary remained in Arkansas, and Phillip returned to Tennessee. Mary made one trip to Tennessee to pick up a car, only to find that Phillip had purportedly sold or transferred their vehicles.
On these facts, we cannot say that Mary abandoned her long-standing Arkansas domicile to establish a new domicile in Tennessee. She kept her Arkansas home, returned to it frequently, and testified unequivocally that she did not intend to stay in Tennessee permanently. She therefore remained an Arkansas resident through the relevant time period for purposes of circuit-court jurisdiction.
Phillip also argues that the proof corroborating Mary’s Arkansas residency was insufficient. Corroborating evidence was offered by Kayla Freeman, who testified that she was the couple’s adult daughter and lived in Arkadelphia. Kayla stated that she was aware of the date on which her mother filed for divorce and that, to her personal knowledge, her mother had been a resident of Clark County, Arkansas, for the required period.
Corroboration of residency is a jurisdictional requirement. Ark.Code Ann. § 9 — 12—306(c)(1) (Repl.2009); Evtimov v. Milanova, 2009 Ark. App. 208, 300 S.W.3d 110. The purpose of corroboration is to prevent collusion in procuring a divorce. Hodges v. Hodges, 27 Ark.App. 250, 770 S.W.2d 164 (1989). Corroborating evidence should not be speculative and vague in scope. Araneda v. Araneda, 48 Ark.App. 286, 894 S.W.2d 146 (1995). But, when it is plain that there is no collusion, the corroboration need only be slight. Hodges, 27 Ark.App. 250, 770 S.W.2d 164.
|sThe corroboration here is slight, but sufficient. The parties’ daughter lives in Arkadelphia and testified to personal knowledge of her mother’s Arkansas residence. Because only slight corroboration was needed — it being plain there was no collusion — the proof was adequate.
II. Division Of Tenancy By The Entirety
The court dissolved the parties’ tenancy by the entirety in their home on Shiloh Road and awarded the property to Mary. Phillip correctly notes that, at the time he and Mary acquired the home in 1995, Arkansas Code Annotated section 9-12-317 (Repl.2009) gave a trial court only three options for distributing property owned as a tenancy by the entirety: 1) dissolve the tenancy by the entirety and leave the parties as tenants in common, 2) order the property sold and the proceeds divided, or 3) place one of the parties in possession pending a future sale. See Cole v. Cole, 82 Ark.App. 47, 110 S.W.3d 310 (2003). Awarding the property outright to one spouse, as was done in this case, was not authorized. Id., 110 S.W.3d 310.
In 1997, however, subsection (c) was added to section 9-12-317. This subsection allowed a trial court to dissolve a tenancy by the entirety and distribute the property in the same manner as other property, including making an unequal distribution to one spouse, if warranted. The circuit court in this case utilized subsection (c) to award the parties’ Shiloh Road home to Mary. Phillip argues that this was an improper, retroactive application of subsection (c) because his and Mary’s ownership of the home preceded the subsection’s effective date. We disagree.
| ^Generally, the application of subsection (e) to property acquired before the subsection’s effective date would impair a party’s “vested interest” in the property. Cole, 82 Ark.App. at 57, 110 S.W.3d at 316. But Mary testified that, during the parties’ ownership of the Shiloh Road home, title to that property was transferred to the State for unpaid taxes on two occasions, and the property was redeemed and the title transferred back to them most recently in 2005. When property is transferred to the State due to unpaid taxes, title vests in the State. Ark. Code Ann. § 26-37-101(b) & (c) (Repl. 2012). At that point, the owner’s vested interest in the property is interrupted and he loses title. See Givens v. Haybar, Inc., 95 Ark.App. 164, 234 S.W.3d 896 (2006). Consequently, the parties lost their vested interest in the property when the State took title and did not re-acquire their interest until they redeemed the property in 2005. Under these circumstances, the circuit court did not err in using section 9-12-317(c) to award the Shiloh Road home to Mary.
Phillip argues that a redemption deed from the State does not convey title but merely extinguishes the State’s tax lien. See, e.g., Mabrey v. Millman, 208 Ark. 289, 186 S.W.2d 28 (1945). That proposition applies, however, when there is a controversy over whether the person who redeemed the property actually owned it. That is not the situation here.
III. Division of Property
Phillip contends that the court erred in dividing the parties’ property unequally in favor of Mary. We review divorce cases de novo and will not reverse a circuit court’s division of property unless it is clearly erroneous. See Jones v. Jones, 2013 Ark. App. 391, 428 S.W.3d 578.
At the time a divorce decree is entered, all marital property shall be distributed one half 17to each party unless the circuit court finds such a division to be inequitable. Ark.Code Ann. § 9-12-315(a)(l)(A) (Repl.2009). In that event, the court shall make some other division that it deems equitable, taking numerous factors into consideration, such as the length of the marriage and the parties’ occupations and incomes. Id. The court’s order must recite the reasons for not dividing the properly equally. Ark.Code Ann. § 9-12-315(a)(1)(B) (Repl.2009). In the present case, the decree set forth the following reasons for an unequal division of properly:
a. The Defendant’s [Phillip’s] actions regarding the dissipation of marital assets concerning four vehicles of the parties[’] which he claims to have sold and the title which he transferred to his mother after the parties’ separation.
b. The Defendant’s dissipation of marital assets in spending marital monies on online dating memberships and pornography, as well as bond, fines and attor ney fees relating to his conviction for public indecency in 2007.
c. The Defendant’s physical assault on the Plaintiff and intentional denial of ' access to a vehicle, which led to the loss of her employment and a period of seven months of unemployment during which time the Plaintiff had no income.
Phillip argues that his actions did not justify an unequal division. However, Mary testified that she lost her lucrative job in Tennessee after being assaulted by Phillip; that she was injured and afraid to return to Tennessee because Phillip was there; that she had to use proceeds from a 401(k) to make the house payment on Shiloh Road; and that she was without transportation because Phillip allegedly sold or transferred their vehicles following the assault. As a result, she said, she was unemployed for a lengthy period and worked as a hotel housekeeper before eventually finding a higher paying job. She also testified that she incurred medical expenses as the result of her injuries; that she bailed Phillip out of jail or paid fines | ¿¡during the marriage due to his indecent-exposure arrests; and that Phillip expended marital funds on internet dating and pornography sites during the marriage. Dissipation of assets can be considered by a trial judge in making an unequal distribution of marital property. See, e.g., Keathley v. Keathley, 76 Ark.App. 150, 61 S.W.3d 219 (2001). Given these circumstances, the circuit court did not err in finding that equity would be served by an unequal division of property.
Phillip argues that the inequality was too great because the court did not divide the couple’s three parcels of Arkansas realty equally. In fact, the division of real property was equal. The Caddo Valley parcel was ordered sold and the proceeds divided evenly. The other two parcels — the Shiloh Road home and Phillip’s mother’s home — were awarded to Mary and Phillip respectively, with each being responsible for the accompanying debt. Accounting for the debt, the equities in the properties were virtually the same.
Phillip also claims that approximately thirty-four acres attached to the parties’ Shiloh Road home were separate and unencumbered, thus giving Mary an advantage in the real-property division. The circuit court correctly found, however, that there was no documentary evidence of the acreage’s severance from the house, nor was there any evidence that the acreage was unencumbered.
We therefore affirm the division of marital property.
IV. Division of Debt
Phillip’s final argument is that the circuit court erred in assigning him an unequal portion of marital debt. There is no presumption that an equal division of debts must occur. Spears v. Spears, 2013 Ark.App. 535. The key is that the division must be equitable. Id. We review the division of debt under the clearly-erroneous standard. Burns v. Burns, 2012 Ark. App. 522, 2012 WL 4478401.
We conclude that the circuit court did not clearly err in its division of debt. The facts listed by the court in support of the unequal division of marital assets apply with the same force to the unequal division of debt.
Affirmed.
HIXSON and WOOD, JJ., agree. | [
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COURTNEY HUDSON GOODSON, Justice.
| Appellant Gulfco of Louisiana, Inc., d/b/a Tower Loan of Springhill, Louisiana (Gulfco), appeals the decision of the Columbia County Circuit Court denying its request to foreclose on the home of appel-lees Pamela and MaeArthur Brantley. For reversal, Gulfco argues that the circuit court erred in applying Arkansas usury law to decline enforcement of the debt instruments that it contends are governed by the laws of the State of Louisiana. Gulfco also asserts that the circuit court erred in concluding that it was required to be licensed by the Arkansas Secretary of State and in ruling that the transactions were unconscionable and the product of predatory lending practices. We affirm the circuit court’s decision.
The record reflects that Gulfco is in the business of extending high-risk loans to customers with poor credit ratings. It operates primarily in Louisiana, Mississippi, and Missouri. The Brantleys, who reside in Waldo, Arkansas, obtained four loans over a two-year |2period from Gulfco at its location in Springhill, Louisiana, that is near the Arkansas-Louisiana border. First, on May 13, 2009, they borrowed $1,580.36 with an annual interest rate of 40.20 percent. After deductions for fees and insurance, the Brantleys received $1,031.63 in cash. Applying the stated interest rate, the finance charge amounted to $811.64, yielding a total indebtedness of $2,392, payable in twenty-six monthly installments of $92. The promissory note evidencing the debt stated that the loan was secured by “personal property.”
On December 17, 2009, the Brantleys obtained another loan of $20,887.71 at an annual interest rate of 24.09 percent. Out of that sum, Gulfco satisfied the first loan and paid both a hospital bill owed by the Brantleys and their delinquent property taxes. After deducting those sums and $850 in fees, they received $17,388.32. With the finance charge of $18,784.29, the Brantleys were to pay a total of $39,672 over the course of seventy-two months at the rate of $551 per month. To secure the note for this loan, the Brantleys executed a mortgage on their home in Waldo. Gulfco appraised the value of the home at $32,000 with a quick-sale value of $27,000.
On June 2, 2010, Gulfco loaned the Brantleys an additional $2,779.82. On this loan, Gulfco charged an annual interest rate of 35.67 percent, and after deductions for fees and prepaid interest, the Brant-leys received $2,501.83. Adding the finance charge of $1,250.18, the total debt amounted to $4,030 to be satisfied in twenty-six monthly installments of $155. This loan was secured by a list of personal property that included a riding lawn mower, a drill, a chainsaw, televisions, and cameras.
On March 11, 2011, the Brantleys borrowed an additional $3,345.34 with interest at|s34.32 percent. Gulfco charged $400.72 in fees, and the proceeds were used to retire the June-2010 note. After these deductions, the Brantleys received cash in hand of $598.71. Including the finance charge of $1,464.66, they were obligated to pay $4,810 over twenty-six months at the rate of $185 per month. This note was secured by the same personal property as was the June-2010 loan.
The Brantleys made no payments on the loans after March 31, 2011. On July 1, 2011, Gulfco filed in the Circuit Court of Columbia County a pleading styled “Notice of Default and Intention to Sell,” alleging that the mortgage on the Brantleys’ home was in default and stating that a sale of the home would occur on August 19, 2011. Gulfco attached a copy of the mortgage to the notice of default. On July 14, 2011, Pamela Brantley filed a pro se answer that was followed by a response filed by the Brantleys’ attorney. In the response, the Brantleys denied the substantive allegations of the notice of default, and they asserted the defenses of usury, un-conscionability, estoppel, illegality, unclean hands, predatory lending practices, and a violation of the Arkansas Deceptive Trade Practices Act (ADTPA).
On August 11, 2011, the Brantleys filed a petition for a preliminary injunction to halt the proposed sale of their home. In the petition, they asserted that the promissory notes were unconscionable, as Gulfco took advantage of their lack of sophistication and induced them to mortgage their home with knowledge that they did not have stable, full-time employment. The Brantleys also alleged that the interest rates Gulfco charged were usurious under the Arkansas Constitution. Gulfco did not file a response to the petition. On August 12, 2011, the circuit court entered an order granting the Brantleys’ request for a preliminary injunction.
14At the trial held on May 11, 2012, MacArthur Brantley testified that he worked part-time for a moving company. He said that he learned about Gulfco through a friend and that he and Pamela took out the first loan to pay personal bills that were about to become delinquent. MacArthur said that they fell behind on their payments of $92 per month because his work was slow and because Pamela had become ill. He stated that “Dee,” Gulfco’s loan agent, called him about their delinquency and suggested that they take out a second loan. MacArthur said that Dee already had the papers prepared when he arrived at the office. He stated that he did not read well and that he read what he could of the loan disclosure statement and promissory note. MacArthur testified that the money for the second loan was used to pay the first note and to buy a logging truck. He stated that he purchased the truck for $1,500 and spent $2,300 for welding in addition to buying tires and paying insurance. With regard to the June-2010 loan, MacArthur testified that the money was used to catch up the arrearages on the December-2009 loan. He said that they borrowed more money in March 2011 to again bring their loans current. MacArthur testified that they did not have the money to pay the loans and that they were faced with the choice of either accepting more loans or losing their home.
Pamela Brantley testified that she and MacArthur began construction of their home in 2000 and that they had built it a little at a time when money was available. Pamela said that she graduated from high school with a B average and that MacArthur had taken remedial classes in high school. Pamela stated that the county assessor had appraised the value of their home at $51,450. She said that she had heard from friends that Gulfco offered easy money | sand that she and MacArthur sought a loan because they were behind on their household bills. She said that they told the loan agent, Demetrius Wilson, that she earned $120 per week sitting for an elderly woman and that MacArthur worked part-time for a moving company and sometimes mowed yards. She said she also advised Wilson of her medical problems. Pamela stated that Wilson knew that they had a home and about MacArthur’s idea of obtaining a logging truck as a means to generate income. She testified that she advised Wilson that they were having a hard time making their payments on the first loan and that it was Wilson who suggested mortgaging their house and purchasing a logging truck. Pamela said that Wilson mentioned this idea many times in their conversations and that they finally agreed to another loan with a mortgage on their home. She testified that having the logging truck did not work out due to problems keeping the truck running, the high cost of gasoline, and a downturn in the logging business. Pamela said that they used the June-2010 loan to make a past-due payment on the previous loan and to pay household bills. She said that she was having medical problems at the time and could not work and that they “were going in circles” and getting deeper and deeper in a hole. Pamela stated that she did not read the loan documents because she and MacArthur were broke and in need of money.
Lori Spence, Gulfco’s district manager, testified that between the first loan in May 2009 and the second one in December 2009, appellees were assessed three late charges and had missed two $92 monthly payments. She acknowledged that, when the June-2010 loan was made, appellees had missed the June payment. Spence stated that with the December-2009 and June-2010 loans, appellees were paying $551 a month on the note and mortgage Ifin addition to $155 per month on the June-2010 note. She said that they continued to miss payments and garner late charges. Introduced into evidence was a receipt appellees received dated February 18, 2011, stating that “[y]ou can obtain an additional $3043.48 from us, if you need it. Just ask the manager.” Spence stated that they were one payment behind on the mortgage when the final loan was made in March 2011, and the loan proceeds were used to pay that arrearage. Further, she testified that Gulfco has several offices located near the Arkansas border.
After the conclusion of testimony, the circuit court took the case under advisement and asked for posthearing briefs, directing the Brantleys’ attorney to submit his brief first and Gulfco’s attorney to file his brief in response. In their brief, the Brantleys argued that the law of Arkansas applied and that the series of loans and conduct of Gulfco were unconscionable and unjust. In response, Gulfco maintained that the loans and mortgage were executed in good faith and in compliance with Arkansas law.
The court entered an order setting forth its decision on August 12, 2012. The circuit court described what it referred to as a “disturbing pattern of lending.” The court found that Gulfco made four loans to the Brantleys despite their lack of stable employment. It said that it was no surprise that they were soon behind on their payments. The court noted that subsequent loans were used to bring the former loans current, and the court called attention to the receipt that indicated that even more money was available. The circuit court believed Pamela’s testimony that Gulfco recommended the purchase of the logging truck and that the venture turned out to be one that they could not afford. It noted that with MacArthur’s |7income level and Pamela’s illness, they could not break the cycle of debt. The court considered that the fees charged for the four loans was $2,322, and it deemed significant the fact that the charges were deducted from the loan proceeds on the front end, thereby reducing the amount of money available to the Brantleys and increasing the probability of further debt. It concerned the court that Gulfeo referenced a quick-sale value of the home, as it indicated that a foreclosure sale might not be conducted in a commercially reasonable manner, which would result in a deficiency judgment against the Brantleys. In addition, the circuit court observed that Gulfeo does business in three other states; that it was not licensed to do business in Arkansas; and that the interest rates would violate Arkansas usury law. In conclusion, the court found that “the loans collectively constitute predatory lending by a foreign corporation not authorized to do business in Arkansas and that the contract sought to be enforced is unconscionable and cannot be given-full faith and credit. Accordingly, the contract will not be enforced against Arkansas properly.” Gulfeo brings this appeal from the circuit court’s order.
As its first point on appeal, Gulfeo argues that the law of Louisiana applies to the debt instruments and that the circuit court erred by employing Arkansas usury law to void the agreements. It points out that the promissory note that was secured by the mortgage contains a choice-of-law provision stating that the note is governed under the provisions of Louisiana | fiaw. Further, Gulfeo maintains that it is a Louisiana corporation, that the agreements were executed in Louisiana, and that the Brantleys’ payments were directed to Louisiana. It contends that, under these circumstances, the validity of the agreements must be judged under Louisiana law. In response, the Brantleys assert that Gulfeo waived reliance on Louisiana law because it did not give notice of its intent to rely on foreign law as required by Rule 44.1 of the Arkansas Rules of Civil Procedure.
We summarily dispose of this argument. While the circuit court was indeed mindful that the loans would be usurious under Arkansas law, the court did not decline to enforce the agreements based on a violation of Arkansas usury law. Instead, the court’s ruling was that the debt instruments were not enforceable because they were unconscionable and the product of predatory lending practices. Inasmuch as the circuit court did not rule that the agreements were void because they violated Arkansas usury law, Gulfco’s argument presents no basis for reversal.
Next, Gulfeo contends that the circuit court erred in ruling that it was required to register with the Arkansas Secretary of State. We also summarily reject this argument because, again, Gulfeo has misinterpreted the circuit court’s decision. The circuit court did not find that Gulfeo was required to be licensed in Arkansas. Nor did the court nullify the agreements because Gulfeo is not registered to do business in the State of Arkansas. In its decision, the circuit court merely commented on the fact that Gulfeo was an out-of-state business, a fact |flthat is undoubtedly true. As with the first issue, Gulfco’s argument on this point does not provide a basis on which to overturn the circuit court’s decision.
We now turn to the final contention raised on appeal. Gulfeo takes issue with the circuit court’s finding that it engaged in unconscionable and predatory lending practices. It asserts that appellees signed the documents and were aware of the interest rates being charged; that they agreed to mortgage their home; and that they wished to engage in the logging business. Gulfco argues that parties are bound by contractual provisions and may not assert ignorance of the document they have signed. It contends that a court is not to rewrite a contract but must construe it as to reflect the parties’ intent. Further, Gulfco maintains that the Brant-leys were not desperate or taken advantage of because it was they who sought out the first loan to help pay bills that were about to become delinquent. Gulfco also points out that the Brantleys’ credit was poor and that they did not seek a loan from any other lending institution.
In support of its argument, Gulf-co cites only to Arkansas caselaw. Therefore, we will apply the law of Arkansas in deciding this issue. Our standards regarding unconscionability are as follows. An act is unconscionable if it affronts the sense of justice, decency, and reasonableness. Baptist Health v. Murphy, 2010 Ark. 358, 378 S.W.3d 269. We have stated that in assessing whether a particular contractual provision is unconscionable, the courts review the totality of the circumstances surrounding the negotiation and execution of the contract. Jordan v. Diamond Equip. & Supply Co., 362 Ark. 142, 207 S.W.3d 525 (2005). Two important considerations are whether there is a gross inequality of bargaining power |10between the parties and whether the aggrieved party was made aware of and comprehended the provision in question. Id. We also observe that another factor which may contribute to a finding of unconscionability is a belief by the stronger party that there is no reasonable probability that the weaker party will fully perform the contract. Restatement (Second) of Contracts § 208.
Arkansas’s consumer-protection law, which is an expression of this State’s public policy, is consistent with the Restatement. The Arkansas Home Loan Protection Act applies to high-cost home loans, which is a loan that is secured by a first lien on the structure that does not exceed $150,000, where the borrower is a natural person, and where the debt is incurred by the borrower primarily for personal, family, or household purposes. Ark.Code Ann. § 23-53-103(5)(A) (Repl.2012). The Act prohibits practices such as lending without due regard to repayment ability. It provides,
A creditor shall not make a high-cost home loan unless the creditor reasonably believes at the time the loan is consummated that one (1) or more of the obligors, when considered individually or collectively, will be able to make the scheduled payments to repay the obligation based upon a consideration of their current and expected income, current obligations, employment status, and other financial resources other than the borrower’s equity in the dwelling that secures repayment of the loan.
Ark.Code Ann. § 23-53-104(1) (Repl.2012). Any violation of the Act constitutes an unconscionable or deceptive act or practice under the ADTPA. Ark. Code Ann. § 23-53-106(a)(l) (Repl.2012).
The determination of uncon-scionability is a mixed question of fact and law. State ex rel. Bryant v. R & A Inv. Co., 336 Ark. 289, 985 S.W.2d 299 (1999). In bench trials, the In standard of review on appeal is whether the circuit court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Benefit Bank v. Rogers, 2012 Ark. 419, 424 S.W.3d 812. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Primus Auto. Fin. Servs., Inc. v. Wilburn, 2013 Ark. 258, 428 S.W.3d 480. However, this court reviews questions of law de novo. Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21. Therefore, we review the circuit court’s factual findings for clear error and its interpretation of the law de novo. Robinson v. Villines, 2009 Ark. 632, 362 S.W.3d 870.
Our review of the record confirms the circuit court’s opinion of Gulfco’s lending practices vis-a-vis the Brantleys. The Brantleys first obtained a modest loan from Gulfco to pay household bills that were about to become delinquent. They had difficulty making the $92 per month payments on this loan, as neither of them had full-time employment. Yet Gulfco, with knowledge of their employment status and Pamela’s illness, loaned them approximately $20,000, taking a mortgage on the Brantleys’ home as security. The proceeds of this loan were used to retire the unsecured first loan. The testimony also indicated that Gulfco’s agent persuaded the Brantleys to mortgage their home. Thereafter, the Brantleys had trouble making the monthly payments of $551. Despite this fact, Gulfco extended more credit to them, and with this third loan, they were required to pay an extra $155 per month in addition to the $551 for the second loan. Predictably, the Brantleys could not meet these obligations. Nonetheless, Gulfco made yet another loan to them after advertising in a receipt |12that more money was available. With this fourth loan, the third note was satisfied, and the Brantleys’ monthly payments increased once again.
The evidence thus shows that the Brant-leys were not capable of making their payments from the beginning. Subsequent loans were made to pay off previous notes or to bring their payments current. Despite the Brantley’s demonstrated inability to pay, Gulfco continued to loan them money. Each loan, that included built-in fees and high interest rates, placed the Brant-leys in a position of ever-increasing debt, such that it was all but inevitable that they would end up in default. While the Brant-leys’ debt situation became more dire with each loan, Gulfco’s risk was minimal, because with the mortgage, it was assured of receiving full payment on the loan. Considering the totality of the circumstances, the circuit court found that the evidence revealed an intolerable pattern of reprehensible and unconscionable conduct on the part of Gulfco that offended its sense of decency and justice. We cannot conclude that the circuit court’s findings of unconscionability and predatory lending practices are clearly erroneous. We hold that the court did not err in refusing to enforce the mortgage, as to do so would contravene the public policy of this State. Accordingly, we affirm its decision.
Affirmed.
HANNAH, C.J., concurs.
. Initially, the appeal was lodged in the court of appeals. We granted Gulfco’s motion to transfer the appeal to this court under the provisions of Arkansas Supreme Court Rule 1 — 2(b)(4) & (5).
. The Arkansas Constitution sets a cap on interest rates for consumer loans at seventeen percent. Ark. Const, art. 19, § 13(b). | [
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LARRY D. VAUGHT, Judge.
| Appellant Winfred Kimble appeals from the opinion of the Arkansas Workers’ Compensation Commission finding that he failed to meet his burden of proving a compensable injury to his neck caused by either a specific incident or gradual onset. We affirm.
Kimble, age fifty two, was employed by appellee Labor Force, Inc., and assigned to work for Apple Tree Service, where he worked removing trees from power lines. Part of his job included “pulling brush,” which required him to pick up trimmed limbs — weighing between five and fifty pounds — and throw them into a wood chipper. On Friday, February 17, 2012, after working a full day (7:00 a.m. to 3:30 p.m.) pulling brush, Kimble recalled feeling sore in his right shoulder and neck but left work as usual. The next morning, he awoke and drove to the grocery store. As he walked into the store, he felt severe pain in his right shoulder. He thought he was having a heart attack and drove home, where he asked his girlfriend to take him to the emergency room. He was admitted into the hospital, where doctors ruled out a cardiovascular event. While in the hospital, Kimble contacted his supervisor, James Griffin, and told him that|2he (Kim-ble) would not be at work the following Monday. He did not report a work-related injury to Griffin.
During his hospital stay, doctors concluded (based on a cervical MRI taken February 19, 2012) that Kimble suffered from multilevel degenerative disc disease and a posterior central disc extrusion at C3^4 causing moderate midline ventral cord impingement. Kimble was treated with an epidural steroid injection. After five days, Kimble was released from the hospital and referred to a neurosurgeon, Dr. Mark Smith, for continued injections. Kimble did not follow through with the referral because of the expense. Instead, he was sent to Dr. George Burgess, at a community medical clinic, who restricted Kimble to light-duty work, recommended a neurosurgical consult, and continued to prescribe medications. Kimble has not returned to work for Labor Force and has not worked in any capacity since February 17, 2012.
When Kimble filed a claim for workers’ compensation benefits, Labor Force controverted the claim in its entirety. A hearing was held before an administrative law judge (ALJ) on October 25, 2012. The dispositive issue was whether Kimble suffered a specific-incident or gradual-onset neck injury. The sole witness at the hearing was Kimble, and he testified that although he recalled feeling sore two to three days prior to Friday, February 17, 2012, he did not feel like he had hurt himself on February 17. He added that he did not recall anything specific that would have occurred at work that would have injured his neck. He said that he never stopped work due to an injury, and he did not report any type of injury on that date. According to Kimble, it was not until days later when he was advised of the MRI results that it occurred to him that he had hurt himself at work. He said, “I just figured when I got [the 13MRI results] that what I had been doing for the past week is probably what caused that.” When asked whether he knew what happened at work to cause him to have a neck problem, Kimble responded, “... just pulling that brush, that’s the only thing I figured it probably could have happened from.”
On January 22, 2013, the ALJ issued an opinion finding that Kimble failed to prove by a preponderance of the evidence that he sustained a compensable injury to his neck. The ALJ noted that while Kimble presented evidence of objective findings supporting a neck injury, he failed to prove a specific-incident injury or a gradual-onset injury. Kimble appealed the ALJ’s decision, and in an opinion filed May 21, 2013, the Commission affirmed and adopted the ALJ’s decision. Kimble timely appealed.
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission, and we affirm that decision if it is supported by substantial evidence. Weaver v. Nabors Drilling USA, 98 Ark.App. 161, 162, 263 S.W.3d 30, 31 (2007). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id,., 253 S.W.3d at 31. We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id., 253 S.W.3d at 31-32. It is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Id., 253 S.W.3d at 32.
l4We first address the Commission’s finding that Kimble failed to prove that he suffered a compensable specific-incident neck injury. This type of injury is defined as an “accidental injury ... arising out of and in the course of employment.... ” Ark.Code Ann. § 11-9-102(4)(A)(i) (Repl. 2012). “An injury is ‘accidental’ only if it is caused by a specific incident and is identifiable by time and place of occurrence;....” Id. In Edens v. Superior Marble & Glass, our supreme court held that “identifiable by time and place” meant subject to identification and did not require the claimant to specify the exact time of the occurrence. 346 Ark. 487, 492, 58 S.W.3d 369, 373 (2001).
In the case at bar, substantial evidence supports the Commission’s finding that Kimble failed to prove a compen-sable specific-incident neck injury as he was unable to identify a work event that caused his injury. As pointed out by the Commission, Kimble testified that he did not think that he injured himself on February 17.
Q: Is there any specific thing that you can think of, that you can recall at the time that Friday that you can think back and say I think I hurt myself there?
A: No.
He could not remember an acute trauma on February 17, he did not stop working at any point and was able to complete his shift on that day, he did not report any injury or incident to his co-employees or -supervisors that day, and when he left work that day he did not think he had |Binjured his neck in any way. When Kim-ble sought medical treatment the following day, he did not report a neck injury or any type of incident at work that could have caused a néek injury. Kimble’s own testimony demonstrates his inability to identify a specific incident that caused his condition. The only evidence in the record linking Kimble’s neck injury to his work was his testimony that “I just figured when I got [the MRI results] that what I had been doing at work for the past week is probably what caused that.”
Q: That’s your speculation about what happened?
A: Yes.
Speculation and conjecture, even if plausible, cannot take the place of proof. Serrano v. Westrim, Inc., 2011 Ark. App. 771, at 7, 387 S.W.3d 292, 297.
The facts in the instant case are similar to those in Weaver v. Nabors Drilling USA, where the claimant testified that while at work he felt tingling and burning in his hands but he was unable to define a specific incident that caused his condition. Weaver, 98 Ark.App. at 161, 253 S.W.3d at 31. A few days later he went to the emergency room, where he did not mention a work-related incident, but was diagnosed with a neck injury. Id. at 162, 253 S.W.3d at 31. Despite the claimant’s argument that his job must have caused his neck injury because there was no other explanation, the Commission found that the claimant failed to prove a compensable injury to his neck because he failed to present proof of a specific incident that caused his condition. Id. at 162, 253 S.W.3d at 31. On appeal, we affirmed, holding that substantial evidence supported the Commission’s decision that the claimant failed to prove his case. Id. at 163, 253 S.W.3d at 32. We held that the claimant only proved that he had an injury and that he felt pain while at Rwork — he failed to show that a specific incident occurred at work. Id. at 16263, 253 S.W.3d at 31-32. We rejected the claimant’s request to infer that his injury was caused by his employment. Id. at 163, 253 S.W.3d at 32. See also Hapney v. Rheem Mfg. Co., 342 Ark. 11, 16, 26 S.W.3d 777, 780 (2000), petition for reh’g granted on other grounds (rejecting claimant’s argument that she suffered a specific-incident neck injury where her deposition testimony reflected that she did not know how she was injured, she did not recall anything specific happening, and she did not tell her treating physician that her pain was associated with any particular, specific incident).
As in Weaver and Hapney, we likewise reject Kimble’s request to infer that his job must have caused his neck injury because there was no other explanation. Such a conclusion would be based on nothing more than Kimble’s admitted speculation. In contrast, substantial evidence reflects that on February 17, Kimble knew of no work incident, did not know that he was hurt, worked a full shift, and did not report a work incident to his co-employees or supervisor. Furthermore, he did not report a work incident to the doctors the following day. Accordingly, we affirm the Commission’s finding that Kimble failed to prove a compensable specific-incident neck injury.
The Commission also found that Kimble failed to prove that he suffered a compen-sable gradual-onset neck injury. A claimant seeking benefits for a gradual-onset injury to the neck must prove by a preponderance of the evidence that (1) the injury arose out of and in the course of his employment; (2) the injury caused internal or external harm to the body that required medical services or resulted in disability or death; and (3) the injury was the major cause of the disability or need for medical treatment. Smith v. Commercial Metals Co., 2011 Ark. App. 218, at 179, 382 S.W.3d 764, 769; Ark.Code Ann. § 11-9-102(4)(A)(ii)(b) & (E)(ii) (Repl.2012). “Major cause” is defined as more than fifty percent of the cause. Ark.Code Ann. § ll-9-102(14)(A).
On this point, the Commission found that Kimble failed to prove that his neck injury arose out of and in the course of his employment. The Commission was not convinced that Kimble’s neck injury arose gradually over the week prior to February 17, 2012. Substantial evidence supports this finding. Kimble failed to report any type of neck problem to his co-employees or his employer the week leading up to February 17, 2012; he left work that week unaware that he suffered a neck injury; and he did not report any type of neck problem to his doctors when he sought treatment. Again, the only evidence in the record on causation is Kim-ble’s admittedly speculative testimony that he “figured” that his neck condition was caused the week leading up to February 17, 2012.
Substantial evidence also supports the Commission’s finding that Kim-ble failed to prove that a work-related neck injury was the major cause of his need for treatment. The MRI results showed both disc abnormalities and multilevel degenerative disc disease. And the Commission afforded more weight to the degenerative condition, stating that it could be a factor in Kimble’s neck injury and need for treatment. The Commission has the authority to accept or reject a medical opinion and the authority to determine its probative value. Greene v. Cockram Concrete Co., 2012 Ark. App. 691, at 7, 2012 WL 6197460. When the Commission weighs medical evidence and the evidence is conflicting, its resolution is a question of fact for the Commission. Id. We further note that |sKimble, the party with the burden of proof, did not offer testimony from his doctors establishing that the major cause of his neck injury was his work.
Kimble insists that the Commission erred by relying so heavily on the fact that he suffered from degenerative disc disease and ignoring the absence of evidence that he suffered from any prior neck problems. Citing Cooper Tire & Rubber Co. v. Leach, 2012 Ark. App. 462, 2012 WL 3854884, and Wright v. St. Vincent Doctors Hospital Indemnity Insurance Co., 2012 Ark. App. 158, 390 S.W.3d 779, he claims that the major-cause requirement can be satisfied when work aggravates an asymptomatic preexisting condition. However, those cases are inapplicable because major cause was addressed for purposes of determining those claimants’ entitlement to permanent benefits under Ark.Code Ann. § 11-9-102 (4) (F) (ii) (a) — not for purposes of determining the compensability of a gradual-onset injury.
Kimble’s reliance on Vijil v. Schlumberger Technology. Corp., 2012 Ark. App. 361, 2012 WL 1869452, is also misplaced. In Vijil, our court reversed and remanded the Commission’s denial of benefits to a claimant who reported to the hospital with what he thought was a heart attack/stroke but later | Jearned that he had neck and back injuries along with degenerative disc disease. Vijil, 2012 Ark. App. 361, at 4, 2012 WL 1869452. Vijil is not applicable because the claimant there suffered a specific-incident-injury — not a gradual-onset injury; therefore, the major-cause require ment was not at issue like it is in Kimble’s case.
In sum, we hold that substantial evidence supports the Commission’s decision that Kimble failed to prove a compensable neck injury — resulting from either a specific incident or gradual onset. Therefore, we affirm.
Affirmed.
WYNNE and GLOVER, JJ., agree.
. In this case, the Commission found that Kimble failed to prove that he suffered a compensable neck injury caused by a specific incident or by gradual onset. In either case, under the Workers’ Compensation Act, the compensable injury must be supported by objective medical findings not under the voluntary control of the claimant. Ark.Code Ann. § 1 l-9-102(4)(D) and (16)(A)(i) (Repl.2012). It is undisputed in this case that objective findings support the existence of Kimble’s neck injury.
. The lack of medical evidence supporting Kimble's gradual-onset-injury claim is the distinguishing factor between his case and Parker v. Atlantic Research Corp., 87 Ark.App. 145, 189 S.W.3d 449 (2004), another case on which Kimble relies. There, the claimant sought benefits for a gradual-onset neck injury, where objective findings were documented along with significant preexisting degenerative disc disease. The Commission denied the claim, finding as a matter of law that an injured worker with a work-related aggravation of preexisting disc abnormalities cannot meet the major-cause requirement. Parker, 87 Ark.App. at 154, 189 S.W.3d at 454. We reversed, holding that the claimant presented sufficient major-cause evidence, specifically citing testimony from her doctor that the work-related aggravation/new injury was the major cause of her disability and need for treatment. Id. at 154, 189 S.W.3d at 454-55. In the case at bar, there is no major-cause medical evidence. | [
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JIM HANNAH, Chief Justice.
| Appellant, Claude Graves, appeals the order of the Greene County Circuit Court denying his claim for reimbursement of expenses incurred while working as a constable and rejecting his claim that the Greene County ordinance setting constable salaries at $25 per month was arbitrary and capricious and therefore unconstitutional. We affirm the circuit court’s order.
On January 28, 2008, Graves was appointed Constable for the Shady Grove Township, Greene County, by Governor Mike Beebe. He was elected Constable in November 2008 and served in that position until he finished his term on December 31, 2012. On February 26, 2010, in CV-2010-66, Graves filed a complaint in circuit court against Greene County; Greene County Quorum Court; and Jesse Dollars, in his official capacity as County Judge of Greene County (collectively, “Greene County”), and sought |2a writ of mandamus to compel the quorum court to reimburse him for his expenses and set a salary for constables. Graves then filed a motion for summary judgment, and Greene County filed a response. The circuit court entered an order granting partial summary judgment in favor of Graves, finding that pursuant to Arkansas Code Annotated section 14-14-1205(d), the quorum court was required to fix a salary for constables and that the salary amount was within the quorum court’s discretion. In addition, the circuit court found that the claim for expenses was not properly before the circuit court; rather, that claim first had to be presented to Greene County.
In March 2011, the finance committee of the quorum court met to discuss setting a salary for constables. At the meeting, the committee assessed the work performance of the constables in light of the role of the Greene County Sheriffs Office and reviewed the salaries of constables from other counties in the state. On March 21, 2011, the quorum court passed Appropriation Ordinance No. 2011-06, which set the constable salaries at $25 per month.
Meanwhile, pursuant to the circuit court’s order, Graves submitted claims for expenses in the amount of approximately $4,142 to the Greene County Clerk. The Clerk then transferred the claims to the Greene County Judge, who denied them. A hearing was held before the quorum court, and on May 10, 2011, an order was entered denying Graves’s claims for expenses. Graves then filed CV-2011-131 in the circuit court, appealing the order denying payment of the expenses he incurred while working as a constable.
On July 22, 2011, Graves filed in the circuit court CV-2011-184, a complaint for declaratory judgment seeking to have the ordinance setting the salaries for constables declared ^unconstitutional as being arbitrary and capricious. The circuit court consolidated CV-2010-66, CV-2011-131, and CV-2011-184, conducted a de novo review and, after a hearing and consideration of the pleadings filed, proof submitted through testimony and exhibits, briefs submitted and statements of counsel, denied Graves’s claim for reimbursement of expenses and found that the ordinance setting the salary for constables was not unconstitutional. Graves now brings this appeal.
Graves first contends that the circuit court erred in denying his claim for reimbursement of expenses incurred while working as a constable. He maintains that, pursuant to Arkansas Code Annotated section 14-14-1207(a), Greene County was required to reimburse him for his expenses. Greene County responds that Graves’s reliance on section 14-14-1207(a) is misplaced because that statute applies only to county and district officials and not to constables, who are township officers.
A brief review of the relevant history of section 14-14-1207(a) is helpful to an understanding of the parties’ arguments. Before it was amended in 2009, section 14-14-1207(a) provided as follows: Ark.Code Ann. § 14-14-1207(a) (Repl. 1998) (emphasis added).
(a) Reimbursement authorized. All elected county and township officers, and employees thereof shall be entitled to receive reimbursement of allowable expenses incurred in the conduct of county affairs where the incurrence of expense is not discretionary in the conduct of duties assigned by law. Reimbursement of allowable expenses which are incurred in the performance of discretionary functions may be permitted where provided for by a specific appropriation of the county quorum court.
In 2009, section 14-14-1207(a) was amended so that it now reads:
(a) Reimbursement authorized. All county and district officials and authorized deputies |4or employees thereof shall be entitled to receive reimbursement of expenses incurred in the conduct of official and nondiscretionary duties under an appropriation for the operating expenses of an office, function, or service. Reimbursement of expenses that are incurred in the performance of discretionary functions and services may be permitted when provided for by a specific appropriation of the quorum court.
Ark.Code Ann. § 14-14-1207(a) (Supp. 2011) (emphasis added); see Act of Apr. 1, 2009, No. 732, 2009 Ark. Acts 3839. Thus, the current version of the statute authorizes reimbursement for county and district officials, whereas the prior version of the statute authorized reimbursement for elected county and township officers.
We begin by determining which version of the statute applies in this case. Graves asserts that constables are both “elected township officers” and “district officials” for the purposes of reimbursement; therefore, he appears to contend that both versions of the statute are applicable. We disagree. Based on the record before us, we conclude that the current version of the statute applies in this case. Section 14-14-1207(a) was rewritten by Act 732 of 2009, which did not contain an emergency clause or a specified effective date; therefore, pursuant to amendment 7 of the Arkansas Constitution, the Act became effective ninety days after the adjournment of the legislative session at which it was enacted. See Tate v. Bennett, 341 Ark. 829, 833 n. 3, 20 S.W.3d 370, 372 n. 3 (2000). The session in which Act 732 was approved adjourned on May 1, 2009; thus, the Act became effective on July 31, 2009. See Op. Ark. Att’y Gen. No. 90 (2009). Linda Heritage, Greene County Clerk, testified that in 2011, Graves presented to her invoices and claims for payment of expenses for 2008, 2009, 2010, and “a portion” of 2011. Because Graves sought reimbursement in 2011, after the statute had been amended, the current version of the statute is applicable in this case.
1 ¿Having determined that the current version of the statute is applicable, we must now consider Graves’s argument that, as constable, he is a “district official” for the purposes of section 14-14-1207(a) (Supp.2011). The question of the correct application and interpretation of an Arkansas statute is a question of law, which this court decides de novo. E.g., Bennett & DeLoney, P.C. v. State ex rel. McDaniel, 2012 Ark. 119, 388 S.W.3d 12. The basic rule of statutory construction is to give effect to the intent of the legislature. E.g., Dachs v. Hendrix, 2009 Ark. 542, 354 S.W.3d 95. Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. We construe the statute so that no word is left void, superfluous or insignificant, and we give meaning and effect to every word in the statute, if possible. Id.
Graves offers no authority for his proposition that constables are “district officials.” But constitutional and statutory law make clear that constables are “township officers” rather than “district officials.” The office of constable was created by article 7, section 47 of the Arkansas Constitution, which states, in relevant part, that “[t]he qualified electors of each township shall elect the Constable for the term of two years.” (Emphasis added.) Arkansas Code Annotated section 14 — 14—1301(b) (Supp.2011), which is titled “Quorum Court District and Township Officers,” states in relevant part as follows:
(1) There shall be elected in each of the quorum court districts of the counties of this state one (1) justice of the peace ... who shall serve as a member of the quorum court of the county in which elected.... Each justice shall be a qualified elector and a resident of the district for which he or she is elected.
lfi(2) There shall be elected in each township, as preserved and continued in § 14-14-401, one (1) constable who shall have the qualifications and perform such duties as may be provided by law.
(Emphasis added.) Thus, justices of the peace are generally “quorum court district officers,” and constables are generally “township officers.” In addition, Arkansas Code Annotated section 14-14-604 (Repl. 1998), which involves alternative organizations of county government, states that constables “are deemed township offices.” Id. § 14-14-604(3) (emphasis added).
In sum, the plain language of section 14-14-1207(a) (Supp.2011) authorizes reimbursement for district officials. A constable is not a district official, but a township officer. Accordingly, section 14-14-1207(a) (Supp.2011) does not authorize the reimbursement of expenses for constables. The circuit court did not err in denying Graves’s claim for expenses.
Graves next contends that the Greene County ordinance setting constable salaries at $25 per month was arbitrary and capricious and therefore unconstitutional. He contends that |7the ordinance causes constables to be treated differently than other individuals working for Greene County because no other individual working for Greene County is paid $300 per year or less. On this claim, no fundamental right or suspect classification is at issue; therefore, we agree with the parties that the correct test to apply is the rational-basis test.
The Equal Protection Clause permits classifications that have a rational basis and are reasonably related to a legitimate government purpose. Bakalekos v. Furlow, 2011 Ark. 505, at 13, 410 S.W.3d 564, 573. Equal protection does not require that persons be dealt with identically; it only requires that classification rest on real and not feigned differences, that the distinctions have some relevance to the purpose for which the classification is made, and that their treatment be not so disparate as to be arbitrary. Id. at 13-14, 410 S.W.3d at 573. When reviewing an equal-protection challenge, it is not this court’s role to discover the actual basis for the legislation. Id. at 14, 410 S.W.3d at 573. Rather, we consider whether there is any rational basis that demonstrates the possibility of a deliberate nexus with state objectives so that legislation is not the product of arbitrary and capricious government purposes. Id. at 14, 410 S.W.3d at 573. If a rational basis exists, the statute, or, in this case, the ordinance, will withstand constitutional challenge. See id., 410 S.W.3d at 573.
An ordinance is entitled to the same presumption of validity that legislative enactments receive. E.g., Morningstar v. Bush, 2011 Ark. 350, at 7, 383 S.W.3d 840, 845. Under the rational-basis test, the ordinance is presumed constitutional and rationally related to achieving |Rany legitimate governmental objective under any reasonably conceivable fact situation. See Bakalekos, 2011 Ark. 505, at 14, 410 S.W.3d at 573. Thus, similar to a statute, an ordinance is presumed constitutional, and the burden of proving otherwise is on the challenging party. Morningstar, 2011 Ark. 350, at 7, 383 S.W.3d at 845.
When Graves filed his February 26, 2010 complaint to compel the quorum court to set a salary for constables, the law provided that “[t]he compensation of all constables serving in an official capacity established by law shall be fixed by ordinance of the quorum court in each county.” Ark. Code Ann. § 14-14-1205(d) (Supp.2009). The quorum court fixed the salary for constables at $25 per month, and Graves asserts that this amount is unreasonable. In support of this claim, Graves cites Arkansas Code Annotated section 16-19-301 (Repl.1999), which outlines the responsibilities of constables. Duties of constables include suppressing all riots, affrays, fights, and unlawful assemblies; keeping the peace; and arresting offenders. Id. § 16-19-301(a). Constables have the authority to serve warrants, summonses, writs, and other process as provided by law. Id. § 16-19-301(c). A constable who fails to perform the duties imposed upon him or her by statute may be subject to criminal liability. Id. § 16-19-301(f).
In further support of his claim that the salary is unreasonable, Graves points to his testimony at the hearing before the circuit court. Graves testified that he dedicated between |9two and sixteen hours a day to his duties as constable and that during his term as constable, he regularly patrolled his township and received calls from citizens “about someone trespassing or various things.” He further testified that he was on call twenty-four hours a day.
Graves avers that based on the statutory duties imposed on constables and the time and effort they devote to their office and the people they serve, a reasonable salary for constables is $30,000 per year. He contends that there is nothing in the record from which the circuit court could have properly found a rational basis for a salary of $25 per month. We disagree.
The record reflects that, at the hearing before the circuit court, Graves was asked whether he had performed any of the statutory duties of constables delineated in Arkansas Code Annotated section 16-19-301. He testified that during 2008, 2009, 2010, 2011, and 2012, he never had to suppress riots, fights, or unlawful assemblies within his township. He further tes tified that, during those years, he did not issue any traffic or misdemeanor citations, and he did not present any summons to a jury. Graves testified that on two occasions during those years, he received calls from county officials “informing [him] of what was going on in [his] area,” but not requesting any assistance from him. In addition, as Greene County points out, when setting the salary for constables, the quorum court considered the duties performed by constables at county request and reviewed the salaries of constables from other counties in the state. The evidence and testimony before the circuit court demonstrates that |inthe quorum court had a rational basis for setting the $25-per-month salary for constables.
Affirmed.
. The statute also authorizes reimbursement for county officials. See Ark.Code Ann. § 14-14~1207(a) (Supp.2011). In his opening brief, Graves argued that he was both a "district official” and a "township officer” for the purposes of the reimbursement statute, but he did not argue that he was a "county official” under the statute. In his reply brief, however, Graves contended that constables were both township officials and county officials under the statute. Although Graves’s reply argument may be considered a response to Greene County’s assertion that section 14-14-1207(a) (Supp.2011) applies only to county and district officials, Graves essentially raised for the first time in his reply brief the argument that a constable is a county official under the reimbursement statute. This court will not consider arguments raised for the first time in an appellant’s reply brief because the appellee is not given a chance to rebut the argument. See, e.g., Coleman v. Regions Bank, 364 Ark. 59, 216 S.W.3d 569 (2005).
. By way of comparison, Graves states that the maximum salary for Greene County quorum court members is $8734 and that the Greene County Sheriff's salary can range from $33,000 to $79,005 per year.
. In 2011, the statute was amended; it now states that "[t]he compensation of all constables serving in any official capacity established by law may he fixed by ordinance of the quorum court in each county.” Ark.Code Ann. § 14-14-1205(d) (Supp.2011) (emphasis added).
. Many of the counties paid no salary for constables. For those counties paying sala-ríes, amounts ranged from $1 to $300 per year. | [
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ROBERT L. BROWN, Justice.
This case began as a criminal action filed in Van Burén County District Court by the appellant, City of Clinton (the City), against the appellee, Southern Paramedic Services, Inc. (Southern Paramedic), alleging that Southern Paramedic violated two of the City ordinances, 2005-22 and 2005-23, which prohibited an entity from engaging in the ambulance business within the City without first obtaining a franchise from the City Council. Ordinances 2005-22 and 2005-23, were passed on October 25, 2005. The ordinances further prohibited any entity from offering or providing an “intra city ambulance service of any kind” or providing “any intercity ambulance service of any kind that originated within the city limits of Clinton 12without having first obtained a franchise.” The City reserved the right to grant an exclusive franchise to any business that provided ambulance service for operation within the city of Clinton.
The dispute in this appeal centers on the proper interpretation of a specific phrase in Arkansas’s Municipal Ambulance Licensing Act, codified at Arkansas Code Annotated sections 14-266-101 to -110. Under the Act, cities like Clinton are authorized to franchise ambulance services whether municipally owned or otherwise. Ark. Code Ann. § 14-266-105(a)(2) (Repl. 1998). Cities like Clinton are further permitted to “regulate all intracity patient transports, all intercity patient transports, and all intracounty patient transports originating from within the regulating city.” Ark.Code Ann. § 14-266-105(a)(5) (Repl. 1998). There is, however, a limitation to such cities. They “shall not restrict or allow local regulation of not-for-hire on a fee-for-service basis transportation, any in-tercounty patient transports, or intercity patient transports to or from medical facilities within the regulating city originating from anywhere outside the regulating city.” Ark.Code Ann. § 14-266-105(a)(5) (Repl.1998) (emphasis added). Thus, if an ambulance service provider is “not-for-hire on a fee-for-service basis,” it is exempt from regulation under the Act. The crux of this appeal is whether Southern Paramedic qualifies for the exemption as such a provider under subsection 105(a)(5).
|sIn 2005, the City granted an exclusive franchise to Vital Link, an ambulance provider, under ordinances 2005-22 and 2005-23. Notwithstanding this grant, Southern Paramedic undisputedly responded to calls originating within the City from Van Bu-rén Hospital (Hospital) and transported patients from the Hospital to locations outside of Van Burén County. The City filed a criminal action against Southern Paramedic in district court, asserting that it had violated the City ordinances. Under ordinance 2005-22, each transport was a separate violation with a possible punishment of not less than $100 and not more than $500 per transport.
Southern Paramedic answered that, under Arkansas Code Annotated section 14-266-102, the City was not authorized to regulate by exclusive franchise any inter-county patient transports, even if they originated within the City. The district court found that the statute was ambiguous, and it issued a nolle prosequi order on November 2, 2007, finding that it would be “far more appropriate for the issue of construction of the relevant statute, Ark.Code Ann. section 14-266-105(a)(5), to be determined in a Civil Court forum.”
On December 7, 2007, the City filed a declaratory-judgment action in the Van Burén County Circuit Court against Southern Paramedic and others seeking an interpretation of section 14-266-105. An amended complaint for declaratory judgment was filed in circuit court on January 4, 2008. A counterclaim was subsequently filed by Southern Paramedic against the City. All of the defendants other than Southern Paramedic were later dismissed by the circuit court.
|4On April 16, 2009, the circuit court entered a judgment order finding that the only remaining defendant was Southern Paramedic. The court also found that it was undisputed that the Hospital is owned solely by Van Burén County and lies within the City. Unlike the district court, the circuit court found that section 14-266-105 was not ambiguous. The circuit court found that if a call originated -within the City for transportation within the City or to another city or unincorporated area within Van Burén County, the City could exclusively franchise the provision of ambulance services. If the call originated outside of the City, it could not regulate the ambulance service absent an agreement -with the other city or county, even if the call was for pick-up or drop-off at the Hospital located in the City. The court added that the City was not permitted to regulate the following ambulatory transports via exclusive franchises: (1) Not-for-hire on a fee-for-service basis transportation; (2) Any patient transports between counties; and (3) Any patient transports between cities to or from medical facilities within the City that originate outside the City.
On June 18, 2009, Southern Paramedic filed a “Petition for Further Relief and for Order to Show Cause.” In this petition, Southern Paramedic asserted four grounds for relief: (1) That it could not be restricted or locally regulated, via city ordinances, because it is a provider of “not-for-hire on a fee-for-service basis” transportation under Arkansas Code Annotated section 14-266 — 105(a)(5); (2) Tortious interference; (3) Inverse condemnation; and (4) Constitutional challenges to the City ordinances 2009-05 and 2009-06, as lacking any legitimate governmental purpose. Southern Paramedic also moved for temporary in-junctive | ¡(relief, requesting that the circuit court temporarily enjoin the City from forcing Southern Paramedic to vacate its business location and remove all of its operations from within the City.
The City responded and denied that Southern Paramedic operated on a “not for hire on a fee for service” basis. The City also asserted that Southern Paramedic’s petition failed to state facts upon which relief could be granted, as well as other defenses. The City requested that the circuit court order Southern Paramedic to comply with City ordinances and not accept any ambulance transport where the transport originates in the City.
Southern Paramedic then moved to dismiss all counts raised in its “Petition for Further Relief’ with the exception of Count 1, which sought interpretation of the term “not-for-hire on a fee-for-service basis” contained in section 14 — 266—105(a)(5). Later, the City also moved the court to interpret the same term and agreed to the dismissal of all other claims. On August 27, 2009, the circuit court entered an order granting Southern Paramedic’s motion and dismissed, without prejudice, the remaining claims.
On July 21, 2011, the circuit court entered an order interpreting the term “not-for-hire on a fee-for-service basis” in section 14-266-105(a). In that order, the court specifically found: “The City of Clinton no longer has a franchise agreement, however, both sides |fistipulate to and wish for this Court to interpret the statute in order to provide the City of Clinton and other related entities direction regarding how to proceed in the future.” In addition, the circuit court found that “[w]hile the issue may be currently moot, both sides stipulate it is capable of repetition yet evading review. The sides stipulate the City of Clinton would like to enter into an exclusive franchise in the future.”
Regarding the phrase “not-for-hire on a fee-for-service basis,” the circuit court found that the plain meaning of the term was “the ambulance service is not available for hire by the general public where payment would be per transport.” Based on undisputed facts, the circuit court found that “if the City of Clinton once again entered into a franchise agreement with an ambulance service other than [Southern Paramedic], [Southern Paramedic] would be exempt from transports from the Hospital to the patient’s home or another medical facility. This is provided [Southern Paramedic] remains ‘not for hire’ to the general public within the City of Clinton.” The City now appeals from that decision.
The first issue that this court must resolve is whether the appealed question is moot. To reiterate, the circuit court found that the City no longer had a franchise agreement for ambulance service but both sides stipulated to and wanted the Court to interpret section 14-266-105(a) to provide the City and other related entities future direction. In reaching its conclusion, the circuit court said:
Therefore, with the agreement of both parties the Court finds as follows: If the City of Clinton enters into an exclusive franchise with an ambulance service other than [Southern Paramedic] under the Act, [Southern Paramedic] would be exempt for ambulance transport assignments derived from the Hospital for transports |7to patients’ homes or another medical facility. [Southern Paramedic] could not accept fee for service patient initiated transports within the City of Clinton.
(Emphasis added.) The circuit court also found that the issue was “capable of repetition yet evading review” because the City might enter into a franchise agreement with an entity other than Southern Paramedic in the future.
As a general rule, the appellate courts of this state will not review issues that are moot. Terry v. White, 374 Ark. 387, 391, 288 S.W.3d 199, 202 (2008). To do so would be to render advisory opinions, which this court will not do. Id. We have generally held that a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. Id. In other words, a moot case presents no justiciable issue for determination by the court. Id.
It is clear that city ordinances 2005-22 and 2005-23, and the subsequent amendments to those ordinances in 2009, were an integral part of the City’s declaratory-judgment action because they provided for the exclusive franchise agreements. The circuit court’s April 16, 2009 judgment order, interpreting section 14-266-105, for example, stated that the City’s declaratory-judgment action arose from the City’s decision to enter into an exclusive franchise for the provision of ambulatory services. The circuit court also found that the City had passed the ordinances, which included criminal sanctions for violations, and proceeded to award an exclusive franchise to Vital Link.
In its subsequent “Petition for Further Relief,” Southern Paramedic asked for a decision on its specific status and requested that the circuit court amend its April 16, 20091 judgment order and declare that “transporting patients by ambulance service that is not available for hire and receives a fee for such service as determined exclusively by Medicare is exempt from local regulation or restriction pursuant to Ark. C. Ann. § 14-266—105(a)(5) as ‘not-for-hire on a fee-for-serviee basis transportation’ and is therefore exempted from regulation by Clinton ordinance.” In addition, Southern Paramedic requested that the circuit court amend the order to declare “that Clinton Ordinance Numbers 2009-05 and 2009-06, as adopted, are unconstitutional, and permanently enjoining their enforcement.” Unquestionably, the 2005 and 2009 ordinances were an essential part of the City’s original declaratory-judgment action and Southern Paramedic’s petition for further relief. However, at the time the circuit court entered its July 21, 2011 order, the ordinances had all been repealed.
This court has recognized two exceptions to the mootness doctrine, one of which involves issues that are capable of repetition, yet also of evading review. Terry, 374 Ark. at 393, 288 S.W.3d at 203 (citing Honeycutt v. Foster, 371 Ark. 545, 268 S.W.3d 875 (2007)). The other mootness exception concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. Terry, 374 Ark. at 393, 288 S.W.3d at 203.
Because the specific ordinances at issue have been repealed, the issue of whether Southern Paramedic is subject to those ordinances is moot, unless one of the two exceptions applies. The circuit court found that the issue raised was capable of repetition yet of evading review. We note, though, that the circuit court’s own findings belie that determination. For |9one thing, the circuit court based its finding on the fact that the City might enter into a franchise agreement with an entity other than Southern Paramedic in the future. It is clear from this language that there was no justiciable issue between the parties because the determination would only apply if (1) the City entered into a franchise agreement again, (2) the franchise agreement was not with Southern Paramedic, and (3) either of the parties would pursue legal action in the future. In order for the issue to be repeated, the City would have to adopt new ordinances and grant an exclusive franchise to a provider other than Southern Paramedic. There is no way to forecast the content of such future ordinances or when, if ever, they would be adopted. Furthermore, the issue of whether Southern Paramedic is “not-for-hire on a fee-for-serviee basis” and not subject to the City’s regulation is moot because the ordinances under which the City sought to regulate Southern Paramedic have been repealed.
There is a second exception to the mootness doctrine. When a case involves a significant public interest, or a decision might avert future litigation, this court has, with some regularity, refused to permit mootness to become the determinant. See, e.g., Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997) (finding that the ability of public employees to withhold their services involves a question of significant public interest, the resolution of which would certainly preclude future litigation); Richie v. Bd. of Educ. of Lead Hill Sch. Dist., 326 Ark. 587, 933 S.W.2d 375 (1996) (declining to dismiss for mootness an appeal by a student to the school board of a suspension despite the fact that the student had already served the suspension because the issue was one of public importance and one subject 1 into repetition); Campbell v. State, 300 Ark. 570, 781 S.W.2d 14 (1989) (interpreting art. 5, § 9 of the Arkansas Constitution to mean that a public official becomes subject to removal when convicted by a plea of guilty or a verdict of guilty in circuit court of a crime defined by the article, even though the official’s term had expired before this court heard the appeal).
On the surface, the issue of when a municipality can grant an exclusive franchise to an ambulance service provider appears to fall into the category of one involving significant statewide public interest. The Arkansas Ambulance Association, as amicus curiae, for example, asserts that the potential impact of a decision regarding Municipal Ambulance Franchise Agreements is statewide and goes far beyond the dispute between Southern Paramedic and the City. However, in each of the cases cited above, the underlying policy, statute, or constitutional provision was intact at the time the appeal was heard by this court. Thus, they are distinguishable from the City ordinances granting an exclusive franchise for ambulance service, which were repealed before the circuit court entered its order in 2011 and the present appeal was ever lodged.
We are convinced that any opinion handed down by this court based on repealed ordinances and a nonexisting franchise procedure would simply be an advisory opinion. See Allison v. Lee County Election Comm’n, 359 Ark. 388, 198 S.W.3d 113 (2004). Although the parties stipulated that the issue could be repeated, the fact remains that the ordinances have been repealed and this court will not issue an advisory opinion in what amounts to a friendly lawsuit. MacSteel Div. of Quanex v. Ark. Oklahoma Gas Corp., 363 Ark. 22, 36, 210 S.W.3d 878, 886-87 (2005) (holding that an action for declaratory judgment may not be maintained | nwhere there is no controversy between persons whose interests are adverse). The stipulation of the parties that the statute should be interpreted in order to provide guidance to future parties cannot usurp the proper administration of justice. See Beulah v. State, 352 Ark. 472, 101 S.W.3d 802 (2003).
There is one other point that we must consider and that is the viability of the circuit court’s July 21, 2011 order. By the circuit court’s own admission, this dispute between the City and Southern Paramedic was moot at the time of the court’s order due to the repeal of the ordinances and absence of a franchise agreement. As the circuit court made clear, the parties wanted a decision even though the matter was admittedly moot. The court added at that time that it and the parties believed the issue of the status of an ambulance company could arise again and yet evade review because of new ordinances. As already noted in this opinion, we disagree and consider that scenario highly speculative. Again, we view this matter after the repeal of the ordinances as one that is moot, that does not fall under either of the two exceptions, and that will lead to an advisory opinion from this court.
But the issue was also moot when the circuit court decided it in 2011, which raises the question of the effectiveness of the circuit court’s order. In Warren Wholesale Co., Inc. v. McLane Co., Inc., the issue was the validity of section 15 of the Rules and Regulations of the Arkansas Tobacco Control Board. Warren, 374 Ark. 171, 172, 286 S.W.3d 709, 709 (2008). The appellants filed a declaratory-judgment action, and the case was ultimately transferred to the Pulaski County Circuit Court. Id. at 173, 286 S.W.3d at 709. Being unsatisfied with the decision of the circuit court, the appellants lodged an ap peal with this court. While the appeal |12was pending, the Board promulgated a completely new version of section 15 and repealed the version of section 15 that was challenged by the declaratory-judgment action. This court held that the appeal was moot because the agency regulation being challenged was no longer in effect and, therefore, there was no longer a justiciable issue between the parties. Id. at 175, 286 S.W.3d at 712. This court dismissed the appeal as moot but remanded the case for entry of a decree stating that the grounds “upon which the trial court relied for entering the declaratory judgment and injunction have become moot by the repeal of the challenged section.” Warren, 374 Ark. at 176, 286 S.W.3d at 712.
In Warren, the issue became moot after entry of the circuit court order. In the instant case, the case was moot when the circuit court heard it in 2011. Nevertheless, the Warren case with respect to the circuit court’s authority in the case before us is analogous. We hold that this case is moot not only for purposes of the appeal today but was moot at the time the circuit court entered its July 21, 2011 order. We dismiss the appeal because of mootness and remand with directions for entry of an order by the circuit court stating that the grounds upon which it relied for entering the July 21, 2011 declaratory-judgment order were moot at that time due to the repeal of the City ordinances. Accordingly, the circuit court’s order was advisory and of no effect.
Appeal dismissed as moot; remanded with directions.
. Clinton City Ordinance Numbers 2009-05 and 2009-06 were adopted on March 24, 2009, to amend ordinances 2005-22 and 2005-23. Under both the 2005 and 2009 ordinances, Vital Link was granted an exclusive franchise to operate the sole EMS/ambulance service and provide emergency and medically necessary medical services within the city limits of the City of Clinton. Both the 2005 and the 2009 ordinances have since been repealed.
. This order was filed on August 31, 2009. We recognize that where there is a voluntary nonsuit and the circuit court’s order and dismissal are without prejudice, a Rule 54(b) finality issue might arise. See, e.g., Haile v. Ark. Power & Light Co., 322 Ark. 29, 907 S.W.2d 122 (1995) (holding that a plaintiff may not take a voluntary nonsuit as to some of its claims and then appeal from the circuit court’s order disposing of the plaintiff’s other claims because a voluntary nonsuit without prejudice leaves the plaintiff free to refile the claim under certain circumstances). Under the facts of this case, we find that there is no finality problem. | [
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ROBERT J. GLADWIN, Judge.
| ¶ This appeal follows the March 2, 2011 order of the Pope County Circuit Court awarding appellees Mobley Law Firm, P.A. and Alfred Jefferson Mobley an attorney’s fee in the amount of $20,555.55. Appellants Cordy Hooten, Randy Hooten, as well as appellant Terry Hooten, individually and as administrator of the estate of Sammy Hooten, argue that the circuit court erred (1) in finding that appellees’ claims were not barred by res judicata and collateral estoppel; (2) in finding that ap-pellees were entitled to a one-third percentage of $61,666.66; and (3) in calculating of appellees’ attorney fee in the amount of $11,902.47. We find merit in appellants’ argument and reverse and dismiss.
19Facts
Sammy Hooten died on June 15, 2001. At the time of his death, Sammy Hooten was married to Jacqueline Jensen Hooten and had three children, Randy Hooten, Terry Hooten, and Cordy Hooten. A petition for appointment of special administrator was filed June 19, 2001. Terry Hooten entered his appearance in PR-2001-137 by signing the initial pleadings opening the estate. On June 19, 2001, Cordy Hooten and Randy Hooten entered their appearances in the circuit court “for all purposes.” Terry Hooten was appointed special administrator on June 19, 2001, pursuant to Arkansas Code Annotated section 28-48-103 (Repl.2004). Appellants were all parties to the three initial actions filed by appellees on their behalf in the Circuit Court of Pope County, Probate Division against Jacqueline Hooten. All three lawsuits were dismissed with prejudice on December 30, 2004. The dismissals were appealed to this court, bearing Case Number CA 05-742, and this court affirmed the dismissals in Hooten v. Jen sen, 94 Ark.App. 130, 227 S.W.3d 431 (2006), on February 8, 2006.
Twenty months later, on November 30, 2007, Ms. Hooten filed a petition to settle her dower claims for the sum of $5,000.00. The order settling the same was entered on December 6, 2007. On December 21, 2007, appellees filed a petition approving an attorney contract of employment, on behalf of appellants, and requested that they be paid $13,042.77 for costs and expenses. The petition was neither verified by appellants, as required by Arkansas Code Annotated section 28-1-109 (Repl.2004), nor were appellants given notice of the petition prior to its being approved. The fee agreement nevertheless was approved by the circuit court on January 10, 2008.
On May 13, 2008, appellees were terminated as counsel for appellants. On June 13, 2008, appellant Terry Hooten filed a motion requesting that the approval of the fee agreement be set aside because the petition to approve it was filed without appellants’ knowledge or consent. On August 4, 2008, appellees filed their affidavit to claim against the estate, requesting $42,365.50 for attorneys fees and $15,198.60 for expenses. The claim was for fees and costs for litigating the prior contingent claims that were dismissed and for a percentage of the alleged dower value of the estate. Appellants filed their objection to the claim on August 7, 2008. The circuit court, in a letter opinion dated December 2, 2008, and file marked December 4, 2008, found that appellees were committed to pursuing the obligations set out in the fee agreement and contracted to receive payment from successful litigation or settlement, that there was none, and accordingly, denied appellees any relief. The order dismissing appellees’ claim with prejudice was entered on January 29, 2009, and no appeal was taken from that order.
Appellees subsequently filed a complaint against appellants in a lawsuit seeking damages pursuant to the fee agreement and quantum meruit/unjust enrichment, alleging they settled dower claims valued at $66,666.66 for the sum of $5,000.00, leaving an excess of $61,666.66 for appellants. Following a timely answer to the complaint, appellants filed a motion for summary judgment on the basis that appellees’ claims were barred by res judicata and collateral estoppel based on the December 2, 2008 order. The circuit court denied the motion on March 16, 2010.
The circuit court later clarified its ruling, stating that (1) it denied appellants’ motion for summary judgment because ap-pellees’ current complaint was based on breach of contract and quantum meruit/un-just enrichment; (2) relief was not litigated in the former case and was not available at that time; (3) both suits were not fully contested; (4) both suits did not involve the same claim or cause of action; and (5) appellees did not have a full and fair opportunity to be heard. The parties agreed to have the matter concluded on a series of briefs submitted by each party, after which a hearing took place on January 5, 2011. The circuit court found that appellees were entitled to $20,555.55 — one-third of the balance of the value of the dower claim that was settled in the first case — and also awarded appellees an attorney’s fee in the amount of $11,902.47, finding that there was a breach of the fee agreement. The order was filed on March 2, 2011, and appellants filed a timely notice of appeal on March 30, 2011.
Standard of Review
An award of attorney’s fees will not be set aside absent an abuse of discretion by the circuit court. Estate of Coan v. Gaughan, 2010 Ark. App. 616, 378 S.W.3d 201. While the decision to award attorney’s fees and the amount awarded are reviewed under an abuse-of-discretion standard, we review factual findings made by the circuit court under a clearly erroneous standard of review. Id. On appellate review, however, we do not defer to a circuit court’s conclusions of law. Baldwin v. Eberle, 2009 Ark. App. 222, 301 S.W.3d 475.
Discussion
I. Res Judicata
The doctrine of res judicata has two aspects: claim preclusion and issue preclusion. Bisbee v. Decatur State Bank, 2010 Ark. App. 459, 376 S.W.3d 505. The purpose of res judicata is to end litigation by preventing a party from relitigating a matter in which it already had an opportunity to be heard. Powell v. Lane, 375 Ark. 178, 289 S,W.3d 440 (2008). Res judicata bars relitigation of a subsequent suit when (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action; and (5) both suits involve the same parties or their privies. Jayel Corp. v. Cochran, 366 Ark. 175, 234 S.W.3d 278 (2006). When a case is based on the same events of the subject matter of the previous litigation, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Id. Res judicata bars relitigation of claims that were actually litigated in the first suit as well as those that could have been litigated. Winrock Grass Farm, Inc. v. Affiliated Real Estate Appraisers of Ark., Inc., 2010 Ark. App. 279, 373 S.W.3d 907. Strict privity in the application of res judicata is not required. Parker v. Perry, 355 Ark. 97, 131 S.W.3d 338 (2003). Instead, for privity, there only needs to be a substantial identity of the parties. Id.
Appellants argue that the circuit court erred in finding that appellees’ claim for attorney fees was not barred by res judi-cata and collateral estoppel. Appellees, however, assert that the key question regarding the application of res judicata is whether the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the claim in question. Winrock, supra. They urge that in the instant case, the parties did not have a full and fair opportunity to litigate the claim. Appellees also claim, at a more basic level, that res judicata cannot be applied if one of the five elements is missing, and that in this case, three elements are missing. We hold that the circuit court did err in finding that res judi-cata did not apply to appellees’ claim for attorney’s fees. Each requirement of the doctrine will be discussed independently.
A. Final Judgment.
Neither party disputes that the denial of a claim against an estate is a final judgment. In the initial case, the circuit court denied appellees any relief on their claim for fees, which resulted in a final judgment on the merits in favor of appellants. Appellants correctly assert that if appellees felt aggrieved by the final judgment, their means of redress was by appeal.
Appellees contend that there was neither a final judgment on the merits nor a full contest of the claim relevant to this appeal. They characterize the previous claim in the probate proceeding as one based on services provided in the administration of the estate, while maintaining that the claim currently before the court is a breach-of-contract claim asserting unjust enrichment against heirs of the estate. Appellees urge that this claim was not litigated in the probate proceeding; accordingly, there was no final judgment on the merits on the breach-of-contract claim.
We find no merit in appellees’ proposed distinction between the claims of the first and second lawsuits under these particular facts. The appellants were all parties to the initial lawsuit in their individual capacities, and while the semantics of the causes of action changed in the second lawsuit because of the circuit court’s erroneous determination that the claims could not be heard in the probate case, we hold that there was a final judgment as to the merits of the claims relevant to this appeal.
B. Jurisdiction.
In the first lawsuit, the circuit court found against appellees on the claim for breach of contract and denied appellees any relief on the basis of quantum meru-it/unjust enrichment, because it believed “the application of equitable principles” was unavailable in the probate court. We disagree. Since the passage of Amendment 80 to the Arkansas Constitution in 2000, there is no longer a need to elect in which court to file a lawsuit. See First Nat’l Bank of DeWitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005). Jurisdictional lines that previously caused cases to be divided and litigated in different courts have been eliminated. Id. Amendment 80 merged the probate, chancery, and circuit courts, and now circuit courts are established as the trial courts of original jurisdiction of all justiciable matters not otherwise assigned pursuant to the Arkansas Constitution. Id. With the implementation of Amendment 80, circuit courts, and the probate division thereof, have added to their already existing jurisdiction as a court of law the chancery court’s equitable jurisdiction that existed prior to adoption of the Amendment. Id.
Appellees note that Act 1185 of 2003 was passed by the General Assembly to adopt technical corrections for the implementation of Amendment 80. This act modified Arkansas Code Annotated section 28-1-104 to its present-day form. The statute provides that in probate proceeding, the circuit court shall have jurisdiction over (1) the administration, settlement, and distribution of estates of decedents; (2) the probate of wills; (3) the persons and estates of minors; (4) persons of unsound mind and their estates; (5) the determination of heirship or of adoption; (6) the restoration of lost wills and the construction of wills when incident to the administration of an estate; and (7) all such other matters as are provided by law. Ark.Code Ann. § 28-1-104 Repl. (2003).
Appellees urge that appellants’ argument is not consistent with the relevant statutory law because none of the provisions of section 28-1-104 allow for a breach-of-contract claim to be brought against an heir of an estate in a probate proceeding. Appellees acknowledge that if, instead, this was a case against the estate for breach of contract, the circuit court would have had jurisdiction to hear the claim in a probate proceeding. Appel-lees allege that their claim against the heirs individually, however, did not fall within the circuit court’s jurisdiction in the probate proceeding and could not have been raised in the probate proceeding.
We hold that the circuit court was mistaken and that the first lawsuit was the proper forum for determining the validity of appellees’ claims, both legal and equitable. Cruthis, supra. Appellees should have appealed the initial order. In the second lawsuit, counsel for appellants made the argument that the circuit court had equitable jurisdiction in the first case, but the circuit court again erroneously disagreed. Amendment 80 granted the circuit court jurisdiction to rule on all claims of relief, legal and equitable; therefore, jurisdiction was proper in the first lawsuit, and that suit fully and finally settled all issues between appellants and appellees.
C. Same Parties.
Both lawsuits involve the same parties. In the first case, appellees filed their affidavit of claim against the estate on July 31, 2008. Appellant, Terry Hoo-ten, had already entered his appearance individually and as special administrator to the estate of Sammy Hooten in the case by signing the initial pleadings. Appellants Cordy Hooten and Randy Hooten entered their appearances “for all purposes” as well. In the second case, appellees sued appellants for breach of contract. Appel-lees Mobley Law Firm, P.A. and Jeff Mob-ley were parties, appellant Terry Hooten was a party (both individually and as administrator of the estate of Sammy Hoo-ten), appellant Cordy Hooten was a party, and appellant Randy Hooten was a party. The circuit court found that all the same parties were involved, and we agree.
D. Same Claims.
We also hold that both lawsuits involved the same claims and same causes of action. In the first lawsuit, appellees filed a claim against the estate based on the fee agreement. In their response to appellants’ objection to the claim, appellees pled breach of contract and quantum me-ruit/unjust enrichment. In the first case, the circuit court found that because there was no successful litigation or' settlement, appellees were not entitled to any relief under the fee agreement and found that appellants did not breach the fee agreement. The circuit court also denied any relief for quantum meruit/unjust enrichment on its belief that the application of equitable principles were unavailable. Ap-pellees’ claim against the estate was dismissed with prejudice.
The second lawsuit again requested relief for breach of contract and quantum meruit/unjust enrichment. The circuit court repeatedly denied appellants’ defense of res judicata and collateral estoppel on the basis that quantum meruit/unjust enrichment were not litigated in the first lawsuit. The circuit court found for appellees in the second lawsuit and ruled that appellants breached the fee agreement and awarded appellees an attorney’s fee. It is undisputed that the first lawsuit resulted in a dismissal on appellees’ same basic claims for breach of contract.
Appellees reiterate that the claim before the court is against the heirs of the estate and is based on appellants inheriting the relinquished dower share of the estate through the successful efforts of appellees in negotiating a settlement with Ms. Hoo-ten and on appellants failing to pay the agreed upon contingency fee after receiving their inheritance with the increased value of $61,666.66. Appellees’ claim in the probate proceedings was brought against the estate under section 28-48-108(d)(2) for services provided to the estate, although the probate court found that appellees had otherwise contracted and denied the claim. They urge that the element of same claim or cause of action is not present in this case because the claim is against heirs of the estate for not paying a contingency fee owed as a result of a settlement and that the prior claim was against the estate for the provided ser vices. Appellees claim that they demonstrated this in their second complaint by not including appellant Terry Hooten in his capacity as the administrator of the estate of Sammy Hooten.
Appellees argue that further evidence that the claims were different is that the present claim did not exist in January 2009 when the order was entered denying their claim against the estate. They argue that the settlement increased the value of the estate pursuant to the two orders in March 2009. They assert that any claim against the heirs in the probate proceeding would have been premature as they had yet to receive the benefit of the settlement at that time. This argument fails as the circuit court entered a nunc pro tunc order to settle the dower claims on January 10, 2008. This order was entered nunc pro tunc to December 20, 2007, and indicated the settlement was paid as of that date. Therefore the settlement was in effect and was subject to the order denying the fees, and therefore could have been litigated.
E. Contested in Good Faith.
There was no allegation that the first lawsuit or the second lawsuit was not litigated in good faith. Neither party ever raised the issue. The circuit court never used it as one of the reasons for denying appellants relief under res judicata. Therefore, the good faith element of res judicata need not be addressed.
II. Collateral Estoppel
Appellants also assert that ap-pellees’ claims were barred by collateral estoppel. To apply collateral estoppel, the following elements must be present: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) that issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. State Office of Child Support Enforcem’t v. Willis, 347 Ark. 6, 59 S.W.3d 438 (2001). “Actually litigated” means that the issue was raised in pleadings, or otherwise, that the defendant had a full and fair opportunity to be heard, and that a decision was rendered on the issue. See Powell, supra. Unlike res judicata, collateral estoppel does not require mutual identities of parties and a stranger to the first decree may assert it as a defense in a subsequent action. Winrock, supra.
Appellees acknowledge that the elements for collateral estoppel are very similar to those of res judicata, and they reiterate that not all of the elements are present in this case, thus also barring the application of collateral estoppel. They argue that the missing “collateral estop-pel” elements are that (1) the same issue of a previous case is not involved, (2) the relevant issue was not actually litigated, and (3) the relevant issue was determined by a valid and final judgment.
The elements involved and the analysis thereof are substantially similar under collateral estoppel and res judicata. Accordingly, we refer to the previous discussion with respect to this argument. Additionally, because of our determination that ap-pellees’ claims are barred by res judicata and collateral estoppel, we need not address the arguments regarding the specific amounts awarded.
Reversed and dismissed.
ROBBINS and HOOFMAN, JJ., agree.
. This appeal involves several separate cases that were consolidated and appealed to this court in Hooten v. Jensen. The record in Hooten v. Jensen was previously lodged in this court, in the case styled Terry Hooten v. Jacqueline “Jackie” Jensen, CA 05-742, and all cases from the circuit court, prior to and following the previous appeal, were consolidated into the CA 05-742 case file. | [
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Motion for Rule on Clerk.
PER CURIAM.
| TAppelIants filed a timely notice of appeal in this case on September 8, 2008, making the record with the transcript of testimony due to be filed on December 8, 2008. On November 12, 2008, appellants filed a motion for extension of time to file the transcript because the court reporter indicated that the transcript would not be prepared by the deadline. That same day, the circuit court entered an order granting appellants’ motion and extending the deadline to March 1, 2009.
Appellants attempted to file the transcript on February 24, 2009, but the Arkansas Supreme Court Clerk refused to accept it. Counsel for appellants was notified that he must file a motion for rule on clerk because the circuit court’s order did not meet the requirements for Arkansas Rule of Appellate Procedure — Civil 5(b)(1), which provides:
(1) If any party has designated steno-graphically reported material for inclusion in the record on appeal, the circuit court, by order entered before |2expiration of the period prescribed by subdivision (a) of this rule or a prior extension order, 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 heai'ing or by responding in writing;
(D) The appellant, in compliance with Rule 6(b), has timely ordered the steno-graphically reported material from the court reporter and made any financial arrangements required for its preparation; and
(E) An extension of time is necessary for the court reporter to include the stenographically reported material in the record on appeal.
In this case, the court’s order states only that the court reporter would be unable to complete the record and that the extension of time would be granted; it contains none of the other findings required by Rule 5(b). This court has held that we expect strict compliance with the requirements of Rule 5(b) and that we do not view the granting of an extension as a mere formality. See Charles R. Griffith Farms, Inc. v. Grau man, 373 Ark. 410, 284 S.W.3d 68 (2008) (per curiam); Lancaster v. Carter, 372 Ark. 181, 271 S.W.3d 522 (2008) (per curiam). Where an order fails to comply with Rule 5(b), we may remand the matter to the circuit court for compliance with the rule. See Grauman, supra.
Upon a remand for compliance with Rule 5(b)(1), the circuit court shall determine whether the rule was complied with at the time the original motion for extension of time |swas filed and granted. Id. The circuit court should not permit the parties the opportunity to correct any deficiencies, but instead should make the findings required by the rule as if they were being made at the time of the original motion. Id. Should the requirements not have been met at the time of the initial motion for extension and order, the circuit court’s order upon remand should so reflect and be returned to this court. Id.
Because the order of extension in this case makes no reference to each of the findings of the circuit court required by the rule, and because there must be strict compliance with the rule, we remand the matter to the circuit court for compliance with Rule 5(b)(1). | [
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DOUG MARTIN, Judge.
Appellant Sandra Foster appeals from that portion of the Arkansas Workers’ Compensation Commission’s opinion finding her entitled to a 30% wage-loss disability. Appellee Gilster Mary Lee Corp. (“Gilster”) cross-appeals from the part of the Commission’s decision finding that Gil-ster did not make a bona fide offer of employment to Foster. We find no error and affirm on both direct and cross-appeal.
Foster attended school only through the fifth grade and worked at manual-labor jobs most of her life. She began working for Gilster in 2002 and sustained an admittedly compensable injury to her cervical spine on January 23, 2006. In March 2006, Foster saw Dr. Robert Abraham, a neurosurgeon in Jonesboro. Prior to visiting Dr. Abraham, Foster underwent an MRI, which revealed a herniated nucleus pulposus at C5-C6. Dr. Abraham recommended surgery and performed an anterior cervical diskectomy with fusion at C5-C6 in March 2006. At a follow-up visit in April 2006, Foster was still having frequent muscle Lspasms and some right up per-extremity pain, but her symptoms were better than before the surgery. Dr. Abraham directed Foster to engage in physical therapy and released her to return to work on May 15, 2006, with restrictions on lifting anything more than twenty-five pounds.
On July 24, 2006, Foster underwent a nerve conduction study that showed she had “minor denervation/reinnervations at the C5-C6 muscle, and that was the only finding,” according to Dr. Abraham. Dr. Abraham explained that this meant that Foster had some difficulties with the nerves in that area but was improving. By the time of Foster’s August 15, 2006 follow-up visit, her muscle spasms were gone and she had minimal tenderness, so Dr. Abraham approved her for light-duty work. Foster returned to work in August 2006.
Foster saw Dr. Abraham again in January 2007. At that time, Dr. Abraham noted some tenderness in Foster’s neck, which was “about the extent of her problems,” and released her to work with “lifting restrictions of twenty pounds, limited use of both of her hands, mainly on the right side, [and] no work over shoulder height.” Dr. Abraham ordered another MRI in January 2007 and saw Foster for a follow-up visit in February 2007. At that time, Foster had no other herniations and very minimal disk bulges at adjacent levels. When Foster saw Dr. Abraham in April 2007, she had some muscle spasms, but her neurological exam was stable. Because Foster was experiencing ongoing “difficulties,” Dr. Abraham ordered another nerve conduction study, but the test showed that Foster was stable and doing better than she was at the time of the previous study.
|3Foster was also seen by Dr. Fereidoon Parsioon in July 2007. After examining Foster, Dr. Parsioon opined that her surgical results were excellent, her fusion was complete, and her pain was mostly due to a “muscular-type pain [that] she needs to overcome with continuation of the exercises.” Dr. Parsioon concluded that Foster was at her maximum medical improvement with a 12% impairment rating and could be released to work without restrictions.
By November 2007, Foster was working within her limitations and was able to do her job, although she experienced some right-arm pain and numbness. A note from Dr. Abraham dated November 8, 2007, indicated that Foster was not to do any overhead work and not to lift anything over thirty pounds.
Foster continued to be treated by Dr. Abraham, seeing him in July and August 2008. In July, Foster reported pain in her neck that radiated into both shoulders and arms, as well as numbness in her right hand and arm. At the time of the August 2008 visit, however, Foster’s physical exam was benign, and Dr. Abraham reported that she was “doing fairly well from an objective standpoint,” and he later testified that there “would have been no reason she could not have worked other than the fact that when she worked she has difficulties” with pain. Nonetheless, Dr. Abraham took Foster off work “indefinitely” as of August 18, 2008, because of those problems, and Foster did not work after that time. Foster and Gilster stipulated that her healing period ended on November 18, 2008, with a residual 12% whole-body anatomical impairment.
In July 2009, Foster began working with Heather Taylor, a vocational rehabilitation consultant, who recommended a functional capacity evaluation (FCE). Foster completed her FCE on October 19, 2009, and the results of the test showed that Foster’s functional limitations were as follows:
Ms. Foster demonstrates functional limitations with bi-manual material handling at 15 lbs. for lifting and carrying on an Occasional basis. Ms. Foster exhibits decreased use of the [right upper extremity] as compared to an average worker and performed Reaching Overhead and Reaching with a 1 lb. weight at the Occasional frequency level only. Ms. Foster exhibits limited [active range of motion] of the cervical region and performed all activities that required cervical deviation from neutral with poor tolerance.
The FCE’s conclusions noted that Foster “demonstrated the ability to perform work in the SEDENTARY classification as defined by the U.S. Dept, of Labor’s guidelines over the course of a normal workday with limitations as noted above.” The “sedentary” classification of work includes occasional lifting of one to ten pounds up to 83% of the workday.
Taylor contacted Gilster about whether Gilster had any jobs that Foster could perform. Gilster, a private-label food packager, suggested that the job duties of a “sugar-free gelatin packer” would be within Foster’s capabilities and restrictions. Taylor made a videotape of an employee performing the job and completed a job analysis, and she determined that it appeared that the gelatin-packer job was within the restrictions outlined on Foster’s FCE.
At the hearing before the ALJ, however, Foster testified that the gelatin-packer job was “very fast, and you have to reach with your arms, and the lines are fast.” She expressed a belief that the job was not one that she could perform because it required repetitive use of [ ¿her arms and picking up cartons. Foster’s friend and co-worker, Suzanne Alma, also testified that she did not believe Foster could perform the gelatin-packer job, noting that the job involved gathering up cartons from a conveyor belt and pushing the cartons through a tape machine. Alma said there were twenty-four cartons to a case, and there are hundreds of cases per shift. Alma explained that, to do the job, one must use one’s hands and arms repetitively, and Alma said that she did not believe that Foster could use her arms repetitively in such a manner. After hearing the testimony noted above, Taylor said that, even though the job analysis appeared to be within Foster’s restrictions, she did not know whether Foster could actually perform the job duties.
On the basis of this evidence, the ALJ entered an opinion on August 12, 2010, finding that Foster had a 12% anatomical impairment to the body as a whole as a result of her compensable injury. In addition, based on Foster’s “age, education, employment history, permanent physical restrictions and limitations, and other matters reasonably expected to affect [Foster’s] future earning capacity ..., the evidence preponderates that [Foster] has sustained a loss of earning capacity in the amount of 70% over and above, and in addition to, her anatomical impairment.”
Gilster appealed the ALJ’s decision to the full Commission, and in a 2-1 vote, the Commission affirmed the decision to award Foster wage-loss benefits. In doing so, the Commission found that Gilster failed to prove that it provided Foster with a bona fide offer of employment within Foster’s physical restrictions. The Commission further found that Foster was motivated to return to work but was rendered physically unable to perform fulhjfime6 manual labor in a factory setting as a result of her compensable injury, surgery, and anatomical impairment. The Commission, however, modified the ALJ’s award of a 70% wage-loss disability, finding instead that Foster had proved she sustained wage-loss disability in the amount of 30%.
Foster appeals the Commission’s reduction of her wage-loss disability from 70% to 30%. Gilster cross-appeals from the Commission’s finding that Gilster did not provide Foster with a bona fide offer of employment within her physical restrictions.
The injured party bears the burden of proof in establishing entitlement to benefits under the Worker’s Compensation Act and must sustain that burden by a preponderance of the evidence. Dearman v. Deltic Timber Corp., 2010 Ark.App. 87, 377 S.W.3d 301. It is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Stone v. Dollar Gen. Stores, 91 Ark.App. 260, 209 S.W.3d 445 (2005). The Commission is not required to believe the testimony of the claimant or any other witness but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Neal v. Sparks Reg’l Med. Ctr., 104 Ark.App. 97, 102, 289 S.W.3d 163, 167 (2008). The evidence is viewed in the light most favorable to the Commission’s decision, and the decision will be affirmed when it is supported by substantial evidence. Ester v. Nat’l Home Ctrs., Inc., 335 Ark. 356, 981 S.W.2d 91 (1998). Substantial evidence exists if fair-minded persons could reach the same conclusion when considering the same facts. Id. "Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires that we affirm if the Commission’s decision displays a substantial basis for the denial of relief. Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000).
In her sole argument on appeal, Foster argues that the Commission’s reduction of her wage-loss benefit from the 70% awarded by the ALJ to 30% was not supported by substantial evidence and that there is nothing in the record to show why the reduction occurred. Further, Foster maintains that the ALJ had the opportunity to observe and view the witnesses, and she asserts that “the person who has the opportunity to observe witnesses as opposed to reading what they said is in a much better position to determine their truthfulness as they testify.”
Our review on appeal, however, is not directed to a comparison of the ALJ’s decision to the Commission’s decision. It is well settled that the Commission reviews an ALJ’s decision de novo, and it is the duty of the Commission to conduct its own fact-finding independent of that done by the ALJ. Daniels v. Affiliated Foods Sw., 70 Ark.App. 319, 324, 17 S.W.3d 817, 820 (2000) (citing Crawford v. Pace, 55 Ark.App. 60, 929 S.W.2d 727 (1996)). The appellate courts review the decision of the Commission and not that of the ALJ. Id. (citing High Capacity Prods. v. Moore, 61 Ark.App. 1, 962 S.W.2d 831 (1998)). Thus, this court’s role is limited to determining whether substantial evidence supports the Commission’s award of a 30% wage-loss benefit.
The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Henson v. Gen. Elec., 99 Ark.App. 129, 257 S.W.3d 908 (2007); Emerson Elec. v. Gaston, 75 Ark.App. 232, 58 S.W.3d 848 (2001). The |sCommission is charged with the duty of determining disability based upon a consideration of medical evidence and other matters affecting wage loss, such as the claimant’s age, education, and work experience. Henson, supra. Objective and measurable physical or mental findings, which are necessary to support a determination of “physical im pairment” or anatomical disability, are not necessary to support a determination of wage-loss disability. Id.; Arkansas Methodist Hosp. v. Adams, 43 Ark.App. 1, 858 S.W.2d 125 (1993). To be entitled to any wage-loss-disability benefit in excess of permanent-physical impairment, a claimant must first prove, by a preponderance of the evidence, that he or she sustained permanent-physical impairment as a result of a compensable injury. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 882 (2000). Other matters to be considered are motivation, post-injury income, credibility, demeanor, and a multitude of other factors. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); Curry v. Franklin Elec., 32 Ark.App. 168, 798 S.W.2d 130 (1990). The Commission may use its own superior knowledge of industrial demands, limitations, and requirements in conjunction with the evidence to determine wage-loss disability. Henson, supra; Oiler v. Champion Parts Rebuilders, Inc., 5 Ark.App. 307, 635 S.W.2d 276 (1982).
Here, the Commission specifically noted Foster’s age, her relative lack of formal education, and her work history that involved “mostly unskilled manual labor.” The Commission also found that Foster’s physical capacity to perform manual labor had decreased as a result of her compensable injury and resulting surgery. In addition, the Commission concluded that Foster was motivated to return to work but was “rendered physically unable to perform full-time manual labor in a factory setting” as a result of her injury. Despite Foster’s arguments to the contrary, the issue before this court is not whether the Commission erred in reducing Foster’s 70% wage-loss award to 30%, but whether substantial evidence exists to support the Commission’s award of a 30% wage-loss benefit. Given the evidence set forth above, we conclude that the Commission’s decision is supported by substantial evidence.
On cross-appeal, Gilster argues that the Commission erred in finding that it did not make a bona fide offer of employment to Foster. Arkansas Code Annotated section ll-9-522(b), which governs permanent-partial disability benefits and wage-loss disability, provides in pertinent part as follows:
(2) [S]o long as an employee, subsequent to his or her injury, has returned to work, has obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than his or her average weekly wage at the time of the accident, he or she shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony and evidence.
Ark.Code Ann. § 11-9-522(b)(2) (Repl. 2002). The employer has the burden of proving a bona fide offer of employment. Ark.Code Ann. § 11-9-522(c)(1) (Repl. 2002); Sivixay v. Danaher Tool Group, 2009 Ark.App. 786, 359 S.W.3d 433.
Here, Foster’s functional capacity evaluation indicated that she was capable of working in a sedentary capacity over the course of a normal workday. According to the FCE, which was not disputed, the United States Department of Labor’s guidelines described the physical demands of a job classified as sedentary as requiring no more than occasional (0-33% of the workday) handling of one to ten pounds. The job analysis conducted by Heather Taylor, however, indicated that the physical-demand classification for the “sugar-free gelatin packer” | inposition that Gilster offered to Foster was “light,” which required “exerting 20 [pounds] of force occasionally, or up to 10 [pounds] frequently, or a negligible amount constantly.” The only way the job could be modified, according to the job analysis, would be for the worker to work eight hours per day five days per week, rather than ten-hour shifts six days per week.
Foster testified that she could not physically perform the job duties of the gelatin-packer position, and her testimony was corroborated by Suzanne Alma, who stated that she had observed Foster since she was injured and did not believe that Foster could do the job. In addition, Taylor testified that, after hearing Foster’s description of her difficulties, she did not know whether Foster could do the job.
Gilster argues on cross-appeal that there was evidence showing that Foster could perform the job duties of the gelatin-packer position. For example, it notes a document from Rick Byrd, who performed the FCE, in which Byrd states that, when comparing the physical demands of the position with Foster’s physical performance level during her FCE, Foster met all of the physical demands as described in this written job description. Gilster also points to the deposition testimony of Dr. Abraham, who indicated that he “wouldn’t have any problem with someone else saying” that Foster could go back to work.
In finding that Gilster had not made a bona fide offer of employment to Foster, however, the Commission specifically noted that the “job analysis describes the gelatin packer position as ‘light’ duty, but we reiterate the results of the functional capacity evaluation showing the claimant physically able to perform only ‘sedentary’ work duties.” The evidence to which Gilster points does nothing more than attempt to raise a question concerning the credibility of the witnesses, which is an issue within the exclusive province of the Commission. See Belin v. United Parcel Serv., 2011 Ark.App. 587, 2011 WL 4584940 (it is the function of the Commission, not this court, to determine the credibility of witnesses and the weight to be given to the evidence). Thus, given the evidence described above, we conclude that the Commission’s decision was supported by substantial evidence.
Affirmed on direct appeal; affirmed on cross-appeal.
HART and GLOVER, JJ., agree. | [
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KENNETH S. HIXSON, Judge.
| ¶ Appellant Amanda Mitchell and appellant John Mitchell appeal separately from the termination of their parental rights to their twelve-year-old son T.M., eleven-year-old son Z.M., and eight-year-old daughter L.M. Amanda’s sole argument on appeal is that there was insufficient evidence to support the termination of her parental rights. John’s counsel has filed a no-merit appeal and a motion to withdraw, stating that there is no issue of arguable merit to advance on appeal and that she should be relieved of counsel. We affirm both appeals, and we grant John’s counsel’s motion to be relieved.
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.2011); M.T. v. Ark. Dep’t of Human Servs., 58 Ark.App. 302, 952 S.W.2d 177 (1997). Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). 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, 947 S.W.2d 761 (1997). 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. Yarborough v. Ark. Dep’t of Human Servs., 96 Ark.App. 247, 240 S.W.3d 626 (2006).
Appellee Department of Human Services (DHS) has an extensive history with this family. It began in 2003, when the appellants’ children were removed from their custody for about a month due to inadequate supervision and incarceration of both parents for endangerment of a minor. In June 2010 the children were placed in foster care at Amanda’s request due to alcohol abuse and domestic violence in the home. After Amanda and John completed various DHS services including counseling and parenting classes, the children were returned to them in May 2011. In December 2011, DHS opened a protective-services case based on findings that the parents stayed drunk most of the time, that John abused Amanda in front of the children, and that the children were scared at home due to the domestic violence. It was found that Amanda had recently been arrested for public intoxication, disorderly conduct, and criminal mischief. John tested positive for THC, and Amanda refused to take a drug test.
|sThe most recent removal of the children occurred on March 13, 2012, when the trial court entered an ex parte order for emergency DHS custody. The emergency order was based on an affidavit by a family service worker regarding events that occurred on the morning of March 10, 2012. On that morning, DHS received a call stating that Amanda was drunk and going from house to house in her neighborhood. The police were dispatched to the appellants’ residence, and the police found Amanda to be intoxicated with multiple bruises, swelling, and abrasions on her face and neck. Amanda registered. 19 on a breathalyzer test, and she indicated that John had caused her injuries the night before when they were drinking whiskey. Amanda said that John had whipped her with a dog leash and locked her in the dog pen in their living room, which occurred in the presence of their daughter. Amanda’s daughter had to let Amanda out of the cage. John had left home with the boys before the police arrived that morning.
On April 13, 2012, the trial court entered an order adjudicating the children dependent/neglected due to the parents’ alcohol abuse and domestic violence. The goal of the case was reunification, and the parents were given visitation supervised by DHS. Both Amanda and John were ordered to submit to drug and alcohol screens, attend parenting classes, attend counseling, submit to a psychological evaluation and follow any recommendations, attend anger-management classes, and maintain stable housing and employment. John was ordered to submit to a drug-and-alcohol assessment, and Amanda was ordered to complete inpatient substance-abuse treatment.
|4On April 16, 2012, the trial court entered an emergency ex parte order sus pending John’s visitation, and a subsequent order suspending John’s visitation was entered on June 11, 2012. These orders were based on proof that, after the children were taken into DHS custody, the appellants were drinking together on March 28, 2012, and John dragged Amanda by her hair, kicked her, sprayed roach spray in her face, and choked her until she blacked out. As a result of this abuse Amanda suffered broken ribs, a punctured lung, and a lacerated liver, for which she underwent surgery and an extended stay in the intensive-care unit. These acts ultimately resulted in a felony conviction against John for domestic battery, for which he received a two-year prison sentence followed by a four-year suspended imposition of sentence.
On November 2, 2012, the trial court entered an order terminating reunification services because there was little likelihood that further services would result in successful reunification. The no-reunification order was based on proof that John was in prison, and that Amanda was not visiting the children and continued to drink alcohol excessively. An affidavit of a family service worker stated that Amanda drank alcohol for a week straight beginning on September 9, 2012, and then tried to commit suicide. The affidavit further stated that Amanda was unstable and had failed to cooperate with DHS or the court’s orders. On November 21, 2012, the trial court entered a permanency-planning order changing the goal of the case to termination of parental rights and adoption.
DHS filed a petition to terminate both parents’ parental rights on December 14, 2012. The termination hearing was held on April 15, 2013.
[BOn May 3, 2013, the trial court entered an order terminating both Amanda’s and John’s parental rights to their three children. The trial court found by clear and convincing evidence that termination of parental rights was in the children’s best interest, and the court specifically considered the likelihood that the children would be adopted, as well as the potential harm of returning them to the custody of then-parents as required by Ark.Code Ann. section 9-27-341(b)(3)(A)(i) & (ii) (Supp.2011). The trial court also found clear and convincing evidence of these two statutory grounds under subsection (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 return of the juvenile to the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent return of the juvenile to the custody of the parent.
(ix) (a) The parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to:
(S )(A) Have subjected any juvenile to aggravated circumstances. (B) “Aggravated circumstances” means:
(i) ... [A] determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification!)]
At the termination hearing, Amanda testified that she had lived in a one-bedroom apartment for the past four months. Amanda stated that she had plans to move into a three-bedroom trailer in about six weeks. She acknowledged that since her children were removed in .March 2012 she has lived in five different places. Amanda stated that she was unemployed, but that she has lupus and draws a monthly disability check.
| fiAmanda acknowledged that she has had alcohol-abuse issues for the past thirteen years, and she said that she consistently endured domestic violence from John throughout their marriage. Despite their turbulent and violent relationship, Amanda remained in a relationship with John until he was incarcerated in September 2012. However, Amanda filed for divorce against John in January 2013, and she thought the divorce would be final a few weeks after the termination hearing.
Amanda testified about a fire at her residence in early January 2013. Amanda stated that she got drunk and forgot to turn off a burner on the stove, which caused the fire. Amanda said that while the house was on fire she was on the floor, was depressed, and did not want to leave the building. The house was full of smoke, and a fireman had to physically remove Amanda from the house.
As a result of the circumstances of the house fire, Amanda’s family had her involuntarily committed to a twenty-one-day inpatient alcohol-treatment program, which she completed. However, two days after her release from the rehabilitation program, Amanda was cited for public intoxication. She explained that this occurred in early February 2013 and that she got drunk because she was depressed. Amanda claimed that she had not consumed alcohol since then and had been sober for the past few months. Amanda testified that she thought she could provide a safe home for the children with John removed from her life. She said that she was taking parenting classes, which she would complete in a couple of weeks. Amanda asked that her parental rights not be terminated, and that she be given a couple of months to prepare a suitable home for the children.
17John testified that he was still incarcerated at the time of the termination hearing, but that he expected to be paroled in four or five months. John stated that upon being paroled he had a job lined up and planned to move in temporarily with his mother. John thought that he could be in a position to take his children back shortly after his release from prison.
Melissa Cain was the DHS caseworker assigned to this case. Ms. Cain testified that after the children were removed in March 2012 neither parent maintained stable housing, and she said that “they weren’t supposed to be together so they were pretty much in hiding.” According to Ms. Cain, neither party completed any of the services offered by DHS. Ms. Cain stated that the last time Amanda visited the children was almost a year before the termination hearing on May 23, 2012.
Ms. Cain testified that L.M. had made dramatic improvement since being removed from her parents’ home, and that her foster parents were interested in adopting her. Ms. Cain stated that the two boys, T.M. and Z.M., had behavioral issues but had no medical issues that would prevent their adoption. She said that DHS had been successful in adopting children with these characteristics in the past, and she thought that the boys were adoptable. Ms. Cain gave the opinion that there would be a great potential for harm in placing the children back in the custody of their parents, and that termination of parental rights was in the children’s best interest.
In Amanda’s appeal to this court, she challenges the sufficiency of the evidence supporting termination of her parental rights. Specifically, Amanda argues that the trial court erred in finding that termination was in the best interest of her children. Amanda submits that | Rshe was a victim of domestic violence for many years but has made the decision to termi nate her relationship with her abuser, John. Amanda asserts that she has been striving to overcome the obstacles to complete the necessary goals to provide a home for her family, noting that she has completed alcohol rehabilitation and is taking parenting classes. Amanda contends that she should have been given more time to rectify her situation and to prove she could provide a stable home.
Amanda also contends that termination of her parental rights was not in the best interest of her boys because they have exhibited significant behavioral problems, even to the point of harming a foster parent, which makes their adoption unlikely. Amanda also notes that her oldest son, T.M., is now twelve years old and likely would not consent to being adopted.
We hold that the trial court did not clearly err in finding that termination of Amanda’s parental rights was in the best interest of the children. Amanda has a long history with DHS, and despite the repeated offer of DHS services Amanda failed to demonstrate that she could provide a suitable and safe home for her children. Amanda had five different residences since the most recent removal of the children in March 2012, she failed to comply with the caseplan, and she had not visited the children since May 2012. Amanda presently lives in a one-bedroom apartment and said she wanted more time to obtain a suitable home and complete parenting classes. However, we have held that 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, 372 S.W.3d 849.
|3In addition to having no suitable place for the children to live, Amanda has a long history of alcohol abuse and this continued long after John’s incarceration. In particular, Amanda’s conduct had near-deadly consequences in January 2013 when she got drunk and accidently set her house on fire, and then chose to remain in the house and had to be physically removed by a fireman. And although Amanda completed inpatient alcohol treatment, this was forced on her by her family, and she was cited for public intoxication just two days after her release. There was also evidence that, on a previous occasion in December 2012, Amanda had called the police, reporting that she needed help and had harmed herself by cutting her forearms. And although Amanda testified that she did not plan to reunite with her abusive husband upon his release from prison, the trial court understandably thought, based on her history of staying with him in the past (including after John had put her in intensive care), that she would again be back with John. There was ample evidence showing that there would be significant potential harm to the children if returned to Amanda’s custody.
While Amanda suggests that T.M. and Z.M. are not likely to be adopted, there was evidence to the contrary, and at any rate we have held that adoptability is but one factor that is considered when making a best-interest determination. See Renfro v. Ark Dep’t of Human Servs., 2011 Ark. App. 419, 385 S.W.3d 285. The guiding principle is that, when all factors are considered, the evidence must be clear and convincing that termination is in the child’s best interest. Childress v. Ark. Dep’t of Human Servs., 2009 Ark. App. 322, 307 S.W.3d 50. We have also held that a child’s consent to an adoption, which may be required for a child over twelve years of age under Ark.Code Ann. section 9-9-206(a)(5) (Supp.2011), is not a | Tnnecessary element of proof when a court is considering termination of parental rights. See id. Considering the evidence before the trial court demonstrating Amanda’s instability and inability to provide a safe and suitable home for the children, we conclude that the trial court’s finding that termination was in the children’s best interest was not clearly erroneous.
Although Amanda’s point on appeal only makes reference to the best-interest requirement for termination of parental rights, in her conclusion she also states that “the statutory requirements were not met.” However, we disagree. Proof of only one statutory ground is sufficient to terminate parental rights. Hughes v. Ark. Dep’t of Human Servs., 2010 Ark. App. 526, 2010 WL 2522197. In this case the trial court found, pursuant to Ark.Code Ann. section 9-27-341(b)(3)(B)(ix)(a), that Amanda had subjected the children to aggravated circumstances because there was little likelihood of successful reunification. In view of the evidence discussed above, we hold that this finding was not clearly erroneous.
We now turn to John’s no-merit appeal. In compliance with Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Ark. Sup.Ct. R. 6 — 9(i), John’s counsel has examined the record for adverse rulings, explaining why each adverse ruling would not support a meritorious ground for reversal. John’s counsel has accurately asserted that the only adverse ruling was the termination itself. A copy of John’s counsel’s brief and motion to withdraw were sent to John at his last known address, with information about his right to file a list of pro se points. However, the packet was returned and marked “paroled.” John’s counsel has no additional contact information.
In We agree with John’s counsel that any challenge to the sufficiency of the evidence supporting the termination of his parental rights would be wholly without merit. The evidence showed that throughout the course of his marriage to Amanda he physically abused her in front of his children, and his severe domestic abuse ultimately resulted in a felony conviction and prison sentence. At the time of the termination hearing John was still in prison. The trial court’s finding that John had subjected his children to aggravated circumstances, and its finding that termination was in the best interest of the children, were not clearly erroneous.
After examining the record and the briefs presented, we affirm the termination of Amanda’s parental rights. Moreover, we have determined that John’s counsel has complied with our requirements for no-merit cases and that his appeal is wholly without merit. Accordingly, we affirm the order terminating both appellants’ parental rights, and we grant John’s counsel’s motion to be relieved from representation.
Affirmed; motion granted.
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CLIFF HOOFMAN, Judge.
This case involves a long-running and sometimes violent family dispute over a tract of land in Van Burén and Stone Counties. Appellant Bessie Tillery and appellee Charlie Gardner are two of the eight children of Thomas Gardner, who died in 1961, leaving a large tract of land, which included the disputed twenty-eight acres in Van Burén County, to pass by intestacy. Thomas was survived by his eight children and his wife, Nina Gardner. His other children were Steve Gardner, Zillah Rooney, Jessie Gardner, Earnest Gardner, Jennie Faye Rolen, and Mary Bramlett. Appellant Hazel Sutton is the administratrix of the estate of Jennie Faye Rolen. Appellants appeal from the circuit court’s order quieting title to a portion of the disputed property in appellee. Although we affirm the circuit court’s decision, we do so for a different reason than that given by the circuit court.
On December 8, 1983, Nina gave a quitclaim deed to Zillah, which contained the following description:
THAT I, Nina Gardner GRANTOR, for and in consideration of the sum of One Dollar ($1.00) and other consideration DOLLARS, ($1.00) in hand paid by Zillah Rooney GRANTEE, the receipt of which is hereby acknowledged, do hereby grant, convey, sell and quitclaim unto the said GRANTEE, and unto her heirs, and assigns forever, all my right, title, interest and claim in and to the following lands lying in Van Burén County, Arkansas: All real property which I own and which is located in Section 24, Township 13 North; Range 14 West of the Fifth Principal Meridian, Arkansas. Said real estate totalling [sic] 28 acres, more or less.
Zillah conveyed her one-eighth interest, and the interest she received from her mother by quitclaim deed, to appellee on November 1, 1988. This deed contained the following language:
THAT I, Zillah Ronney [sic], single person, hereinafter called Grantor, for and in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration to me in hand paid by Charlie Gardner and Ruth Gardner, his wife, hereinafter called Grantee, do hereby grant, sell and quitclaim unto said Grantee and Grantee’s heirs and assigns forever, the following described land, situate [sic] in Van Burén County, State of Arkansas to-wit: Part of the Southeast quarter of Northeast quarter of Section 24, Township 13 North, Range 14 West of the Fifth Principal Meridian, totalling [sic] 28 acres more or less.
On October 31,1988, Jessie Gardner and his wife, Wanda, conveyed their interest in the property to appellee in a quitclaim deed that contained the following language:
THAT WE, Jessie Gardner and Wanda Lee Gardner, husband and wife, hereinafter called Grantors, for and in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration to us in hand paid by Charlie Gardner and Ruth Gardner, his wife, hereinafter called Grantee, do hereby grant, sell and quitclaim unto the said Grantee and Grantee’s heirs and assigns, the following described land, situate [sic] in Van Burén County, State of Arkansas, to-wit: Part of the Southeast quarter of the Northeast quarter of Section 24, Township 13 North, Range 14 West of the Fifth Principal Meridian, totalling [sic] 28 acres more or less.
The family has engaged in litigation over this property more than once. Most recently, a partition action filed by Jennie Faye Rolen, Bessie Tillery, and Mary Bramlett in 1994 was dismissed without prejudice on November 20, 2001. In the 1994 action, appellee was a defendant. In his answer, he raised the affirmative defense of adverse possession. Bessie filed this action against Hazel, appellee, and other heirs on November 1, 2005. In her petition for partition, Bessie asked the circuit court to order the property sold and the proceeds distributed to the parties, according to their ownership interests. Appellee raised the affirmative defenses of laches, statute of limitations, res judicata, and adverse possession. Appellee filed a counterclaim asking the court to quiet title to the entire twenty-eight acres in him. He asserted that he had color of title for more than forty-five years; had paid taxes on the property continuously since 1961; and had adversely possessed the property. In her answer to appellee’s counterclaim, Hazel argued that appellee was not entitled to have the title confirmed in him because of his unclean hands. She asserted that he had made “numerous threats ... against various people....”
In her response to the amended petition for partition, Hazel alleged that the deeds from Nina to Zillah; Zillah to appellee; and Jessie and Wanda to appellee were void because their legal descriptions were so vague that the property to be conveyed could not be located from the faces of the deeds. Appellee moved for summary judgment, arguing that this action was barred by the seven-year statute of limitations found in Arkansas Code Annotated section 18-61-101 and the doctrine of lach-es. He also asserted that, because the partition action dismissed in 2001 had not been refiled within one year, pursuant to Arkansas Code Annotated section 16-56-126, it was barred.
On January 4, 2010, the circuit court dismissed Bessie’s partition petition on the Lground that the statute of limitations and the one-year period for refiling after the 2001 dismissal without prejudice had expired. It continued the case on appellee’s counterclaim for quiet title. The court held a bench trial on the counterclaim on March 9, 2010. Appellee and his daughters, Kelly Gardner and Merlene Gardner, testified on appellee’s behalf. Appellants also testified. Appellee presented evidence that he has occupied the property since his mother died and treated it as his own, making improvements, cutting fire wood, hauling and selling rock, farming, and raising livestock. He also presented evidence that, with the exception of a few years, he paid taxes on the property from the 1970s through 2009. He does not dispute that Jennie Faye paid the taxes in 1998 and 1999, and that Bessie paid them in 2003 and 2004.
On December 15, 2010, the circuit court entered its findings of fact and conclusions of law, analyzing the validity of the legal descriptions in the quitclaim deeds in light of Ketchum v. Cook, 220 Ark. 320, 247 S.W.2d 1002 (1952). Based on its understanding of Ketchum, the court ruled that the quitclaim deed from Nina to Zillah was sufficient color of title because it contained the phrase “all real property which I own.” Although the deed from Zillah to appellee did not contain that phrase, the court found that it was sufficient because the previous deed from Nina to Zillah was sufficient under Ketchum. The court found that the deed from Jessie Gardner to appellee was insufficient. It granted appellee’s claim for quiet title to the property he obtained from Zillah. Appellants filed a timely notice of appeal. They have not challenged the court’s dismissal of their claim for partition, and appellee has not filed a cross-appeal from the circuit court’s ruling that his deed from Jessie was void.
Quiet-title actions have traditionally been reviewed de novo as equity actions. Rio Vista, Inc. v. Miles, 2010 Ark. App. 190, 374 S.W.3d 698. However, findings of fact will not be reversed unless they are clearly erroneous. Id. Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder. Machen v. Machen, 2011 Ark. App. 47, 380 S.W.3d 497.
Appellants argue in their first point that the trial court erred in refusing to dismiss appellee’s counterclaim because it was barred by the saving statute, Arkansas Code Annotated section 16-56-126(a)(1) (Repl.2005), which provides that if the plaintiff suffers a nonsuit in an action filed within the statute of limitations, he may commence a new action within one year after the nonsuit. It is undisputed that none of the plaintiffs in the earlier action refiled it within one year after it was dismissed in 2001. Citing Arkansas Rule of Civil Procedure 8(c) and (f) (2011), appellants argue that the saving statute applied to appellee, who was a defendant in that action, because his affirmative defense of ownership of the property by virtue of his deeds or, in the alternative, by adverse possession, was in essence a counterclaim; therefore, appellee was a plaintiff subject to the terms of the saving statute.
We disagree. Adverse possession is a type of affirmative defense that must be specifically pled. Bobo v. Jones, 364 Ark. 564, 222 S.W.3d 197 (2006). As explained in the Reporter’s note 6 to Rule 8(c), when a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court has discretion to allow a counterclaim or affirmative defense. Rule 8(f) provides that all pleadings “shall be liberally construed so as to do substantial justice.” There is nothing in the record to suggest that the court in the 1994 action treated appellee’s affirmative defense as a counterclaim. In any event, the nonsuit in R2001 did not affect the statute of limitations, which has not begun to run on appellee’s quiet-title claim, because he is still in possession of the property. See Shelton v. Jack, 239 Ark. 875, 395 S.W.2d 9 (1965); Eades v. Joslin, 219 Ark. 688, 244 S.W.2d 623 (1952); Ark.Code Ann. § 18-61-101(a) (Repl.2003).
Appellants further contend that the effect of section 16-56-126 was to render the previous dismissal an adjudication on the merits; therefore, the trial court erred in denying their motion to dismiss appellee’s counterclaim because it was barred by the doctrine of res judicata. Under the claim-preclusion aspect of res judicata, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim. Crockett v. C.A.G. Invs., Inc., 2011 Ark. 208, 381 S.W.3d 793. Claim preclusion bars not only the relitigation of claims that were actually litigated in the first suit, but also those that could have been litigated. Id. Where a case is based on the same events as the subject matter of a previous lawsuit, claim preclusion will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Id. The purpose of the res judicata doctrine is to put an end to litigation by preventing a party who had one fair trial on a matter from relitigating the matter a second time. Id.
Appellants contend that, because appellee had the opportunity to litigate his quiet-title claims in the 1994 lawsuit, they are now barred by claim preclusion. See Hardy v. Hardy, 2011 Ark. 82, 380 S.W.3d 354. There is no merit in this argument. A dismissal without prejudice is not an adjudication on the merits. Crooked Creek, III, Inc. v. City of Greenwood, 352 Ark. 465, 101 S.W.3d 829 (2003); Magness v. McEntire, 305 Ark. 503, 808 S.W.2d 783 (1991); Bell v. Hoofman, 2010 Ark. App. 377, 375 S.W.3d 668. An involuntary nonsuit under Ark. R. Civ. P. 41(b), when there has not been a previous dismissal, is not an adjudication on the merits for the purpose of res judicata. Croney v. Lane, 99 Ark. App. 346, 260 S.W.3d 316 (2007); see also Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001). In their reply brief, appellants argue that, under Arkansas Rule of Civil Procedure 41 (2011), the dismissal of the 1994 lawsuit was an adjudication on the merits because previous actions had been dismissed. We disagree, because there is nothing in the record indicating that appellee previously had a claim dismissed.
Next, appellants contend that, because (1) appellee did not refile his alleged counterclaim (his affirmative defense) before November 21, 2002, and (2) the previous dismissal was an adjudication on the merits, all of appellee’s claims existing at that time are barred by res judicata, and the seven-year period for adverse possession began to run again on that date. They also argue that the trial court erred in refusing to rule that appellee’s adverse-possession counterclaim was premature because Bessie filed this action on November 1, 2005, before the seven-year period had run.
We disagree with all of these contentions. As discussed above, appellee was not required to file his counterclaim before November 21, 2002, and the previous dismissal was not an adjudication on the merits. Further, “[i]n computing the period of adverse possession of land, the time of pendency of any dismissed, abandoned, or otherwise discontinued action in respect to the property is to be treated as though the action had never been instituted.” 3 Am.Jur.2d Adverse Possession § 109 (2002). Thus, appellee’s actions regarding the property prior to November 21, 2002, are relevant, and his adverse-possession claim was not premature. Even though the trial court did not base its decision on common-law adverse possession, it is clear from the evidence presented by both parties that appellee established common-law adverse possession of the property, and we affirm on this basis. See Tiner v. Tiner, 2011 Ark. App. 478, 385 S.W.3d 326.
Adverse possession is governed by both common and statutory law. To prove the common-law elements of adverse possession, a claimant must show that he has been in possession of the property continuously for more than seven years and that his possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. Smith v. Smith, 2011 Ark.App. 598, 385 S.W.3d 902; Trice v. Trice, 91 Ark.App. 309, 210 S.W.3d 147 (2005). It is ordinarily sufficient proof of adverse possession that the claimant’s acts of ownership are of such a nature as one would exercise over his own property and would not exercise over the land of another. Id. Whether possession is adverse to the true owner is a question of fact. Id. In 1995, the General Assembly added, as a requirement for proof of adverse possession, that the claimant prove color of title and payment of taxes on the subject property or contiguous property for seven years. See Ark.Code Ann. § 18-11-106 (Supp.2011). However, if the claimant’s rights to the disputed property vested before 1995, he need not comply with the 1995 statutory change. See Schrader v. Schrader, 81 Ark.App. 343, 101 S.W.3d 873 (2003).
Additional factors come into play when one co-tenant asserts adverse possession against the others, because the possession of one tenant-in-common is the possession of all. Trice, supra. Because possession by a co-tenant is not ordinarily adverse to other co-tenants, each having an equal right to possession, a co-tenant must give actual notice to other co-tenants that his possession is adverse to their interests or commit sufficient acts of hostility so that their knowledge of his adverse claim may be presumed. Id. The statutory period of time for an adverse-possession claim does not begin to run until such knowledge has been brought home to the other co-tenants. Id. There is no hard-and-fast rule by which the sufficiency of an adverse claim may be determined; however, the court considers factors such as the relationship of the parties, their reasonable access to the property, kinship, and innumerable other factors to determine if non-possessory co-tenants have been given sufficient warning that the status of a co-tenant in possession has shifted from mutuality to hostility. Id. When there is a family relation between co-tenants, stronger evidence of adverse possession is required. Id.
Appellee met his burden of establishing adverse possession against his co-tenants before the 1995 statute became effective. It is true, as appellants point out, that appellee did not personally live on this property for the entire period of time since his mother died. He and his wife built two houses in Stone County, where they still live. However, he and his daughters testified that everyone (family members and renters)who has lived on the property since that time has done so with appellee’s permission. Kelly testified that she and her husband were the first persons to move there, about one or two years after her grandmother died. She said that ap-pellee had rented the house to other people; Merlene, their sister Carolyn, and Wanda and Leonard Holly had also lived there. She said, “My dad ... let each linone of us ... or, ... people in need that ... would take care of it ... and treat it right cause that was his place and everybody knows that....” Appellee testified that he had controlled the property over forty years and had used it as if it were his. He said that, except for a couple of years, he had paid taxes on the property from the 1970s through 2009. He stated that, over the years, he had added a bathroom and a new roof to the house; run livestock; cut and sold firewood; sold a few loads of rock; drilled a well; and built fences around the property. Kelly and Merlene corroborated appellee’s testimony.
Appellants helped appellee establish his claim of adverse possession. Bessie stated, “Charlie ... used it like it was his. He didn’t ask nobody. He didn’t divide up the house stuff. He took it all.” She said that appellee had threatened her and would not let her or the other siblings come onto the property after their mother died. “He said he’d shoot us,” she stated. Hazel testified that she had heard appellee threaten her mother “to either leave the property alone and get out of the court system ... or he was going to kill her.” She added that, in addition to Charlie, her mother and her mother’s siblings claimed an interest in this property but had not possessed it because of “threats and actions that’s been taken from him or members of his family. They’re not allowed onto the property.”
In light of this evidence, we hold that appellee established that he began exclusively using the property, with hostile intent that was thoroughly understood by his co-tenants, more than seven years before 1995, and therefore, his claim vested before the 1995 statute became effective. We need not, therefore, address appellants’ arguments concerning color of title and payment of taxes.
Inin their last point, appellants argue that the trial court erred in failing to hold that appellee’s claims were barred by the doctrine of unclean hands, citing threats that appellee made against Bessie and other family members claiming an interest in the property. Because the trial court did not rule on this issue, we do not address it. Light v. Duvall, 2011 Ark. App. 535, 385 S.W.3d 399.
Affirmed.
GLADWIN and ROBBINS, JJ., agree. | [
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KAREN R. BAKER, Justice.
|,The present case stems from capital-murder charges filed against Tony Bernard Smith in Phillips County, Arkansas, on July 15, 2011. On April 28, 2011, Michael Campbell was killed in an attempted aggravated robbery. On April 29, 2011, Smith was arrested in connection with Campbell’s death, and has been detained in the Cross County jail since his arrest. On July 15, 2011, Smith was charged with aggravated robbery and capital murder.
On April 5, 2013, Elected Prosecutor Fletcher Long and his deputy prosecuting 12attorney Todd Murray, moved to nolle pros the case against Smith citing the main eyewitness’s unavailability. The record demonstrates that the circuit court did not rule on the motion.
The case was set for trial on May 15, 2013, but was not tried. Rather, the parties conducted plea negotiations, but did not reach an agreement. On that same day, after the plea negotiations failed, Long filed a motion to nolle pros Smith’s case because the State’s eyewitness to the homicide was unavailable. The record demonstrates that Long approached the bench with a motion and an order to nolle pros and moved for the State to nolle pros the case. The circuit court took the motion to nolle pros under advisement.
On May 31, 2013, Smith filed his petition for writ of habeas corpus and a petition for writ of mandamus or, in the alternative, for a writ of certiorari.
On June 3, 2013, the circuit court conducted a hearing and denied the May 15, 2013 motion to nolle pros. In denying the motion, the circuit court stated that a special prosecutor “should be appointed to render an independent assessment of the facts bearing upon whether or not the Court should grant the State’s motion to Nolle Prosequi.” However, at that time, the circuit court did not appoint a special prosecutor.
On June 4, 2013, Smith filed a petition for writ of prohibition, or in the alternative, a petition for writ of certiorari in this court.
On June 6, 2013, we deemed Smith’s petition for writ of mandamus or, in the [.^alternative, for certiorari moot. On that same day, we denied without prejudice Smith’s June 4, 2013 petition for extraordinary relief.
On August 16, 2013, the circuit court entered an order disqualifying Long as the prosecutor in the underlying case, appointed a special prosecutor, Ronald L. Davis, Jr., and set a jury trial on the capital-murder charges to begin on September 16, 2013.
On September 9, 2013, Smith filed an amended petition for writ of prohibition or, in the alternative, writ of certiorari, and a motion for accelerated consideration. On September 11, 2013, the circuit court filed an order continuing the trial originally set for September 16, 2013, pending this court’s resolution on the petition. On September 19, 2013, we granted Smith’s motion for accelerated consideration, stayed the circuit court proceedings, took the petition as an expedited case and ordered briefing.
On October 3, 2013, the parties filed simultaneous briefs, and on October 8, 2013 both parties filed simultaneous replies. On October 24, 2013, we granted the Arkansas Prosecuting Attorneys Association’s (“APAA”) motion to file a brief amicus curiae, and on that same day, the APAA filed its brief. This court has jurisdiction pursuant to Ark. Sup.Ct. R. 6 — 1(a) (2013) as Smith requests this court to grant an extraordinary writ.
Smith presents two points on appeal: (1) the circuit court erred in disqualifying the elected prosecutor and appointing a special prosecutor, and (2) the circuit court judge should be disqualified.
I. Disqualification of the Elected Prosecutor and Appointment of a Special Prosecutor
Before the court is Smith’s amended petition requesting this court to issue a writ of Lprohibition or, issue a writ of certiorari, to nolle pros the capital-murder case; to release Smith from jail; and to require that the trial judge recuse from this matter.
For his first point on appeal, Smith contends that the circuit court exceeded its jurisdiction. Smith asserts that the circuit court erred by finding that the prosecutor’s motion to nolle pros Smith’s case was a “formal announcement of [the prosecutor’s] disqualification.” Smith contends that the prosecutor’s motion to nolle pros was simply that, a motion to nolle pros, because the evidence was inconsistent and unreliable and did not serve as a disqualification of Long. Second, Smith contends that the circuit court erroneously interpreted and applied Ark.Code. Ann. § 16-21-112(a) (Repl.1999) because Long was not disqualified and a special prosecutor was not warranted.
The circuit court responds that it was justified in its decision to deny the motion to nolle pros because the State failed to diligently pursue the case against Smith and failed to provide sufficient cause to nolle pros the matter, thereby disqualifying Long and requiring appointment of a special prosecutor.
At issue is the circuit court’s August 16, 2013 order that provides in pertinent part:
This Court finds and concludes that Prosecuting Attorneys Todd Murray and Fletcher Long are hereby disqualified. The Court hereby appoints as Special Prosecutor, Ronald L. Davis, Jr.
We first address Smith’s request that we issue a writ of prohibition regarding the August 16, 2013 removal of Long and appointment of special prosecutor Davis. A writ of prohibition is extraordinary relief that is appropriate only when the circuit court is wholly without jurisdiction. See White v. Palo, 2011 Ark. 126, 380 S.W.3d 405. Writs of prohibition are | .^prerogative writs, extremely narrow in scope and operation; they are to be used with great caution and forbearance, and they should issue only in cases of extreme necessity. Int’l Paper Co. v. Clark Cnty. Cir. Ct., 375 Ark. 127, 289 S.W.3d 103 (2008). The writ of prohibition cannot be invoked to correct an order already entered. Id. In those instances, a writ of certiorari is the appropriate vehicle. Id.
Here, the allegations in Smith’s petition for a writ of prohibition concern an order already entered by the circuit court. We will not issue a writ of prohibition for something that has already been done. Allen v. Circuit Ct. of Pulaski Cnty., 2009 Ark. 167, 303 S.W.3d 70. Because the circuit court has already entered the order, a writ of prohibition does not lie. Id.
Alternatively, Smith has requested that this court issue a writ of certiorari. A writ of certiorari is also extraordinary relief. “In determining its application we will not look beyond the face of the record to ascertain the actual merits of a controversy, or to review a circuit court’s discretionary authority.” Southern Farm Bureau Cas. Ins. Co. v. Parsons, 2013 Ark. 322, at 3, 429 S.W.3d 215, 218. A writ of certiorari lies to correct proceedings erroneous on the face of the record when there is no other adequate remedy; it is available to the appellate court in its exercise of superintending control over a lower court that is proceeding illegally where no other mode of review has been provided. Casement v. State, 318 Ark. 225, 884 S.W.2d 593 (1994) (citing Lupo v. Lineberger, 313 Ark. 315, 316-17, 855 S.W.2d 293, 293-94 (1993)).
There are two requirements that must be satisfied in order for the court to grant a writ of certiorari. First, there can be no other adequate remedy but for the writ of certiorari. No other adequate remedy exists where the issuing court has no legal authority to support its | morder. Ark. Game & Fish Comm’n v. Herndon, 365 Ark. 180, 183, 226 S.W.3d 776, 779 (2006). Second, the writ of certio-rari lies only where (1) it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, or (2) there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. Id. Accordingly, a writ lies when the judge has acted in excess of his or her authority. See Conner v. Simes, 355 Ark. 422, 139 S.W.3d 476 (2003).
Smith contends that the circuit court exceeded its authority and left Smith with no other remedy but an extraordinary writ. The circuit court responds that it was justified in its appointment of special prosecutor Davis because Long disqualified himself by not prosecuting Smith when there was evidence to support the prosecution.
The issue on appeal requires us to construe the relevant statute, Ark. Code Ann. § 16-21-112(a). The question of the correct application and interpretation of an Arkansas statute is a question of law, which this court decides de novo. Broussard v. St. Edward Mercy Health Sys., Inc., 2012 Ark. 14, 386 S.W.3d 385. “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.” Voltage Vehicles v. Ark. Motor Vehicle Comm’n, 2012 Ark. 386, at 4, 424 S.W.3d 281, 286. We construe the statute so that no word is left void, superfluous, or insignificant, and meaning and effect are given to every word in the statute if possible. Id. “When a statute is clear, we give it its plain meaning, and this court will not search for legislative intent; rather, that intent will be gleaned from the plain meaning of the language used.” Id. at 4, 424 S.W.3d at 286. It is 17for this court to decide what a statute means. Chase Bank USA, N.A. v. Regions Bank, 2013 Ark. 129, 2013 WL 1279089.
The applicable statute is Arkansas Code Annotated § 16 — 21—112(a), which allows the appointment of a special prosecutor in very limited circumstances and provides in pertinent part:
If any prosecuting attorney neglects, or fails from sickness or any other cause, to attend any of the courts of the district for which he was elected and to prosecute as required by law, it shall be the duty of the court to appoint some proper person, being an attorney at law, to prosecute for the state during the term.
Smith contends that the plain language of the statute supports his position that Long was not disqualified pursuant to this statute because Long did not neglect or fail to attend Smith’s case and prosecute as required by law. Smith asserts that Long attended Smith’s case and prosecuted as required by law by requesting to nolle pros the case. Smith further contends that, although Long offered for the circuit court to inquire as to the nolle pros request and to provide the circuit court with more information, the circuit court declined the invitation. The circuit court responds that Long’s lack of diligence in pursuing the case against Smith disqualified Long within the meaning of the statute, and allowed the circuit court to appoint a special prosecutor.
We now turn to our interpretation of the applicable statute. The plain language of the statute provides that the prosecutor must neglect or fail to attend court and prosecute as required by law in order to trigger the necessity to appoint a special prosecutor.
Black’s Law Dictionary defines “neglect” as:
1. The omission of proper attention to a person or thing, whether inadvertent, ^negligent, or willful; the act or condition of disregarding.
2. The failure to give proper attention, supervision, or necessities, ... to such an extent that harm results or is likely to result.
Black’s Law Dictionary 1132 (9th ed.2009). Merriam-Webster defines “attend” as: “to pay attention to; to look after; take charge.” Merriam-Webster⅛ Collegiate Dictionary (11th ed.) (2004).
With regard to the statutory language “to prosecute as required by law,” Ark. Code Ann. § 16-21-103 (Repl.1999), “Duty to commence and prosecute criminal actions,” provides that “each prosecuting attorney shall commence and prosecute all criminal actions in which the State or any county in his district may be concerned.”
With our rules of statutory construction in mind, in reviewing Ark.Code Ann. § 16-21-112(a), we hold that the circuit court erred. Ark.Code Ann. § 16-21-112(a) plainly and unambiguously states that “if any prosecuting attorney neglects, or fails from sickness or any other cause, to attend any of the courts of the district for which he was elected and to prosecute as required by law” then a special prosecutor may be appointed. Here, the record fails to demonstrate that Long neglected, or failed to attend court and prosecute as required by law in the case brought against Smith.
Further, although we have two cases that address the appointment of a special prosecutor, Smith contends that neither of these cases are on point with the particular facts in Smith’s case. We agree. The two eases, Venhaus v. Brown, 286 Ark. 229, 691 S.W.2d 141 (1985), and Weems v. Anderson, 257 Ark. 376, 516 S.W.2d 895 (1974) are not on point and address unique circumstances outside Ark.Code Ann. § 16-21-112(a). See Venhaus, 286 Ark. at 282, 691 S.W.2d at 143. In Venhaus, citing to Weems, we explained, “In limited circumstances, a circuit court does have the authority, outside of statutory authority, to appoint a special prosecutor, without the removal or disqualification of the incumbent. Those limited circumstances exist when the incumbent prosecuting attorney is being investigated or charged with an illegal activity.” Venhaus, 286 Ark. at 232-33, 691 S.W.2d at 143 (emphasis added); see also Johnston v. Brisco, No. 06-CV-03002, 2007 WL 1576026 (W.D.Ark. May 30, 2007) (mem.). In Weems, we upheld the appointment of a special prosecutor to investigate and prosecute an elected prosecutor for criminal activity. Accordingly, neither Venhaus nor Weems is analogous to Smith’s case.
Having held that the circuit court erred, we now turn to whether the writ of certiorari is appropriate. First, it is clear to this court that Smith has no other remedy. Second, we find that the record on its face demonstrates that the circuit court exceeded its jurisdiction by disqualifying Long and appointing a special prosecutor. The record fails to support the circuit court’s appointment because the limited circumstances under which our statutes and case law have allowed the appointment of a special prosecutor have not occurred in this case. The disqualification of Long was not based on Long’s failure to attend to the court due to illness, or other cause, nor was he disqualified for an investigation of his own criminal activity. As previously discussed, the record fails to demonstrate that Long failed to attend the court or prosecute as required by law, but rather, demonstrates that he attended court and filed the State’s motion to nolle pros. Since that time, the record further demonstrates that Smith’s case has not been called for trial. Therefore, we agree with Smith that the circuit court has | inexceeded its jurisdiction.
Because the circuit court acted in excess of its jurisdiction, and because Smith is left without an adequate alternative remedy, we hold that relief in the form of a writ of certiorari is appropriate. We issue the writ of certiorari and order the Phillips County Circuit Court to rescind its August 16, 2013 order disqualifying Long and appointing special prosecutor Davis, lift the stay of the proceedings, and direct the circuit court to promptly set the matter for trial.
However, we decline to direct the circuit court to nolle pros the capital-murder charges against Smith. The narrow question before us is whether the writ of certiorari lies with regard to the circuit court’s denial of the motion to nolle pros. The answer is no. “A prosecuting attorney and a circuit judge both have great discretion in performing their duties. The prosecutor has the discretion to file charges and the discretion to ask the court to dismiss charges. The trial court has the discretion to grant or deny a motion to dismiss charges.” Webb v. Harrison, 261 Ark. 279, 281, 547 S.W.2d 748, 749 (1977); see also State v. S.L., 2012 Ark. 73, at n. 1, 2012 WL 581690 (“A prosecutor has the discretion to request that the court nolle pros a charge, see Webb, 261 Ark. at 281, 547 S.W.2d at 749, and the court has the discretion to grant or deny the prosecutor’s request, see Noland v. State, 265 Ark. 764, 770, 580 S.W.2d 953, 956 (1979)”). Accordingly, the writ does not lie because “in determining its application, we will not ... review a circuit court’s discretionary authority.” Moore v. Circuit Court of Phillips County, 2013 Ark. 443, 430 S.W.3d 663 (citing e.g., S. Farm Bureau Cas. Ins. Co. v. Parsons, 2013 Ark. 322, 429 S.W.3d 215.) Thus, we decline to issue the writ of certiorari regarding the circuit court’s denial of the State’s motion to nolle pros.
Finally, Smith requests we direct his release from the Cross County jail. We decline to release Smith from jail because he has failed to demonstrate that he is illegally detained.
II. Disqualification of the Circuit Court Judge
For his second point on appeal, Smith asserts that because the circuit court erred in disqualifying Prosecutor Long and appointing a special prosecutor, the circuit court judge has demonstrated his bias against Smith and should be removed from presiding over Smith’s pending criminal action. Smith contends that the circuit court demonstrated its bias with the following acts: (1) its failure to inquire about the nolle pros request, (2) its reliance on newspaper articles in violation of Rule 2.4 of the Arkansas Code of Judicial Conduct, and (3) its ex parte communications with the prosecutor in violation of Rule 2.9 of the Arkansas Code of Judicial Conduct. The circuit court responds that Smith did not preserve this issue as he did not present it to the circuit court.
We agree with the circuit court. An argument alleging judicial bias is not preserved when there was not an objection based on the bias of the judge or a motion for the trial judge to recuse. Middleton v. Lockhart, 364 Ark. 32, 216 S.W.3d 98 (2005) (citing S. Farm Bureau Cas. Ins. Co. v. Daggett, 354 Ark. 112, 118 S.W.3d 525 (2003)). Here, there is no record of a prior objection or motion regarding bias of the circuit judge. Because the argument was not made below, we will not address the merits of this issue.
Writ of prohibition denied; writ of cer-tiorari granted.
| ,2SpeciaI Justice JOHN ELROD joins in this opinion.
CORBIN, J., not participating.
. Smith was initially held at the Phillips County jail. However, on April 22, 2013, the Phillips County jail shut down and Smith was transferred to the Cross County jail.
. To aid the reader, the opinion will refer to acts on behalf of the prosecutor’s office as "Long”.
. Having determined that there was not a valid disqualification of Long, we need not reach the issue of whether Ark.Code Ann. § 16-21-112(a) permits the appointment of a special prosecutor to an individual case. | [
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DONALD L. CORBIN, Justice.
| Appellant Andrew R. Engram appeals the order of the Pulaski County Circuit Court dismissing his petition for postcon-viction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.5 (2013). For reversal, Engram asserts the following points of error: (1) both the circuit court and this court had jurisdiction to hear his Rule 37 petition; (2) a hearing was warranted on whether Engram established good cause for filing a belated Rule 37 petition; (3) a hearing was warranted on whether Engram’s waiver of his right to file a Rule 37 petition was valid; (4) this court should hold that the protections of Rule 37.5 extend to petitioners who waive the right to file a Rule 37 petition under the advice of counsel; (5) under the rationale of Anders v. California this court should hold that potentially meritorious issues must be raised by appointed counsel in death cases on Rule 37; (6) this court should extend the mandatory Robbins review to Rule 37.5 in death cases. Because the circuit court erred in summarily dismissing Engram’s Rule 37.5 petition, we reverse and remand for proceedings consistent with this opinion.
IsEngram was charged with one count each of capital murder and rape in connection with the death of Laura White, a security guard working at Sears in North Little Rock. On January 28, 1999, a jury convicted him on both counts and sentenced him to death. This court affirmed his sentence and conviction on May 4, 2000. See Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000), cert. denied, 531 U.S. 1081, 121 S.Ct. 783, 148 L.Ed.2d 679 (2001). This court’s mandate subsequently issued on January 12, 2001. Shortly thereafter, the circuit court appointed attorney Lea Ellen Fowler to represent Engram in postconviction proceedings. At the first status hearing following her appointment, Fowler announced that she was still in the process of reviewing the case. The circuit court then scheduled the next status hearing for June 25, 2001. The deadline for filing a Rule 37 petition passed without any petition being filed on Engram’s behalf. At the June 25 hearing, Fowler announced that she had not identified any issues to pursue in a Rule 37 petition and instead would proceed with a habeas petition in federal court. The circuit court briefly inquired of Engram if he was agreeable with his attorney’s decision, and Engram replied that he was.
On January 9, 2002, Engram filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Arkansas. The next year, on April 18, 2003, Engram requested leave from the federal court to file an amended habeas corpus petition in order to raise additional grounds for relief, including a claim that he is mentally retarded and that his execution is barred under the Supreme Court’s holding in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The federal district court granted Engram’s motion to amend, but also raised sua sponte the question of whether Engram had presented his mental-retardation claim in state | ¡¡court. Ultimately, the federal district court directed Engram to move to dismiss his amended petition without prejudice and granted him leave to file a second amended petition that would relate back to his original, timely filed petition. Engram filed the motion as instructed, and the federal court granted it on October 7, 2003.
Thereafter, on November 5, 2003, Engram filed in this court a “Motion to Recall the Mandate and Reopen the Case and Brief in Support.” The motion was submitted as a case, and a briefing schedule was established. In his brief to this court, Engram asserted that this court should recall its mandate and reopen his case based on the fact that, in 2002, the Supreme Court decided in Atkins that the execution of mentally retarded individuals violates the Eighth Amendment’s prohibition on cruel and unusual punishment. This court denied Engram’s motion. Engram v. State, 860 Ark. 140, 200 S.W.3d 367 (2004) (Engram II). In so doing, this court in Engram II reasoned that the issue of mental retardation could have been resolved by the trial court, if only Engram had presented evidence bearing on the issue and had asked for the circuit court to rule on the issue. Id. The court also rejected Engram’s contention that his case was similar to Robbins v. State, 353 Ark. 556, 354 Ark. 1, 114 S.W.3d 4217 (2003) (supplemental opinion on denial of reh’g), a case where this court had previously recalled its mandate. In concluding that Engram’s case was different, this court explained as follows:
This is simply not a case like Robbins, where the alleged error was an error in this court’s own review of the case on appeal, and this court was asked to reopen the case to address its own error. Because Robbins was so strictly limited to its facts, this court made it clear that it would not expand the nature of cases in which it will recall a mandate it has already issued. Here, since it was Engram’s burden to do so, he should have obtained a ruling on his mental retardation issue from the trial court before his trial ever started.
Engram II, 360 Ark. at 151, 200 S.W.3d at 372.
This court in Engram II also denied Engram’s alternative request that he be allowed to file a petition for postconviction relief. In so doing, this court reasoned that counsel had been appointed for Engram, that Engram had agreed with his attorney’s decision to forgo Rule 37 relief, and that the time for filing any such petition had lapsed. This court further rejected Engram’s attempted reliance on Jackson v. State, 343 Ark. 613, 37 S.W.3d 595 (2001), and Porter v. State, 339 Ark. 15, 2 S.W.3d 73 (1999), cases in which this court allowed petitioners to file belated Rule 37 petitions, as factually distinguishable. The court in Engram II concluded as follows:
Here, unlike the situations in Jackson and Porter, there has been no confusion about when filing deadlines occurred or about. whether counsel had been appointed. Engram and his Rule 37 attorney made a deliberate decision not to pursue | spostconviction relief. There is no provision in our law that provides for petitions for “post-postconviction relief,” i.e., a mechanism for filing an ineffective-assistance-of-counsel petition with respect to the counsel appointed to handle the Rule 37 petition. Engram’s state court remedies with respect to postconviction relief have been exhausted.
Id. at 154, 200 S.W.3d at 375.
Following this court’s decision in Engram II, attorneys from the office of the Federal Public Defender for the Eastern District of Arkansas filed a motion in this court requesting that they be appointed to represent Engram before this court and all other Arkansas state courts. This motion was filed on September 15, 2006. On September 27, 2006, before this court ruled on the motion, those same attorneys filed a petition for postconviction relief on Engram’s behalf in the Pulaski County Circuit Court. Therein, Engram asserted numerous allegations of ineffective assistance of trial counsel, as well as allegations that he was mentally retarded and therefore could not be executed. Along with the petition, Engram also filed a motion for leave to file an overlength brief, and a memorandum of law regarding the timeliness of the Rule 37 petition. Thereafter, on October 5, 2006, this court entered an order denying the federal public defender’s appointment request.
Engram’s Rule 37 petition inexplicably languished in the circuit court for almost six years until April 30, 2012, when the circuit court entered an order summarily dismissing the petition as untimely. No hearing was ever held on the petition or the allegation of its timeliness. Once again, attorneys from the Federal Public Defender’s Office filed a motion with this court seeking to be recognized as counsel for Engram. This court granted the | ¿motion, and Engram filed a timely notice of appeal from the order denying his request for Rule 37 relief.
As an initial matter, we must address the State’s contention that we should dismiss the instant appeal because of a lack of jurisdiction. According to the State, Engram’s failure to file a petition within the ninety-day time limit set forth in Rule 37.5(e) is a procedural bar to the relief he now seeks. Engram asserts that he is not procedurally barred in this instance because the circuit court was never divested of its jurisdiction. Alternatively, Engram asserts that he is at least entitled to a hearing on the issue of whether he has established good cause for filing a belated Rule 37 petition.
It is true that this court has stated that the filing deadline of Rule 37.2 is jurisdictional in nature. Murphy v. State, 2013 Ark. 243, 2013 WL 2382727 (per curiam); O’Brien v. State, 339 Ark. 138, 3 S.W.3d 332 (1999) (per curiam). If the time limitations of the rule are not met, a trial court lacks jurisdiction to consider a Rule 37.1 petition. Holliday v. State, 2013 Ark. 47, 2013 WL 485726 (per curiam). Where the circuit court lacks jurisdiction, the appellate court also lacks jurisdiction. Id. (citing Winnett v. State, 2012 Ark. 404, 2012 WL 5304090 (per curiam)); see also Clark v. State, 362 Ark. 545, 210 S.W.3d 59 (2005).
Contrary to the State’s assertion, however, this court has never held that the ninety-day time limitation of Rule 37.5(e) is an absolute jurisdictional bar. Its reliance on this court’s decision in Porter, 339 Ark. 15, 2 S.W.3d 73, to support such an argument, is simply unavailing. In Porter, where we considered an untimely filing of a Rule 37 petition in a death-penalty case, there was a question as to whether the petitioner had received appointed 17counsel. This court specifically held that the time requirement of Rule 37.2 was jurisdictional in nature, citing to our prior decision in Petree v. State, 323 Ark. 570, 920 S.W.2d 819 (1995), a noncapital case. In fact, Porter was not even governed by the dictates of Rule 37.5, as it predated implementation of that rule. Nevertheless, this court noted that Rule 37.5 had been implemented in an effort to comply with the requirements of federal law by instituting a comprehensive state-court review. The court in Porter ultimately concluded that good cause was established for the petitioner’s failure to timely file a Rule 37 petition, and explained as follows:
In light of the fact that this is a case involving the death penalty and the fact that Rule 37.5 has in effect cured the instant situation from recurring, coupled with the ambiguous circumstances surrounding appellant’s legal representation, and the requirements of due process, we hereby hold that fundamental fairness, in this narrowest of instances where the death penalty is involved, dictates an exception in the present matter to allow appellant to proceed with his Rule 37 petition.
Id. at 19, 2 S.W.3d at 76.
Similarly, in Jackson, 343 Ark. 613, 37 S.W.3d 595, this court addressed whether the strict application of the jurisdictional time limits would be fundamentally fair when applied to a person under a sentence of death. Jackson also dealt with an untimely Rule 37 petition in a death case where there was some confusion about when the petitioner’s attorney had been appointed. The Jackson court recognized that if the case before it were a noncapital case then the general rule would be that the time limits set forth in Rule 37 are jurisdictional in nature and would apply. Id. The court pointed out, however, that it was presented with a case involving the death penalty, and explained as follows:
|sThis Court’s pronouncements in cases following Porter suggest that Rule 37.5 cases require an examination of whether it is “fundamentally fair” to require an inmate on death row to abide by the stringent filing deadlines when he was under the impression he was represented by counsel and that said counsel was timely filing the proper pleadings on his behalf. The obvious concern in the instant case is that the State has opted to specifically provide a postconviction process for persons under a sentence of death through Rule 37.5. Rule 37.5 mandates very specific requirements, including a level of quality of appointed counsel for persons pursuing Rule 37.5 relief.
Id. at 618, 37 S.W.3d at 598 (citations omitted). Thus, this court in Jackson refused to hold that the time limits of Rule 37.5(e) create an absolute procedural bar to the belated filing of a postconvietion petition in a capital case. The court in Jackson further explained as follows:
Porter and the cases that follow suggest that Rule 37.5 requires a heightened standard of review of capital cases because the State has undertaken, via Act 925 of 1997 and Rule 37.5, to provide collateral relief so as “to eliminate the need for multiple federal habeas corpus proceedings in death eases.” Again, while there is no constitutional right to a postconviction proceeding, when the State undertakes the role of providing such, as it has done here, it must comport with due process and be fundamentally fair.
Therefore, pursuant to Porter, we hold that fundamental fairness dictates that the appellant in this case be afforded an opportunity to have his claims considered.
Id. at 619, 37 S.W.3d at 599 (citations omitted).
We are mindful of the State’s reliance on this court’s decision in Roberts v. State, 2011 Ark. 502, 385 S.W.3d 792 (Roberts III), a capital case, wherein we dismissed a Rule 37 petition for lack of jurisdiction. But our conclusion in Roberts III was not based on a holding that the time requirements of Rule 37.5 operated as a jurisdictional bar to the filing of the petition. In Roberts III, the petitioner filed a belated Rule 37 petition after having initially waived his rights under Rule 37.5. After the petitioner waived those rights, the State filed a motion with this court requesting the court to review the record of the petitioner’s waiver Rhearing. This court granted the motion and affirmed the circuit court’s findings regarding the petitioner’s waiver of postconvietion relief. State v. Roberts, 354 Ark. 399, 123 S.W.3d 881 (2003) (per curiam) (Roberts II). No further proceedings occurred in state court until several years later when the petitioner filed a Rule 37 petition in circuit court, which was denied. We dismissed the subsequent appeal because neither the circuit court nor this court was ever vested with jurisdiction to hear the petition. Roberts III, 2011 Ark. 502, 385 S.W.3d 792. In determining that we lacked jurisdiction, we noted that the petitioner never moved this court to rescind his waiver, which we had affirmed. Id. Thus, this court concluded that, once the record was lodged with this court in Roberts II, the circuit court lost jurisdiction to make any subsequent rulings in a proceeding under Rule 37.5. Explaining further, this court stated as follows:
We therefore hold that where the ninety-day filing period under Rule 37.5(e) has expired and a waiver of post-conviction relief has been affirmed by this court, a petitioner must file the appropriate motion to reopen postcon-viction proceedings before a Rule 37 petition can be brought in circuit court. Because this has not been done in the present case, the circuit court was without jurisdiction to entertain Roberts’s Rule 37.5 petition, and this court is likewise without jurisdiction to hear an appeal from any decision of the circuit court in the matter. We, therefore, dismiss this appeal.
Roberts III, 2011 Ark. 502, at 9, 385 S.W.3d at 796-97 (citation omitted).
In reaching its conclusion, the Roberts III court also considered the State’s argument that the petitioner’s initial waiver of Rule 37 relief was analogous to the filing of a first petition and, thus, the belated petition he filed was an improper successive petition. In considering this argument, the court cited to its decision in Kemp v. State, 2009 Ark. 631, 2009 WL 4876473, where the court held that a petitioner must ask this court to recall its mandate issued after the | mfirst Rule 37 appeal before a second Rule 37 petition can be brought in circuit court. In Kemp, this court noted that it had consistently upheld the rule that a petitioner is limited to one petition for postconvietion relief unless the first petition was specifically denied without prejudice to allow the filing of a second petition. Id. The court in Roberts III relied in part on language from Kemp to conclude that the petitioner’s waiver of postconvietion relief was equivalent to the filing of a first petition for postconvietion relief. Roberts III, 2011 Ark. 502, 385 S.W.3d 792.
We believe that the instant case is more akin to the situations at issue in Porter and Jackson than those presented in Roberts III and Kemp. While there is no question about when or if counsel was appointed to represent Engram, there are certainly questions raised about counsel’s actions following her appointment. Specifically, Engram contends that Fowler missed the deadline for filing his Rule 37 petition and then tried to protect herself by stating on the record that she had not identified any issues that were appropriate for Rule 37 relief.
The record before us demonstrates that, following the issuance of our mandate from Engram’s direct appeal, the circuit court held the required hearing and appointed Fowler to represent Engram in pursuit of a Rule 37 petition. Prior to the deadline for filing the petition, a status hearing was held, and Fowler announced that she was still reviewing the Engram record. The trial court then scheduled the next hearing on the matter for June 25, 2001, and at the hearing the following colloquy occurred:
Ms. Fowler: Your Honor, we were here for report today on the status of Mr. Engram’s potential Rule 37. I have reviewed all of the State’s records, the public defender’s records, the appeal records, the trial transcript. I’ve discussed all of the h,potential issues with Mr. Engram and we did not identify any issues that were appropriate for Rule 37.5 relief.
I have discussed with him that the next step is federal habeas and he has authorized me to pursue appointment on that issue in federal court and that’s where we’re going from here. But there was nothing we felt merited filing a petition in this court for Rule 37 relief.
The Court: Mr. Engram, is that your understanding of the status of the matter at this point?
The defendant: Yes, sir.
The Court: You agree with Ms. Fowler’s assessment?
The Defendant: Yes, sir.
The CouRT: You satisfied that she has reviewed each and every item that pertains to your case?
The Defendant: Yes, sir
The Court: So you are now going to proceed in federal court with whatever remedies might be available there; is that correct?
Ms. Fowler: That’s correct. We have identified some potential issues there and we plan to go forward with that.
The Court: And those issues would not be applicable in circuit court?
Ms. Fowler: No. They are matters of law, not trial tactic or ineffective assistance of counsel.
The Court: And you agree with that, Mr. Engram?
The Defendant: Yes, sir.
The Court: All right, then.
112According to Engram, Fowler’s statement on the record that she chose not to file a Rule 37 petition on Engram’s behalf because there were no issues to pursue in a Rule 37 petition was false.
Although Engram, in Engram II, raised a conclusory allegation regarding Fowler’s postconviction representation, he has now submitted specific allegations, with a declaration by attorney Jeffrey Rosenzweig in support of some of those allegations. Rosenzweig asserts that attorney Craig Lambert, who at the time was romantically involved with Fowler, contacted him and asked him to notify the court that Fowler mistakenly allowed the deadline for the Rule 37 filing to pass. Rosenzweig further avers that he notified the circuit court that Fowler had negligently allowed the deadline to pass but was later in the courtroom, on an unrelated matter, when he heard Fowler announce that she was not pursuing Rule 37 relief on Engram’s behalf but, instead, would proceed in federal court.
This information that was presented to the circuit court in a memorandum attached to Engram’s Rule 37 petition is enough to give rise to a question of whether there is good cause for Engram’s failure to timely file a Rule 37 petition, and it was error for the circuit court to summarily dismiss Engram’s Rule 37 petition without holding a hearing to consider the issue of good cause. Because a question exists as to whether there was good cause for Engram’s failure to timely file a Rule 37 petition, we cannot accept the State’s contention that the petition filed by Engram is an impermissible second or successive petition as discussed in Roberts III and Kemp.
| iaWe also do not agree with the State’s alternative argument that Engram is precluded from seeking the instant relief because the issues raised in his Rule 37 petition have already been raised to, and rejected by, this court in Engram II, including Engram’s allegations regarding the ineffectiveness of his postconviction counsel. In looking at our general law with regard to the law-of-the-case doctrine, this court in State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830, explained as follows:
Under the doctrine known as law of the case, the “decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review.” The doctrine prevents an issue raised in a prior appeal from being raised in a subsequent appeal “unless the evidence materially varies between the two appeals.” However, the doctrine is not limited to issues raised in prior appeals as the doctrine was developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit. Accordingly, the conclusion of the court in one opinion becomes the law of the case on subsequent proceedings on the same cause and the matter is res judicata. However, in order for the law-of-the-case doctrine to bar consideration of an issue, the merits of the claim must previously have been addressed and the claim must have been adjudicated.
Id. at 5-6, 404 S.W.3d at 834 (citations omitted).
Notably, our cases have repeatedly held that law of the case, like res judicata, is an affirmative defense to be raised at the trial court level and presents no question of jurisdiction. State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997); see also Clemmons v. Office of Child Support Enforcement, 345 Ark. 330, 47 S.W.3d 227 (2001). Law of the case cannot be raised for the first time on appeal, and the appropriate time to raise this issue is before the circuit court at the first possible time. See Bell, 329 Ark. 422, 948 S.W.2d 557. Here, the State never filed a motion to dismiss Engram’s Rule 37 petition in circuit court. In fact, the State never filed any type of response to the petition or accompanying motion and memorandum; thus, 114Engram is correct in asserting that the State is improperly raising this issue for the first time on appeal.
Even if the State had timely raised its law-of-the-case argument, it would still fail. At the time that we decided Engram II, we were not presented with the serious allegations regarding Engram’s appointed counsel. Although there was a general contention that she had failed to timely file the Rule 37 petition, it was nothing more than a mere conelusory allegation, and there was certainly nothing submitted in support of it. Moreover, we cannot ignore the fact that in Engram II the court relied, in part, on the fact that Engram had waived his right to file a Rule 37 petition as part of its basis for holding that he could no longer avail himself of such relief; but, in so doing, this court failed to acknowledge that the State never moved this court to review Engram’s waiver, nor did this court ever consider whether such a waiver was valid. •
The State asserts that Engram’s choice to forgo postconviction relief was not an actual “waiver” because Engram did not forgo the appointment of postconviction counsel but, in so arguing, the State fails to recognize that while Engram requested the appointment of Rule 37 counsel, he ultimately gave up his right to pursue postconviction remedies. This court most recently discussed the issue of waiver in the postconviction process in Roberts v. State, 2013 Ark. 57, 426 S.W.3d 372 (Rob erts IV), where the issue was whether the petitioner’s waiver of postconviction relief, and our subsequent affirmance of that waiver, constituted a defect in the appellate process. In analyzing the issue, this court noted as follows:
In our state, a defendant sentenced to death will be able to forgo a state appeal only if he has been judicially determined to have the capacity to understand the choice [^between life and death and to knowingly and intelligently waive any and all rights to appeal his sentence. This same standard governs the waiver of rights to postconviction remedies following the affirmance of a death sentence. Furthermore, we have held that it is error to allow a waiver of postconviction relief without a competency examination to determine whether the defendant had the capacity to choose between life and death and to knowingly and intelligently waive all rights to postconviction review of the death sentence.
Id. at 8-9, 426 S.W.3d at 377 (citations omitted). The Roberts IV court noted that the petitioner’s mental evaluations had occurred several years prior to the time that he waived his postconviction rights and did not properly examine the issue of whether he knowingly and intelligently waived all rights to postconviction review, including his capacity to choose between life and death. Thus, this court concluded that its failure to identify the lack of such an evaluation when it reviewed the record of his waiver-of-postconviction-rights hearing constituted a breakdown in the appellate process that warranted reopening his post-conviction proceedings. Id.
The instant case is different in that Engram did not waive his rights to post-conviction relief from the outset, as did the petitioner in Roberts. But Engram ultimately waived his right to file a petition under Rule 37.5, on the advice of counsel, and what remains to be seen is whether counsel’s advice was the result of her failure to timely file the petition. Thus, under these facts, we cannot say that this court’s holding in Engram II, that it was too late for Engram to file a Rule 37 petition, is law of the case and now precludes him from seeking such relief. To hold otherwise would ignore the well-settled principle that while there is no constitutional right to a postconviction proceeding, when a state undertakes to provide collateral relief, due process requires that the proceeding be fundamentally fair. See id. Under |1fithe facts and circumstances of this case, and considering the finality of the punishment at issue, we hold that the circuit court erred in summarily dismissing Engram’s Rule 37 petition in the absence of a hearing and specific written findings on the issue of whether there exists good cause for the belated filing of the petition.
Reversed and remanded.
. After the briefs were all filed and the case was ready for submission, Engram filed a "Motion to Continue Oral Argument and Stay of Proceedings." Therein, Engram requested permission to return to circuit court so that he could file a Rule 37 petition and allege, among other things, his mental-retardation claim under Atkins. Engram also alleged that his postconviction counsel had been ineffective in failing to investigate his case. At the conclusion of the motion, Engram elaborated and stated that he had learned that his appointed attorney allowed the time for filing his petition to lapse and contacted some local attorneys to find out how to fix her mistake. There were no specific facts alleged or parties named, and nothing was submitted in support of this conclusory allegation. This court denied the motion without comment.
. Although it had no effect on the outcome, we observe that the court mistakenly states that, pursuant to Rule 37.2, Engram had sixty days from the date our mandate issued to file his Rule 37 petition. As Engram was sentenced to death, his postconviction remedy was governed by Rule 37.5, which allows a petitioner to file a postconviction petition within ninety days from the date of an order appointing Rule 37 counsel. | [
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JOSEPHINE LINKER HART, Justice.
11 Diamante, LLC (Diamante), appeals the orders of the Saline County Circuit Court granting the motion of appellees, Gary Dye and Linda Dye, for class-action certification. This order is immediately appealable pursuant to Ark. R.App. P.-Civ. 2(a)(9) (2012). On appeal, Diamante argues that the circuit court abused its discretion by (1) ruling that the class counsel is qualified and is not a likely, necessary witness; (2) ruling that the class representatives met the adequacy requirement and that they do not have a conflict of interest in representing members of the class whose dues were deferred; (3) ruling that all class members have a common claim when the restrictive covenant filed in connection with the lot owned by the class representatives is different than the restrictive covenant of other class members; (4) including members of the class whose dues are currently being deferred; (5) including members of the class who signed documents agreeing to arbitrate controversies with Diamante; and (6) certifying a class including as members of the class those whose dues 12were deferred.
When we review a circuit court’s decision to grant or deny class certification, we will reverse only when the appellant can demonstrate an abuse of discretion. DIRECTV, Inc. v. Murray, 2012 Ark. 366, 423 S.W.3d 555. In this interlocutory appeal, we do not consider the merits of the underlying claims as the issue of whether to certify a class is not determined by whether the plaintiff has stated a cause of action for the proposed class that will prevail. Id. This court thus views the propriety of a class action as a procedural question. Id. The six requirements for class-action certification as stated in Rule 23 of the Arkansas Rules of Civil Procedure are (1) numerosity, (2) commonality, (3) typicality, (4) adequacy, (5) predominance, and (6) superiority. Id.
Diamante operates a private-membership golf club located in Hot Springs Village. There are approximately 450 privately owned lots around the golf course and clubhouse. The lots are in two subdivisions, the Diamante Subdivision and the Diamante Villas Subdivision. Supplemental declarations of covenants and restrictions (supplemental declarations) are on file in the Saline County land records. The supplemental declarations run with the land and create certain obligations and restrictions referred to as “tie-in rights.” Among those tie-in rights are requirements that lot owners become “Full Golf Members” of the Diamante Country Club (the Club); pay monthly dues to the Club; and grant Diamante a lien and foreclosure right with respect to the lot that arises in the event of failure to pay the monthly Club dues.
Appellees filed a declaratory-judgment action, asking the circuit court to declare the |stie-in rights unenforceable. They alleged that Diamante owed them a duty to collect monthly dues from all Full Golf Members, but had failed to collect those dues from “up to 100 Diamante and Diamante Villa lot owners.” The appellees asserted that the failure to collect dues made the tie-in rights unenforceable because (a) Diamante committed a material breach of its duty owed to members; (b) there was a failure of consideration; (c) the “material breaches” by Diamante equated to a failure to operate in accordance with the plan of development set out in the supplemental declarations; (d) Diamante violated the implied law to act in good faith and fair dealing in the performance of its duties under the supplemental declarations; (e) the doctrine of “unclean hands” would bar enforcement of the tie-in rights at equity; (f) inequitable conduct in selectively collecting dues would bar enforcement of the tie-in rights in equity; (g) Diamante’s seeking to enforce the tie-in rights while it is materially breaching them is “uncon scionable”; (h) selective enforcement by Diamante is not permitted by the plan of development and supplemental declarations; (I) the rule against perpetuities makes the tie-in rights unenforceable and void; (j) the tie-in rights constitute an unreasonable restraint on alienation on the appellees’ home and lot; (k) Diamante’s failure to satisfy “virtually the only provision” in the supplemental declarations that placed a duty on the Club caused the tie-in rights to be unenforceable due to lack of mutuality of obligation; and (l) Diamante has “abandoned” the plan of development by not collecting the full monthly dues. The appellees subsequently amended their petition to add that Diamante had also abandoned the plan of development by not keeping the golf course exclusively reserved for dues-paying members.
14Appellees then filed a motion for class certification. They proposed to define the class as
Current owners of Diamante Lots, improved or unimproved, located in the Diamante and Diamante Villas subdivisions [excluding from the Class: RESPONDENT, entities affiliated with Defendant Cooper Land Development, Inc., purchasers of about 100 ‘Deferred Lots,’ and owners of the six lots for which foreclosure cases brought by RESPONDENT are on file and pending.]
Appellees asserted that class certification was proper because
1) the class is so large that joinder of all members is impracticable, 2) the legal and factual defensive issues to be determined are common to all members of the proposed class, 3) the defenses of the PETITIONERS as representative parties are typical of the defenses of the class, and 4) the PETITIONERS as representative parties will fairly and adequately protect the interests of the class.
Appellees argued in a memorandum to the circuit court that was filed in support of its motion for class certification that all the requirements of Arkansas Rule of Civil Procedure 23 were met by the proposed class. These requirements are (1) numer-osity, (2) commonality, (3) typicality, (4) adequacy, (5) superiority, and (6) predominance. The memorandum then set forth how each of the six requirements were met. First, they asserted that the likely class of approximately 330 members should be found to be more than enough class members to satisfy the numerosity requirement. Second, they asserted that the commonality requirement should be found to have been met because the question of “enforceability” of the tie-in rights and whether Diamante’s conduct affected its right to enforce them is common to all members of the proposed class. Third, appellees asserted that the typicality requirement should be found to have been met because there are no varying fact patterns for the court to deal with, as the claims involved identical provisions in the Plan of Development, and all the material | Sfacts relating to Diamante’s conduct provide all class members with the same defenses to enforceablity. Fourth, they asserted that the adequacy requirement should be found to have been met because class counsel and the class representatives will fairly and adequately represent the interests of the class because there are no known conflicts between the representatives and other class members, the appel-lees have more than a minimal interest in the action, the appellees are familiar with the practices being challenged, and they have the ability to assist in decision-making as to the conduct of the litigation. Also, they asserted that the class counsel is presumed to be adequate. Fifth, appel-lees asserted that the superiority requirement should be found to have been met because it is more “judicially efficient” to take up the common question and defenses than to file 380 separate actions. Sixth, they asserted that the predominance requirement should be found to have been met because “issues related to the identical provisions of the Supplemental Declarations and identical conduct of [Diamante] are at the heart of the common defenses by all members of the proposed class.”
After a hearing in which Diamante contested each of the six requirements for class certification and moved for the disqualification as a necessary witness proposed class counsel, Jim Armogida, and after entertaining a motion to reconsider, the circuit court certified the class. The circuit court defined the class as:
Current owners of the 450 lots, improved or unimproved, located in the Diamante or Diamante Villas subdivisions, excluding the following owners: Respondent, Cooper Land Development, Inc. and its affiliates.
In its order granting class certification, the circuit court made extensive findings of fact. It |fifound that none of the reasons alleged by the appellees as justification for declaring the tie-in rights unenforceable are based on the acts of the appellees or other property owners in the Diamante and Diamante Villas subdivisions. Further, the circuit court found that all of the reasons alleged for unenforceability pertain not only to the appellees but also to all the members of the proposed class. The circuit court also found that the proposed class exceeded 880 property owners and that the proposed class was clearly defined and unambiguous.
The circuit court found that the agreement to arbitrate claims against the Club that was found in several of the proposed class members’ Club membership agreements was no impediment to class certification. It stated that the declaratory-judgment action before it was “no forum” for [Diamante] to attempt to require any of the three groups (defined by three different versions of the Club membership applications), except the Dyes, to submit to arbitration. Furthermore, the circuit court found that various forms of membership applications did not disqualify any of the three groups from class membership. Additionally, the circuit court noted that it had previously considered and denied Diamante’s motion to compel arbitration, that the bylaws had no bearing on the ability of a Club member to be a member of the class, and that the three different versions of the membership form have “no relevance” to numerosity, commonality, or predominance because the supplemental declarations which all property owners in the proposed class are subject to was the focus of the action.
The circuit court also made the following conclusions of law with regard to the requirements of Arkansas Rule of Civil Procedure 23. First, the circuit court stated that the 17numero sity requirement was met because the proposed class was more than 330 lot owners, which made joinder impracticable. Second, the circuit court stated that the commonality requirement was met because the acts by Diamante established a common question of enforceability “totally independent of any actions by [ap-pellees] and members of the proposed class, but affects them all.” Third, the circuit court stated that the typicality requirement was met because the “focus” of the lawsuit was the conduct of Diamante and the same legal theory advanced by the appellees related to that conduct.
Fourth, the circuit court stated that the adequacy requirement was met. The three requirements of Rule 23(a)(4), (1) class counsel be qualified, experienced, and generally able to conduct the litigation and that the class is generally “pleased” with his representation; (2) that there be no evidence of collusion or conflicting interest between the class representative and the class; and (3) that the class representative must display some minimal interest in the action, familiarity with the practices challenged, and ability to assist in decision making regarding the conduct of the litigation, were established. The circuit court noted that in Arkansas law there is a presumption that class counsel meets the adequacy requirement and that no special training is required. It also noted that Diamante did not raise any questions about the “capability or competence” of class counsel.
While acknowledging Diamante’s “necessary witness” argument, the circuit court stated that the appellees did not share Diamante’s concerns and found that there had been “nothing presented to this court which even remotely brings into question any need for [proposed class counsel] to be a necessary witness or that he has any conflict of interest with 18his clients.” Further, the circuit court noted that the appel-lees testified that they are “very happy” with class counsel and “it has been apparent in court proceedings to date that [class counsel’s] background and his familiarity with the facts and circumstances in this case due to his ownership of a lot are of great benefit to his clients and not detrimental.” Additionally, the circuit court found the Dyes met the requirements to serve as class representatives because in several court appearances, they displayed “interest, familiarity, and the ability to assist in decision making.”
Fifth, the circuit court found the superiority requirement — that a class action be the most efficient way of handling the case and fair to both sides-had been met because there is judicial efficiency in having the ultimate determination on the merits potentially cover up to 330 class members and the determination will relate to a common document filed in the land records of all the lot owners in the proposed class. It found no unfairness to Diamante, or alternatively, if it existed, it was “greatly outweighed by the obvious fairness to the class members.” The circuit court found “no real problem” with manageability of the class. Finally, the circuit court found that the predominance requirement had been met because “issues related to identical provisions of the supplemental declarations and identical conduct of [Diamante] common to all the proposed class are at the heart of this declaratory judgment action.” It noted further that there are “really no apparent issues in the action on the merits before this court which are not common to the proposed class, and in this type of situation the ‘predominance’ requirement appears to be a non-factor, as a matter of law.” Diamante timely filed a notice of appeal.
|90n appeal, Diamante first argues that the circuit court abused its discretion by ruling that class counsel, an owner of a lot in one of the Diamante subdivisions, is qualified and is not a likely, necessary witness. Citing Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995), Diamante asserts that class counsel, as a class member, will be a necessary witness to testify about a “membership document” in his file; whether it was his handwriting on the document that would indicate his awareness of the provisions in the bylaws regarding arbitration; whether he had signed a contract deferring his own dues for a year; and his knowledge of alleged breaches of its duty by Diamante.
To the extent that Diamante is arguing that the circuit court erred in refusing to disqualify the class counsel because he was likely to be a witness, we note that Rule 2(a)(8) of the Arkansas Rules of Appellate Procedure-Civil provides that orders disqualifying an attorney are immediately appealable, not orders denying disqualification. Even so, adequacy |inof legal representation is a requirement of class certification and to that extent, this court has addressed the merits of counsel’s qualification. Whether class counsel is qualified and will fairly and adequately protect the interests of the class is addressed by Arkansas Rule of Civil Procedure 23(a)(4). It specifically requires that the representative parties and their counsel be able to adequately protect the interests of the class. This court has previously interpreted Rule 23(a)(4) to require three elements: (1) the representative counsel must be qualified, experienced, and generally able to conduct the litigation; (2) there be no evidence of collusion or conflicting interest between the representative and the class; and (3) the representative must display some minimal level of interest in the action, familiarity with the Inpractices challenged, and ability to assist in decision making as to the conduct of the litigation. Advance Am. Servicing of Ark., Inc. v. McGinnis, 2009 Ark. 151, 300 S.W.3d 487.
Diamante has not directly challenged class counsel’s qualifications, here or before the circuit court. We have held that absent a showing to the contrary, we may presume that the representative’s attorney will vigorously and competently pursue the litigation. Id. Diamante’s argument here only asserts that the circuit court erred in accepting as evidence class counsel’s qualifications via an affidavit. However, as noted previously, the circuit court’s conclusion of law regarding class counsel rested upon the presumption in Arkansas law that class counsel meets the adequacy requirement and that no special training is required. It noted that Diamante did not raise any questions about the “capability or competence” of class counsel. Accordingly, we cannot say that the circuit court abused its discretion in finding class counsel adequate.
Finally, Diamante asserts that the circuit court erred by not allowing into evidence a document signed by class counsel, which showed that he was deferring his dues for one year. The document is not relevant to the overarching question of whether it would be equitable to enforce the tie-in rights given Diamante’s conduct.
Diamante next argues that the circuit court erred in ruling that the class representatives met the adequacy requirement and that they do not have a conflict of interest in representing members of the class whose dues were deferred. It claims that the Dyes are dues-paying members and “the main reason appellees are suing [Diamante] is because it is deferring dues for some lot owners.” Accordingly, Diamante contends that because of this conflict of | ^interest, the appellees cannot fairly and adequately represent the class members whose dues are being deferred. Diamante argues further that the class representatives testified that they believed they had been harmed by the dues being deferred, which is an “inherent conflict of interest.” Finally, Diamante contends that the class representatives indicated that class counsel was the person primarily making the decisions, which makes them inadequate as class representatives.
Diamante mischaracterizes the litigation. It does not seek to enjoin the practice of deferring dues, or to force Diamante to perform its collection “duty.” It asks for the circuit court to declare whether Diamante’s past practices, including not collecting dues, made it inequitable to enforce the tie-in rights against all lot owners. As the circuit court found, because every lot in the Diamante subdivisions is burdened by the supplemental declarations, there is no conflict between the class representatives and those proposed class members who are currently enjoying deferred-dues payments. Further, there is no requirement that class representatives understand and direct every aspect of the litigation. McGinnis, supra. Rule 28.4 requires only “a minimal level of interest in the litigation and a familiarity with the practices challenged.” McGinnis, 2009 Ark. 151 at 13, 300 S.W.3d at 495. As noted previously, the circuit court found that the Dyes met the requirements to serve as class representatives because, in several court appearances, they displayed “interest, familiarity, and the ability to assist in decision making.” Given these express findings, we hold that the circuit court did not abuse its discretion in concluding that the adequacy requirement had been satisfied.
|ioDjamante next argues that the circuit court abused its discretion by ruling that all class members have a common claim when the restrictive covenant filed in connection with the lots owned by the class representatives is different than the restrictive covenant of other class members. It contends that many of the supplemental declarations are “slightly different.” Without specifying how, it contends that the “slightly different” language “may make the obligation of the appellees different from other lot owners.”
Satisfying the commonality requirement of Arkansas Rule of Civil Procedure 23(a)(2) requires a determination by the circuit court that there are questions of law or fact common to the class. Williamson v. Sanofi Winthrop Pharms., Inc., 347 Ark. 89, 60 S.W.3d 428 (2001). Rule 23(a)(2) does not require that all questions of law or fact raised in the litigation be common; the commonality requirement is met if there is only a single issue common to all members of the class. Id.
Diamante’s argument conflicts with the circuit court’s finding that commonality rested not on any conduct on the part of the appellees but on the conduct of Diamante, whose alleged material breaches of the supplemental declarations, which are common to all members of the proposed class, have given rise to the question of whether the tie-in rights are enforceable. Accordingly, because the main claim involved conduct by Diamante that affected the enforceability of tie-in rights that affect all class members, we cannot say that the circuit court abused its discretion by concluding that the commonality requirement was met. Cheqnet Sys., Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995).
Diamante further argues that the circuit court abused its discretion by including | ¶ ¿members of the class whose dues are currently being deferred. It asserts that they do not have standing to seek declaratory judgment in this case because they do not have a justiciable controversy. Citing Faigin v. Diamante, 2012 Ark. 8, 386 S.W.3d 372, it asserts that lot owners who are enjoying deferred-dues payments have no issues in common with lot owners who are currently being forced to pay Club dues. We disagree.
In Faigin, we upheld a circuit court’s determination that commonality was not satisfied. Id. There, the cause of action began when Diamante filed a complaint in foreclosure to enforce its lien on the Faig-ins’ property. Id. In opposing the foreclosure, the Faigins attempted to certify a class consisting of all the Diamante lot owners for the purpose of challenging the same foreclosure rights that are at issue in the case before us. Id. However, the record in Faigin reflected that, in the proposed class, there were only seven lot owners whose lots were in foreclosure. Id. This court noted that because the Faigins’ lot was in foreclosure, their defenses to the complaint in foreclosure were not common to the overwhelming majority of the proposed class, who were not in foreclosure. Id. We stated:
The fact that other lot owners in the subdivisions might share one or more concerns with the Faigins is not the same as sharing an element in the underlying cause of action. The procedural posture of this case requires that the members of the proposed class share a common defense to the complaint in foreclosure but, as the circuit court found, they do not.
Id. at 7, 386 S.W.3d at 377. Here, as the appellees note and the circuit court found, all 450 lots of the Diamante subdivisions are subjected to the tie-in rights and all the proposed class members are burdened by the supplemental declarations that run with their land. Further, the circuit court stated that the focus of the lawsuit was Diamante’s conduct. Accordingly, |1Rthe entire class shares the factual predicate that allows them to raise the equitable defenses to enforcement that have been recited above. Therefore, our decision in Faigin does not control the case before us.
Diamante next argues that the circuit court abused its discretion by including members of the class who signed documents agreeing to arbitrate controversies pursuant to the Diamante bylaws. By so agreeing, Diamante contends that the claims or defenses cannot be “typical” of the claims and defenses of the appellees. It asserts that it will have to determine which class members’ claims are subject to arbitration, which it believes will leave the superiority and predominance requirements unsatisfied.
Typicality requires that a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class so that the plaintiffs claim arises from the same event or practice or course of conduct that gives rise to the claims of other class members and may be redressed by pursuing the same legal theory. Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21. The essence of the typicality requirement is the conduct of the defendants and not the varying fact patterns and degree of injury or damage to individual class members. Id.
Here, the differences in the bylaws and Club membership agreements with regard to arbitration were found by the circuit court to be of no effect on the pending litigation. Furthermore, at the time that the circuit court granted class certification, it had already heard |1fiand rejected Diamante’s motion to compel arbitration. Moreover, as the circuit court noted, the case before us involves a judicial determination of whether Diamante’s conduct has made it inequitable to enforce the tie-in rights. Accordingly, we hold that the circuit court did not abuse its discretion in certifying this class.
Diamante next argues that the circuit court abused its discretion by certifying a class that includes members whose dues were deferred. It contends that a property owner whose dues have been deferred does not have a claim against it and is not harmed by other lot owners entering into similar agreements. Citing State Farm Fire & Casualty Co. v. Ledbetter, 355 Ark. 28, 129 S.W.3d 815 (2003), it contends that a class should be defined to include only those individuals who are actually harmed by the defendant’s conduct.
This argument fails because it depends on the faulty factual predicate that the cause of action exists to compel Diamante to collect Club dues. Compelling that activity, or seeking damages for its failure to do so has never been an objective in this lawsuit. As noted previously, the circuit court found that the objective in this case is for the circuit court to declare the tie-in rights, which every lot is subjected to, unenforceable. The class is defined by the owners of lots in the Diamante subdivisions that are burdened by the supplemental declarations. Accordingly, Diamante’s reliance on Ledbetter is misplaced. Unlike Ledbetter, the class definition in this ease would not require the circuit court to inquire into the facts of each lot owner’s agreement with the Club in order to determine whether that person is |17a suitable class member.
Class definition requires only a class description that is definite and administratively feasible to determine whether a particular person is a member. Baptist Health v. Hutson, 2011 Ark. 210, 382 S.W.3d 662. As noted previously, the circuit court defined the class as current owners of lots in the Diamante and Diamante Villas subdivisions not including Diamante itself and entities affiliated with Cooper Land Development, Inc., and the six lots currently in foreclosure. We cannot say that the circuit abused its discretion in certifying a class with this definition.
We also reject Diamante’s contention that the circuit court erred in certifying the class because it failed to satisfy the predominance requirement. Predominance is that requirement of Rule 23(b) that “the questions of law or fact common to the members of the class predominate over any questions affecting only individu al members.” The starting point in examining the predominance issue is whether a common wrong has been alleged against the defendant. Hutson, supra. As we noted previously, the circuit court found that the “issues related to identical provisions of the supplemental declarations and identical conduct of [Diamante] common to all the proposed class are at the heart of this declaratory judgment action.” Diamante’s identification of some extraneous facts relating to differences in membership agreements do not change the circuit court’s finding of the factual basis for the lawsuit, and we cannot say that the circuit court abused its- discretion in making a conclusion of law that the predominance requirement had been met.
Likewise, Diamante does not effectively challenge the circuit court’s conclusion that | isthe superiority requirement had been met because there is judicial efficiency in having the ultimate determination on the merits potentially cover up to 330 class members. Superiority under Rule 23(b) requires “that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” The superiority requirement is satisfied if a class action is the more “efficient” way of handling the case, and it is fair to both sides. Hutson, supra. Case law has also recognized a requirement that the class be “manageable.” Id. As we noted in Rosenow v. Alltel Corp., 2010 Ark. 26, 358 S.W.3d 879, the avoidance of multiple suits lies at the heart of any class-action decision. Here, Diamante relies on the existence of provisions in the Club membership agreements requiring arbitration of disputes to assert that the circuit court would be required to determine which class members’ claims are subject to arbitration as a basis for asserting that there was no judicial economy in allowing a class-action lawsuit. However, in making this argument, it ignores the factual findings by the circuit court that the arbitration provisions did not apply to the declaratory-judgment action before it. Accordingly, we cannot say that the circuit court abused its discretion in concluding that the superiority requirement had been met.
Lastly, Diamante argues that the last change to the class definition was improper because it was not made by motion. We cannot find in the record where this issue was raised and ruled on by the trial court, and we decline to consider it. This court will not address an argument on appeal if it has not been argued before the circuit court or if a party has failed to obtain a ruling from that court. Simpson Housing Solutions, LLC v. Hernandez, 2009 Ark. 480, 347 S.W.3d 1.
|1flWe conclude that the circuit court did not abuse its discretion in granting class certification. Accordingly, we affirm.
Affirmed.
. In Zearley, an appeal from a class certification, this court held that the trial court abused its discretion in allowing class counsel to testify at the certification hearing; however, the case before us is clearly distinguishable. Class counsel in Zearley was not a class member and actually testified in an effort to try to establish how a synthetic bone material resulted in a medical injury that would be best addressed in a class-action lawsuit. Here, class counsel, who is a class member, did not testify and was not called by Diamante to testify. Also, in the circuit court’s order, there is a specific finding that Diamante did not clearly articulate the need for class counsel’s testimony at the time it made its ruling. It likewise did not foreclose the possibility of disqualifying counsel at a later stage of the proceedings if it became necessary.
Furthermore, disqualification of an attorney-witness is not automatic. In Weigel v. Farmers Ins. Co., Inc., 356 Ark. 617, 158 S.W.3d 147 (2004), this court noted that while disqualification of an attorney is an absolutely necessary measure to protect and preserve the integrity of the attorney-client relationship, it is a drastic measure that should be imposed only where clearly required by the circumstances. Further, the Weigel court stated that the Arkansas Rules of Professional Conduct apply to disqualification decisions and that Rule 3.7 specifically addresses the situation. It provides:
A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
In actuating the considerations in Rule 3.7, the Weigel court adopted a three-part test that requires the party seeking disqualification of an attorney-witness to prove:
(1) that the attorney’s testimony is material to the determination of the issues being litigated; (2) that the evidence is unobtainable elsewhere; and (3) that the testimony is or may be prejudicial to the testifying attorney’s client.
Weigel, 356 Ark. at 625, 158 S.W.3d at 153. Here, the testimony that Diamante expects to elicit from class counsel, as noted previously, relates primarily to uncontested issues. Moreover, at this point in time, Diamante has not proven that the evidence was unobtainable elsewhere or that the testimony may be prejudicial to the class.
. On November 6, 2013, which was prior to submission of this case, that ruling was affirmed by our court of appeals. Diamante v. Dye, 2013 Ark. App. 630, 430 S.W.3d 196. | [
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RITA W. GRUBER, Judge.
| jThis is a workers’ compensation case. The primary issue involves a claimant’s request for a change of physician because of the death of the physician who had been treating her pursuant to her one-time statutory right to change from her first treating physician. Patsy Ann O’Guinn, a nurse’s aide who provided home health care for Little River Memorial Hospital, sustained a compensable injury to her lower back while attempting to move a bed on May 29, 2009. She was treated by orthopedic surgeon Dr. Kenneth Rosenzweig from June 2009 until February 2010. On June 30, 2010, Ms. O’Guinn was granted a change of physicians to Dr. Harold Cha-kales, another orthopedic surgeon. Dr. Chakales treated her from July 21, 2010, through November 30, 2011. On January 24, 2012, Ms. Guinn petitioned the Arkansas Workers’ Compensation Commission for a change of physician to Dr. Vestal Smith because Dr. Chakales had died. The Medical Cost Containment Division, citing the Commission’s decision Keys v. Wal-Mart, filed February 16, 2012, (F613738), declined | ?to enter a change-of-physician order absent a decision by an administrative law judge that Ms. O’Guinn was entitled to receive additional benefits.
On October 4, 2012, the law judge conducted a hearing to determine whether Ms. O’Guinn had proved that she was entitled to permanent partial-disability benefits and additional medical treatment, including appointment of another physician as a result of Dr. Chakales’s death. The law judge issued a written decision denying both claims, and the Commission adopted and affirmed the decision of the law judge.
Ms. O’Guinn appeals the Commission’s decision, contending that it is not supported by substantial evidence, assumes facts not in evidence, and is based on erroneous conclusions of law. We affirm the denial of her claim for permanent partial impairment. We reverse the denial of her claim for additional medical treatment, and we remand to the Commission for entry of the change-of-physician order that Ms. O’Guinn requested.
The employer shall promptly provide such medical services to an injured employee as may be reasonably necessary in connection with the injury received by the employee. Ark.Code Ann. § 11 — 9— 508(a) (Repl.2012). A claimant who did not select the initial physician is given an absolute statutory right to a one-time change of physician. Ark.Code Ann. § 11-9-514(a)(3)(A)(ii) (Repl.2012); Collins v. Lennox Indus., 77 Ark.App. 303, 304, 75 S.W.3d 204, 205 (2002). “The employer’s denial of the one-time change of physician as a matter of law fails to fulfill the obligation imposed by section 11-9-508.” Id. Under Collins, the two |astatutes are read in harmony: where the employee has exercised her absolute, statutory right to a one-time change of physician under section 11 — 9—514(a)(3)(A)(ii), the employer must pay for the initial visit to the new physician in order to fulfill its obligation to provide adequate medical services under 11-9-508. Wal-Mart Stores, Inc. v. Brown, 82 Ark.App. 600, 605, 120 S.W.3d 153, 156 (2003). “Without an initial visit and report from [a] one-time-ehange-of-physician doctor, there is simply no way to determine whether any additional treatment proposed by that physician would be reasonably necessary.” Id.
The evidence before the Commission in the present case included Ms. O’Guinn’s medical records, her testimony, and various written letters and documents. In a letter of February 26, 2010, Dr. Rosenzweig wrote that Ms. O’Guinn had been placed on maximum medical improvement in October of 2009 but continued to have ongoing complaints and had requested ongoing treatment. He wrote in a letter of March 20, 2010, that it was difficult to offer an opinion regarding her injuries, treatment, and response to treatment because of her inconsistency and unreliability on a functional capacity exam of March 3, 2010. Dr. Chakales wrote in an October 19, 2011 office note that Ms. O’Guinn had not had an MRI since 2009 and that he would schedule one. On her last office visit, November 30, 2011, he wrote: “We wanted to obtain an MRI, but it has not been approved. I will see her in one month. She needs no pain medication.”
Ms. O’Guinn testified that she never received the MRI Dr. Chakales had recommended; that at the time of his death, she was still experiencing muscle tightness and “burning”; that since then, her back had worsened because she had not had “any” medication; |4but that she had managed her pain with over-the-counter medication. She asked to be granted the change of physician to Dr. Smith she had requested eight months earlier “so maybe he can figure out what my problem is and help it or tell me that he can’t help me with it.... I am saying I should get the MRI.”
In a two-step analysis, the Commission first found that Ms. O’Guinn failed to establish that any additional medical treatment was reasonably necessary for treatment of her compensable injury. Consequently, the Commission found that her request for another physician to provide additional treatment was moot:
[T]he circumstances in the present case [are] distinguishable from Brown and Collins, because in the present case, the claimant received her statutory one-time change of physician to Dr. Chakales in 2010. The respondents paid for the claimant’s first visit to Dr. Chakales in 2010, and ... continued to pay for Dr. Chakales’ treatment until his death in late 2011. The general rule is that the employer has the right to controvert an injured workers’ right to additional benefits at any time. It appears ... that, when Mr. Giles [Ms. O’Guinn’s attorney] requested a substituted change of physician after Dr. Chakales die d, the respondents timely refused to agree on the grounds that no additional treatment would be reasonably necessary in this case.
(Emphasis added.)
On the issue of entitlement to additional medical treatment and permanent impairment, the Commission wrote:
The claimant has failed to establish by a preponderance of the credible evidence that any additional medical treatment will be reasonably necessary for her 2009 compensable injury. The claimant’s request for a substituted change of physician is therefore denied.
[N]o physician has assigned Ms. O’Guinn a permanent impairment rating. While Ms. O’Guinn’s lumbar MRI did indicate one annular tear, and Dr. Chakales did on one occasion document the presence of muscle spasms in her lumbar spine, I note that Ms. O’Guinn admittedly had some degree of pre-existing back symptoms. In light of Ms. | fiO’Guinn’s admitted pre-existing difficulties with her back when she lifted, and the damage to Ms. O’Guinn’s credibility caused by her inconsistent and unreliable effort during functional capacity evaluation testing, ... Ms. O’Guinn has failed to establish through her own testimony or by any other means, that either her annular tear on MRI or her muscle spasms documented on one occasion by Dr. Chakales support the existence of a permanent impairment causally related to her injury sustained on May 29, 2009.
1. Claim for Additional Medical Treatment and Change of Physician
Ms. O’Guinn’s right to continued treatment was not controverted until she was left without a treating physician at her change-of-physician doctor’s death and sought another change of physician. Under Collins and Brown, supra, an employer cannot avoid entry of or responsibility for a change-of-physician order by attempting to present evidence that additional treatment will no longer be necessary for the work-related injury.
In Wal-Mart Associates, Inc. v. Keys, 2012 Ark. App. 559, 423 S.W.3d 683, Wal-Mart accepted an eleven-percent permanent anatomical-impairment rating assigned by Ms. Key’s first treating physician, Dr. James Blankenship. Ms. Keys was granted her one-time statutory change of physician to Dr. Chakales, whom she saw it an initial office visit of August 5, 2009. Dr. Chakales diagnosed Ms. Keys with chronic pain syndrome following a lumbar laminectomy and fusion; he prescribed Darvocet and planned that she return in three weeks. Wal-Mart paid for this initial visit to Dr. Chakales but controverted any additional treatment. Ms. Keys received unauthorized treatment from Dr. James Hawk in July, August, September, and October 2010 and January 2011. Ms. Keys’s attorney stated in a March 2011 hearing before the administrative law judge that Keys saw Dr. Hawk without a referral from Dr. Chakales because Dr. Chakales’s health was deteriorating. The decision of the law judge was | ^appealed to the Commission, which noted in its February 2012 decision that Dr. Cha-kales had died on December 13, 2011— subsequent to the hearing before the law judge and after the parties filed briefs with the Commission. The Commission held:
Because the doctor to whom the claimant was granted a change of physician has died, the change of physician order has effectively been nullified. Accordingly, the Full Commission grants the claimant a change of physician to Dr. Hawk as if the claimant’s first change of physician never occurred.
The Commission’s decision was appealed to this court, and we affirmed. We found that because of her physician’s deterioration and ultimate death, Ms. Keys had not received the treatment that she was statutorily entitled to receive, and we agreed with the Commission’s conclusion that she received treatment from Dr. Hawk only because Dr. Chakales was unable to perform these duties.
In the present case, we agree "with Ms. O’Guinn that under our decisions in Collins, supra; Brown, supra; and Keys, supra, the Commission erred as a matter of law by not granting her a change of physician after her initial change-of-physician doctor died. Dr. Chakales’s death effectively nullified the initial change-of-physician order, and Ms. O’Guinn was entitled to a change of physician to Dr. Smith as if the first change of physician never occurred. We reverse the Commission’s denial of Ms. O’Guinn’s request for a change of physician. We remand to the Commission for a change-of-physician order to Dr. Smith.
2. Claim for Permanent Anatomical Impairment
Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment. Ark.Code Ann. § 11 — 9—102(4)(F)(ii)(a) (Repl.2012). Permanent impairment is permanent functional or anatomical |7Ioss remaining after the healing period has ended. Excelsior Hotel v. Squires, 83 Ark.App. 26, 115 S.W.3d 823 (2003). If the compensable injury combines with a preexisting disease to cause disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compen-sable injury is the major cause of the permanent disability or need for treatment. Ark.Code Ann. § 11 — 9— 102(4)(F)(ii)(b) (Repl.2012).
Determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings; “objective findings” are findings that cannot come under the voluntary control of the patient. Ark.Code Ann. §§ 11 — 9—704(c)(1)(B) & ll-9-102(16)(A)(i) (Repl.2012). In determining physical or anatomical impairment, complaints of pain may not be considered. Ark.Code Ann. § 11 — 9—102( 16)(A) (ii) (a).
Ms. O’Guinn argues that her preexisting condition had no bearing on the compensa-bility of her claim; that no physician assigned an impairment rating; that, even if her healing period ended “when Dr. Rosenzweig gave up,” she was under active treatment by Dr. Chakales, who never declared her at maximum medical improvement and was recommending an MRI; and that an annular tear noted by Dr. Rosenzweig required application of the AMA Guide for Impairment.
The Commission is authorized to decide which portions of the medical evidence to credit and to translate this evidence into a finding of permanent impairment using the AMA Guides, which it has adopted to be used in the assessment. Excelsior Hotel v. Squires, supra. The Commission may assess its own impairment rating rather than rely solely on its ^determination of the validity of ratings assigned by physicians. Id. Credibility is a matter for the Commission to determine. Singleton v. City of Pine Bluff, 97 Ark.App. 59, 244 S.W.3d 709 (2006). Where the Commission denies a claim because of the employee’s failure to meet her burden of proof, we affirm the Commission’s decision if it displays a substantial basis for the denial of relief. Hamilton v. Gregory Trucking, 90 Ark.App. 248, 205 S.W.3d 181 (2005).
Here, the Commission acknowledged that Ms. O’Guinn’s 2009 lumbar MRI indicated an annular tear and that Dr. Chakales had once documented the presence of muscle spasms in her lumbar spine. It noted that no physician had assigned Ms. O’Guinn a permanent impairment rating and that she admittedly had some degree of preexisting back sympto-matology. It found that her credibility was damaged because of her inconsistent and unreliable effort on the functional capacity evaluation. Therefore, the Commission concluded that Ms. O’Guinn failed to establish through her own testimony or other means that either the annular tear or muscle spasms supported the existence of a permanent impairment causally related to her 2009 injury. Because the Commission’s decision displays a substantial basis for denying Ms. O’Guinn’s claim for permanent partial impairment, we affirm on this issue.
Affirmed in part; reversed in part.
HARRISON, J., agrees.
WHITEAKER, J., concurs.
. On Oct. 10, 2012, this court handed down our decision Wal-Mart Associates, Inc. v. Keys, 2012 Ark. App. 559, 423 S.W.3d 683. | [
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WAYMOND M. BROWN, Judge.
| Appellant Ginny Elliott appeals from an order of the Crawford County Circuit Court changing custody of the parties’ minor daughter to appellee, Danny Skaggs. She argues on appeal that the trial court erred by granting Danny primary custody of V.E. Ginny contends that there was no material change in circumstances sufficient to modify the court’s previous custody order. We find no error and affirm.
The parties were divorced by decree entered on May 30, 2012. Only one child was born of the marriage, V.E., born February 12, 2008. Ginny was awarded custody of V.E., and Danny was granted standard visitation. The divorce decree stated that visitation between Danny and V.E. “shall not be obstructed, altered or denied unless authorized by this Court.” The court also found that Ginny had “made efforts to exclude [Danny] from a relationship with the minor child from the time the child was born until the date of this hearing.” The | ^decree addressed three separate reports made to the Arkansas Department of Human Services (DHS) alleging sexual assault of the child by Danny, and the court described them as “understanding and proper,” “willful,” and “preposterous,” respectively.
On September 5, 2012, Danny filed a petition for contempt and to modify custody. He alleged that a material change in circumstances had occurred since the entry of the divorce decree in that Ginny had made allegations of inappropriate behavior against either Danny or his adult daughter concerning the child. He also alleged that Ginny had taken steps to limit his visitation, including taking the child to the doctor and getting a letter stating that it was in the child’s best interest to stay at home for the next seventy-two hours. According to Danny, Ginny’s behavior was causing severe and permanent damage to the child. He asked that custody be transferred to him, that Ginny be ordered to pay child support, and that she be found in contempt for her behavior.
On September 20, 2012, Danny filed a motion for emergency ex parte custody, alleging that Ginny had completely eliminated his visitation with the child as of August 26, 2012. He also alleged that he had recently received information that Ginny had left the state and gone to Colorado with the child. In the motion, Danny also stated that he was contacted by Dana Dusha, an investigator for the Arkansas State Police Crimes Against Children Division (CACD), and was informed that the recent allegations against him would be found untrue and the case would be closed. Ginny filed a response to Danny’s motion for emergency ex parte custody on October 5, 2012, denying the material allegations of the motion. She asked that the court reinstate supervised visitation between Danny and the child, pin the response, she also acknowledged that she had taken the child with her to Colorado to see Ginny’s ill stepmother. Ginny filed a response to Danny’s petition for contempt and modification of custody on October 15, 2012. In the response, she denied the material allegations of the petition, but she asserted that “the minor child continues to articulate statements consistent with improper conduct on the part of [Danny] and/or other individuals who have come in contact with the minor child while in the custody of [Danny].”
A scheduling conference took place on October 23, 2012. The court entered an order on November 19, 2012, continuing Danny’s standard visitation schedule, but ordering that it be exercised in the presence of either his daughter or sister. The court set a January 31, 2013, bench trial for the matter, and appointed an attorney ad litem for the child. Ginny filed a motion to modify on October 20, 2012, alleging that a material change in circumstances had occurred and urging that visitation between V.E. and Danny “occur only under the supervision of appropriate individuals consistent with the intent of keeping the minor child free from harm.” The motion also stated that the “minor child continues to assert significant inappropriate conduct on the part of [Danny] and such conduct is not in keeping with the best interests of the minor child.” Danny replied to Ginny’s motion on December 3, 2012, denying the material allegations of the motion.
On January 7, 2013, Ginny filed a motion for a forensic examination and for continuance of the scheduled trial date. Ginny stated that the forensic examination would assist and aid the court in its determination of the allegations of abuse. She also indicated that the attorney ad litem agreed that the forensic examination may be helpful. Ginny included |4the curriculum vitae of Jamie G. Vogt in her motion. Danny filed a motion for emergency relief on January 8, 2013, alleging that Ginny had once again eliminated his visitation with the minor child. He also claimed that Ginny had subjected the child “to physical and psychological examinations in an effort to produce testimony and/or evidence against [him].” Additionally, he alleged that since the scheduling order, he and/or his family “have been exonerated in two additional [CACD] investigations. There have been at least five separate investigations, with at least three different investigators, all of which have been unsubstantiated.” Danny stated that this pattern of behavior would result in substantial damage to both him and the minor child. He asked that Ginny be held in contempt and that custody be transferred to him. Ginny filed a response on January 9, 2013, denying the material allegations in Danny’s motion. However, she admitted that supervised visitation had not taken place as ordered because the child continued to express “inappropriate and unlawful behavior on the part of [Danny].”
Danny filed a response to Ginny’s motion for a forensic examination and contin- uanee on January 9, 2013. He denied the material allegations of the motion and asked the court to deny Ginny’s request. He stated that Ginny had “continuously and systematically taken every opportunity available to her to deny [him] a relationship with his own child.” He further stated that Ginny’s “behavior is irrational, arrogant, and is not aimed at the best interest of this helpless child.” He opined that Ginny’s actions had “caused irreparable and undeniable damages which [he] and the minor child will be dealing with for the rest of their lives.” Ginny filed a response on January 10, 2013, asserting that an independent forensic ^examination was helpful to the case and agreeing to initially pay the $3500 for the exam. The court denied the motion for a forensic examination and continuance in an order filed on January 22, 2013.
The bench trial took place as scheduled on January 31, 2013. Investigators Dana Dusha, Sam Dorrough, and Tara Flute of CACD all testified that there had been three separate reports of abuse and investigations concerning Danny and the minor child since May 2012. All three of the reports were unsubstantiated or unfounded by the investigators, and subsequently closed after the necessary parties had been interviewed. According to the investigators, at the conclusion of their investigations none of them felt that Danny was sexually abusing V.E. However, they agreed that in as many as ninety-percent of sexual abuse cases, there is no physical evidence of the abuse.
Danny testified that visitation between him and V.E. initially went well after the divorce. He stated that the child never acted out sexually or inappropriately while at his house. He said that although he was granted unsupervised visitation with V.E., he decided to have someone else present for his own protection against the allegations previously made by Ginny, and because he wanted the child to be exposed to their family unit. He testified that he was contacted by the Van Burén Police Department on August 15, 2012, and informed that Wednesday night visitation would not take place as scheduled because the child was at the Hamilton House. Danny said that he was unable to exercise his weekend visitation | (¡because on August 17, 2012, Ginny gave him a letter indicating that the child was sick and needed to stay home several days. He stated that when V.E. came over on August 22, 2012, for visitation, she was wearing a whistle around her neck. Subsequent visitations were eliminated by Ginny until after the scheduling order in October.
Danny denied ever being alone with V.E., except for taking her to the restroom, between October 2012 and January 2013. He also denied having sexual contact with V.E., Danielle, or Jeremy. Danny described the allegations against him and other members of his family as “bizarre” and “crazy.” Danny testified that Ginny terminated visitation again, shortly after the scheduling order. He stated that it seems like it does not matter what the court says. According to Danny, V.E. never wants to go back home to Ginny and when it gets close to time to go, she “starts sullying up.” He said that the child just has a blank look on her face at the conclusion of their visitations. Danny stated that he believed that the allegations of abuse had been conditioned in V.E.’s mind, and have been instilled as “false memories.” He denied ever threatening to harm Ginny, H.E., or Shirley. Danny testified that, excluding his sister, Janet Maddox, there had been allegations made against every member of his family.
Danielle testified that she was a LPN. She said that Danny raised her from the time she was twelve and that she never had any problems with him doing anything sexually or physically inappropriate to her. She stated that she had never seen her father act ^inappropriately with V.E. during the visitations. Danielle said that during the supervised visitations, she never left V.E. alone with Danny, Jeremy, or her daughter, A.P. She stated that V.E. had never said or disclosed anything sexual in nature in her presence. She testified that V.E.’s behavior changed when it was time for her to go home and that she got real quiet.
Janet testified that she had been present at about three or four of the supervised visitations. She stated that her home is in Oklahoma and that it takes her about an hour and forty-five minutes to reach Danny’s home. She said that she had never seen any inappropriate interactions between Danny and V.E. She also stated that she had never seen inappropriate interactions between Danny and A.P., or any child. Janet testified that she was familiar with all of the allegations that had been made against Danny, Danielle, and Jeremy, and that she thought they were all outrageous.
Cathy Gifford testified that Ginny was dating her ex-son-in-law, Jimmy. She stated that she sells insurance for Farm Bureau and that Jimmy was involved in an accident. According to Cathy, Jimmy, Ginny, and V.E. came over to her house one evening for her to explain an insurance letter to Jimmy. She stated that at some point, she was left alone with V.E., and decided to ask V.E. if she enjoyed going to her father’s house. Cathy said that V.E. disclosed to her that Danny licks her bottom and sticks his finger in her bottom. Cathy stated that V.E. also told her that Jeremy sometimes licks her bottom, too. Upon hearing this information, Cathy said that she got up and left the room and placed a call to the State Police Child Abuse Hotline. She admitted that she had initially gotten information concerning the alleged abuse from Jimmy and Rhonda Bell.
IsDiana Elkins testified that she was the Director of First Place Academy, where V.E. attends preschool. She stated that on December 19, 2012, it was V.E.’s turn to go with her to ring the bell. She said that the two walked around the facility “talking about friends and trust and things like that.” She stated that V.E. indicated to her that she had a secret. According to Diana, V.E. never disclosed this secret but V.E. formed what appeared to be a gun with her hand and indicated that she could not tell the secret because “her daddy said he would shoot Ginny ..., and [H.E.], if she told the secret.” Diana stated that V.E.’s whole demeanor changed. She said that she immediately called DHS, because she is a mandated reporter. However, she stated that she was told that there was nothing they could do. Diana conceded that she knew about the various sexual-abuse allegations prior to December 19, 2012.
Ginny testified that visitation proceeded as directed for a period of time after the divorce. She stated that she began to have concerns about V.E.’s safety between late June and early July. Ginny said that in August, V.E. began coming from visitation disclosing things to her. She also stated that V.E. had said something to H.E. about “playing dirty doctor.” According to Ginny, these disclosures usually came at bath time or while Ginny was blow drying V.E.’s hair. The disclosures included acts of oral sex between V.E. and Danny. Ginny stated that she asked a teacher at school to talk to V.E. while they were preparing their rooms for the next school year. Based upon that conversation, a report was made to CACD. Ginny stated that subsequent to the report, she took V.E. with her to Colorado so that she could tend to her ill stepmother. She stated that they stayed in Colorado for about two-and-a-half 19weeks and that V.E. continued to make disclosures during this time. Ginny testified that the next reporting event happened as a result of statements V.E. made to Cathy. Ginny stated that the third reporting event happened after she went and talked to someone. According to Ginny, she followed the visitation schedule after the scheduling order until she had a conversation with Diana in late December. She testified that visitation was terminated because she was fearful for her and V.E.’s lives. Ginny denied sexually abusing V.E., witnessing V.E. being abused, or telling V.E. or anyone else that V.E. had been abused. She stated that she only wanted V.E. to be safe and that she did not feel V.E. was safe in Danny’s company.
Ginny admitted that part of her reason for going to Colorado was to try to keep V.E. safe. She stated that she did not tell Danny or Investigator Dusha about her plans to go to Colorado. Ginny testified that she had no communication with Danny between the time she went to Colorado until the scheduling hearing in October. She testified that she subsequently requested a leave of absence from work. Ginny stated that she questioned V.E. after each visitation with Danny. She acknowledged that V.E. had been the subject of at least six investigations and that V.E. had undergone numerous examinations. Ginny continued, “She [V.E.] has been forced to sit in a room with a forensic interviewer and discuss things that would make a pervert embarrassed. She has done it over and over.” She stated that she made a unilateral decision to stop visitation in August because she felt it was best for V.E. Ginny agreed that visitation did not resume until the scheduling order in October. She stated that |inalthough V.E.’s disclosure at school in December was not a physical threat, she decided that visitation would no longer continue.
Ginny testified that V.E. was doing better but that she was “still an emotional mess.” She stated that when V.E. returned from visiting Danny the last time in December, she was in an altered state and that she “was absolutely exhausted and disassociated.” Ginny also stated that when she gave V.E. a bath, the inside of V.E.’s vagina was “as red as an apple.” She said that she called her sister-in-law, an LPN, who stated that she had never seen anything that red. Ginny denied doing anything to “incite [the court’s] fury” and stated that she only tried to “look after the best interest of [her] child.”
Jackie Hamilton, of Hamilton House, stated that the State Police usually defer to the interviewers at Hamilton House to conduct the interviews concerning sexual assault. She acknowledged that there had been three reporting events concerning V.E. since March 2012. Jackie stated that she did not conduct or observe all the interviews with V.E. She said that V.E. needed counseling because there was a reason V.E. continued to report. Jackie testified that she did not doubt that something had happened to V.E. She continued that
[s]he has either seen it, heard it, been told it or experienced it. At her age, she could not have the vocabulary. At age four, it would be difficult for her to maintain something that someone had told her. It would be difficult for her to do, what I call, maintaining a lie. She is a very smart girl but children just tend to not have the capacity. They are horrific things that she has reported. And whether or not it happened, or she saw it happen, or was told it happened, it is still horrific and traumatic for her... .What she has done in my experience, is consistent with what I have seen with other youngsters who have been sexually abused.
Jackie stated that she had no first-hand knowledge of what happened in V.E.’s interviews, but that she had read the summaries. She opined that a psychological evaluation |nwould be helpful in this case. She testified that children V.E.’s age generally know two things, who and what. She stated that they get confused with time schedules. Jackie said that it would be hard for a child V.E.’s age to maintain a lie, even in a single interview. She testified that she could not say with certainty that Danny sexually abused V.E. or that Ginny coached V.E. in any way.
At the conclusion of the trial, Danny asked that the court grant his request to hold Ginny in contempt, and to grant him custody of V.E. Ginny asked that she be able to maintain custody. The attorney ad litem, on the other hand, asked the court to deny Danny’s request for custody, to remove custody from Ginny, and to place the child in DHS custody. The court found Ginny in contempt and sentenced her to jail for the weekend. The court also found that there had been a material change in circumstances significant enough to warrant a change in custody. The court filed an order on March 1, 2013, granting Danny’s petition. The order stated in pertinent part:
2. The Court hereby finds that the Defendant has willfully disobeyed the Or- ' ders of this Court and the Court hereby sentences the Defendant to serve jail time beginning 9:00 a.m. Friday, February 1, 2013, until Sunday, February 3, 2013, at 9:00 p.m.
3. The Court finds that the investigators for the Arkansas State Police, the Plaintiff, and the Plaintiffs daughter were all credible. The Court finds that the Defendant was credible in that the Court believes that she believed these disclosures were made. The Court finds that Ms. Elkins’fs] and Ms. Gifford’s testimony were well intending but that the discussions with the minor child were colored by their previous discussions with the Defendant. The Defendant has precipitated the investigations into the Plaintiff by leading the minor child to be questioned by a mandated reporter. The Defendant has indicated that she has not and will not obey the orders of this Court. The Court hereby finds that there has been a material change in circumstance and that custody of the parties’ minor child, [V.E.], is hereby changed to the Plaintiff.
11⅞4. The Defendant is awarded standard visitation with the minor child with such visitation to begin the Wednesday night after she is released from jail, with her first weekend visitation being Friday, February 8, 2013, at 5:00 p.m. until Sunday, February 11, 2013, at 5:00 p.m. All other visitation shall be pursuant to this Court’s Standard Order Regarding Child Visitation and Related Matters. This Court’s Standard Order Regarding Children’s Medical and Dental Expenses is attached hereto and is incorporated as if set forth word for word herein.
Ginny was also ordered to pay child support. She filed a timely notice of appeal. This appeal followed.
In child-custody cases, we review the evidence de novo, but we do not reverse the findings of the court unless it is shown that they are clearly contrary to the preponderance of the evidence. We also give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases. We have often stated that we know of no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as those involving children. A finding is clearly against the preponderance of the evidence, when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made.
11sThe primary consideration in child-custody cases is the best interest and welfare of the child; all other considerations are secondary. Custody awards are not made or changed to punish or reward or gratify the desires of either parent. Before a custody order can be changed, there must be proof of material facts that were unknown to the court at that time, or proof that the conditions have so materially changed as to warrant modification and that the best interest of the child requires it. The burden of proving such a change is on the party seeking the modification.
Ginny argues that the trial court erred by finding a material change in circumstances and changing custody of V.E. to Danny. She also contends that the trial court did not consider the best interest of V.E. but granted Danny’s petition to punish her for not following court orders. Ginny concedes that she disobeyed court orders, but contends that she was trying to further the best interest of V.E. She states that because she has only been held in contempt this one time, the trial court should not have changed custody of V.E. to Danny. There is a two-step process through which a court must proceed in deciding a petition for change of custody. First, the court must determine whether there has been a significant h ¿change in the circumstances of the parties since the most recent custody decree. If the trial judge finds that a significant change in circumstances has occurred, the court must then decide custody placement with the primary consideration being the best interest of the child. In the present case, the trial court found that Ginny had indicated that she will not obey court orders and that she had precipitated investigations into Danny by directing V.E. to be questioned by mandated reporters. The court found this behavior to be enough to justify a change of custody.
In Hepp v. Hepp, we held that violation of the court’s previous directives does not compel a change in custody. The fact that a party seeking to retain custody of a child has violated court orders is a factor to be taken into consideration, but it is not so conclusive as to require the court to act contrary to the best interest of the child. To hold otherwise would permit the desire to punish a parent to override the paramount consideration in all custody cases, i. e., the welfare of the child involved. Moreover, to ensure compliance with its orders, a trial judge has at his or her disposal the power of contempt. And, we have said that a court’s contempt powers should be used prior to the more drastic measure of changing |15custody, which is keeping with the principle that custody is not to be changed merely to punish or reward a parent. In addition, we have held that whether one parent is alienating a child from the other is also an important factor to be considered in change of custody eases because a caring relationship with both parents is essential to a healthy upbringing.
Here, Ginny admitted to unilaterally terminating visitation between Danny and V.E., although she had been court ordered not to do so in the divorce decree. This had the effect of alienating V.E. from Danny. Additionally, Ginny caused several unsubstantiated reports of sexual abuse to be filed against Danny and his family members over the course of just a few months. As a result of these reports, V.E. had to go through numerous investigations and examinations. Based on the evidence, we cannot say that it was clearly against the preponderance of the evidence for the trial court to find a material change of circumstances significant enough to warrant a change custody. Accordingly, we affirm.
In her reply brief, Ginny argues that it was error for the trial court to deny her motion for a more detailed forensic examination for V.E. However, we do not address arguments made for the first time in a reply brief.
11 (Affirmed.
WHITEAKER and VAUGHT, JJ„ agree.
. Referrals concerning inappropriate behavior and/or sexual abuse were made August 14, 2012, October 2, 2012, and October 27, 2012.
. Danielle Parks is Danny’s adult daughter who is married to Jeremy Parks.
. H.E. is Ginny's son and V.E.’s older brother. Shirley is Ginny’s mother.
. Carver v. May, 81 Ark.App. 292, 101 S.W.3d 256 (2003).
. Id.
. Id.
. Id.
. Id.
. Id.
. Id.
. Id.
. Riley v. Riley, 45 Ark.App. 165, 873 S.W.2d 564 (1994).
. Id.
. Id.
. 61 Ark.App. 240, 968 S.W.2d 62 (1998).
. Johnson v. Arledge, 258 Ark. 608, 527 S.W.2d 917 (1975); Kerby v. Kerby, 31 Ark. App. 260, 792 S.W.2d 364 (1990).
. Id.
. Carver, supra.
. Carter v. Carter, 19 Ark.App. 242, 719 S.W.2d 704 (1986).
. Harvell v. Harvell, 36 Ark.App. 24, 820 S.W.2d 463 (1991).
. Turner v. Benson, 59 Ark.App. 108, 953 S.W.2d 596 (1997).
. See Brewer v. Smith, 2010 Ark. App. 134, 374 S.W.3d 87 (affirming a change in custody based on the appellant’s repeated failure to follow visitation orders and repeated, unfounded allegations of abuse).
. Stautzenberger v. Stautzenberger, 2013 Ark. 148, 427 S.W.3d 17. | [
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JIM HANNAH, Chief Justice.
| Appellant, Frederick Dwayne Mason, appeals from the denial of his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37. Appellant was convicted of two counts of aggravated robbery, two counts of theft of property, and one count of second-degree battery, and he was sentenced to a total of 660 months in the Arkansas Department of Correction. The court of appeals affirmed on direct appeal. See Mason v. State, 2009 Ark. App. 794, 2009 WL 4377825. Appellant then filed a petition for postcon-viction relief, which the circuit court denied following a hearing. Appellant alleges the following errors on appeal: (1) that trial counsel was ineffective for failing to move for a directed verdict, (2) that trial counsel was ineffective for “opening the door” to prejudicial testimony, and (3) that trial counsel was ineffective for failing to investigate and prepare for trial. We affirm the circuit court’s order.
On appeal from a circuit court’s ruling on a petitioner’s request for Rule 37 relief, this |2court will not reverse the circuit court’s decision granting or denying postconviction relief unless it is clearly erroneous. E.g., Prater v. State, 2012 Ark. 164, at 8, 402 S.W.3d 68, 74. A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id., 402 S.W.3d at 74.
The criteria for assessing the effectiveness of counsel were enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In asserting ineffective assistance of counsel under Strickland, the petitioner must first show that counsel’s performance was deficient. Williams v. State, 2011 Ark. 489, at 4, 385 S.W.3d 228, 232. 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., 385 S.W.3d at 232. The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id., 385 S.W.3d at 232. Second, the petitioner must show that counsel’s deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Id., 385 S.W.3d at 232. In doing so, the petitioner must show that there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, which means that the decision reached would have been different absent the errors. Id., 385 S.W.3d at 232. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id., 385 S.W.3d at 232-33. 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., 385 S.W.3d at 233.
In his first point on appeal, appellant contends that trial counsel was ineffective because he failed to move for a directed verdict at trial. He claims that the proof presented at trial was insufficient to support a conviction because there was no direct evidence of his involvement in the crimes. Specifically, he contends that victim Lionel Hampton’s identification of him as a perpetrator was unreliable because Hampton could testify only that he saw appellant exiting a residence some distance away from the crime scene and driving away in a vehicle that resembled the dark Taurus that he saw on his street after he had been robbed. According to appellant, Hampton’s cousin told Hampton that appellant was the culprit and that Hampton did not actually see appellant during the commission of the crimes.
At trial, Hampton testified that after he had been robbed in his home, he looked out the window and saw a dark-colored, or black, Taurus exiting his street. Hampton stated that he then called his cousin for a ride, and they drove around for about an hour looking for the vehicle. Hampton testified that they located the vehicle parked at a nearby house and saw appellant walk out of the house and toward the vehicle. Hampton said that his cousin “pretty much identified him for me.” Little Rock Police Detective Robert Martin testified that Hampton contacted him the day after the robbery and told him that he had been robbed by a man in his neighborhood named “Pig.” Martin contacted several officers who worked in that neighborhood, and one of the officers told him that “Pig” was known to police as Fred Mason. Martin included a photo of appellant in a lineup shown to Hampton, and according to Martin, Hampton “immediately and positively identified Mr. Mason as ... one of the Rthree that robbed him.” Hampton also testified that he picked appellant from a photo lineup as one of the three men who had robbed him. According to Hampton, appellant put a gun to his chest, held him down on a couch, and asked him for his keys.
Appellant’s trial counsel, John May, testified at the postconviction hearing that he did not move for a directed verdict because appellant had been identified as one of the robbers, and it was for the jury to decide if that identification was credible. The State contends that trial counsel was correct, that the circuit court could not have granted a directed verdict even if trial counsel had moved for one, and that the appellate court could not have reversed appellant’s conviction based on insufficient evidence. We agree. When a witness makes a positive identification of a suspect, any challenge to the reliability of the identification becomes a matter of credibility for the fact-finder to determine. E.g., Stipes v. State, 315 Ark. 719, 721, 870 S.W.2d 388, 389 (1994). The circuit court is not to assess credibility or resolve conflicts in the testimony in considering a directed-verdict motion. E.g., Smith v. State, 337 Ark. 239, 245, 988 S.W.2d 492, 495 (1999); see also State v. Long, 311 Ark. 248, 251, 844 S.W.2d 302, 304 (1992) (“[W]hen a trial court exceeds its duty to determine the sufficiency of the evidence by judging the credibility of the evidence, it commits an error that requires correction.”). Any inconsistencies in testimony are for the jury to resolve, and the weight to be given to witness-identification testimony is for the jury to decide. See, e.g., Davenport v. State, 373 Ark. 71, 78, 281 S.W.3d 268, 273 (2008). Here, because a directed-verdict motion would not have been successful, appellant cannot demonstrate that trial counsel was ineffective for failing to make that motion. See Lowe v. State, 2012 Ark. 185, at 7, 423 S.W.3d 6, 13 [ s(per curiam) (stating that trial counsel cannot be ineffective for failing to make an argument or objection that is without merit). Accordingly, he is not entitled to post-conviction relief on that basis.
Appellant next contends that trial counsel was ineffective for “opening the door” to prejudicial testimony when he asked Hampton on cross-examination if he had once reported to the police that he had been robbed by appellant and appellant’s brother, Nicholas Mason. Hampton stated that he thought the Mason brothers had previously robbed him, but he was not sure. When trial counsel presented evidence that appellant’s brother had been incarcerated at the time of the previous robbery, Hampton testified that one of the men who had previously robbed him resembled appellant’s brother. Appellant argues that there was “no possible benefit to be gained here, and no fathomable, let alone reasonable, strategic or tactical basis” for trial counsel’s line of questioning.
At the postconviction hearing, trial counsel testified that he was trying to show that Hampton was biased against the Mason brothers because of his belief that they had previously robbed him and that he was also trying to “create confusion of which brother did it.” Trial counsel testified, “It was my intention to make the jury think about was it the brother, which brother. It might’ve been his brother that did it instead of ... Frederick himself.... I was trying to suggest to the jury that it was Frederick’s brother that did it, was my trial strategy.” Trial counsel stated that he did not tell the jury that appellant had previously robbed Hampton. Rather, he stated, “I[t] was my strategy to plant the seed in the jury’s mind that it was possibly the brother that did it and how did they know the difference.” Trial counsel | Ralso stated that the evidence suggested that Hampton held a grudge against the Mason brothers because of the previous robbery and that he was trying to “name these guys again.”
The manner of questioning by a witness is by and large a very subjective issue about which different attorneys could have many different approaches. E.g., Nelson v. State, 344 Ark. 407, 414, 39 S.W.3d 791, 796 (2001). When a decision by counsel is a matter of trial tactics or strategy, and that decision is supported by reasonable professional judgment, then counsel’s decision is not a basis for post-conviction relief under Rule 37.1. E.g., Croy v. State, 2011 Ark. 284, at 5, 388 S.W.3d 367, 371 (2011) (per curiam). A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, and a claimant has the burden of overcoming this presumption by identifying specific acts or omissions of counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Id., 383 S.W.3d at 371.
In the instant case, Hampton identified appellant as the perpetrator who held a gun on him and demanded his keys during the robbery. Trial counsel attempted to discredit Hampton’s testimony by showing that Hampton had earlier misidentified the Mason brothers, that he had a grudge against them, and that he may have been mistaken about who robbed him this time. We conclude that trial counsel’s tactical decision about how to cross-examine Hampton was supported by reasonable professional judgment. As such, appellant is not entitled to postconviction relief on this point.
In his final point on appeal, appellant contends that trial counsel was ineffective for 17failing to investigate and prepare for trial. Specifically, appellant contends that trial counsel was ineffective because he did not review the State’s case file prior to trial. In support of this claim, appellant asserts that, on the day before trial, trial counsel asked for a continuance so he could interview appellant’s brother, even though the State had already informed trial counsel that appellant’s brother was a “key player” in the case. Appellant further asserts that trial counsel was not adequately prepared to cross-examine victim Dettrus Johnson because he did not receive a transcript of Johnson’s interview with the police until after the trial had begun. According to appellant, if trial counsel had read the case file, he would have interviewed appellant’s brother and he would have realized that he did not have a transcript of Johnson’s statement. For his part, trial counsel testified at the postconviction hearing that he reviewed the case file prior to trial “probably 20-plus times at least.”
To prevail on his claim that trial counsel was ineffective for failing to adequately investigate and prepare for trial, the petitioner must show how a more searching pretrial investigation or better preparation would have changed the results of the trial. See, e.g., Bond v. State, 2013 Ark. 298, at 9, 429 S.W.3d 185, 192, 2013 WL 3945072 (per curiam). Specifically, the petitioner 18must delineate the actual prejudice that arose from the alleged failure to investigate and prepare for trial and demonstrate a reasonable probability that additional preparation and the infor mation that would have been uncovered with further investigation could have changed the outcome of the trial. See, e.g., Bryant v. State, 2013 Ark. 305, at 9, 429 S.W.3d 193, 200, 2013 WL 4764971 (per curiam).
Here, however, appellant does not state the relevant facts that trial counsel would have discovered had he adequately investigated and prepared the case. As such, his allegations are conclu-sory and will not provide a basis for post-conviction relief. This court has stated that, as with any other claim of ineffective assistance of counsel, a petitioner cannot succeed merely by alleging that counsel was not prepared or did not spend enough time on his or her case. Camargo v. State, 346 Ark. 118, 129, 55 S.W.3d 255, 263 (2001). Rather, the petitioner still must show the evidence or witnesses that would have been discovered had counsel properly investigated the case and that, but for counsel’s lack of preparation, there is a reasonable probability that the outcome of his trial or sentence would have been different. Id., 55 S.W.3d at 263. Because appellant has failed to make such a showing, he is not entitled to postconviction relief on this point.
The circuit court did not clearly err in denying appellant’s petition for postconviction relief. Accordingly, we affirm.
Affirmed.
. The record reflects that on the day before trial, trial counsel sought a continuance so appellant's brother could be extradited from South Carolina, where he was incarcerated.
. On the day of trial, trial counsel moved to compel the State to produce a transcript of Johnson’s statement. The prosecutor informed the circuit court that the transcript had been "lost in the shuffle at the police department” and would be provided to trial counsel before Johnson testified. The circuit court told counsel that it would take a break before Johnson testified to allow trial counsel time to review the transcript. Trial counsel testified at the postconviction hearing that, after he received the transcript, he "read it as many times as I could.” He also testified that the circuit court called a break before Johnson testified. | [
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JOHN MAUZY PITTMAN, Judge.
This is a medical-negligence case. Dr. Jose S. Padilla, Jr., brings this appeal of a jury’s verdict in favor of appellee Paul Archer. On appeal, Dr. Padilla argues that the circuit court erred in denying his motions for a mistrial and a motion for a new trial because the court allowed Dr. Frederick Bentley, the doctor who treated Archer after Dr. Padilla’s surgery, to give unqualified expert testimony and allowed the jury to view the videotape of Dr. Bentley’s deposition testimony a second time. Dr. Padilla also argues that the circuit court erred in denying his motion for a directed verdict in that Archer failed to meet his burden to provide expert testimony concerning the standard of care under the locality rule. We affirm.
Background
On June 11, 2008, Dr. Padilla, a general surgeon, performed gallbladder surgery on Archer. During the surgery, Dr. Padilla allegedly clipped the wrong duct, allowing bile to drain directly into Archer’s abdominal cavity. Archer was ultimately transferred to UAMS where he was treated by Dr. Bentley for the complications of the surgery.
On November 18, 2008, Archer filed suit against Dr. Padilla, later amended. The complaint sought compensatory and punitive damages.
On October 22, 2009, Dr. Bentley’s videotaped deposition was taken by agreement to be used in lieu of his live testimony at trial. During the deposition, Dr. Bentley stated that he was not asked to opine on whether Dr. Padilla violated the standard of care in this case and that he was not prepared to do so.
On June 7, 2010, Dr. Padilla filed a motion in limine seeking to prevent Dr. Bentley from giving testimony as to the standard of care because (1) it was irrelevant due to the fact that Dr. Bentley was a treating physician; (2) Dr. Bentley had not been designated as an expert witness in the case; and (3) Dr. Bentley was not qualified to give expert testimony under the locality rule. In response, Archer argued that Dr. Padilla had waived the argument because he did not object to Dr. Bentley’s testimony at the time his deposition was taken.
At the hearing on the motion just prior to trial, Dr. Padilla argued that Dr. Bentley gave expert testimony without first being identified as an expert in the case. In response, Archer argued that Dr. Bentley never testified that Dr. Padilla violated the standard of care and that the objection had been waived because it was not made at the time Dr. Bentley gave his deposition. The circuit court ruled that objections to Dr. Bentley’s testimony were waived because they were not made during the deposition.
The case was tried to a jury from June 14 to June 16, 2010. Dr. Bentley’s deposition was played to the jury, and Dr. Padilla renewed the objections that he had made in his motion in limine. At the close of Archer’s case and again at the close of all of the evidence, Dr. Padilla moved for a directed verdict. He argued that Dr. Wayne Flye, Archer’s designated expert witness, did not offer proper testimony as to the standard of care in Harrison, Arkansas, or similar communities as required by the locality rule. The circuit court denied the motions, and the case was submitted to the jury.
During its deliberations, the jury requested a transcript of Dr. Bentley’s deposition. The circuit court convened counsel and discussed the options available, namely, to tell the jury to rely on its notes or to replay the entire video deposition. Archer asked that the circuit court replay the video, but Dr. Padilla objected, stating that the video would unduly emphasize Dr. Bentley’s testimony. Dr. Padilla also pointed out that there was a transcript of Dr. Bentley’s deposition and that the court should provide that to the jury instead of replaying the video deposition. After ruling that the transcript could not be provided to the jury because it had not been admitted into evidence, the court advised the jury that the video deposition of Dr. Bentley was presented in lieu of his live testimony and, under those circumstances, the court expected the jurors to rely on their memories and notes. However, the court also gave the jury the option of viewing the entire video deposition. The jury chose to view the video deposition again.
Dr. Padilla then moved for a mistrial. His argument was based on grounds that there was no precedent for the replaying of the video deposition for the jury and that it overemphasized Dr. Bentley’s testimony. He also noted that this had the effect of allowing Archer to reopen his case once the jury had begun deliberations and gave Archer a “second bite” because the jury was able to take new notes from the video. The circuit court denied the motion for a mistrial, noting that there were criminal cases where the replaying of testimony in its entirety was upheld.
After having the deposition replayed, the jury continued its deliberations. Ten members of the jury found in favor of Archer and awarded damages of $400,000. Judgment was entered on the jury’s verdict on June 17, 2010.
Dr. Padilla filed a motion seeking a new trial on July 1, 2010. The motion argued that a new trial was warranted because Dr. Bentley gave testimony concerning the standard of care despite the fact that Dr. Bentley stated in his deposition that he was not prepared to express an opinion regarding the standard of care. Dr. Padilla also sought a new trial because the circuit court had erroneously ruled that Dr. Padilla had waived his objections by not making them at the time of Dr. Bentley’s deposition. Finally, Dr. Padilla sought a new trial on the basis that the court had allowed Dr. Bentley’s deposition to be replayed to the jury. The circuit court denied the motion for a new trial on July 23, 2010. Dr. Padilla filed his notice of appeal on July 23, 2010.
Standard of Review
Our standard of review of the denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence. The Medical Assurance Co., Inc. v. Castro, 2009 Ark. 93, 302 S.W.3d 592. Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Id. It is not our place to fay issues of fact; rather, we simply review the record for substantial evidence to support the jury’s verdict. Id. In determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id. A motion for directed verdict should be denied when there is a conflict in the evidence, or when the evidence is such that fair-minded people might reach different conclusions. Id. Likewise, on appeal from the denial of a motion for a new trial, this court also determines whether the jury’s verdict is supported by substantial evidence. Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003).
Arguments on Appeal
I. Dr. Bentley’s Testimony
Dr. Padilla argues that the circuit court erred in several respects concerning Dr. Bentley’s testimony. His first argument is that the circuit court erred in ruling that he had waived his objections to Dr. Bentley’s testimony by not making them at the time of the deposition.
Arkansas Rule of Civil Procedure 32 governs use of depositions in court proceedings and provides in pertinent part as follows:
(b) Objections to Admissibility. Subject to the provisions of Rule 28(b) and subdivision (d)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
(d) Effect of Errors and Irregularities in Depositions.
(3) As To Taking Of Deposition.
(A) Objections to the competency of a witness or to the competency, relevancy or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.
In addition to Rule 32, Dr. Padilla also relies on the decisions in Benson v. Shuler Drilling Co., Inc., 316 Ark. 101, 871 S.W.2d 552 (1994); Hill v. Billups, 85 Ark. App. 166, 148 S.W.3d 288 (2004), as support for his argument. However, neither Benson nor Hill concern which objections must be made at the time of the deposition or be waived because the issues in those cases were ones that could not be cured at the time of the depositions.
Here, the objections made in the motion in limine were that Dr. Bentley’s testimony was not relevant because he was a treating physician, that he was not designated as an expert witness, and he was not qualified to express an opinion under the locality rule. The only objection Dr. Padilla argued at the hearing on his motion in limine was that Dr. Bentley was not designated as an expert. These two arguments are so intertwined as to be one argument because both hinge on the fact that Dr. Bentley had not been qualified as an expert. We hold that the circuit court did not err in ruling that Dr. Padilla waived the objection by not making it at the time of the deposition because it was the type of objection that could have been obviated or removed had it been made at the time of the deposition. Ark. R. Civ. P. 32(d)(3)(A); Cordle v. Allied Chemical Corp., 309 F.2d 821 (6th Cir.1962). Dr. Bentley’s deposition was taken in October 2009. There was no scheduling order entered by the circuit court setting deadlines for the designation of experts or deadlines for dispos-itive motions. Despite this, Dr. Padilla allowed seven months to pass after the deposition and did not file his motion in limine until one week prior to trial. The motion was not argued until the morning of the first day of the trial. Had Dr. Padilla objected in a timely manner, Archer could have amended his discovery answers so as to designate Dr. Bentley as an expert. To the extent that Dr. Padilla’s objection goes to Archer’s failure to lay a proper foundation to permit Dr. Bentley to give testimony as to the standard of care, we hold that the circuit court did not err because the types of arguments and objections Dr. Padilla makes concerning Dr. Bentley’s testimony are the types that could have been remedied had Dr. Padilla objected at the deposition. Cordle, supra. For example, Dr. Padilla argues that Dr. Bentley showed no familiarity with the standard of care in Harrison, Arkansas, or in a similar location. However, if Dr. Padilla had objected, counsel for Archer could have asked other questions so as to lay a proper foundation. Id.
Dr. Padilla next argues that the circuit court erred in allowing Dr. Bentley’s video deposition to the replayed to the jury. We disagree. More than one hundred years ago, our supreme court has held that it was not error for the court to permit witnesses to restate their testimony on a certain matter to a jury in the presence and at the direction of the circuit court after the jury had retired to consider its verdict, when the jury returned into court and stated its desire that this be done. Bennifield v. State, 62 Ark. 365, 35 S.W. 790 (1896), overruled on other grounds, Tallman v. State, 151 Ark. 108, 235 S.W. 389 (1921). Thus, a request by the jury to have portions of the testimony read or replayed is within the discretion of the circuit court and its ruling will not be held to be error in the absence of a manifest abuse of that discretion. McKinney v. State, 303 Ark. 257, 797 S.W.2d 415 (1990); Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978).
Citing McKinney and Arkansas Code Annotated section 16-64-115 (Repl. 2005), Dr. Padilla argues that there must be a disagreement among the jurors before the circuit court can allow the video deposition to be replayed and that there was no evidence of such a disagreement. However, a circuit court may infer disagreement among the jury from its request to see or hear evidence during deliberations, and should honor any request of the jury to reconsider specific evidence in the absence of some compelling reason not to grant it. See Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993). Juries routinely ask to review trial testimony when they deliberate. The requests are a clear sign that the evidence sought is important to the deliberative process. They also reflect the reality that jurors cannot be expected to have perfect recall of every bit of evidence introduced during a trial.
Here, the jury asked for a transcript of Dr. Bentley’s deposition but no transcript was available and, where the circuit court replayed Dr. Bentley’s entire testimony, including both direct and cross-examination, in open court with all parties present, we cannot say that the circuit court failed to comply with the requirements of section 16-64-115.
II. Dr. Flye’s Testimony
Dr. Padilla next argues that the circuit court erred in denying his motion for a directed verdict on the basis that Archer failed to meet his burden of proving the standard of care under the locality rule.
Dr. Wayne Flye, Archer’s designated expert, testified that he was familiar with the medical community in Harrison, Arkansas, by way of his research into the medical record in the case, his review of testimony given in the case, and his familiarity with the particular procedure performed on Paul Archer. Dr. Flye also established that he was familiar with the standard of care in similar medical communities. He testified that he grew up in a town of similar size and that he receives patients from similar medical communities. In addition to teaching at Washington University in St. Louis, Dr. Flye also sees patients at Barnes-Jewish Hospital, the hospital affiliated with the university. Further, he consults at a small VA hospital, and he sees patients once or twice a month in a clinic in southern Illinois that he said is similar to Harrison. According to Dr. Flye, approximately 750,000 gallbladder surgeries are performed each year, making it the second most frequent type of surgery in the nation. He testified on cross-examination that gallbladder disease is high occurrence and is treated in almost any hospital in the country. Dr. Flye further testified that the equipment and the expectations for this surgery are the same in Harrison and the places where he performs the procedure.
Dr. Flye’s opinion about the standard of care made reference to guidelines promulgated by the Society of American Gastrointestinal and Endoscopic Surgeons (SAGES). He testified that the SAGES guidelines set the standard of care in Harrison and similar communities and are relied on by careful physicians in communities like Harrison. According to Dr. Flye, a surgeon in Harrison, Arkansas, or a similar community, with ordinary skill and learning should know about the SAGES guidelines, but Dr. Padilla said in his deposition that he did not. The guidelines suggest that if the surgeon cannot properly visualize the structures of the gallbladder and liver while performing a laparo-scopic cholecystectomy, the surgeon should convert to an open procedure to safely complete the operation. Dr. Padilla did not convert to an open procedure. Dr. Flye testified that Dr. Padilla’s operative notes indicated that it was a difficult procedure, with dense adhesions and inflammation, and that conversion to an open procedure may have been indicated, but was not absolute. Dr. Flye also described how Dr. Padilla’s notes indicated how he (Dr. Padilla) was unable to properly visualize the proper duct. He also said that Dr. Padilla’s testimony was that he was never in doubt as to what he was cutting.
Dr. Padilla’s motion for a directed verdict was correctly denied. First, the Arkansas Supreme Court has held that the similarity of communities in a medical-malpractice case should not depend on population or area, but rather upon their similarity from the standpoint of medical facilities, practices, and advantages. Gambill v. Stroud, 258 Ark. 766, 531 S.W.2d 945 (1976); see also Wolford v. St. Paul Fire & Marine Ins. Co., 331 Ark. 426, 961 S.W.2d 743 (1998). Here, Dr. Flye testified that the equipment and the expectations for this surgery are the same in Harrison and the smaller towns similar to Harrison where he performs the procedure, tying his practice to the conditions in Harrison. Second, Dr. Flye testified that a surgeon in Harrison, Arkansas, or a similar community, with ordinary skill and learning, should know to convert to an open procedure when the anatomy and structures in the area of the gallbladder are not clearly discernable.
Affirmed.
VAUGHT, C.J., and GRUBER, J., agree.
. Archer died after this appeal was perfected. This court granted a motion to substitute a special administrator as an appellee in place of Archer on March 16, 2011. Marie Archer, Archer’s widow, filed a derivative claim. She is also an appellee in this appeal. For ease of writing, we refer to Archer in the singular.
. Also named as a defendant was the insurance carrier for North Arkansas Regional Medical Center, the hospital where Dr. Padilla performed the surgery. Archer dismissed the first insurance company and named a second company as the proper carrier. This insurance company was ultimately dismissed from the lawsuit.
.The circuit court granted summary judgment in favor of Dr. Padilla on the claim for punitive damages.
. That judgment was vacated on Dr. Padilla's motion because the judgment provided an erroneous rate of postjudgment interest. A corrected judgment was entered on July 15, 2010.
. Moreover, Dr. Bentley was a treating physician. As such, his knowledge about the case was not acquired in "anticipation of litigation” and he need not have been disclosed as an expert pursuant to Ark. R. Civ. P. 26(b)(4). See also Alessio v. Crook, 633 S.W.2d 770 (Tenn.App.1982) (analyzing similar language in Tennessee version of Rule 26). Further, the circuit court had the discretion to permit Dr. Bentley to testify as an expert witness even though he had not been designated as such. Wade v. Grace, 321 Ark. 482, 902 S.W.2d 785 (1995); Breslau v. McAlister, 72 Ark.App. 124, 35 S.W.3d 321 (2000).
. Section 16-64-115 provides as follows:
After the jury has retired for deliberation, if there is a disagreement between them as to any part of the testimony or if they desire to be informed as to any point of law arising in the case, they may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or their counsel.
.The corresponding statute applicable to criminal trials, which contains language virtually identical to this statute, is found at Ark.Code Ann. § 16-89-125(e). Thus, the considerations in those cases are just as relevant in criminal cases and vice versa. See Dickerson Constr. Co. v. Dozier, 266 Ark. 345, 584 S.W.2d 36 (1979); Lowry v. State, 90 Ark.App. 333, 205 S.W.3d 830 (2005). | [
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JOSEPHINE LINKER HART, Justice.
| Appellant, Deborah Nowicki (“Now-icki”), individually and as executrix of the estate of Robert Henry Nowicki, II, deceased, and on behalf of all of the deceased’s wrongful-death beneficiaries, appeals from the order of the Pulaski County Circuit Court granting summary judgment in favor of appellee Kenny Pigue. On appeal, Nowicki contends that the circuit court erroneously concluded that the Fireman’s Rule barred the wrongful-death and survival action. Particularly, Nowicki asserts that the doctrine does not apply to roadside-assistance workers. Further, Nowicki contends that the doctrine does not apply when there is willful and wanton misconduct, and that, at a minimum, a question of fact exists regarding whether Pigue’s conduct was willful and wanton. We affirm the circuit court’s decision.
| ^Summary judgment may be granted when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. LVNV Funding, LLC v. Nardi, 2012 Ark. 460, at 2, 2012 WL 6218481. On appeal, this court determines if summary judgment was appropriate based on whether the evidentia-ry items presented by the moving party have left a material question of fact unanswered. Id. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. This court reviews questions of law de novo. Com v. Farmers Ins. Co., 2013 Ark. 444, at 2, 430 S.W.3d 655, 657, 2013 WL 5946942.
Before considering Nowicki’s points on appeal, we note that no Arkansas cases have examined the Fireman’s Rule, also known as the Firefighter’s Rule or the professional-rescuer’s doctrine (the “doctrine”), since its adoption in Waggoner v. Troutman Oil Co., 320 Ark. 56, 894 S.W.2d 913 (1995). In Waggoner, this court described the rule as providing that “a professional firefighter may not recover damages from a private party for injuries the fireman sustained during the course of putting out a fire even though the private party’s negligence may have caused the fire and injury.” Id. at 58, 894 S.W.2d at 914.
In that case, Ben Waggoner, a volunteer fireman, left his business and ran to an accident in which a person driving a pickup truck had struck an above-ground kerosene storage tank. Id. at 57, 894 S.W.2d at 914. After Waggoner saw flames rising from underneath the truck and fluid leaking from the tank, he assisted arriving firemen in an effort to extinguish the fire. Id. at 58, 894 S.W.2d at 914. He ran from the fire after hearing percolating noises coming from the tank, but the tank exploded, causing third-degree burns across the back ofjohis body. Id., 894 S.W.2d at 914.
Waggoner subsequently brought suit against the driver of the pick-up truck and others. The trial court granted summary judgment to the driver, and Waggoner appealed. On appeal, this court adopted the doctrine based on public-policy considerations, following those cases where courts had concluded that “the risk is one which the fireman has engaged to encounter by virtue of his employment and one which it is his duty to accept, and the person who negligently causes the fire had therefore not breached a duty owed the fireman.” Id. at 59, 894 S.W.2d at 915. This court held that the doctrine barred “recovery for the very valid public policy reason that the party or parties who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter was employed to confront.” Id. at 60, 894 S.W.2d at 915.
We now consider Nowicki’s argument. The gravamen of Nowicki’s last amended complaint is a wrongful-death and survival claim. The complaint alleges that on June 20, 2011, Pigue, doing business as K & D Grain Transport, was southbound on Interstate 55 in Arkansas heading toward the Mississippi River bridge in an eighteen-wheel tractor-trailer containing a load of grain weighing 84,820 pounds. The complaint alleged that the fuel return system was not operating properly on the truck, that the truck should have been loaded with only 80,000 pounds, that Pigue failed to properly measure the truck’s fuel supply or properly calculate the fuel requirements for his planned trip with that size load, and that Pigue failed to stop and refuel even though his fuel gauge indicated that the truck was empty.
The complaint further alleged that Pigue failed to recognize that his engine was losing | ¿power and was suffering from fuel exhaustion, requiring him to immediately get off the roadway and out of traffic lanes, and the truck stalled from fuel starvation while in the left traffic lane on Interstate 55. The complaint also alleged that Pigue did not place warning markers or reflectors an adequate distance behind his stalled truck to warn oncoming traffic.
The complaint further alleged that the decedent was working as a Tennessee Department of Transportation (“TDOT”) HELP program operator and was driving his truck to assist another driver who was stalled on the Mississippi River bridge. The decedent entered Interstate 55 southbound at the last entrance ramp before the bridge. He saw Pigue and pulled alongside and asked Pigue if he needed help. Pigue replied that he did. The complaint alleged further that because of traffic, the decedent was unable to pull in behind the truck, so he pulled in front of the truck and parked there with his emergency lights and sign flashing “in accordance with his training.” The decedent then assisted Pigue in an attempt to restart the engine. The complaint alleged that after Nowicki arrived, Pigue failed to call 911 to assist with traffic or contact all approaching truckers and alert them.
The complaint further alleged that meanwhile, a fully loaded truck owned by Ellis Transports, LLC, was traveling southbound on Interstate 55. This truck approached Pigue’s stalled truck from behind and in the same lane. The complaint alleged that the driver was “unable to avoid the Pigue truck and hit it from the rear.” The decedent died in the collision. According to the complaint, Pigue admitted to a law enforcement official who arrived at the accident scene that he had run out of fuel, and that other witnesses observed that the fuel level in the fuel tank was below the fuel pick-up tubes.
| r,Pigue answered that the doctrine was a “complete bar” to Nowicki’s claim and moved for summary judgment on that basis. In response to the motion, Nowicki argued that the decedent was not a professional rescuer and that the doctrine should not be extended to roadside-assistance workers. Further, Nowicki argued that because Pigue’s conduct was willful or wanton and reckless, the doctrine should not apply.
The circuit court granted summary judgment in favor of Pigue. The court stated that the doctrine precludes a professional rescuer from “recovering for injuries inherent in and unique to the types of dangers generally associated with that particular rescue activity.” The court opined that the doctrine applied “to any publicly paid employee whose job carries ■with it a certain kind of danger and that worker falls victim to that danger.” The court concluded that the decedent was a roadside-assistance worker, a publicly paid position, and that “position placed him on the shoulder of the [ijnterstate where he might well fall victim to a variety of mishaps,” including the “very harm that tragically ended his life.” The court further found that although Nowicki “argues that there are exceptions to the rule, the court fails to discern them in this case.”
On appeal, Nowicki argues that the circuit court erred as a matter of law in “expanding]” the doctrine to roadside-assistance workers. Nowicki asserts that the doctrine is suspect, given that state appellate courts have not agreed on the legal basis for the doctrine and have created exceptions to the doctrine, and that expanding the doctrine to roadside-assistance workers is inconsistent with the “trend” to abolish or limit the doctrine. Nowicki states that she is not asking that this court abrogate the doctrine. Nowicki contends, however, |ñthat extension of the policy to roadside-assistance workers is not consistent with the doctrine. Nowicki asserts that while roadside-assistance workers are peripherally exposed to dangers when answering calls for assistance, their job is to clear the highways to prevent traffic congestion, and their exposure to danger is collateral to that job.
In Waggoner, this court considered several legal theories that might underlie the doctrine and concluded that there were public-policy considerations that supported the doctrine. Thus, we decline to reconsider our holding in Wag-goner that the risk a firefighter undertakes is a part of employment as a firefighter and a risk that is the firefighter’s duty to accept, and that recovery cannot be had for the public-policy reason that the party who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter was employed to confront. We read Wag-goner consistently with the assertion that the doctrine “prohibits recovery by a professional risk-taker for injuries from the negligently created risk that was the very reason for his presence on the scene.” Dan B. Dobbs, The Law of Torts § 364 (2011) (internal quotation omitted). Thus, in applying Waggoner, the question is whether the deceased, in his capacity as a TDOT HELP program operator, was precluded from recovering damages because he was undertaking a risk that as part of his employment was his duty to accept. In considering this issue we decline to apply a “categorical rule” but rather evaluate “the facts bearing on whether the worker was paid to assume the risk in question.” Dobbs, supra, § 365.
In support of the summary-judgment motion, Pigue presented the TDOT HELP program policy and procedures manual. In part, the manual provided that the TDOT HELP |7program “is a coordinated effort by the Tennessee Department of Transportation and other agencies and jurisdictions to enhance the traffic flow on urban interstates and freeways in order to maximize the operation of the highway network.” The manual noted that “[traffic delays caused by minor accidents, stalled vehicles and other lane closing situations can cause secondary accidents which lead to other injuries or fatalities and reduce the ability of response agencies to answer other emergency calls.” The manual provided that the HELP program “can help prevent further loss of life and property by helping to minimize the impact of freeway incidents on the flow of traffic through the urban areas.”
The manual further noted that the purpose of the program “is to provide efficient response to highway incidents that impede traffic flow along the urban freeways in the State’s larger urban areas,” and that its “function is to assist highway incident response agencies and the motoring public in keeping traffic moving and to clear the road.” The manual provided that the scope of highway accident or incident response included providing “fuel or other vehicle fluids needed by stranded motorists,” as well as “[placement of on board traffic control devices around incident or accident that cannot be moved from traffic lane,” and “[d]irect[ing] traffic at incident scenes to increase traffic capacity.”
The manual further stated as follows:
Incident management is defined as a planned, coordinated Program to detect and remove incidents and restore traffic capacity safely and quickly. In many situations, the HELP Program Operator will be the first responder to a highway incident. In that case, the operator will immediately assess the incident location and incident environment to determine what agencies should be dispatched to the site. When the incident is in one or more travel lanes, the operator should arrange the HELP Program | ¿vehicle to protect the individuals involved in the incident, keeping in mind the most efficient method of traffic flow to minimize congestion. Unless the incident involves injured persons or hazardous materials, the operator should attempt to relocate the vehicles or debris out of the travel lanes.
The manual listed as one of the levels of incidents to which the HELP operator would respond to as “Level 2: Roadway Assist for lane blocking incidents: incidents of short duration ... which occupy the travel lanes up to approximately one hour.” The manual noted that the HELP unit would “respond to Level 1 and Level 2 incidents using the truck-mounted lights and arrow boards and 28-inch channelizing cones.” Also included in the exhibits were documents showing a memorandum of understanding between the Arkansas State Highway and transportation Department, the Arkansas State Police, and TDOT emphasizing the “URGENT AND SAFE CLEARANCE of highway incidents.”
After considering these evidentiary items provided in support of Pigue’s motion for summary judgment, and viewing the evidence in the light most favorable to Nowicki and resolving all doubts and inferences against Pigue, we hold that, consistently with Waggoner, the risk the decedent undertook was a part of employment as a TDOT HELP program operator and a risk that is a TDOT HELP program operator’s duty to accept, and that recovery cannot be had for the public-policy reason that Pigue had no legal duty to protect the TDOT HELP program operator from the very danger that the TDOT HELP program operator was employed to confront. As can be seen from the manual, these TDOT HELP program operators were envisioned as being first responders on urban freeways in larger urban areas who had a duty to assist and protect motorists, including those who had run out of fuel. |9In an instance where a traveling lane was blocked, the operator’s duty was to address problems associated with the flow of traffic around the blocked lane, including warning oncoming motorists of the blocked lane and removing the stalled vehicle from the lane. The traffic duties of a TDOT HELP program operator required the de cedent to be present to assist both the motorist and others in the risk that was the very reason for his presence on the scene. Accordingly, we hold that the doctrine barred Nowicki’s claims against Pi-gue.
Nowicki further argues that the doctrine should not apply here because Pigue’s conduct was willful and wanton, and that, at a minimum, a question of fact exists as to the whether Pigue’s conduct was willful and wanton. Nowicki contends that there is no rational basis for immunizing those who act willfully and wantonly in creating a danger to public workers.
Here, the circuit court found that although Nowicki argued that there are exceptions to the rule, it failed to discern them in this case. The purpose of summary judgment is not to try the issues but to determine whether there are any issues to be tried. BPS, Inc. v. Parker, 345 Ark. 381, 388, 47 S.W.3d 858, 864 (2001). To constitute willful or wanton conduct, this court has stated that there must be a deliberate intention to harm or an utter indifference to, or conscious disregard of, the safety of others. Shepherd v. Washington Cnty., 331 Ark. 480, 506, 962 S.W.2d 779, 791 (1998).
| min Nowicki’s brief, she alleges that there is a question of fact as to whether Pigue’s conduct was willful or wanton, arguing that Pigue chose to operate his truck low on fuel for a considerable time, passing numerous refueling stations, while knowing that his breakdown could create a traffic hazard. However, even viewing the evidence in the light most favorable to Nowicki and resolving all doubts and inferences against Pigue, we cannot say that a genuine issue of material fact exists as to whether this conduct — running out of fuel — constituted a deliberate intention to harm or an utter indifference to, or conscious disregard of, the safety of others. See Nat’l Bank of Commerce v. McNeill Trucking Co., 309 Ark. 80, 88, 828 S.W.2d 584, 588 (1992) (Dudley, J., concurring) (collecting cases); Dixon v. Weaver, 41 N.C.App. 524, 255 S.E.2d 322 (1979) (holding that the court did not err in refusing to submit issue of willful and wanton misconduct where defendant should have known that she was going to run out of gasoline on an interstate highway; that knowing this condition, she continued to drive in the left lane rather than in the right lane; that she abandoned her car in the left lane, blocking the highway; that she did not flag or warn other drivers that there was danger ahead although there were others in her car who could have done so). Accordingly, we need not consider whether willful or wanton misconduct creates an exception to the doctrine.
Affirmed.
HANNAH, C.J., and DANIELSON, J., dissent.
. Nowicki relies on Catlett v. Stewart, 304 Ark. 637, 804 S.W.2d 699 (1991), arguing that because this court declined to apply the doctrine to a constable, we should not apply it to a TDOT HELP program operator. The case is inapposite because even though the injured person was a constable, he was not acting as a constable. | [
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ROBIN F. WYNNE, Judge.
Joe Berry and Beulah Berry appeal from an order of the circuit court finding that appellees, Neal Moon and Anna Moon, established entitlement to an easement by prescription over their property and an order of the trial court dismissing their counterclaim for trespass. We reverse and dismiss the order granting appellees an easement. We reverse and remand the order denying appellants’ counterclaim for trespass.
The parties are neighbors in Crawford County. Appellees purchased their property in 1996. Appellants purchased their property in 2007. From the time that they purchased their property, appellees accessed the rear portion of their property by crossing over appellants’ property using, for at least part of the way, a stretch of pavement that went down the side of appellants’ property. The first year that appellants owned their property, they allowed appellees to access the rear portion of their property in this manner. In May 2008, appellants had a survey performed after which they fenced their property and denied appellees access.
On July 11, 2008, Neal Moon filed a petition for declaratory judgment in which he sought a declaration by the circuit court that an easement by prescription existed for his benefit upon the property of Joe Berry. On July 25, 2008, Joe Berry filed an answer, counterclaim, and prayer for proper joinder. For his counterclaim, Berry asked that appellees be “restrained and enjoined” from trespassing on his property. On July 13, 2009, appellants filed a second answer and counterclaim. In the counterclaim, appellants again alleged that appellees had been trespassing on their property. Appellants also alleged that appellees had been throwing “materials” onto their property and leaving vehicles on the property that blocked the easement described in the deeds for ingress and egress to appellants’ property.
At the hearing on appellees’ petition, Michael Fairfield, who lived on appellants’ property from 2002 to 2005, testified that the only way to get to the rear of appel-lees’ property was via a driveway that goes down the left side of appellants’ property. He also testified that he let appellees use the drive because that was the only way they could access that portion of their property. Fairfield stated that he believed that appellees had an express easement for that purpose.
Steve Meadors testified that his family developed the property that the parties live upon. He testified that the only way to access appellees’ property by vehicle was to use the concrete driveway upon appellants’ property. Meadors stated that the Moon house was built first and that one could access the rear of the Moon property before the Berry house was built, but after the Berry house was constructed, it was necessary to use the driveway. On cross-examination, Meadors testified that he did not know how often the driveway was used to access the property, nor did he know how far down the driveway went.
Neal Moon testified that, prior to purchasing his property, he had a conversation with the then-owner, in which she indicated that she accessed the rear of her property by going down beside the property appellants now own. Moon testified that there is an easement described in his deed and he thought the easement encompassed the concrete driveway, but he later discovered that it did not. Moon testified that, prior to appellants’ purchase of their property, he continuously used the driveway on their property to access his property because it was the only method by which he could do so. According to Moon, he accessed his backyard once a week while the grass was growing and two or three other times when it was not. Moon stated that, as far as he knew, there was never any access to the back of his property other than the drive on appellants’ property. He further testified that he had not looked into the possibility of putting a drive anywhere on his property to access his backyard because it looked as though it was impossible.
According to Moon, if he were not able to have an easement across appellants’ property his backyard would grow up and become a “wasted field.” Moon did admit that another neighbor might let him have access across his pasture, but he would have to build a bridge due to the presence of a small creek, which he claimed would be expensive. Moon admitted on cross-examination that there was no determined path to use once the concrete ended and that he did not use the same route every time to access his property. Moon stated that there was not anything on appellants’ property to indicate that he was crossing their property to access his own. There have been no improvements made to the area where Moon would cross appellants’ property.
Ricky Hill, a registered land surveyor who surveyed appellants’ property, testified that he did not see any sign that appellees had used appellants’ property to access the back portion of their own, although he admitted on cross-examination that this could be because appellants barred appellees’ access across their property for the preceding two years.
Joe Berry testified that he did not have any discussions with Neal Moon regarding Moon using part of his property prior to moving into his home. Berry allowed Moon to use the driveway for one summer. Then, according to Berry, appellants fenced off their property after having it surveyed, cutting off appellees’ access to the drive. Berry testified that he told Moon that he was going to fence the property and Moon did not object, nor did he state that he had a right to use the property. Berry stated that there was not anything in his yard to indicate where appel-lees had been crossing it. Berry stated that appellees had been throwing limbs, leaves, and grass onto his property and testified that he was requesting that the court restrain them from doing so. Berry testified that he knew there was an easement across his property, but he did not know where it was located.
On March 1, 2010, the circuit court issued an order of easement in which it found that appellees have a prescriptive easement over appellants’ property for the sole purpose of providing access to the lower portion of their property. The court did not address appellants’ counterclaim. Appellants appealed to this court, and on February 2, 2011, this court dismissed the appeal for lack of a final order due to the outstanding counterclaim. See Berry v. Moon, 2011 Ark. App. 78, 2011 WL 386971. On March 17, 2011, the circuit court entered an order in which it dismissed appellants’ counterclaim. Appellants have now appealed to this court from the order of easement and the order dismissing their counterclaim.
We review equity cases de novo on the record but will not reverse a finding of the trial court unless it is clearly erroneous. Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999). A finding is clearly erroneous, when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been committed. Id.
The circuit court found that appellees established an easement by prescription. One asserting an easement by prescription must show by a preponderance of the evidence that one’s use had been adverse to the true owner and under a claim of right for the statutory period. Orr v. Orr, 2009 Ark. App. 578, 2009 WL 2877634. Overt activity on the part of the user is necessary to make it clear to the owner of the property that an adverse use and claim are being asserted. Id. Some circumstance or act in addition to, or in connection with, the use which indicates that the use was not merely permissive is required to establish a right by prescription. Id.
We hold that the evidence presented at the hearing was not sufficient to satisfy the requirements for an easement by prescription. The testimony at the hearing revealed that appellees’ crossing of the property was permissive. It does not appear to have ever ripened beyond that. According to the evidence, appellees never made any change to the property or took any affirmative steps that would have placed a reasonable owner on notice that an easement across his property was being asserted. The finding by the circuit court that appellees established an easement by prescription was clearly erroneous.
In their brief, appellees assert that, even if an easement by prescription was not proven, either an easement by implication or an easement by necessity was proven. An easement by implication arises where, during unity of title, a landowner imposes an apparently permanent and obvious servitude on part of his property in favor of another part and where, at the time of a later severance of ownership, the servitude is in use and is reasonably necessary for the enjoyment of that part of the property favored by the servitude. Manitowoc Remfg., Inc. v. Vocque, 307 Ark. 271, 819 S.W.2d 275 (1991). In order for such an easement to be established, it must appear not only that the easement is obvious and apparently permanent but also that it is reasonably necessary for the enjoyment of the property. Hanna v. Robinson, 86 Ark.App. 180, 167 S.W.3d 166 (2004). The term “necessary” in this context means that there could be no other reasonable mode of enjoying the dominant tenement without the easement. Id. The necessity for the easement must have existed at the time of the severance. Id. Further, the apparently permanent nature of the easement must be in existence at the time of common ownership. Id.
The evidence does show that there was previously unity of title under the Meadors family. However, the evidence does not establish that the easement claimed was permanent, obvious, or necessary. The testimony reveals that the concrete drive in question ends at some point before ap-pellees’ backyard is reached. Neal Moon testified that he purposely never used the same route to reach his land. Thus the easement claimed was neither obvious nor permanent. Neal Moon also testified that there might be another route to his property, but he had not explored it because he had never been forced to do so. On this evidence, it cannot be said that the easement claimed was necessary. The evidence does not support a finding of an easement by implication.
The possibility of another route to appellees’ backyard also serves to preclude the establishment of an easement by necessity. To establish an easement by necessity, a party must prove (1) that title to the tracts in question were once held by one person; (2) that unity of title was severed by conveyance of one of the tracts; and (3) that the easement is necessary in order for the owner of the dominant tenement to use his land, with the necessity existing both at the time of the severance of title and at the time the easement is exercised. Hedger Bros. Cement & Materials, Inc. v. Stump, 69 Ark.App. 219, 10 S.W.3d 926 (2000). The degree of necessity must be more than mere convenience. R & T Properties, LLC v. Reyna, 76 Ark. App. 198, 61 S.W.3d 229 (2001). Neal Moon himself testified that there was at least one other possible route that had not been investigated fully. At this point it cannot be said that the requested easement is the only method by which appel-lees can access their property, and, thus, they did not establish an easement by necessity.
Appellants also appeal from the order of the trial court denying their counterclaim for an order enjoining appellees from trespassing onto their property by leaving vehicles on the portion of the property over which appellees claimed an easement and by throwing “trash and other materials” onto appellants’ property. It appears from our review of the transcript of the hearing held after the initial appeal was dismissed that the circuit court considered the counterclaim to be tied to appellees’ claim for an easement, dismissing the former because it granted the latter. As the order granting appellees an easement across appellants’ property is hereby reversed and dismissed, we remand to the circuit court for it to enter an order on the counterclaim that is consistent with this court’s opinion.
Reversed and dismissed in part; reversed and remanded in part.
ABRAMSON and BROWN, JJ., agree.
. In response to Berry's prayer for proper joinder, Neal Moon filed an amended petition for declaratory judgment on July 6, 2009, in which he named his spouse, Anna Moon, and Joe Berry’s spouse, Beulah Berry, as additional parties. | [
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