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DONALD L. CORBIN, Associate Justice.
|, Appellant Thomas Leo Springs appeals the decision of the Sebastian County Circuit Court denying his petition for postcon-viction relief filed pursuant to Ark. R.Crim. P. 37.5 (2011). On appeal, Appellant alleges that his trial counsel was ineffective in failing to (1) interview or call his son as a mitigation witness during sentencing; (2) object to improper closing argu ment by the State; (3) properly handle the admission of an aggravating circumstance; (4) object to the admission of written victim-impact statements; (5) properly conduct voir dire; and (6) sufficiently explain his right to present uncomplimentary evidence about the victim during the penalty phase. We affirm.
On January 21, 2005, Appellant rammed his car head-on into a car in which his estranged wife, Christina Springs, was a passenger. Her sister, Kelly Repking, was driving the vehicle, and her three-year-old niece, Paige Garner, was also a passenger. After hitting the Repking vehicle, Appellant got out of his car, shattered the passenger-side window of the Repking vehicle, and began beating Christina’s face into the dashboard. He stopped and returned to his vehicle, where he retrieved a knife that he used to then stab Christina multiple times. Christina died as a result of the injuries inflicted by Appellant.
Appellant was charged with capital murder, pursuant to Ark.Code Ann. § 5-10-101, and two counts of aggravated assault, pursuant to Ark.Code Ann. § 5-18-204. He was convicted of all three charges, and sentenced to death on the murder charge and six years’ imprisonment and a $10,000 fine on each of the assault charges. This court affirmed his convictions and sentences in Springs v. State, 368 Ark. 256, 244 S.W.3d 683 (2006).
Thereafter, Appellant filed a timely petition for postconviction relief, as well as an amended petition, setting forth the allegations now raised on appeal. A hearing on the petitions was held on April 30, 2009, at which Appellant, his trial counsel, John Joplin and Cash Haaser, as well as Appellant’s son, Matthew Mooring, testified. The circuit court entered an order on June 10, 2009, denying Appellant’s request for postconviction relief. This appeal followed.
This court has held that it will reverse the circuit court’s decision granting or denying postconviction relief only when that decision is clearly erroneous. See Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007); Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). This court has said, “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.” Williams, 369 Ark. at 107, 251 S.W.3d at 292 (quoting Howard, 367 Ark. at 26, 238 S.W.3d at 31).
When considering an appeal from a circuit court’s denial of a Rule 37 petition, 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 circuit court clearly erred in holding that counsel’s performance was not ineffective. Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783; Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). In making a determination of ineffective assistance of counsel, the totality of the evidence must be considered. Howard, 367 Ark. 18, 238 S.W.3d 24.
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 to the United States Constitution. Williams, 369 Ark. 104, 251 S.W.3d 290. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id.
Second, the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Id. A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel’s performance fell below 14an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner must show 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, 367 Ark. 18, 238 S.W.3d 24. 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. “[T]here 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. With this standard in mind, we now turn to the issues raised by Appellant.
I. Failure to Investigate and Call Particular Mitigation Witness
As his first point on appeal, Appellant argues that the circuit court erred in denying his request for relief based on his assertion that counsel were ineffective in failing to interview his son, Matthew Mooring, as a potential mitigation witness and in not calling him to testify during the penalty phase of his trial. Specifically, Appellant asserts that his son would have asked for mercy and testified to his father’s positive characteristics and that this testimony could have balanced the testimony of his younger son presented by the State. The State counters that Appellant cannot demonstrate prejudice because Appellant presented testimony from fourteen mitigation witnesses, and anything Mooring stated would have been similar to | sevidence that had been introduced. Moreover, the State asserts that there was evidence it could have used to impeach Matthew’s testimony that his father was generally a good dad and a good provider. The circuit court correctly denied relief on this claim.
In denying relief, the circuit court noted that Appellant called fourteen mitigation witnesses that testified, among other things, that Appellant was a loving father who was involved in his children’s lives, that he was loved by his children, that he was a hard worker, good natured, and an honorable person. The circuit court found that the testimony that Matthew would have given was cumulative of much of the aforementioned testimony. Moreover, the court noted that any testimony about appropriate punishment would not have been admissible under this court’s decision in Greene v. State, 343 Ark. 526, 37 S.W.3d 579 (2001).
In Coulter v. State, 343 Ark. 22, 29, 31 S.W.3d 826, 830 (2000) (citations omitted), we explained as follows:
The constitutional guarantee of effective assistance of counsel extends to the sentencing phase of the defendant’s trial. Counsel’s failure to investigate and present substantial mitigating evidence during the sentencing phase may constitute ineffective assistance of counsel. Counsel is obligated to conduct an investigation for the purpose of ascertaining mitigating evidence, and the failure to do so is error. Such error, however, does not automatically require reversal unless it is shown that, but for counsel’s errors, there is a reasonable probability that the sentence would have been different. When reviewing a claim of ineffectiveness based upon failing to present adequate mitigating evidence, we must view the totality of the evidence — both that adduced at trial and that adduced in the postconviction proceeding.
Thus, it is undisputed that the guarantee of effective assistance of counsel clearly encompasses the penalty phase of á criminal trial, and this court has recognized that the failure to present any testimony during the mitigation phase of the trial fails to pass constitutional muster. See, e.g., Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (holding trial counsel’s failure to investigate and present substantial mitigation evidence during the sentencing phase can constitute ineffective assistance of counsel); see also State v. Smith, 368 Ark. 620, 249 S.W.3d 119 (2007). However, this court has further held that the decision not to offer certain mitigating evidence is a matter of trial strategy where the decision is made after a full investigation of the facts. See Wooten v. State, 351 Ark. 241, 91 S.W.3d 63 (2002).
Appellant cites us to the United States Supreme Court’s decision in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), to support his contention that counsel was ineffective in failing to interview and call Matthew as a mitigation witness and that prejudice resulted therefrom. In Wiggins, the defendant was convicted of murder and sentenced to death. During postconviction proceedings, the defendant claimed that counsel failed to investigate and present mitigating evidence of defendant’s dysfunctional background, which included extreme physical and sexual abuse. Id. The defendant’s trial counsel argued that, as a matter of trial tactics, he decided to focus on retrying the factual case instead of investigating and introducing mitigating evidence during the sentencing phase. Id. The Maryland Court of Appeals affirmed the trial court’s denial of relief, holding that counsel’s decision not to investigate was a matter of trial tactics. Id. The Supreme Court reversed, holding that “[g]iven both the nature and the extent of the abuse petitioner suffered, we find there to be a reasonable probability that a competent attorney, aware of this history, would have introduced it at sentencing in an admissible form.” Id. at 535, 123 S.Ct. 2527.
Similarly, in Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000), we held that trial counsel’s failure to investigate mitigating circumstances and present such evidence during the penalty phase constituted ineffective assistance of counsel. In Sanford, as in Wiggins, counsel conducted virtually no investigation regarding mitigation evidence. The potential mitigation evidence that petitioner argued should have been investigated and introduced included longstanding mental retardation, his age of sixteen at the time of the murder, medical records of head injuries, a family history of mental retardation, and jail records reflecting commendations. In concluding that counsel was ineffective, this court stated that “it is only after a full investigation of all the mitigating circumstances that counsel can make an informed, tactical decision about which information would be the most helpful to the client’s case.” Id. at 33, 25 S.W.3d at 421-22 (quoting Pickens v. Lockhart, 714 F.2d 1455, 1467 (8th Cir.1983)). In Pickens, it was undisputed that counsel failed to make any investigation at all. The court in that case recognized that counsel
may choose not to investigate all lines of defense and may concentrate, for reasons of sound strategy, on another possible line of defense. We would not fault such a strategy if it were a reasoned choice based on sound assumptions. That is not the situation here. Plant did no investigation into any possible mitigating evidence. He was left with no case to present. A total abdication of duty should never be viewed as permissible trial strategy.
Pickens, 714 F.2d at 1467 (citations omitted).
This case is distinguishable from Wiggins, Sanford, and Pickens. It is not a situation where counsel totally failed to investigate and put forth mitigation evidence. Here, counsel produced fourteen mitigation witnesses who testified about Appellant’s general good character, his work ethic, and his love for and involvement with his children. The question | sthen is whether counsel’s failure to interview and call a particular witness, Appellant’s son Matthew, rendered counsel ineffective and prejudiced Appellant such that there is a reasonable probability that the outcome of his trial would have been different. To correctly determine this issue, we must look at all the evidence adduced at trial and at the Rule 37 hearing. Howard, 367 Ark. 18, 238 S.W.3d 24.
At the hearing on his Rule 37 petition, Appellant presented testimony from his trial counsel, Joplin and Haaser. Joplin, who was responsible for the penalty phase of the trial, stated that he called a number of mitigation witnesses — people who had worked with Appellant, lived near him, and that type of thing. He stated that he was aware that Appellant had a number of children, one of whom testified for the State. He admitted that he did not try to contact any of Appellant’s older children to determine if they would be willing to help during the penalty phase but that he should have done so. He admitted he probably discussed the issue with co-counsel Haaser, but could not recall a specific conversation. On cross-examination, Joplin stated that he was aware of Chantelle Mooring and Matthew Mooring, Appellant’s two oldest children, but decided not to interview or call them as witnesses.
Matthew testified that no one from his father’s defense team contacted him and, if he had been asked, he would have testified for his dad. When asked what his testimony would have been, Matthew stated the following:
Well, he was a good man, you know, he had — everybody has faults and everyone makes mistakes, but, I mean, he is my dad and he is my sisters’ dad and he is my brothers’ dad and, you know, they had already lost one parent and, you know, him being alive gives them something to be, you know, they could write him, they can have something to keep up with and, you know, I wouldn’t want them to lose their father and I wouldn’t want to lose mine because then it feels like we have nobody.
Matthew also stated that he would have asked the jury for mercy and would have discussed his father’s positive aspects. He stated that he would have testified as follows:
We never needed anything. We didn’t need — we were never without a home, we were never without shelter, we were never without proper education, clothes for school, we never needed food, we never needed anything. He worked hard, he worked overtime, he did whatever he had to, to make sure that everybody in the family was taken care of.
... [A]nd he was really caring, too, you know, to the kids, to me. Whenever, you know, when he was on his good moments he was a great father.
Matthew stated that he made a statement to the court after the jury deliberated Appellant’s sentence, but before formal sentencing, to the effect that his dad was a good dad and loved his children. Matthew stated that he would have made similar statements if called as a mitigation witness. Appellant now asserts that this testimony would have, in essence, counterbalanced the testimony of his younger son, Jacob Springs, who testified at sentencing on behalf of the State.
Jacob’s statement, which he read to the jury, was as follows:
I am 12 years old. I am in the 7th grade. My mother was Christina Springs. I would like the jury and the Judge to know how I feel about what happened to my mother. My life changed a lot because my dad killed my mom. It is hard to wake up in the morning because my mom isn’t here to be by me. My Aunt Kelly is still there for me and my Aunt Ashley and my Aunt Brittany and my Aunt Laura and my Papa. I love them for that, but I miss my mom.
Me and my brothers and sister don’t live together any more because they all are in DHS because of what my dad did to my mom. I live with my Aunt Kelly and my linUncle Brian because they adopted me from DHS. I miss the way we used to be together. I loved my mom so much and I miss her.
I have to live with what my dad did every day. She is gone from my life now. We used to talk a lot. She was a good friend. We used to talk about how when I grew up I was going to buy her a new car for her.
She always came to see my school stuff and said she was proud of me. I miss her so much. I can’t sleep at night because I look at mom’s picture. I have to go to bed at 9:00 p.m. every night, but I stay up looking at my mom’s picture until 2:00 and 3:00 in the morning because I feel it is my fault that she is gone. If she just didn’t go to my school that morning, I feel we would be with her. I feel like I don’t have anything to live for any more.
When my dad killed my mom I didn’t know how I was going to live without her. She was my life. When the police told me that my dad killed my mom I was so hurt inside my heart. I am on medicine now. I am not eating that much any more. I weighed 89 pounds when my dad killed my mom and now I weigh 87 pounds, but they put me on medicine so I can eat more and so I can feel happier because I was so sad and mad. My mom was loved by so many people. My dad took her away from our lives forever.
Dad, I want you to know how you are so selfish to take her away. One day you said if you can’t have her no one can have her. I didn’t know you meant us kids, too. I just want to know why you killed my mom. Will you tell me when I grow up?
Every time I see my mom in that picture in the newspaper it makes me so sad and I just feel so mad. I have to live with it every day of my life. Now I go to school called Perspectives day school where I get daily therapy. I don’t really want to be there, but at Ramsey I was having a hard time.
Me and my mom did lots of stuff together. We went to the store, the mall, and the car wash and to Wal-Mart. We played around a lot together. It was so much fun when she was alive. All I have to remember her by is pictures, her grave and a statue called Angel of Grief at the Crisis Center. My mom will never be forgotten. If I could have one wish in the whole wide world it would be for my mom to come back.
While we believe counsel was ineffective in not interviewing Appellant’s other children and not calling Matthew to testify as a mitigation witness, we cannot say that prejudice resulted therefrom, such that there is a reasonable probability that the jury would have imposed a different sentence. First, the two statements are not even comparable. Jacob’s statement concerned how much he missed his mom and the negative effect that his father’s murder of his mother has had on him personally. While Matthew would have testified that Appellant was generally a good father and a good provider, much of that testimony was cumulative to testimony elicited from other mitigation witnesses. This court has held that the omission of a witness when his or her testimony is cumulative does not deprive the defense of vital evidence. Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996). Further, as the State points out, it could have impeached Matthew’s testimony by introducing evidence that established the family was living in a shelter at the time of the murder and that the Department of Human Services had a case file on the family because of past issues.
Another issue to consider is what effect having only one child testify for Appellant could have had on the jury. In other words, would it have raised questions about the remaining children as to why none of them were willing to testify on their father’s behalf. In Rankin v. State, 365 Ark. 255, 227 S.W.3d 924 (2006), we addressed the issue of a trial attorney’s decision on whom to call as mitigating witnesses. In that case, the appellant would not allow his attorney to call his mother as a mitigation witness. Then, in his Rule 37 appeal, the appellant argued that his attorney had been ineffective in failing to present significant mitigation evidence. This court rejected the appellant’s argument, noting that issues of an attorney’s trial strategies or tactics were not to be debated in the Rule 37 forum. Id. Moreover, we noted that “calling only one relative, his aunt, as a witness would have been less than convincing, especially when immediate family members, such as his mother and brother, were not called to testify on his behalf.” Id. at 260, 227 S.W.3d at 928. Like Rankin, the question arises of how compelling Matthew’s testimony would have been in light of the number of other children Appellant had who did not testify on his behalf.
We simply cannot say that Appellant has demonstrated that there is a reasonable probability that the outcome of Appellant’s sentencing would have been different had counsel interviewed and called Matthew as a witness. Looking at the totality of the evidence, we note that there were three aggravators found unanimously by the jury and affirmed by this court on direct appeal: (1) Appellant previously committed another felony, an element of which was the use or threat of violence to another; (2) in the commission of the capital murder, Appellant knowingly created a great risk of death to other persons; and (S) the murder was committed in an especially cruel or depraved manner. At least one juror found four mitigating circumstances: (1) the murder was committed while Appellant was under extreme mental or emotional distress; (2) the murder was committed while Appellant was acting under unusual pressures or influences; (3) the murder was committed while Appellant’s capacity to conform his conduct to the requirements of the law was impaired due to mental disease or defect, intoxication, or drug abuse; and (4) Appellant has six children and at least one of them has expressed a wish to get an answer as to why his father killed his mother. Despite the fact that the jury found four mitigating circumstances, including one that a child had expressed a desire to know why his father had killed his mother, the jury determined that the aggravating circumstances outweighed those mitigators and thus warranted a sentence of death.
| ^Accordingly, we find no error in the circuit court’s denial of Appellant’s petition on this ground.
II. Failure to Object to Prosecutor’s Statements in Closing Argument
As his second point, Appellant argues that counsel was ineffective in failing to object to statements by the prosecutor in closing argument of the penalty phase that Appellant claims were misleading on the issue of mitigation evidence. According to Appellant, the prosecutor’s gross misstatements of the law of mitigation resulted in violations of the Eighth Amendment’s protection against cruel and unusual punishment, as well as the Fourteenth Amendment’s guarantees of due process. Appellant argues that his attorneys conceded that they failed to object to the statements, and Appellant asserts that this failure was prejudicial because there is a reasonable probability that the statements could have had the effect of causing the jury to ignore significant mitigation evidence. The State counters that there is no merit to this argument as Appellant failed to raise this issue in the trial court and on direct appeal. Moreover, the State asserts that we found no prejudicial error in this regard during our mandatory review pursuant to Ark. R.App. P.-Crim. 10.
The circuit court, in denying relief, ruled that Appellant was required to raise a constitutional challenge at trial and on direct appeal. Moreover, the circuit court ruled that Appellant failed to demonstrate that he was prejudiced by counsel’s failure to object.
Some of the statements by the prosecutor that Appellant now takes issue with include the following:
[M]itigating circumstances are factors you should take into consideration that lessen the culpability of the Defendant for what he has done; that make it less evil, for lack of a better word....
Mitigating circumstances are special things that mitigate, that lessen culpability of the Defendant. If there is anguish in separation, it is sadly a common thing. That is not special to this Defendant and should not mitigate the horrific crime that he has committed.
... [I]t has to be something beyond the ordinary, something that lessens the accountability of the Defendant. The fact that he was a good welder 10 years ago, that is not a mitigating factor. The fact that 14 years ago he moved some furniture for someone, that is not a mitigating factor.
... [T]he fact that they performed well under community service, that is not a mitigating factor. The fact that they worked hard at Whirlpool, that is not a mitigating factor. Those are things that we are expected to do, all of us. We are expected to work hard at our jobs. We are expected to be involved in our children’s lives. We are expected to be civil to the people that we work and live around. Those aren’t mitigating factor[s]. Those are what every single human being should do. The Defendant is asking for extra credit because he did it sometimes.
Appellant argues that these statements misled the jury because Arkansas neither defines nor limits mitigation by statute. And, in fact, he points to decisions by this court wherein the court has held that there is no requirement that the mitigating circumstances reduce culpability for the offense. See Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987) (holding that any relevant mitigating evidence concerning a defendant’s character should not be excluded). He asserts that the prosecutor’s remarks violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution.
First, the circuit court correctly noted that constitutional issues must be raised at trial and on direct appeal. Generally, a petition under Rule 37 does not provide a remedy when an issue could have been raised at trial or argued on appeal. Howard, 367 Ark. 18, 238 S.W.3d 24. There is, however, an exception to this general rule for errors that are so fundamental as to render the judgment of conviction void or subject to collateral attack. E.g., Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000) (double-jeopardy claim was a fundamental claim that appellant could raise for the first time in a Rule 37 proceeding); Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996) (right to twelve-member jury is such a fundamental right that it could be raised for the first time in a Rule 37 proceeding); Jeffers v. State, 301 Ark. 590, 591, 786 S.W.2d 114, 114 (1990) (“A ground sufficient to void a conviction must be one so basic that it renders the judgment a complete nullity; for example, a judgment obtained in a court lacking jurisdiction to try the accused.”). Appellant’s claim does not fit within such an exception; thus, we are limited to reviewing his claim that counsel was ineffective in failing to object to the prosecutor’s statements.
Joplin admitted at the Rule 37 hearing that he did not object to the prosecutor’s remarks, but would do so now in a capital case. Despite his failure to object, however, Joplin discussed the jury’s role with regard to mitigating circumstances in his own closing argument. He stated in relevant part that the jury was to consider mitigating circumstances, that those mitigating circumstances did not have to be proved beyond a reasonable doubt, and that mitigation is “anything that supports less than the ultimate punishment of death.” And, notably, at least one juror found the existence of four mitigating circumstances. Even though Joplin admitted that he did not object to the prosecutor’s remarks, or offer a strategic basis for his failure to object, Appellant has failed to demonstrate that he was prejudiced as a result. A petitioner asserting ineffective assistance of counsel has the burden of proving that the prejudice resulting from an alleged error was real and had some demonstrable, detrimental effect and not some abstract or theoretical effect. Kelley v. State, 2011 Ark. 504, 2011 WL 5995530. Because Appellant cannot satisfy the prejudice prong of Strickland, the circuit court was correct to deny relief on this claim.
III. Failure to Object or Seek Instruction on Prior Felony Aggravator
Next, Appellant argues that counsel was ineffective in failing to object to the State’s submission of an aggravator that Appellant had committed a prior violent felony by threatening to “cut” a jailer with a comb. Appellant asserts that there was insufficient evidence that the offense was a felony and, as such, counsel should have moved to dismiss this aggravating circumstance or, alternatively, should have requested a specific instruction as to whether the offense was a misdemeanor or a felony, as a specific felony was not identified at trial.
The State counters that Appellant cannot challenge the sufficiency of the evidence underlying the aggravating circumstance because he challenged it on direct appeal. Moreover, the State asserts that Appellant cannot demonstrate prejudice with regard to this issue because this court, in the course of its Rule 10 review, determined that the aggravating circumstances were supported by sufficient evidence. Thus, according to the State, the fact that no reversible error occurred means that Appellant cannot show prejudice therefrom, even if he were to establish deficient performance by counsel.
On this issue, the circuit court denied relief, noting that Appellant had raised the issue of aggravating circumstances in his direct appeal to this court, and it was also the subject of a pretrial hearing. The circuit court then concluded that the testimony of Deputy Darren Scott that Appellant “grabbed the comb out of his hair and told me that he will fucking cut me” was evidence of a terroristic threat, as set forth in Ark.Code Ann. § 5-13-301, and the jury could have easily concluded as such. The circuit court concluded by noting that Appellant raised the issue prior to trial and the court determined the evidence was admissible.
At the Rule 37 hearing, Joplin testified that he recalled the State introducing evidence about a prior, uncharged felony incident wherein Appellant threatened to “cut” a jailer, and the instrument Appellant wielded was a comb that was never confiscated from Appellant. Joplin explained that he filed several motions with regard to the use of this felony but admitted that he did not ask for an instruction requiring the jury to first determine whether the incident was a felony or a misdemeanor, nor did he request that the jury be instructed to disregard the evidence if it determined the incident was a misdemeanor.
Insofar as Appellant’s argument is a challenge to the sufficiency of the evidence, the State is correct that it cannot be properly raised in a Rule 37 proceeding. A petitioner cannot challenge the weight and sufficiency of the evidence through a Rule 37 proceeding by framing the question as an allegation of ineffective assistance of counsel. Stephens v. State, 293 Ark. 231, 737 S.W.2d 147 (1987). Moreover, a proceeding under Rule 37 does not allow an appellant the opportunity to reargue points that were decided on direct appeal. Goodman v. State, 2011 Ark. 438, 2011 WL 4840650 (per curiam). Here, although this court noted in the direct appeal that Appellant’s counsel had not made a specific objection challenging the admissibility of the aggravating factors, we nonetheless reviewed, pursuant to Rule 10, the evidence supporting those aggravators and determined that they were supported by sufficient evidence. Springs, 368 Ark. 256, 244 S.W.3d 683.
We turn now to Appellant’s contention that his counsel was ineffective in failing to request an instruction that required the jury to first determine whether the incident with the jailer was a felony or a misdemeanor. Joplin testified that he raised a pretrial challenge to the admissibility of the aggravators, albeit for a different reason. As stated, this court reviewed those aggravators and affirmed after determining that there was sufficient evidence supporting them. We cannot now conclude that Appellant’s counsel was deficient in failing to seek an instruction that required the jury to determine whether the incident constituted a felony or a misdemeanor. Because there was sufficient evidence that it was a felony, any argument to the contrary by counsel would have been unavailing. Counsel is not ineffective for failing to make an argument that is meritless. Montgomery v. State, 2011 Ark. 462, 385 S.W.3d 189.
Moreover, this court recently noted that to show prejudice under Strickland based on trial counsel’s failure to request a specific instruction, the United States Supreme Court has held that an appellant must establish that it was “reasonably likely that the instruction would have made any difference [in the outcome of the trial] in light of all the other evidence of guilt.” Berghuis v. Thompkins, — U.S. -, 130 S.Ct. 2250 [176 L.Ed.2d 1098] (2010).
Strain v. State, 2012 Ark. 42, at 8, — S.W.3d -, (per curiam). Here, the jury found that Appellant had committed a pri- or violent felony that constituted an aggravating circumstance. Appellant has provided nothing other than bare conjecture that an instruction [ ^requiring the jury to first determine whether the incident constituted a felony or a misdemeanor would have resulted in the jury finding that his threat to “cut” the jailer was a misdemean- or. In sum, Appellant has failed to demonstrate that his counsel’s performance was deficient or that he suffered prejudice. The circuit court correctly denied relief on this claim.
IV. Failure to Object to Introduction of Written Victinu-Impact Statements
Next, Appellant asserts that counsel was ineffective in failing to object to the introduction of written victim-impact statements. These statements, which were printed by the State and provided to Appellant’s counsel prior to their admission, were read by the witnesses during the sentencing phase of the trial. According to Appellant, the statements were not admissible under any of the Rules of Evidence and had the impermissible effect of emphasizing those witnesses’ testimony. The State argues that there is no merit to Appellant’s argument on this point, as counsels’ failure to object during trial was a strategic decision. Alternatively, the State asserts that this court previously addressed the issue of the evidence’s admissibility and should not now revisit the issue under the guise of a Rule 37 challenge.
In ruling that Appellant was not entitled to relief on this claim, the circuit court noted that Joplin stated that he objected to the introduction of victim-impact evidence prior to trial. The court further noted that despite counsel’s admission that he did not think to object to the written statements, Joplin admitted that it was preferable to have the witnesses read the statements that he had already seen.
While we do not agree with the State that this was a matter of trial strategy not subject to attack in a Rule 37 proceeding, we do agree that this allegation does not provide a basisj^for postconviction relief. There is a strong presumption that trial counsel’s representation falls within the wide range of reasonable professional assistance. Anderson, 2011 Ark. 488, 385 S.W.3d 783. Appellant had the burden of overcoming this presumption by identifying specific acts and omissions that, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Id. Conclusory statements cannot be the basis of postconviction relief. Id. Here, Appellant has not sustained his burden, as his argument on this point is nothing more than a conclusory allegation that “the inclusion of the statements as exhibits had the effect of unfairly emphasizing the evidence.” Accordingly, Appellant has not demonstrated that his counsel was ineffective or that he was prejudiced as a result.
V. Failing to Properly Conduct Voir Dire
As his fifth allegation of error, Appellant asserts that counsel was ineffective in failing to conduct proper voir dire on the issue of racial bias. Appellant notes that he is African-American, that his wife was Caucasian, and the jury that was ultimately seated was all Caucasian. Thus, according to Appellant, because of the interracial nature of his relationship with the deceased, it was error for his trial counsel to not voir dire the jury on the issue of racial bias. The State counters that counsels’ decision to not voir dire the jury on the issue of race was one of trial strategy that does not constitute deficient performance under Strickland. Moreover, the State argues that Appellant does not identify any juror who was biased and thus cannot show that he was prejudiced by counsels’ failure to voir dire the jury on the issue of race.
| ⅞1 The circuit court rejected this claim after distinguishing Appellant’s case from that presented in Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1688, 90 L.Ed.2d 27 (1986). In Turner, the defendant asked the judge to inquire about racial bias and that request was denied, which the Supreme Court found to be erroneous. In this case, however, Appellant never asked and was never denied the right to inquire. Quoting Turner, the circuit court stated that “a defendant cannot complain of a judge’s failure to question the venire on racial prejudice unless the Defendant has specifically requested such an inquiry.” 476 U.S. at 37, 106 S.Ct. 1683. Moreover, the circuit court noted that this court has held that poor strategy in voir dire does not automatically result in ineffective assistance of counsel. The court also noted that the Appellant failed to show any actual bias on the part of some or all of the jurors. Finally, the court reasoned that Appellant’s argument on this point ignored the State’s overwhelming evidence of Appellant’s guilt.
We agree with the circuit court that the instant case is distinguishable from Turner, as Appellant was never denied the right to inquire about racial bias. Moreover, this is not a situation where counsel ignored or was not aware of the potential for racial bias. Rather, the testimony from Joplin and Haaser indicated that they made a strategic decision not to inquire about racial issues so as to avoid sending the wrong message to the jury. Joplin admitted that he did not conduct any voir dire with regard to any possible racial bias or interracial issues, even though he was aware of the Supreme Court case of Turner that would have allowed him to do so. Joplin accepted fault for not giving the issue “meaningful consideration” but explained that he worried about making race an issue or giving the impression that Appellant “[wa]s trying to get off because he is black.” He conceded that his failure to conduct voir dire 122on the issue was not an appropriate strategic decision because he did not give it enough meaningful consideration. He also stated that his co-counsel wanted to voir dire on the race issue, but that he overruled him.
Haaser stated that he recalled discussing whether to voir dire jurors on the issue of race and racial bias with Joplin and that they decided it would not be helpful to their client’s defense. According to Haas-er, Joplin feared that it would send the wrong message to the jury, specifically, that Appellant was looking for sympathy for the wrong reason. Haaser admitted that he disagreed with Joplin on this issue.
Even though Joplin admitted that he probably should have conducted some voir dire on this issue, it is clear that his choice not to do so was a strategic one. This is highlighted by his testimony, as well as the testimony of co-counsel Haaser. This court has repeatedly held that 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. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228; Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). Thus, even though another attorney may have chosen a different course, trial strategy, even if it proves unsuccessful, is a matter of professional judgment. Williams, 2011 Ark. 489, 385 S.W.3d 228. Accordingly, we agree with the circuit court that Appellant was not entitled to relief based on this claim, as Appellant failed to demonstrate that his counsel was ineffective in this regard.
VI. Waiver of Right to Present Certain Mitigation Evidence
Finally, Appellant argues that his purported waiver of his right to present evidence about the deceased was not knowing and intelligent, and counsels’ failure to properly explain it to him resulted in ineffective assistance of counsel. Appellant asserts that the circuit court led him to believe that the information was not admissible when it clearly was and that such evidence would have explained some of the anguish that triggered his attack on the deceased. Appellant concludes that this lack of a knowing and intelligent waiver violated his due-process rights under the Fourteenth Amendment, as well as Article 2, Section 8’s protection against cruel and unusual punishment. The State counters that character evidence about the deceased was not necessarily relevant and admissible at the penalty phase of Appellant’s trial. But, according to the State, it is not necessary to delve into this issue because Appellant has failed to demonstrate any deficiency on the part of his trial counsel or any resulting prejudice that would afford him relief under Strickland.
In denying relief, the circuit court noted that counsel intended to call Melinda Temple, a neighbor of Appellant and Christina’s, and when Appellant learned that she would testify to negative things about the deceased, he informed counsel that he was opposed to calling her. According to the circuit court, the trial court went into “quite some detail about the use of such evidence.” Further, the circuit court noted that Appellant acknowledged that the evidence could help him, but that he did not “want to make my wife look bad.”
At his Rule 37 hearing, Appellant testified that he wanted to prevent emotional testimony about the victim from being stated out loud in court and assumed the substance of the testimony would be presented to the jury in written form. Appellant’s assertion at the Rule 37 hearing is not supported by the record from trial. At trial, Appellant’s counsel attempted to call Temple as a witness. Thereafter, Joplin asked to approach the bench and told the court that Appellant had asked if the witness was going to “say bad stuff about Chrissy,” and stated that he and Appellant had been back and forth on the issue, such that counsel wished to make a record if his client persisted that he not call Temple. At that point, the trial court addressed Appellant directly and read a list of the potential witnesses and the derogatory testimony each would possibly give. The trial court then asked Appellant whether it was true that he did not wish to introduce any testimony relative to his wife being a bad person. Appellant responded that that was correct, that he did not wish to have such testimony introduced. This prompted the trial court to inquire whether Appellant understood he had a right to present mitigation evidence, including evidence about the victim, and Appellant reiterated his understanding and his desire not to introduce such evidence.
First, Appellant’s argument that he did not make a knowing and intelligent waiver in violation of his constitutional rights, is not a proper Rule 37 claim, as allegations of trial error, even constitutional ones, are not grounds for postconviction relief. Howard, 367 Ark. 18, 238 S.W.3d 24. Finally, to the extent that Appellant’s challenge is an assertion of ineffective assistance of counsel, it is without merit. In support of this claim, Appellant has presented nothing more than a conclusory allegation that counsel was ineffective in failing to properly inform him of the strength of his claim to present such evidence. As we have explained, conclusory statements cannot be the basis of postcon-viction relief. Anderson, 2011 Ark. 488, 385 S.W.3d 783. Accordingly, we cannot say that the circuit court erred in denying Appellant’s request for relief on this ground.
Affirmed.
. There were additional allegations of error raised in his petition and amended petition that Appellant has not pursued on appeal and are deemed abandoned. Jordan v. State, 356 Ark. 248, 147 S.W.3d 691 (2004).
. Prior to trial, when Appellant sought to exclude the aggravating circumstances, the State identified this incident as the felony of terroristic threatening in the first degree. | [
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JOHN B. ROBBINS, Judge.
Appellant John Pearson brought a workers’ compensation claim against appellees Worksource and Wausau Insurance Company, claiming that he sustained a compensable injury to his left great toe during his employment for Worksource. The Workers’ Compensation Commission denied the claim on the basis that Mr. Pearson failed to prove a compensable injury. The Commission found that Mr. Pearson failed to prove an accidental injury caused by a specific incident identifiable by time and place of occurrence, and that he also failed to prove an injury caused by rapid repetitive motion. Mr. Pearson now appeals from the Commission’s order denying compensability, arguing that its decision is not supported by substantial evidence. We agree with appellant’s argument that the Commission erred in finding that the injury was not the result of rapid repetitive motion, and we reverse and remand.
Arkansas Code Annotated section 11-9-102(4)(A) (Supp.2011) defines “compensable injury” and provides, in relevant part:
(4)(A) “Compensable injury” means:
(i) An accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or hearing aids, arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence;
(ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
(a) Caused by rapid repetitive motion.
We review a decision of the Workers’ Compensation Commission to determine whether there is substantial evidence to support it. Rice v. Ga.-Pac. Corp., 72 Ark.App. 148, 35 S.W.3d 328 (2000). Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark.App. 146, 41 S.W.3d 822 (2001). We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings. Geo Specialty Chem. v. Clingan, 69 Ark.App. 369, 13 S.W.3d 218 (2000). It is the Commission’s province to weigh the evidence and determine what is most credible. Minn. Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). When the Commission denies a claim, we must affirm if the Commission’s decision displays a substantial basis for the denial of relief. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000).
The medical history presented at the hearing showed that Mr. Pearson, who is now in his early 40s, was diagnosed with diabetes in 1995. Mr. Pearson has had some previous problems with his left foot. In 1999, Mr. Pearson received emergency treatment for complaints of pain, redness, and swelling in his left foot, and was assessed with “cellulitis foot.” A physician’s report from 2006 noted that Mr. Pearson’s diabetes was not being controlled and the assessment was “cellulitis of the left lower extremity in a diabetic patient.”
Mr. Pearson testified that he was working for Worksource on June 8, 2009, and wearing a pair of steel-toe work boots provided by his employer. He stated that his left great toe was not sore that morning when he began his work, but that a couple of hours later it became a little sore and started bothering him. Mr. Pearson finished the work day, and when he got home he took off his boots and noticed a blister on his toe. He stated, “I guess from being on my feet and walking and stuff and my feet sweating and everything, the edge of the steel toe was rubbing where the blister developed.” Mr. Pearson stated that he knew his toe was rubbing against the boot because he could feel it pressing against the side of his foot.
Mr. Pearson described his job duties as follows:
My job duties that day were to bring the steel out in big bundles, out to the north yard, and it was our job to take this fiberglass blanket and cover it up so the metal would cool slowly. Depending on where they set the big bundles of steel down at, you walk from one end of the field to the other and cover up ones that come out and uncover the ones that have reached their time limits. I did that walking all day back and forth over and over.
I moved my foot over and over in order to walk from place to place. I was working within a time frame for getting my work done. As it comes out, we have to cover it as fast as possible, so if we are at this end and it was down at the other end, you would have to hot step it, walk fast. I did that same work over and over again all through the day.
Mr. Pearson testified that he told his employer’s representative about the blister on his toe and asked about getting a wider pair of boots. The representative advised Mr. Pearson that they did not have a wider pair of boots and asked him to get another pair on his own. Mr. Pearson indicated that he would not be able to get a new pair of boots until he received a paycheck, which was not for a couple of weeks. Mr. Pearson continued to work his regular duties in the same pair of boots for the next several days, and his toe continued to bother him.
Mr. Pearson saw Dr. James Saunders for a regular diabetes checkup on June 17, 2009. After that visit, Dr. Saunders reported:
He developed an ulceration on his medial left big toe from using work boots. It had some purulent discharge but he has been using topical antibiotic ointment and the redness and swelling have decreased in the last couple of days.... He began working again, and says overall he feels good.
Dr. Saunders’ assessment was diabetic peripheral neuropathy type II and cellulitis of the toe.
Mr. Pearson continued to work for Worksource and continued having a problem with his toe, and Worksource sent him to Dr. Terry Clark on July 30, 2009. Dr. Clark reported:
This is a 42-year-old who has been working with some steel toed boots that according to him were too narrow. He developed a ‘blood blister’ on his left great toe. Since then the toe has become more reddened and swollen. He has developed an ulcer on the toe that he states has been draining purulent material. His discomfort reaches a 7 on the pain scale. He is an insulin dependent diabetic but he has continued to work in steel boots. He denies pain or injury elsewhere.
Dr. Clark gave the impression of “diabetic ulcer and cellulitis of left great toe,” and he cleaned and bandaged the toe. Dr. Clark returned Mr. Pearson to work with restrictions that he alternate standing, sitting, and walking as tolerated with no pressure on the great toe.
Mr. Pearson was referred by Dr. Clark to a podiatrist, Dr. John Wright, and then came under the care of Dr. Travis Goodnight. Dr. Goodnight diagnosed left toe osteomyelitis and abscess, and he performed surgery on August 21, 2009. The surgery was successful, and Dr. Goodnight returned Mr. Pearson to light duty beginning on September 21, 2009, as long as he could perform work that allowed him to stand no longer than thirty minutes at a time. Mr. Pearson subsequently changed jobs and began working at a Waffle House restaurant, and on October 29, 2009, Dr. Goodnight reported that the left diabetic toe wound had healed well.
In this appeal, Mr. Pearson argues that the Commission’s determination that he failed to prove a compensable toe injury was not supported by substantial evidence, and that we should reverse and remand with instructions to award appropriate benefits. Mr. Pearson contends that, contrary to the Commission’s findings, the evidence established that he sustained the toe injury during a specific incident at work. Alternatively, Mr. Pearson claims that he proved a compensable gradual-onset injury caused by rapid repetitive motion.
In support of his argument that he sustained a compensable injury caused by a specific incident identifiable by time and place of occurrence, Mr. Pearson relies on Cedar Chem. Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008). In that case, the Commission found that the claimant sustained a compensable torn ligament in his knee as a result of a specific incident arising out of and in the course of his employment. The testimony showed that the claimant felt pain while walking down some stairs at work and that the pain progressively worsened. The claimant ultimately underwent surgery on his knee, and the supreme court affirmed the Commission’s finding of compensability and award of benefits. The supreme court held that simply because the claimant’s injury was unexplained did not render it noncompensable. In light of the Commission’s credibility determination and reliance on the surgeon’s expert opinion that the claimant sustained an acute work injury, the supreme court could not say that reasonable minds could not have reached the Commission’s decision.
In the present case, Mr. Pearson notes that the blister oh his toe developed within a couple hours of working on June 8, 2009. He contends that because the injury manifested itself over a brief period of time as was the case in Cedar Chem. Co., supra, the injury was the result of a specific incident.
In the alternative, if the injury was not caused by a specific incident, Mr. Pearson contends that it was caused by rapid repetitive motion, which is a statutory requirement for establishing a compensable gradual-onset injury such as this one. See Ark.Code Ann. § 11-9—102(4)(A)(ii)(a) (Supp.2011). Mr. Pearson relies on two cases. In Boyd v. Dana Corp., 62 Ark.App. 78, 966 S.W.2d 946 (1998), we held that the claimant’s series of repetitive motions performed 115 to 120 times per day separated by periods of only 1.5 minutes constituted rapid repetitive motion under the statute. In High Capacity Prods. v. Moore, 61 Ark.App. 1, 962 S.W.2d 831 (1998), we held that where there was testimony that the appellee’s assembly duties required her to ensure one nut to be put in place on an average of every fifteen seconds during the majority of her shift, there was substantial evidence to support the Commission’s award for a rapid repetitive injury.
In the case at bar, Mr. Pearson’s testimony reflects that his employment at Worksource required him to walk quickly from one end of the field to the other covering and uncovering bundles of steel. He said he did that same work throughout the day, and that it required him to walk back and forth over and over, covering the bundles as fast as possible when they came out. Although there was no evidence of any exact time frame for performing his duties, Mr. Pearson submits that it is reasonable to conclude that his job was performed at a quick, rapid pace and was also repetitive. He contends that both the motion of his left foot and the motion of his toe rubbing against the boot were rapid and repetitive. Because the Commission erroneously concluded otherwise, Mr. Pearson contends that its decision must be reversed.
We hold that the Commission’s opinion displays a substantial basis to support its conclusion that Mr. Pearson failed to prove a compensable injury caused by a specific incident identifiable by time and place of occurrence. This case is distinguishable from Cedar Chem. Co., supra, because in that case the claimant experienced an onset of pain while descending some steps and his treating physician gave the opinion that his torn knee ligament was the result of an acute injury. By contrast, Mr. Pearson’s treating physicians reported no acute event but rather indicated that he developed an injury to his toe by working in work boots that were too narrow. Mr. Pearson testified that he did not feel any soreness until he had been working his regular duties for a couple of hours. Under such circumstances, the Commission could reasonably conclude that there was no specific incident causing the toe injury, but instead that the blister developed gradually over a significant period of time.
However, we agree with Mr. Pearson’s argument that the Commission erred in concluding that his walking duties at work did not constitute rapid repetitive motion. In analyzing whether an injury is caused by rapid repetitive motion, the standard is two-pronged: (1) the task must be repetitive, and (2) the repetitive motion must be rapid. Galloway v. Tyson Foods, Inc., 2010 Ark. App. 610, 378 S.W.3d 210. In this case it is clear that Mr. Pearson’s duties were repetitive in that he was required to walk back and forth across a field over and over all day long. We hold that this repetitive motion met the requirement of being rapid as well. While Mr. Pearson did not relate exactly how many steps he took between bundles or the exact pace at which he was required to walk, he testified that he was required to cover the bundles as quickly as possible and had to walk fast from one end of the field to the other. The Commission did not discredit this testimony. The only reasonable con- elusion is that this fast-paced repetitive walking caused a blister as a result of the rapid motion of the ill-fitting boots rubbing against his toe.
Because the Commission erred in finding that Mr. Pearson failed to prove a gradual-onset injury caused by rapid repetitive motion, we reverse and remand to the Commission for further fact-finding as to whether Mr. Pearson proved the remaining necessary elements for a compen-sable injury. In particular, the Commission will have to determine, pursuant to Ark.Code Ann. § 11-9-102(4)(E)(ii) (Supp. 2011), whether the alleged compensable injury was the major cause of the disability or need for treatment.
Reversed and remanded.
GLADWIN and HOOFMAN, JJ., agree. | [
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LARRY D. VAUGHT, Chief Judge.
| Appellant Maria Serrano appeals from the Arkansas Workers’ Compensation Commission opinion finding that she did not sustain a compensable carpal-tunnel-syndrome (CTS) injury to her right hand. We reverse and remand for further findings.
Serrano, now fifty-three years old, started her first job outside the home in 2002 when she began working for appellee Wes-trim, Inc. (Westrim), a production and distribution company of paper products for scrapbooking and crafting. Serrano worked in various departments at Wes-trim, all of which involved hand-intensive labor. She worked eight-hour days, stopping for two fifteen-minute breaks and one thirty-minute lunch. In November 2007, Serrano was transferred to the shipping department, which was less hand-intensive. She worked in this department until she was laid off in May 2008 due to the company’s closure. She has not worked since that time.
Serrano started having problems with her right hand and fingers in February 2007. She reported her problems to human-resource administrator Amber Pate, who referred Serrano for treatment at the Northwest Family Care Clinic. On February 21, 2007, Serrano was seen by Dr. Robert Wilson. At that visit, Serrano complained that her right index and middle fingers were “locking up” and that she had pain in the palm of her hand. She was diagnosed with tendonitis in the two fingers. Her condition was accepted as com-pensable, and appellee Arch Insurance Company (Arch Insurance) paid related workers’ compensation benefits.
At her follow-up appointment at the Northwest Family Care Clinic, Serrano was seen by Dr. William Kendrick, who diagnosed trigger-finger syndrome and referred Serrano to orthopedic surgeon Dr. Peter Tang. Dr. Tang also diagnosed her with trigger-finger syndrome. He administered cortisone injections and restricted Serrano’s work duties. When this conservative treatment failed to provide relief, on June 13, 2007, he performed trigger-release surgery on Serrano’s right index and middle fingers. In July 2007, the triggering of the index and middle fingers was improved, but Serrano still had complaints of swelling, stiffness, and scar pain in her right hand. At that time, Serrano was returned to one-handed work, which she did. On August 1, 2007, while still restricted to one-handed work, Dr. Tang wrote that Serrano’s fingers did not lock and that her swelling and pain were “slowly getting better now.” Three weeks later, on August 21, 2007, Serrano returned to Dr. Tang and reported pain and swelling but no numbness or tingling. He modified her restricted work duty to include two-handed work for two hours, twice a day, which Serrano did.
Serrano’s next medical appointment was with Dr. C. Noel Henley on October 17, 2007. At this visit, Serrano complained of pain, numbness, and tingling in both hands and all fingers. According to Dr. Henley’s report, Serrano was still on modified restricted duty, but she was having to use both of her hands at work beyond the work restriction. Dr. Henley offered Serrano a steroid injection. On November 14, 2007, Serrano returned to Dr. Henley with reports of improvement from the steroid injection and, because of her November 2007 job change to the shipping department, Dr. Henley returned Serrano to work without restrictions, which she did.
On January 15, 2008, Serrano returned to Dr. Henley with complaints of pain and tingling in her right hand. Dr. Henley’s report stated that he had no surgery options for Serrano and did not recommend further injections. He opined that she had reached maximum medical improvement for the original trigger-finger-syndrome injuries, that she needed a functional capacity evaluation, and that she could continue full-duty work.
Serrano sought treatment on her own from Dr. James Kelly in May 2008. She reported complaints of pain in her third and fourth fingers of her right hand along with pain and swelling in that hand. Dr. Kelly clinically diagnosed her with right CTS. He ordered EMG/NCV testing, which confirmed his diagnosis. On July 18, 2008, Dr. Kelly recommended that Serrano have right CTS release surgery and a fourth-finger trigger-release surgery.
On July 28, 2008, a hearing was held before an administrative law judge (ALJ) to determine whether Serrano suffered any compensable injuries to her right hand (other than the trigger-finger-syndrome injuries suffered to the right index and middle fingers) and whether she was entitled to medical treatment for such injuries. At that time, the only respondents were Westrim and Arch Insurance, which was on the risk until December 31, 2007. The ALJ issued an opinion in favor of Serra no, finding that she sustained a compensable CTS injury to her right hand.
Westrim and Arch Insurance appealed the ALJ’s opinion. On June 29, 2009, the Commission vacated the ALJ’s opinion and remanded the claim based on evidence at the hearing that a new carrier had come on the risk on January 1, 2008. The Commission found that because the new carrier, appellee Travelers Insurance Company (Travelers), may be responsible for Serrano’s alleged compensable injuries, Travelers was a necessary party and additional proceedings and adjudication were required.
On remand, the parties stipulated that Arch Insurance was the workers’ compensation carrier for Westrim from January 1, 2007 to December 31, 2007, and that Travelers was the carrier for Westrim beginning January 1, 2008. Serrano claimed that during her employment with Westrim she suffered a compensable CTS injury to her right hand, and she sought medical treatment for same. She testified that she had pain and swelling in her right hand after the June 2007 surgery. She further testified that she continued to have pain and swelling in her right hand in November 2007, after she was transferred to the shipping department.
On August 4, 2010, the ALJ issued a second opinion finding that Serrano established a compensable right CTS injury. The ALJ also found that Serrano established that her injury was causally related to her employment with Westrim. In reaching this finding, the ALJ stated that Serrano had no difficulties with her right hand prior to her employment with Wes-trim; that her first job was at Westrim; that for the entire period of Serrano’s initial employment with Westrim in 2002 until November 2007, her employment duties involved hand-intensive activities, performed continuously in a rapid, repetitive manner; that she first experienced right-hand |fisymptoms in February 2007, she reported those problems to her employer at that time, and she was treated and diagnosed with trigger-finger syndrome; that her compensable index- and middle-finger injuries “could have easily masked the first appearance of the symptoms from the carpal[-]tunnel syndrome”; that she continued to complain of pain, swelling, numbness, and tingling (all symptoms of CTS) following surgery for her compensable finger injuries and following the November 2007 department change; that Dr. Henley’s October 17, 2007 report noted that Serrano complained of numbness and tingling in the right hand and reported that she was having to use both hands at work despite being on restricted work duty; and that Dr. Henley’s later reports opining that Serrano was at maximum medical improvement were addressing the trigger-finger injuries and not her new complaints. The ALJ further found that
[Serrano’s] testimony, which is supported by the October 17, 2007 report of Dr. Henley, shows that symptoms indicative of the onset of right carpal[-]tunnel syndrome (pain, numbness, and tingling in her wrist, hand, and fingers) first appeared after [Serrano’s] surgery for the compensable trigger[-]finger syndrome and after she was released to resume the use of her right hand to perform the employment-related activities of “crinkling,” “packing,” “tagging,” and “decoupage.” Even being performed for only two hours at a time, for a total of four hours out of an eight-hour shift, such continuous, rapid, and repetitive use of [Serrano’s] right hand could logically result in the development of carpal[-]tunnel syndrome. This is particularly true, when these hand intensive activities were suddenly resumed after six months of extremely limited use of this portion of [Serrano’s] body.
Further, the evidence fails to show the occurrence of any trauma or injury to [Serrano’s] right wrist, within a reasonable time prior to the onset of her carpal[-]tunnel syndrome. The evidence also fails to show that [Serrano] had any systemic problems, such as pregnancy or diabetes, that could precipitate carpal[-]tunnel[-]syndrome symptoms. Finally, there is no evidence that [Serrano] engaged in any non employment-related hand[-]intensive activities around the time of the onset of her carpal[-]tunnel[-]syndrome symptoms. Thus, the evidence fails to show any other reasonable cause for [Serrano’s] right carpal[-]tunnel syndrome.
I find that [Serrano] has proven the existence, of a causal relationship between her employment activities for Westrim, Inc. in August, September, and October of 2007, and her right carpal[-]tunnel syndrome. The greater weight of the evidence shows that her employment activities for Westrim, Inc. could logically produce such a condition, that the condition occurred within a reasonable period of time following these employment-related activities, and that there is no other equally plausible cause for such a condition.
The ALJ also found that medical treatment for Serrano’s CTS injury was reasonable and necessary and that Arch Insurance was liable for any benefits to which Serrano was entitled for her injury. Finally, the ALJ found that Serrano did not establish that she suffered a compensable injury to her right hand in the form of CTS on or after January 1, 2008, when Traveler’s was on the risk.
Westrim and Arch Insurance appealed the ALJ’s opinion, and the Commission reversed the ALJ’s award and dismissed Serrano’s claim. In reversing, the Commission expressly disagreed with the finding of the ALJ that Serrano proved that she sustained a compensable right CTS injury arising out of her employment with Westrim between August and October 2007. The Commission stated that such a finding “would require sheer speculation and conjecture.” For support, the Commission relied on Dr. Henley’s report of October 17, 2007, wherein he related Serrano’s complaints of pain to the trigger-finger injuries and did not diagnose Serrano with CTS. The Commission also relied on its findings that Serrano did not seek medical treatment between August 21, 2007, and October 17, 2007; that she changed to a less hand-intensive department in November 2007; that on November 14, 2007, she reported to Dr. Henley that she had improved symptoms; and that Dr. Henley, after examining her in November 2007 and January 2008, did not diagnose her with CTS.
Serrano timely appeals from the Commission’s opinion. She argues that there is 17substantial evidence supporting her argument that she suffered a compen-sable injury, in the form of CTS, to her right hand. However, our standard of review is not whether substantial evidence supports her claim. Rather, in reviewing a decision of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm those findings if they are supported by substantial evidence, which is evidence a reasonable person might accept as ade quate to support a conclusion. Johnson v. Superior Indus., 2009 Ark. App. 483, at 1, 2009 WL 1708755. The findings of the Commission will be upheld unless there is no substantial evidence to support them. Id. Substantial evidence exists only if reasonable minds could have reached the same conclusion without resort to speculation or conjecture. Id. Conjecture and speculation, even if plausible, cannot take the place of proof. Id. Although the appellate court defers to the Commission on issues involving the weight of the evidence and the credibility of the witnesses, it may not disregard testimony and is not so insulated as to render appellate review meaningless. Id.
We will not reverse the Commission’s decision unless we are convinced that fair-minded people with the same facts before them could not have reached the same conclusions reached by the Commission. Id. at 2. In a case such as this one, where the Commission denies benefits because a claimant failed to meet his or her burden of proof, the appellate court will affirm if the Commission’s decision displays a substantial basis for the denial of relief. Id. If reasonable minds could have reached the result shown by the Commission’s decision, we must affirm. Id.
Serrano’s CTS claim, a gradual-onset injury, requires proof that the injury arose out of and in the course of employment and that the work-related injury was the major cause of the need for medical treatment. Ark.Code Ann. § 11-9-102(4)(A) & (E) (Supp.2011). Additionally, a compensable injury must be established by medical evidence supported by objective findings. Ark.Code Ann. § 11-9-102(4)(D). Objective medical evidence is necessary to establish the existence and extent of an injury but not essential to establish the causal relationship between the injury and a work-related accident. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 447, 990 S.W.2d 522, 524 (1999).
In its opinion, the Commission wrote,
[B]ased on our de novo review of the entire record, ... [Serrano] did not prove by a preponderance of the evidence that she sustained a compensable injury. [Serrano] did not prove that she sustained a right carpal [-]tunnel[-]syndrome injury which caused physical harm to the body, and [Serrano] did not prove that she sustained a right carpal[-]tunnel syndrome[-]injury which arose out of and in the course of employment. [Serrano] did not prove by a preponderance of the evidence that the alleged compensable injury was the major cause of her disability or need for treatment.
Despite this broad conclusion that encompasses several elements of a compensable gradual-onset injury, the Commission actually made findings related to only one element — whether the injury arose out of and in the course of Serrano’s employment. And despite a multitude of findings made by the ALJ in its decision, the Commission’s opinion on causation was limited to attacking and reversing one particular finding made by the ALJ — that Serrano sustained a compensable right CTS injury between August 21 and October 17, 2007.
The Commission is not an appellate court. Willmon v. Allen Canning Co., 38 Ark.App. 105, 106, 828 S.W.2d 868, 869 (1992) (citing White v. Air Sys., Inc., 33 Ark.App. 56, 58, 800 S.W.2d 726, 728 (1990)). The Commission reviews eases appealed to it de novo, and the duty of the Commission is not to determine whether there was substantial evidence to support the ALJ’s findings; rather, it must make its own findings in accordance with a preponderance of the evidence. Pharmerica v. Seratt, 103 Ark.App. 9, 13, 285 S.W.3d 699, 703 (2008).
In this case, the Commission failed to perform its duty in conducting a de novo review of the ALJ’s opinion. Instead of making new findings to support its conclusion that Serrano did not prove a compensable injury, the Commission concluded that one of the ALJ’s findings— that Serrano suffered a CTS injury during the period of August 21 to October 17, 2007—was incorrect. This is insufficient.
Furthermore, we note that Serrano claimed that she suffered a right CTS injury during her employment with Wes-trim. She did not limit the time in which she sustained her injury to any specific period. The Commission failed to make any findings whatsoever as to whether Serrano sustained a compensable right CTS injury during any other time in 2007. Essentially, the Commission’s opinion finds that Serrano was not diagnosed with a CTS injury between August 21 and October 17, 2007. It does not make findings on the issue of whether she sustained a CTS injury during that time or any other time during 2007.
Because the Commission’s opinion merely attacks one finding made by the ALJ and fails to make a de novo review of the entire case, we hold that the Commission’s opinion in the case at bar falls short of the minimum requirements, and consequently, cannot be reviewed by us in any meaningful way. Accordingly, we reverse and remand for the Commission to conduct a de novo review and make findings of fact sufficient for our review.
Reversed and remanded.
PITTMAN and GRUBER, JJ„ agree.
. She worked in the “assembly,” "crinkle,” “tagging,” and "decoupage” departments.
. Serrano was referred to Dr. Henley due to Dr. Tang’s retirement.
. This finding of the ALJ was not appealed to the Commission and is not an issue on appeal. | [
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RHONDA K. WOOD, Judge.
IvA jury found Dameon Davis guilty on two aggravated-robbery counts. In addition to the jury’s conviction, the circuit court had denied Davis’s pretrial motion to suppress evidence from a traffic stop and, after the jury had convicted him, revoked his probation for an earlier aggravated-assault conviction. Davis appeals all three decisions. We affirm in all respects.
I. Facts
This case involves two gas-station robberies that happened on October 18, 2011, in Blytheville. The first robbery happened at the Cherry Tree gas station at around 10:00 p.m. and the second robbery occurred at the Dodges Store, approximately an hour later. Both clerks described the assailant as wearing black clothes with a white rag held over his face. The first clerk described the assailant’s clothing as a black hoodie, black pants, and 12black shoes. In both instances, the assailant pointed a small revolver at the clerks and demanded money. The first clerk gave him $200 in various denominations, but mostly one and five-dollar bills. Some of the money was paper-clipped together. The second clerk surrendered $300 to the man.
Sergeant Kyle Lively responded to both armed robberies. He arrived at the Cherry Tree at 10:30 p.m. but left shortly after that to respond to the Dodges Store robbery. On the way, he saw a vehicle that triggered his interest. First, Sgt. Lively had previously arrested the vehicle’s driver, Quintrell Richardson, for carrying a firearm. Second, he remembered seeing the vehicle a few days earlier in close proximity to another robbery. Third, the car was driving away from the Dodges Store’s location and was only about a half-mile away from the scene soon after the robbery. These factors prompted Sgt. Lively to run the car’s plates. He confirmed that the car belonged to Richardson and pulled it over.
Three people were in the ear: Richardson, the driver; Dameon Davis (appellant), the front-seat passenger; and a back-seat passenger. Various one and five-dollar bills were scattered on the floorboard, and all three men had at least $100 on their person. Some of the money was still paper-clipped together. Davis told Sgt. Lively that his name was “Solomon Slaughter,” and Sgt. Lively arrested him for giving a false name. Later, the police calculated that the money on the floorboard, plus the money on the three men, |3totaled $563. The police also gathered clothing from the men, including a black hoodie, black shoes, a black hat, and a white T-shirt.
After hearing the above testimony, a jury convicted Davis on two aggravated-robbery counts. The circuit court also revoked Davis’s probation for an earlier aggravated-assault charge. Davis received 10 years’ imprisonment for the robberies and six years’ imprisonment for the revocation, all set to run concurrently.
II. The Verdict
Davis argues that the jury heard insufficient evidence that he was a principal or accomplice to aggravated robbery. We disagree because the police found him in a car that was driving away from the crime scene; the car contained roughly the same amount of money that had been stolen from the two stores; and clothing that the clerks saw the robber wearing was found in the car. Consequently, we affirm the jury’s verdict.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). When a defendant makes a challenge to the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the State and only consider evidence supporting the verdict. Id. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion beyond suspicion or conjecture. Id.
Circumstantial evidence may constitute substantial evidence to support a conviction. Dunn v. State, 371 Ark. 140, 264 S.W.3d 504 (2007). The longstanding rule in the use of circumstantial evidence is that, to be substantial, the evidence must exclude |4every other reasonable hypothesis than that of the guilt of the accused. Id. This is a jury question, and we will not disturb the jury’s determination unless the jury resorted to speculation and conjecture in reaching its verdict. Id.
Here, Davis, the appellant, was convicted as an accomplice to aggravated robbery. “A person commits robbery if, with the purpose of committing a felony or misdemeanor theft ... the person employs or threatens to immediately employ physical force on another person.” Ark.Code Ann. § 5-12-102(a) (Repl.2006). Robbery can become aggravated robbery if the person is armed with a deadly weapon. Ark. Code Ann. § 5-12-103(a)(l). Further, a person is criminally liable for the conduct of another person when he is the accomplice of another person in the commission of an offense. Ark.Code Ann. § 5-2-402. An accomplice is a person who, with the purpose of promoting or facilitating the commission of an offense:
• Solicits, advises, encourages, or coerces the other person to commit it; or
• Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
• Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
Ark.Code Ann. § 5-2-403; Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002). The “[r]elevant factors in determining the connection of an accomplice to a crime are the presence of the accused in proximity to the crime, the opportunity to commit the crime, and an association with a person involved in the crime in a manner suggestive of joint participation.” Taylor v. State, 2010 Ark. 372, at 18, 372 S.W.3d 769, 780.
| ^Substantial evidence supports Davis’s aggravated-robbery conviction. When the officer stopped the car, it was moving away from the Dodges Store’s direction. Officers found Davis in the car with roughly the same amount of money that had been stolen from the two gas stations. The money was mostly in small bills and was paper-clipped together, which is how the clerk described the money stolen from the Cherry Tree gas station. Sergeant James Harris testified that $139. of that money was found on Davis’s person. Davis also provided a false name to the police, and using a false name after committing a crime tends to establish guilt. See Austin v. State, 26 Ark.App. 70, 760 S.W.2d 76 (1988).
Other facts support the jury’s verdict that Davis was an accomplice. Once the car had been pulled over, police discovered that all three men had money in their pockets. A jury could believe, without resorting to speculation, that the men shared the crime’s proceeds and had jointly participated in the robbery. Last, one of the passengers was wearing clothing — a black hat, black pants, and black shoes — that matched the two witnesses’ descriptions and surveillance-video footage of the robber; and police also confiscated a black hoodie from the car that strongly resembled the one the robber had worn in Dodges Store.
All told, this evidence is substantial and supports the jury’s verdict that Dameon Davis committed, or was an accomplice to, aggravated robbery.
IfiHI. Motion to Suppress
We addressed Davis’s sufficiency argument first for double jeopardy purposes and now turn to his suppression argument. See Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001). Davis maintains that the police lacked reasonable suspicion to pull Richardson’s car over and that the circuit court erred in denying his motion to suppress evidence from the stop. In fact, for the reasons explained below, the police did have reasonable suspicion. We therefore affirm the circuit court’s denial of his motion to suppress.
In reviewing a circuit court’s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court and proper deference to the court’s findings. Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007). We reverse only if the circuit court’s ruling is clearly against the preponderance of the evidence. Id.
“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 ... a felony.” Ark. R.Crim. P. 3.1. (2013). Reasonable suspicion is defined as “a suspicion based on facts or circumstances which of themselves do not give rise to probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.” Ark. R.Crim. P. 2.1. “Whether there is reasonable suspicion depends upon whether, under the totality of the circumstances, the |7police have ‘specific, particularized, and articulable reasons indicating that the person may be involved in criminal activity.’ ” Menne v. State, 2012 Ark. 37, at 6, 386 S.W.3d 451, 455 (citing Malone v. State, 364 Ark. 256, 263, 217 S.W.3d 810, 814 (2005)).
When determining whether reasonable suspicion exists, an officer may consider, inter alia, the following factors:
• Any knowledge the officer may have of the suspect’s background or character;
• The time of the day or night the suspect is observed;
• The particular streets and areas involved;
• Any information received from third persons, whether they are known or unknown;
• Whether the suspect is consorting with others whose conduct is reasonably suspect;
• The suspect’s proximity to known criminal conduct; and
• The incidence of crime in the immediate neighborhood.
Ark.Code Ann. § 16-81-203 (Repl.2006); Jefferson v. State, 349 Ark. 236, 76 S.W.3d 850 (2002); see also Comment to Ark. R.Crim. P. 2.1. Reasonable suspicion is a less demanding standard than probable cause, Lambert v. State, 34 Ark.App. 227, 808 S.W.2d 788 (1991), and facts insufficient to rise to probable cause could constitute reasonable suspicion. See Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001).
In this case, Sergeant Lively, had reasonable suspicion to stop the vehicle. Sgt. Lively knew that two armed robberies had recently taken place because he went to the Cherry Tree and was in the process of responding to the Dodges Store robbery. On the |Rway there, at around 11:20 PM, he saw Quintrell Richardson’s car a half-mile away from the Dodges Store, which had just been robbed. Immediately, Sgt. Lively became suspicious because he had arrested Richardson in the past for having a gun. Further, Sgt. Lively had seen Richardson’s car a few days earlier at another robbery and could identify the car by its color and unique rims.
These facts are specific, particularized, and articulable and gave Sgt. Lively a good reason to believe that Richardson, the car’s driver, was involved in an armed robbery. They also implicate the relevant factors listed above, including Sgt. Lively’s own knowledge about Richardson’s past, the time of day (late), and the car’s proximity to the recently robbed Dodges Store. Our supreme court, in Tillman v. State, found that these near-identical facts justified a traffic stop based on probable cause. 271 Ark. 552, 609 S.W.2d 340 (1980). In Tillman, the police officer’s knowledge of the defendant’s past criminal conduct, a description of the defendant’s automobile near the crime scene, and the defendant’s previous arrests were held to justify probable cause to stop and search the vehicle. Id. at 558, 609 S.W.2d at 344. If those facts amounted to probable cause in Tillman, then they at least amount to reasonable suspicion here. Accordingly, Sgt. Lively’s temporary stop and detention of Richardson’s car was justified and the circuit court’s decision denying the motion to suppress was not clearly against the preponderance of the evidence.
IV. Probation Revocation
Davis also argues that the circuit court should not have revoked his probation for an earlier aggravated-assault conviction. He says that the circuit court did not specify |flwhich probation condition he had violated. The record reflects the opposite: the court revoked his probation for committing the criminal offense of aggravated robbery. The State’s burden in a revocation proceeding is proving by a preponderance of the evidence that the probationer had violated one probation condition. See Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). Because this is less than is required to convict for a criminal offense, and because we have already found that substantial evidence supports Davis’s aggravated-robbery convictions, we affirm the revocation.
Affirmed.
GLADWIN, C.J., and PITTMAN, J., agree.
. He could identify the car by its color and unique rims.
. Sgt. Harris said that the denominations were $54 in one-dollar bills; $25 in five-dollar bills; $40 in ten-dollar bills; and one 20-dollar bill.
. Davis's probation conditions prohibited him from committing a criminal offense punishable by imprisonment, and the State charged him with violating that condition in its revocation petition. | [
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ROBERT L. BROWN, Justice.
The issue in this case is whether the circuit court erred in denying appellant Michelle Brown’s motion to modify the visitation of appellee Vernon Brown based on her desire to continue nursing her child, which she contends is in the child’s best interest. Specifically, she asserts that the circuit court erred in dismissing her motion because a material change in circumstances has occurred, in that the parties’ now twenty-six-month-old daughter wants to continue to breast-feed past the original eighteen-month period contemplated in the divorce decree. We affirm the circuit court’s denial of the motion.
On December 25, 2008, Michelle Brown and Vernon Brown were married. They separated on or about October 22, 2009, while Michelle was pregnant. On December 26, 2009, she gave birth to a daughter. On August 10, 2010, Vernon filed a first amended complaint for absolute divorce. On October 21, 2010, the circuit court held a hearing on the matter, at which time the parties stated that they had reached an agreement on visitation. The | ^agreement was that Michelle would be granted custody of their daughter and that until their daughter reached eighteen months, Vernon would have visitation privileges from 4:00 p.m. until 8:00 p.m. every Tuesday and Thursday, as well as on every other Friday, Saturday, and Sunday for the same time period.
This limited visitation schedule was agreed upon by the parties in order to accommodate Michelle’s nursing of the child. The parties also agreed that once their daughter reached eighteen months of age, they would adhere to the standard visitation schedule of five weeks in the summer, alternating weekends, and alternating holidays. At the hearing, the circuit court questioned Michelle and Vernon about whether they understood and agreed to the terms of the visitation agreement. Both parties stated that they understood the terms of the agreement and that they knew they would be bound by it. The circuit court accepted the agreement and included the visitation terms in the subsequent divorce decree filed on November 8, 2010.
At the time of the child’s eighteen-month check-up, around June 26, 2011, she was still aggressively nursing six times a day. At some point in mid-July, which was well into Vernon’s scheduled summer visitation with the child, Michelle contacted Pamela McArthur Elliot, a lactation consultant who had visited with her once immediately after the child was born, about a weaning schedule. During the time that Michelle was waiting to hear back from Elliot, Michelle and Vernon attempted to work out a weaning schedule themselves. The parties first agreed that they would cut back on the number of times the child nursed |seach day to once every twenty-four hours. This schedule continued for about a week, and then the parties agreed to reduce the nursing schedule to once every forty-eight hours. After the parties had begun the once-every-forty-eight-hours nursing schedule, Michelle spoke with Elliot, who recommended that she continue to nurse the child at least once nightly for up to two years and beyond, or as long as the child and Michelle desired to nurse. After receiving Elliot’s recommendation, Michelle informed Vernon that she had spoken with Elliot and that they must return to the schedule of breast-feeding at least once every twenty-four hours.
Michelle and Vernon failed to work out a visitation schedule amicably, and on July 28, 2011, Michelle moved to modify visitation for the following reasons: (1) that she was still breast-feeding the minor child and should continue to do so through two years old as suggested by the World Health Organization and American Academy of Pediatricians; (2) that the parties had first agreed that the minor child would be allowed to breast-feed nightly during Vernon’s visitation and orally agreed to comply with the recommendations of Elliot; and (3) that Vernon had then refused to comply with Elliot’s recommendations. Michelle asserted that it was in the child’s best interest for the court to order that breast-feeding continue in accordance with Elliot’s recommendations. She requested that the court modify visitation and “order breast feeding for the minor child up to two years.”
On August 4, 2011, the circuit court held a hearing on Michelle’s motion to modify visitation. Michelle, Elliot, and Vernon all testified at the hearing. At the close of Michelle’s testimony, counsel for Vernon orally moved to dismiss Michelle’s motion for failure to prove a material change in circumstances. Counsel for Michelle retorted that the change in circumstances was that both parties had anticipated that the child would be weaned at eighteen months, but that did not occur. The circuit court, however, found that no material change in circumstances had occurred and ruled that the visitation would go forward in accordance with the standard visitation schedule set forth in the divorce decree. The court then entered a written order dismissing Michelle’s motion to modify visitation on August 15, 2011. Michelle appealed the order and filed a motion for emergency temporary relief pending the outcome of the appeal, which this court denied on November 17, 2011. Michelle next filed a motion to expedite this appeal, which this court granted on December 1, 2011.
We first address the claim of mootness raised by Vernon in his brief on appeal. He raises the argument that Michelle’s appeal is moot because she only asked the circuit court to modify Vernon’s visitation until their child reached the age of two, and their daughter turned two on December 26, 2011. In response, Michelle claims that her appeal is not moot because (1) in addition to requesting that the court modify the visitation to accommodate breastfeeding for up to two years, she also asked the court to modify the visitation schedule in accordance with the lactation consultant’s recommendation that the child breast feed on a nightly basis for two years and beyond; and (2) that even if this court were to decide that the issue presented in the instant appeal was moot, there is the possibility that she could go back to the circuit court and file another motion requesting modification with a broader request for relief. Thus, she maintains, the issue is capable of repetition and would evade review.
As a general rule, the court will not review an issue that is moot. Mountain Pure, LLC v. Little Rock Wastewater Utility, 2011 Ark. 258, 383 S.W.3d 347. To do so would be |fito render an advisory opinion, 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 justi-ciable issue for determination by the court. Id. This court has recognized two exceptions to the mootness doctrine, one of which involves issues which are capable of repetition, yet because of their circumstances evade review. Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001).
In Michelle’s motion to modify visitation, she said that the visitation should be modified, in part, because she was “still breast feeding the minor child, and should continue through two years old as suggested by the World Health Organization and American Academy of Pediatricians.” She also contended that breast-feeding should continue “in accordance with the plan of Pam McArthur [Elliot] for the benefit of the minor child.” In her affidavit submitted along with Michelle’s motion for modification of visitation, Elliot recommended continued breast-feeding for at least twenty-four months and beyond, as long as mutually desired by Michelle and the child. However, Michelle requested in her prayer for relief only that the circuit court “order breast feeding for the minor child up to two years.”
It is clear to this court that Michelle merely requested that the circuit court modify visitation until the child was two years old, and the child is now over twenty-six months old. And yet Michelle is correct that this issue potentially could arise again between the parties if a longer term for nursing is sought. Furthermore, the record before us is unclear as to the current status of the breast-feeding. For example, it is possible that Vernon has allowed Michelle to continue breast-feeding the child during his scheduled visitation irrespective of the circuit court’s order of August 15, 2011, that there had been no material change of circumstances. We just do not know. As a result, it would be impossible for this court to decide conclusively that the issue presented in this appeal is moot. Accordingly, we will address the merits of the appeal.
Michelle claims that the circuit court erred in finding that she failed to prove that a material change in circumstances had occurred due to the child’s desire to nurse beyond two years. She maintains that the change in circumstances is that neither she nor Vernon anticipated that their child would still desire to nurse so aggressively at eighteen months of age. She contends that both parties anticipated that their daughter would be properly weaned by the time she reached the age of eighteen months; however, neither party took the appropriate steps to ensure that outcome. She requested that the circuit court modify the parties’ visitation schedule to permit her to breast-feed the child once nightly to accommodate the changed circumstances while Vernon is exercising his visitation. She contends that the circuit court erred in failing to grant this modification.
In response, Vernon alleges that there has been no material change in circumstances because both parties were aware at the time the divorce decree was entered that their daughter might desire to continue breast-feeding past the age of eighteen months; that Michelle cannot allege a change in circumstances based on a change that she has created; and, finally, that the only thing that has changed since the entry of the divorce decree is Michelle’s attitude toward visitation.
This court recently announced the standard of review applicable to child-visitation cases:
In reviewing domestic-relations cases, appellate courts consider the evidence de novo. E.g., Hass v. Hass, 80 Ark.App. 408, 97 S.W.3d 424 (2003). We will not reverse the circuit court’s findings unless they are clearly erroneous. Id. When the question of whether the circuit court’s findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the circuit court to evaluate the witnesses, their testimony, and the child’s best interest. See, e.g., Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002).
A circuit court maintains continuing jurisdiction over visitation and may modify or vacate those orders at any time when it becomes aware of a change in circumstances or facts not known to it at the time of the initial order. E.g., Martin v. Scharbor, 95 Ark.App. 52, 233 S.W.3d 689 (2006). Although visitation is always modifiable, to promote stability and continuity for the children and to discourage repeated litigation of the same issues, courts require more rigid standards for modification than for initial determinations. E.g., Meins v. Meins, 93 Ark.App. 292, 218 S.W.3d 366 (2005). Thus, the party seeking a change in visitation has the burden to demonstrate a material change in circumstances that warrants such a change. E.g., Hass, supra.
The primary consideration regarding visitation is the best interest of the child. Id. Important factors the court considers in determining reasonable visitation are the wishes of the child, the capacity of the party desiring visitation to supervise and care for the child, problems of transportation and prior conduct in abusing visitation, the work schedule or stability of the parties, and the relationship with siblings and other relatives. Id. Fixing visitation rights is a matter that lies within the sound discretion of the circuit court. Id.
Baber v. Baber, 2011 Ark. 40, 9-10, 378 S.W.3d 699, 705.
This court has further said, in the context of child-custody modification, that an appellant “cannot use the circumstances he [or she] created as grounds to modify custody.” Jones v. Jones, 326 Ark. 481, 491, 931 S.W.2d 767, 772 (1996). In Jones, Mrs. Jones appealed the decision of the circuit court ordering a change in custody where the court had relied, in part, on Dr. Jones’s recent remarriage to support its finding that a material change in circumstances had occurred. Id. at 489, 931 S.W.2d at 771. This court observed that Dr. Jones married his present wife five months after the parties’ divorce and that he admitted at trial that their relationship predated the parties’ divorce. Id. at 490, 931 S.W.2d at 771. This court also noted that Dr. Jones admitted at oral argument that, at the time of the original divorce decree, it was within his reasonable con templation to remarry. Id. We concluded that Dr. Jones could not use the circumstances he later created as grounds to modify custody and held that “[g]iven his awareness of the circumstances at the time he voluntarily entered into the agreement to award custody ... to Ms. Jones, we cannot agree that his remarriage constituted a material change in circumstances.” Id. at 490, 931 S.W.2d at 772.
Along this same line, in Taylor v. Taylor, this court was faced with a similar argument. 353 Ark. 69, 110 S.W.3d 731 (2003). There, the circuit court had based its modification of custody, in part, on ap-pellee’s argument that he had a better educational background and was more financially secure than the appellant. Id. at 78, 110 S.W.3d at 736. This court cited Jones with approval and held that appellee’s awareness of both his superior financial situation and the respective parties’ educational backgrounds at the time he voluntarily entered into the custody agreement, which resulted in the divorce decree, precluded a subsequent finding that a material change in circumstances has occurred. Id. at 79, 110 S.W.3d at 737.
There is also the case of Stellpflug v. Stellpflug, where the court of appeals held that the circuit court erred in modifying the appellant’s visitation because “the only change that occurred in this case was ap-pellee’s attitude regarding summer visitation.” 70 Ark.App. 88, 93, 14 S.W.3d 536, 539 (2000). The court of appeals acknowledged that it was sympathetic to the difficulties alleged by the appellee but found that the appellee had simply failed to meet |3her burden because she “merely testified that her children expressed a desire to see her during the summer, that her youngest daughter gets homesick, and that she has financial difficulty exercising her summer visitation rights.” Id. The court of appeals thus concluded that appellee failed to cite any authority to show that these difficulties constitute a material change in circumstances warranting a modification of the visitation agreement and reversed the order of the circuit court modifying visitation. Id.
In the case before us, it is undisputed that both Michelle and Vernon agreed that regular visitation would begin when their daughter reached eighteen months of age and that this agreement was accepted by the circuit court and included in the divorce decree. Vernon testified at the hearing that it was his understanding that Michelle was supposed to have then-daughter weaned by the time she was eighteen months old and that he did not know the child was still nursing until her eighteen-month check-up. Michelle admitted that she did not intend to nurse the child past eighteen months but that the child was an aggressive nurser who was nursing six times a day when she turned eighteen months old. She testified that she did make some attempt to wean the child by occasionally asking friends or Vernon to watch her for an extended period of time but that “when she’s with me, she’s just an aggressor so I nurse her six times a day.”
After a de novo review of the record, we hold that the circuit court did not clearly err in finding that Michelle failed to prove a material change in circumstances had occurred that warranted a modification in visitation. In making our decision, it is important to this court that it was certainly within the contemplation of the parties at the time the divorce decree was entered that the child conceivably might desire to continue breast-feeding beyond eighteen months. The record reveals that Michelle was in contact with Elliot, the lactation consultant, immediately after the child’s birth, and Elliot testified that she informed Michelle at that time that the American Academy of Pediatricians recommended exclusive breast-feeding for six months and at least one year beyond. Elliot also testified that although she did not specifically inform Michelle at that time that it was her recommendation that she breast-feed for two years, that information was in the materials she provided to her. Furthermore, Michelle testified that she had previously breast-fed her two other children and, presumably, she had successfully weaned both of those children. Michelle also had ample time between the time that the child was born and the entry of the divorce decree, and then before the child turned eighteen months, to contact Elliot with any questions she had about the breast-feeding or weaning process. This she failed to do.
Although this court’s opinions in Jones and Taylor were decided in the context of child-custody cases, the test for determining whether modification is warranted based on whether a material change in circumstances has occurred is the same. In the instant case, Michelle was aware that her child could desire to breast-feed past eighteen months and was aware of the breast-feeding and weaning process at the time that she voluntarily entered into the visitation agreement, as part of the divorce decree. She agreed, however, to that time frame. Now she has changed her mind. This is not enough for this court to find that a material change in circumstances has transpired. In short, Michelle should not be permitted to allege a material change in circumstances that she herself has created. See Jones, supra; Taylor, supra; see also Stellpflug, supra.
The parties also include arguments concerning the best interest of the child. The circuit court determined that Michelle Brown failed to prove that a material change in circumstances had occurred and dismissed the action. The court, however, made no finding on whether a modification of visitation was in the best interest of the child and was not required to do so in light of the fact that it concluded that there was no material change in circumstances warranting a modification of visitation. See, e.g., Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002) (stating that before the circuit court can order a modification of custody, it must first determine that a material change in circumstances has transpired from the time of the divorce decree and, then, determine that a modification of custody is in the best interest of the child). As this court has concluded that the circuit court did not clearly err in finding that Michelle failed to prove a material change in circumstances, there is no need to address the argument that any such modification in visitation would be in the best interest of the child.
Affirmed.
. Apparently, it is undisputed that Michelle is unable to utilize a breast pump. | [
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JIM HANNAH, Chief Justice.
1, Appellant, Timothy Allen Wells, was convicted of capital murder in furtherance of aggravated robbery and was sentenced to a term of life imprisonment. The conviction arose as a result of the shooting death of Madhuben Patel, the owner of a motel in Hot Springs. On appeal, Wells contends that (1) there was insufficient evidence that Patel’s murder was committed during the course and furtherance of an aggravated robbery, and (2) the circuit court erred when it refused to allow the jury to determine the accomplice status of Jason Smith. Because this is a criminal appeal in which a sentence of life imprisonment has been imposed, our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(a)(2) (2013). We affirm the circuit court.
On February 13, 2010, Wells and Smith stopped by Gene’s Liquor Store in Mal-vern, where they attempted to cash a forged check in the amount of $2700, using Smith’s name and identification. Dwayne Wright, the night manager at the liquor store, testified that he |2had known Wells for many years and recognized him when he came into the store. Wright stated that he refused to cash the check because “[t]he check had been ... scribbled over whoever’s name it was, and it was just that amount of check on a weekend from another town.” According to Wright, when Wells left the liquor store, he was driving a Pontiac G-6. After Wells failed to obtain money at the liquor store, he told Smith that he could get money in Hot Springs. With Smith as his passenger, Wells drove to Hot Springs and stopped in an alley by the Lynwood Motel. Armed with a gun, Wells then entered the motel and shot Patel inside the motel’s office. Terrell Alan Kuykendall and Steven Hasley were at the Shell Superstop across from the motel at the time of the murder. After hearing a loud noise and a woman’s scream, Kuykendall and Hasley saw a man leaving the motel. They followed the man — who was driving a Pontiac G-6 — in an attempt to obtain his license-plate number, but they were unsuccessful.
Wells confessed to investigators that he had murdered Patel at the Lynwood Motel. In his confession, which was read to the jury and admitted into evidence, Wells stated,
Man, I lost my mind the other day in Hot Springs. I blanked out. I’m bipolar and sometimes I flip out and go in a rage. I remember going in that building and a man and lady started screaming at me. My bipolar acted up and I just shot. Anybody could have been hurt that day in Hot Springs, I was ready to go in a rampage. Jason said that he couldn’t believe the way I was acting. I remember going to the liquor store to cash the check. I was OK there. I remember going to Hot Springs and parking the car. I remember getting out and running into the little building. Jason was yelling at me and I told him to shut the fuck up and I just kept going. In the store, these Arabian or Indian people were yelling at me and I just shot. They were inside the building. That day anyone could have got hurt. I was ready to kill somebody or kill myself. I didn’t know the lady in Hot Springs had died. I threw the gun out the passenger’s side window between Malvern and Hot Springs. It was between the Reynolds plant and before the Rainbow Mart. I’m glad they stopped me; I need some help.
laWells’s friend, David Hughes, testified that, on the night of the murder, Wells admitted to him that he had shot somebody. Wells drove to Hughes’s residence shortly after the murder. According to Hughes, Wells was driving a Pontiac G-6 that night.
Although Wells confessed to killing Patel, he contends that there was insufficient evidence that he had committed the underlying felony offense of aggravated robbery. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence. See, e.g., Huff v. State, 2012 Ark. 388, 428 S.W.3d 608. Substantial evidence is evidence that is forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. E.g., Stevenson v. State, 2013 Ark. 100, 426 S.W.3d 416. On review, only evidence that supports the verdict is considered, and the evidence is viewed in the light most favorable to the verdict. Id.
Circumstantial evidence may constitute substantial evidence to support a conviction. E.g., Dixon v. State, 2011 Ark. 450, 385 S.W.3d 164. To be substantial, the evidence must exclude every other reasonable hypothesis than that of guilt of the accused. Id. The question of whether circumstantial evidence excludes every other reasonable hypothesis consistent with innocence is for the jury to decide. Id.
Under the felony-murder statute, a defendant need only have the requisite intent to commit the underlying felony, here aggravated robbery, and not the intent to commit murder. See, e.g., Jones v. State, 386 Ark. 191, 984 S.W.2d 432 (1999). Therefore, the elements required to sustain the conviction in this case are that Wells committed aggravated robbery, and, in the course of or in immediate flight therefrom, he caused the death of | ¿another person under circumstances manifesting extreme indifference to the value of human life. See Ark.Code Ann. § 5-10-101 (Supp.2009). A person commits aggravated robbery if he or she commits robbery as defined in Arkansas Code Annotated section 5-12-102, and the person (1) is armed with a deadly weapon, (2) represents by word or conduct that he or she is armed with a deadly weapon, or (3) inflicts or attempts to inflict death or serious physical injury upon another person. Ark.Code Ann. § 5-12-103 (Repl.2006).
Wells maintains that there is insufficient evidence that Patel’s murder was committed during the course and furtherance of an aggravated robbery because proof that Wells was attempting to rob the motel was based on the inconsistent testimony of Smith. Smith testified at trial that, when Wells told him that he could get money in Hot Springs, he first thought Wells might have some family members at the motel who would give him money, but he later concluded that Wells intended to rob the motel. Smith testified that he remembered telling police that he thought Wells was going to rob the motel and that he tried to talk him out of it. Then, Smith testified that Wells “didn’t tell me he was gonna rob it,” and later, during cross-examination, Smith testified that he was not sure if Wells had stated that “he was going to rob the place.” During redirect examination, Smith stated that, when he thought Wells was going to rob the motel, he tried to talk Wells out of it, but Wells told him to “shut the fuck up.”
IsThe State contends that it is of no moment whether Wells actually uttered the word “rob” when he told Smith he could get some money in Hot Springs. Further, the State points out that there was no evidence demonstrating that Wells knew Patel or that she was willing to give Wells any money. Finally, the State asserts that the evidence shows that Wells took a gun with him into Patel’s place of business. The State contends that, in view of the evidence adduced at trial, it is beyond speculation and conjecture that Wells entered the Lynwood Motel with the intention of using deadly force to accomplish his stated purpose of obtaining money and that he shot and killed Patel in the course and furtherance of an aggravated robbery.
We agree, and we hold that there was substantial evidence to support the jury’s verdict. Moreover, whatever contradictions, conflicts, and inconsistencies there were in Smith’s testimony were for the jury to resolve, and it could credit those parts of his testimony they believed to be true and disregard those they believed to be false. E.g., Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990); Henderson v. State, 255 Ark. 870, 503 S.W.2d 889 (1974).
Wells next contends that the circuit court erred when it refused to instruct the jury that it could find that Smith was an accomplice so that Smith’s testimony would require corroboration. The circuit court declined to instruct the jury with the disputed-accomplice liability instruction, AMI Crim.2d 403, concluding that there was insufficient evidence to support the instruction. On appeal, Wells maintains that there were facts from which a jury could have found that Smith was an accomplice. Specifically, Wells points to the following | r,evidence: (1) Smith agreed to help Wells cash a stolen check and thus demonstrated his willingness to commit a crime, (2) Smith remained in the car after he became aware that Wells was going to rob the motel, (8) Smith aided Wells during his flight from the crime scene, and (4) Smith did not go to the police. The State contends that the circuit court did not abuse its discretion in refusing to give the requested instruction because there is no evidence that Smith took part in planning the robbery, or that he otherwise encouraged or aided in its commission.
The appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. E.g., Taylor v. State, 2010 Ark. 372, 372 S.W.3d 769. A defendant must either have the circuit court declare a witness to be an accomplice as a matter of law or have it submit the issue to the jury for determination. Id. A witness’s status as an accomplice is a mixed question of law and fact. Id. When the facts show conclusively that the witness is an accomplice, the issue may be decided as a matter of law. Id. When the accomplice status instead presents issues of fact, the question is submitted to the jury. Id.
A party is entitled to an instruction if there is sufficient evidence to raise a question of fact or if there is any supporting evidence for the instruction. E.g., Hickman v. State, 372 Ark. 438, 277 S.W.3d 217 (2008). There is no error in refusing to give an instruction when there is no basis in evidence to support the giving of the instruction. Id. A circuit court’s ruling on whether to submit a jury instruction will not be reversed absent an abuse of discretion. E.g., Taylor, supra.
In this case, Wells sought to have the jury instructed according to AMI Crim.2d 403:
|7A person cannot be convicted of a felony upon the uncorroborated testimony of an accomplice.
[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 another person to commit it;) (or)
(Aids, agrees to aid, or attempts to aid another person in planning or committing it;) (or)
(Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so.) ]
It is contended that the witnesses]_ (name(s)) [was] [were] [an] accomplice(s). If you find that [he was] [they were], then _ (defendant(s)) cannot be convicted of _ (felony(s) being submitted) upon testimony of [that] [those] witnesses], unless that testimony is corroborated by other evidence tending to connect _ (defendant(s)) with the commission of the offense(s). Evidence is not sufficient to corroborate the testimony of an accomplice if it merely shows that the offense(s) [was] [were] committed and the circumstances of the commission. [The testimony of one accomplice is not alone sufficient to corroborate the testimony of another accomplice.] The sufficiency of the corroborating evidence is for you to determine.
[You may, however, convict (the)(a) defendant of_(misdemeanor) upon the uncorroborated testimony of an accomplice, because that offense is only a misdemeanor.]
AMI Crim.2d 403.
Having reviewed the record, we hold that even if there were any evidence to support the giving of the instruction, Wells has not demonstrated that he was prejudiced by the circuit court’s failure to give the instruction because Smith’s testimony was sufficiently corroborated by other evidence. See Hickman, supra. Corroborating evidence need not establish each element of an offense or corroborate every detail of the accomplice testimony. E.g., Taylor, supra. It must be evidence of a substantive nature since it must be directed | ^toward proving the connection of the accused with a crime and not toward corroborating the accomplice testimony. Id. The corroborating evidence need not be sufficient standing alone to sustain the conviction, but it must, independent from that of the accomplice, tend to connect to a substantial degree the accused with the commission of the crime. Id. The test is whether, if the testimony of the accomplice were completely eliminated from the case, the other evidence would independently establish the crime and tend to connect the accused with its commission. Id.
Here, Wells confessed to investigators that he had killed Patel at the Lynwood Motel. Wells’s friend, David Hughes, testified that, on the night of the murder, Wells admitted to him that he had shot somebody. The testimony of Dwayne Wright, the night manager at the liquor store, established that, on the night of the murder, Wells sought a large sum of money but was unable to obtain the money when Wright refused to cash a forged check. Wright testified that when Wells left the liquor store he was driving a Pontiac G-6, which was the same car chased by Kuykendall and Hasley immediately following Patel’s murder and the same car that was driven to Hughes’s residence after the crimes had been committed. Therefore, if Smith’s testimony had been eliminated from the case, Wells’s confession and the evidence surrounding the commission of the murder would have independently established that Wells killed Patel during the course of an aggravated robbery. Accordingly, even if the circuit court’s failure to instruct the jury on disputed-accomplice liability was error, it was harmless, and this court does not reverse for harmless error. See Hickman, supra (noting that we will not presume prejudice when error is alleged and that an appellant must |9show prejudice because we do not reverse for harmless error).
In compliance with Arkansas Supreme Court Rule 4 — 3(i) (2013), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Wells, and no prejudicial error has been found.
Affirmed.
BAKER and HART, JJ., dissent.
. A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person. Ark.Code Ann. § 5-12-102(a) (Repl. 2006). | [
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LARRY D. VAUGHT, Chief Judge.
On May 16, 2011, the Baxter County Circuit Court entered a judgment terminating the parental rights of Amber Hancock Nespor and Justin Studdard to their child L.N., born January 1, 2010. Nespor challenges the judgment, arguing that it does not state grounds or any other statutory basis to uphold the termination. We affirm.
In January 2010, the Arkansas Department of Human Services (DHS) sought to take L.N. into emergency custody after it learned that Nespor tested positive for THC, which was of significant concern because Nespor was breast feeding L.N. There was also a pending protective-services case on Nespor, which had been opened in 2008, involving two of Nespor’s other children, who were in foster care. The trial court granted DHS emergency custody of L.N. on January 14, 2010, and in an order dated January 27, 2010, the court found probable cause to 12believe that L.N. was dependent-neglected. At a hearing held February 1, 2010, the trial court adjudicated L.N. dependent-neglected. Nespor did not attend this hearing because she and Studdard had fled to avoid pending charges filed against them in Baxter County.
There was a review hearing on May 27, 2010; however, Nespor did not attend because she had been incarcerated in the Baxter County jail, awaiting transfer to the Arkansas Department of Correction to serve a two-year sentence. Nevertheless, the trial court kept reunification as the goal of the case, found that DHS had made reasonable efforts to assist Nespor in her reunification, and ordered Nespor to comply with the case plan.
On September 9, 2010, DHS filed a petition for termination of Nespor’s parental rights, citing Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) (Repl. 2009), and alleging that other factors or issues arose subsequent to the filing of the dependency-neglect petition that demonstrated that the return of L.N. to Nespor was contrary to the child’s health, safety, or welfare, and that despite the offer of appropriate family services, Nespor had manifested the incapacity or indifference to remedy those subsequent factors or issues or rehabilitate the circumstances, which prevented the return of the child to the family home. In the petition, DHS also asserted that Nespor manifested indifference by failing to comply with the case plan and court orders, alleging thirteen specific failures.
At the termination hearing, Nespor testified that from January 21, 2010, until March 3, 2010, she and Studdard were “on the run” after they picked up new criminal charges and a warrant was issued for their arrest. They traveled to Heber Springs, then to Kansas, and finally to Oklahoma, where they were eventually apprehended by law-enforcement officials. She said [ .¡that from March 3, 2010, until January 4, 2011, she was incarcerated at various facilities and that she was on parole until March 2012. At the time of the termination hearing, she had a failure-to-appear charge pending and a $1202 fine due to the Stone County Police Department.
Nespor told the trial court that she was no longer in a relationship with Studdard, although she was living with his family members. She claimed that she complied with the case plan and that she sought counseling in prison, although she failed to present any documentation or witnesses to corroborate her testimony. She also testified that she attended all visitation with L.N., stating that her transportation to visitation was often provided by DHS. She denied being referred by DHS for any parenting evaluation or classes, a psychological evaluation or counseling, anger-management counseling, substance-abuse counseling, or inpatient treatment.
When pressed, Nespor admitted that since being released from prison, she had not secured employment, completed parenting classes, completed anger-management classes, completed a drug assessment or attended AA/NA meetings, submitted her budget to DHS, or paid child support for L.N. She also conceded that she did not have her own home, a driver’s license, or transportation. Her sole source of income was monthly disability benefits of $700. Nespor testified that she loved L.N. and wanted custody of her child, although Nespor admitted that she was not presently prepared to have custody of L.N. and that L.N. was better off with her foster family. Nespor requested that the trial court grant her additional time to prove that she could be a good and stable mother to L.N.
L.N.’s first foster parent, Debbie Thatcher, testified that she exercised custody of L.N. — since she was fourteen days old — from January 2010 to May 2010, and that she continued |4to provide services to L.N., on behalf of DHS, after L.N. left her custody in May 2010. Thatcher said that from January 28, 2010, until March 2010, L.N. did not see Nespor. Once Nespor was incarcerated, Thatcher said that she transported L.N. to four visits with Nes-por at the Baxter County jail and multiple visits to the prison on Sundays from July 2010 to January 2011. While Nespor would hold, feed, and play with L.N. on some visits, Thatcher testified that there was no bond or attachment between them. Thatcher added that L.N. was in the custody of another foster family, who wanted to adopt L.N. This family had already adopted two of Nespor’s other children.
Pat Blades, a Family Service Worker Supervisor for Baxter County, testified that Nespor showed lack of improvement in her case by failing to secure housing, maintain contact with DHS, maintain a source of income, maintain reliable transportation, maintain counseling, and complete the drug assessment. It was Blades’s concern that Nespor’s consistent instability and failure to follow through with the case plan — with L.N. and all of her other children — was a potential harm to L.N. Blades added that L.N. had been in foster care in excess of twelve months, that there was no bond between L.N. and Nespor, and that it was in the best interest of L.N. that she be adopted and Nespor’s parental rights be terminated.
At the conclusion of the hearing, the trial court, in its oral findings, terminated Nespor’s | ^parental rights based on section 9 — 27—341(b)(3)(B)(vii)(a), the subsequent-issues ground. The trial court stated that it could not “shake from its head” that after L.N. — who was only fourteen days old — was removed from Nespor’s custody, Nespor abandoned the child and did not voluntarily return. The trial court found that Nespor failed to comply with the case plan (specifically finding that DHS had proved nine of the thirteen allegations listed in the petition on this point), had no history of employment, no stable housing, no driver’s license, no transportation, no insurance, and no ability to obtain these things based upon her budget. The trial court noted that L.N. only knew foster care and did not know Nespor. The court also found that L.N. was adoptable and that DHS had provided appropriate services under the circumstances. Finally, the trial court found that an additional two or three months would not serve any beneficial purpose in this case.
A written judgment was later entered by the trial court on May 16, 2011, terminating Nespor’s parental rights. Nespor timely appealed from the judgment. She does not challenge the sufficiency of the evidence supporting the termination decision. Instead, she argues that the trial court’s judgment is fatally flawed because it fails to state grounds or any other statutory basis to uphold the termination.
When the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Porter v. Ark. Dep’t of Human Servs., 2010 Ark. App. 680, at 9, 378 S.W.3d 246, 251. Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Porter, 2010 Ark. App. 680, at 9-10, 378 S.W.3d at 251-52. Parental rights, however, will not be enforced to the detriment ior destruction of the health and well being of the child. Id. at 10, 378 S.W.3d at 252. We review the termination of parental rights de novo. Id., 378 S.W.3d at 251. The facts warranting termination of parental rights must be proved by clear and convincing evidence, and in reviewing the trial court’s evaluation of the evidence, we will not reverse unless the court’s finding of clear and convincing evidence is clearly erroneous. Id., 378 S.W.3d at 252. Clear and convincing evidence is that degree of proof which will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Id., 378 S.W.3d at 252. In resolving the clearly erroneous question, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Id., 378 S.W.3d at 252. Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge’s personal observations. Id., 378 S.W.3d at 252.
An order forever terminating parental rights must be based on clear and convincing evidence that the termination is in the best interests of the child, taking into consideration the likelihood that the child will be adopted and the potential harm caused by continuing contact with the parent. Id. at 10-11, 378 S.W.3d at 251-52 (citing Ark.Code Ann. § 9-27-341(b)(3)(A) (Repl.2009)). In addition to determining the best interests of the child, the court must find clear and convincing evidence that circumstances exist that, according to the statute, justify terminating parental rights. Id. at 11, 378 S.W.3d at 252 (citing Ark.Code Ann. § 9-27-341(b)(3)(B)).
Nespor argues that reversal is warranted because the trial court’s judgment is defective — it fails to cite the statutory grounds or state the statutory language upon which the termination decision was based. She claims that the written judgment “simply lists a litany of shortcomings on the part of [Nespor], none of which are statutory grounds for [termination].” We agree with Nespor that the trial court’s written judgment failed to specifically cite the statutory grounds and state the exact language from the statute upon which it based its termination decision. While it is the better practice to include such information in a termination decision, and the judgment was not as artfully drawn as it could have been, we hold that it does not require reversal.
The judgment in question references DHS’s petition for termination, which alleged the subsequent-issues ground found in section 9-27-341(b)(S)(B)(vii)(a). This is the ground discussed throughout the hearing, and it was the ground expressly stated by the trial court in its oral findings to be the basis of its termination decision. Further, there are multiple findings included in the judgment that support termination based on this ground.
The trial court found by clear and convincing evidence that Nespor had her parental rights terminated to four of her other children; she had not complied with the case plan; after L.N. had been taken into DHS custody, Nespor abandoned L.N. and did not come back until she was involuntarily returned by law-enforcement authorities and she had been incarcerated for ten months; she had insufficient income to support L.N.; she failed to submit a budget or sign releases as ordered; she failed to show up for appointments; there had been referrals made by DHS for parenting evaluations and counseling, for anger-management classes, and substance-abuse treatment, but that Nespor did not participate in those services as ordered; and her circumstances were the same as when the case started — she had no job, no home, no transportation, no driver’s license, and her substance-abuse and criminal issues continued. The trial court further found that there was no bond between Nespor and L.N., that it was in the best interest of L.N. to be adopted, and that L.N. was adoptable.
Therefore, employing our de novo review, we hold that the trial court’s failure to cite the applicable statutory section or language from the statute upon which it relied to terminate Nespor’s parental rights does not require reversal of the trial court’s judgment. In Porter, also a termination-of-parental-rights case, we held that although the trial court did not quote the statutory citation or language in its exact form in the written order, the court’s meaning could not be more clear, and its intent, based on its oral remarks and written order, was to rely on the subsequent-issues ground to terminate the appellant’s parental rights. 2010 Ark. App. 680, at 12, 378 S.W.3d at 253. Likewise, in the instant case, the trial court’s intent could not be more clear. The written judgment referenced DHS’s petition, which sought termination based on the subsequent-issues ground found in section 9-27-341(b)(3)(B)(vii)(a). There was an abundance of evidence presented at the termination hearing supporting that ground, and the trial court’s judgment included multiple findings (as set forth above) supporting that ground. Finally, the trial court’s oral findings, which expressly cited section 9-27—341(b)(3)(B)(vii)(a) and found among other things that Nespor had abandoned L.N. and had been incarcerated after she had been placed in DHS custody, establish the trial court’s intent. Accordingly, we hold that the trial | gcourt intended, in its written judgment, to rely on the subsequent-issues ground to support its termination decision, and we affirm.
Affirmed.
PITTMAN and GRUBER, JJ., agree.
. The termination of Studdard's parental rights is not the subject of this appeal.
. Following the presentation of its case, DHS moved to amend the petition to terminate to include the additional ground found in Arkansas Code Annotated section 9-27-341 (b)(3)(B)(i)(a) (Repl.2009) (providing that the juvenile had been adjudicated by the court to be dependent-neglected and had continued out of the home for twelve months and, despite a meaningful effort by DHS to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent). The trial court granted the motion and amended the petition.
. Nespor appears to concede that the trial court stated grounds in its oral findings; however, she argues that whatever oral findings were made at the conclusion of the trial, when those findings were not made a part of the written order, did not become part of the final order. Relying on our holding in Porter, we hold that in this case, consideration of the trial court's oral findings is appropriate in determining the intent behind the trial court’s written judgment. | [
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PAUL E. DANIELSON, Justice.
| ¶ This case involves a question of law certified to this court by the United States District Court for the Western District of Arkansas in accordance with Arkansas Supreme Court Rule 6-8 and accepted by this court on June 27, 2013. See Adams v. Cameron Mut. Ins. Co., 2013 Ark. 292, 2013 WL 3247283 (per curiam). The question certified is the following:
Whether an insurer in determining the “actual cash value” of a covered loss under an indemnity insurance policy may depreciate the costs of labor when the term “actual cash value” is not defined in the policy.
We conclude that the answer to this question is no, it may not.
According to the district court’s order, the petitioners, Mark Adams and Kathy Adams, individually and on behalf of all others similarly situated, brought a class action in the federal district court asserting a claim against the respondent, Cameron Mutual Insurance Company, for breach of contract. The claim involved the interpretation of a homeowners’ insurance | ¿policy that covered the Adamses’ dwelling in Mena, Arkansas, for the period June 1, 2008, to June 1, 2009, and specified a policy limit of $49,900. The policy provided that any covered loss would be paid based on actual cash value, rather than replacement value, stating as follows:
5. Loss Settlement. Covered property losses are settled at actual cash value at the time of loss but not more than the amount required to repair or replace the damaged property.
The policy did not define the term “actual cash value.”
On April 9, 2009, the Adamses’ dwelling was damaged by a tornado, and they incurred a loss covered by the policy. Cameron’s adjuster valued the Adamses’ loss at $48,647.04 after inspecting the damage and calculating the repair costs and the depreciation of the items requiring repair, based on the age of the dwelling and the age of the items. Included within those items were certain labor-only services, such as the removal of roof decking, siding, and carpet and vinyl flooring. The depreciation of the materials and labor necessary to make the repairs was calculated as $8,364.66. The Adamses subsequently signed a Proof of Loss stating that the total amount claimed under the policy was $39,204.88, and Cameron issued a sight draft in that amount to the Adamses for their claim.
In their class-action complaint before the district court, the Adamses asserted that Cameron’s depreciation of labor-only costs resulted in the Adamses’ receiving payment for their loss in an amount less than that to which they were entitled under their policy. They ^alleged that Cameron breached the insurance policy, and those policies of the putative class members, when it improperly applied a depreciation factor to the labor portion of repairs required at their respective dwellings, and when the policies at issue did not allow for such depreciation. Upon the Adamses’ motion, the district court issued a memorandum opinion and order in which it certified the instant question of law to this court.
In their brief before us, the Adamses contend that their policy’s failure to address depreciation of labor renders the policy’s term, “actual cash value,” ambiguous, such that it must be construed in their favor. The Adamses acknowledge that materials can be depreciated; however, they claim, “[depreciation is limited to the effect of the passage of time in the decline in value of physical assets and is conceptually and practically inapplicable to labor.” They maintain that, because depreciation applies to physical materials and not labor, it is unreasonable to assume that labor would be included in depreciation when calculating actual cash value. Had Cameron thought that labor should be deprecia-ble under the policy, the Adamses claim, it was in the best position to clarify the ambiguity of the term “actual cash value” when it drafted the policy. In sum, they contend, if they are paid the depreciated value of materials, but not the full labor costs necessary to restore their home, they will not be fully indemnified or placed in the position that they would have been had the loss not occurred.
Cameron counters, asserting that the purchase of the actual-cash-value policy was the Adamses’ choice. It contends that if it was required to pay the full labor costs associated with the Adamses’ loss, the Adamses would be placed in a better position than that agreed to by |4Cameron and than they had been in before the loss. It advises that, should this court adopt the Adamses’ proposed materials-only depreciation rule, the costs of the insurance companies in Arkansas would rise and those costs would be passed on to Arkansas’s insureds in the form of higher premiums. Cameron argues that the term “actual cash value” is not ambiguous and that the instant dispute is really one over the method of calculating actual cash value, rather than defining the term. Finally, it argues that the prevailing view is that an insurer properly reduces the replacement cost by an appropriate amount of depreciation, including depreciation for any and all parts of the replacement cost, in arriving at the actual cash value of damaged property.
In this matter, we are called upon to define the term “actual cash value.” This court has observed that the language in an insurance policy is to be construed in its plain, ordinary, and popular sense. See ProAssurance Indent. Co. v. Metheny, 2012 Ark. 461, 425 S.W.3d 689. If the language is unambiguous, this court will give effect to the plain language of the policy without resorting to the rules of construction. See id. “In considering the phraseology of an insurance policy, the common usage of terms should prevail when interpretation is required.” Philadelphia Indent. Ins. Co. v. Austin, 2011 Ark. 283, at 6-7, 383 S.W.3d 815, 820 (quoting Cont’l Cas. Co. v. Davidson, 250 Ark. 35, 42, 463 S.W.2d 652, 655 (1971)). On the other hand, if the language is ambiguous, this court will construe the policy liberally in favor of the insured and strictly against the insurer. See id. Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one reasonable interpretation. See id.
|fiThe policy at issue fails to define the term “actual cash value;” however, both parties seem to agree that in determining “actual cash value,” some form of depreciation is allowed. Indeed, Black’s Law Dictionary defines “actual cash value” as “[r]eplacement cost minus normal depreciation.” Black’s Law Dictionary 1690 (9th ed.2009). However, the Adamses contend that only materials can be depreciated, while Cameron argues that both materials and labor may be; both positions are tenable. Because the term “actual cash value” as used in the policy is fairly susceptible to more than one reasonable interpretation, we are of the opinion that the term is ambiguous.
We turn then to the question presented, which is, whether the costs of labor may be depreciated when determining the actual cash value under an indemnity insurance policy. At issue here is to what costs does depreciation apply. “Depreciation” plainly means “[a] decline in an asset’s value because of use, wear, obsolescence, or age.” Black’s Law Dictionary 506 (9th ed.2009). As already set forth, the Adamses contend that depreciation is conceptually inapplicable to labor; however, Cameron argues to the contrary, relying on a decision of the Supreme Court of Oklahoma.
In Redcorn v. State Farm Fire & Casualty Co., 55 P.3d 1017 (Okla.2002), the appellate court was presented with a similar question: “In determining actual cash value, using the replacement costs less depreciation method, may labor costs be depreciated?” 55 P.3d at 1018. The Oklahoma court answered in the affirmative, holding that because a roof was a “single product consisting of both materials and labor,” depreciation of the whole product, including labor, was appropriate when determining actual cash value. We are not persuaded |6by the reasoning of the Oklahoma court’s majority opinion.
Instead, we find the dissenters’ opinion more convincing. The dissenting opinion rejected the characterization of a roof as a single product, observing instead that a roof is “not an integrated product ... but a combination of a product (shingles) and a service (labor to install the shingles).” Id. at 1022 (Boudreau, J., dissenting). But even more sound was the dissenting opinion’s discussion on the concept of depreciating labor:
The shingles are of course logically depreciable. As they age, they certainly lose value due to wear and tear.... Labor, on the other hand, is not logically depreciable. Does labor lose value due to wear and tear? Does labor lose value over time? What is the typical depreciable life of labor? Is there a statistical table that delineates how labor loses value over time? I think the logical answers are no, no, it is not depreciable, and no. The very idea of depreciating the value of labor is illogical.
It is important to keep in mind that “[indemnity is the basis and foundation of all insurance law.” Rochester American Ins. Co. [v. Short, 207 Okla. 669, 252 P.2d 490,] 493 (1953). The objective of indemnity is to put the insured in as good a condition, as far as practicable, as he would have been if the loss had not occurred, that is to reimburse the insured for the loss sustained, no more, no less. Id. To properly indemnify Red-corn, State Farm should pay him the actual cash value of the shingles, depreciated for wear and tear, plus the cost of them installation.... [AJllowing [the in surer] to depreciate the cost of labor would leave [the insured] with a significant out-of-pocket loss, a result that is inconsistent with the principle of indemnity.
Id. at 1022-23 (Boudreau, J., dissenting) (emphasis added).
We, like Justice Boudreau and his fellow dissenters, simply cannot say that labor falls within that which can be depreciable. See also Arkansas Insurance Department Bulletin 13A-2013 (stating that “[l]abor of any kind related to the repair, rebuild, or replacement of covered property cannot be depreciated”). Moreover, having found the term “actual cash value” ambiguous as used in the policy at issue, we must construe the policy liberally in favor of the Adamses and strictly against Cameron. See Austin, 2011 Ark. 283, 383 S.W.3d 815. In that |7vein, we hold that the costs of labor may not be depreciated when determining the actual cash value of a covered loss under an indemnity insurance policy that does not define the term “actual cash value.” Accordingly, we answer the certified question in the negative.
Certified question answered.
BAKER and HART, JJ., concur.
GOODSON, J., not participating.
. As noted by the district court, this amount represented the covered loss less depreciation and other applicable deductions. | [
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RHONDA K. WOOD, Judge.
liAppellant, Commodity Recovery Solutions and Ironwood Services (“CRS”), argues that the circuit court wrongfully determined that Arkansas did not have personal jurisdiction over Texas resident Anthony Evans. We agree with CRS and reverse the order dismissing Anthony from the case because CRS alleged facts in its complaint that are sufficient to establish specific personal jurisdiction over Anthony.
|2I. Facts
CRS sued Anthony Evans for breach of contract and other causes of action. CRS is an Arkansas corporation, and Anthony is a Texas resident. The complaint asserted that someone by the name of Jason Evans contacted CRS about extracting the silver from CRS’s leftover x-ray film. Anthony then called CRS and provided more specific price quotes for different types of x-rays. At the time, Anthony told CRS that his name was “Anthony Nichols” and that he was President of Petag, a Houston com pany that processes old x-ray film. Anthony called CRS a second time, gave another price quote, and said that he had arranged for Freightquote.com to pick up CRS’s x-ray film at CRS’s Arkansas location. A bill-of-lading attached to the complaint showed that Freightquote.com picked up the x-rays and listed “Anthony” as the contact for the consignee.
After the pick-up, Anthony told CRS that he was sending it a check for twenty percent of the x-ray load. Later, CRS received a cashier’s check for $24,000 that read “paid in full.” CRS contacted Anthony and told him that it was uncomfortable cashing the check as written. Anthony told CRS to send the check back to him in Texas and that he would issue it another one.
CRS received a second check for the same amount, $24,000. This time, it read “paid.” CRS called Anthony again and expressed its concern with cashing a check that read “paid” when it only amounted to twenty percent of the x-ray load. Anthony told |aCRS that the x-ray load was actually worth only $17,000 and that if CRS would cash the $24,000 check he would not sue for the $7,000 difference.
CRS then contacted Petag, the company Anthony said he owned. It turned out that Don Peterson, not Anthony, actually owned Petag. Don told CRS that Anthony’s real name was Anthony Evans, that Anthony had delivered the x-ray shipment to Petag, and that Don had paid Anthony $99,812 for it. Further, Don alleged that Anthony had told him to lie to CRS by stating that a large amount of the x-rays could not be processed and were, therefore, worthless.
CRS alleged the above facts in its complaint. Anthony made a special appearance in Arkansas to challenge personal jurisdiction. The circuit court ruled that Arkansas lacked personal jurisdiction and dismissed Anthony from the case.
II. Standard of Review
Under Rule 12(b)(2) of the Arkansas Rules of Civil Procedure, a defendant may raise the defense of lack of personal jurisdiction by motion. In considering the parties’ arguments surrounding a Rule Í2(b)(2) motion, this court looks to the complaint for the relevant facts alleging jurisdiction, which are taken as true. Malone & Hyde, Inc. v. Chisley, 308 Ark. 308, 825 S.W.2d 558 (1992). If the complaint does not allege sufficient facts on which personal jurisdiction can rest, then the complaint is factually deficient. Davis v. St. John’s Health Sys., Inc., 348 Ark. 17, 71 S.W.3d 55 (2002).
RHowever, if the circuit court considers matters outside of the pleadings, a motion to dismiss is converted into one for summary judgment. Ganey v. Kawasaki Motors Corp., 366 Ark. 238, 234 S.W.3d 838 (2006). Here, the circuit court considered the motion to dismiss and “other pleadings filed herein.” Therefore, because the parties submitted matters outside of the pleadings and because the circuit court did not exclude them, we treat the motion to dismiss as a motion for summary judgment. Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996).
Summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as-a matter of law. Gentry v. Robinson, 2009 Ark. 634, 361 S.W.3d 788. Once the moving party has established a prima facie case showing entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Mitchell v. Lincoln, 366 Ark. 592, 237 S.W.3d 455 (2006). The evidence is reviewed in the light most favorable to the party against whom the motion was filed, with all doubts and inferences resolved against the moving party. Hamilton v. Allen, 100 Ark.App. 240, 267 S.W.3d 627 (2007).
There are no disputed facts as the parties agree on the essential facts surrounding Anthony’s contact with Arkansas. Thus, the question before this court is not whether there were material facts in dispute concerning Anthony’s contact with Arkansas, but whether, taking those facts in the light most favorable to CRS, the facts asserted in the complaint form a sufficient basis to subject Anthony to the personal jurisdiction of |sArkansas as a matter of law. See Purser v. Buchanan, 2013 Ark. App. 449, 2013 WL 4557585. Because this is an issue of law, our review is de novo. Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844.
III. Applicable Law
Arkansas’s long-arm statute permits our courts to exercise personal jurisdiction to the full extent of the Due Process Clause of the Fourteenth Amendment. Ark.Code Ann. § 16-4-101(B) (Repl.2010). To satisfy due process, the defendant must have “minimum contacts” with the state and the exercise of jurisdiction must not offend “traditional notions of fair play and substantial justice.” John Norrell Arms, Inc. v. Higgins, 332 Ark. 24, 28, 962 S.W.2d 801, 803 (1998) (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).
CRS has not alleged that Anthony is subject to general personal jurisdiction in Arkansas. Instead, if Anthony is subject to Arkansas’s jurisdiction, it must be through specific personal jurisdiction. If the cause of action arises from or is related to the defendant’s contacts with the forum, the court is exercising “specific jurisdiction over the defendant.” Newbern, Watkins, and Marshall, Arkansas Civil Prac. & Proc. § 10:2 (5th ed.2010). A state can exercise specific personal jurisdiction even if the defendant’s contacts with the forum are slight. See John Norrell, supra.
As part of our analysis, we take into account whether the nonresident’s conduct and connection with Arkansas are such that he could “reasonably anticipate being haled into court” here, World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), and |,;whether he has purposefully directed his activities toward Arkansas residents or availed himself of the privilege of conducting activities in Arkansas. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).
These principles have been embodied in a five-factor test that this court adopted in Moran v. Bombardier Credit, Inc., 89 Ark. App. 122, 839 S.W.2d 588 (1992). There, we said that the following factors are relevant in deciding whether a nonresident’s contacts with the forum state were sufficient to impose jurisdiction: (1) the nature and quality of the contacts with the forum state; (2) the quantity of the contacts with the forum state; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) the convenience of the parties. Id.
Personal jurisdiction can lie even if the nonresident has had only one contact with the • forum state. John Norrell, supra. The fact that a nonresident initiated the relationship with an Arkansas company to ship products from Arkansas argues in favor of jurisdiction. See Twin Springs Grp., Inc. v. Karibuni, Ltd., 2009 Ark. App. 649, 344 S.W.3d 100. But telephone and mail contacts do not, standing alone, amount to minimum contacts. CDI Contractors, Inc. v. Goff Steel Erectors, Inc., 301 Ark. 311, 783 S.W.2d 846 (1990). A recent case, though, has held that a “single bill-of-lading contract, for which [the nonresident defendant] is the consignee, raises a question of fact regarding specific personal jurisdiction over [the nonresident defendant].” Hotfoot Logistics, LLC v. Shipping Point Mktg., Inc., 2013 Ark. 130, at 9, 426 S.W.3d 448, 454.
|7IV. Discussion
We hold that the facts alleged in CRS’s complaint provide a sufficient basis, as a matter of law, to subject Anthony to specific personal jurisdiction in Arkansas. We reach this result, initially, by applying the Moran factors listed above.
Regarding the first factor, Anthony reached into Arkansas and initiated contact with CRS in order to conduct business with an Arkansas corporation. He called CRS on at least three occasions, emailed it another time with price quotes, and located and paid for the freight company to have the x-ray film shipped from Arkansas to Texas. Further, he mailed CRS two checks, had follow-up conversations with CRS, and attempted to negotiate a settlement of the dispute over payment. Unlike CDI Contractors, supra, these acts are more than simply mail and telephone contacts.
And while Anthony may not have an extremely large number of contacts with Arkansas, each of those contacts implicates the third Moran factor as they are directly related to this cause of action. On the fourth factor, Arkansas has a strong interest in providing its businesses with a forum to redress disputes, especially those premised on fraud and where the nonresident initiated the alleged misconduct. Finally, it is naturally more convenient for the Arkansas corporation to have redress in Arkansas. And though Anthony is from Texas, it is a small inconvenience for him to appear here in a dispute involving his decision to solicit and buy Arkansas goods shipped from an Arkansas company.
IsUItimately, the Moran factors weigh in favor of Arkansas exercising jurisdiction. The only factor that does not is the number of contacts; but with specific personal jurisdiction, the nonresident’s contacts with the forum need only be slight. See John Norrell, supra. Moreover, two other Arkansas cases further support our holding that specific personal jurisdiction ex ists as a matter of law. See Hotfoot Logistics, LLC v. Shipping Point Mktg., Inc., 2013 Ark. 130, 426 S.W.3d 448; Twin Springs Grp., Inc. v. Karibuni Ltd., 2009 Ark. App. 649, 344 S.W.3d 100.
In Hotfoot, an Arkansas trucking company responded to a third-party’s solicitation to ship products for an Arizona shipping company. The Arkansas company hired a carrier to transport the Arizona company’s goods from Arizona to Pennsylvania. The carrier returned a bill-of-lading to the Arkansas company. Yet the Arizona company never entered Arkansas and never directly contacted the Arkansas company, and the only connection the Arizona company had was as consignee on the bill-of-lading. Our supreme court ruled that this bill-of-lading, in itself, raised a fact question regarding Arkansas’s specific jurisdiction over the Arizona company.
In Twin Springs, our court held that a fact question existed regarding personal jurisdiction over a nonresident defendant where the contract was initiated by the nonresident defendant, it was negotiated and executed by the defendant’s agent while he was in Arkansas, and it provided for an Arkansas corporation to ship Arkansas poultry to the defendants in Bermuda.
This case is similar to both Hotfoot and Twin Springs. Here, like in Twin Springs, the nonresident defendant (Anthony) initiated contact with an Arkansas corporation (CRS) to | gship goods from Arkansas to Texas. And here, like in Hotfoot, that defendant was listed on the bill-of-lading as contact for the consignee.
The only difference is that Anthony never entered Arkansas like the corporate agent did in Twin Springs. But physical presence in the state isn’t required: in Hotfoot, neither the Arizona company nor its agents entered Arkansas. And in this case, Anthony negotiated with Freight-quote, com to enter the state on his behalf and paid it to do so. In other words, he never entered the state, but his agent did, just like in Twin Springs.
The distinction between those two cases and our current case is that in those, the circuit courts improvidently denied jurisdiction when there were disputed material facts surrounding the exercise of personal jurisdiction. Here, there are no material facts in dispute; therefore, we are left to decide whether, as a matter of law, CRS pleaded sufficient facts to establish specific personal jurisdiction. By applying the Moran factors, we hold that CRS did so plead and that Arkansas has specific personal jurisdiction over Anthony Evans. We therefore reverse the circuit court’s order that dismissed him from the case and remand for further proceedings.
Reversed and remanded.
GLADWIN, C.J., and PITTMAN, J„ agree.
. CRS also sued Anthony Evans d/b/a U.S. Refinery, but for clarity we refer to them collectively as Anthony throughout.
. The actual consignee was listed as "AMS," with an address of 6324 Alder Drive, Houston, TX 77081.
. Other defendants included Jason Evans, Alex Evans, and two John Does. These defendants were never served and were dismissed. Ark. R. Civ. P. 54(b)(5) (2013) and Global Econ. Res., Inc. v. Swaminathan, 2011 Ark. App. 349, 389 S.W.3d 631.
. Anthony never presented any affidavits contradicting CRS’s allegations in its complaint, nor did he attach any exhibits to his motion to dismiss.
. See also Newbern, Watkins, and Marshall, Arkansas Civil Prac. & Proc. § 26:6 (5th ed. 2010) ("When a motion for summary judgment is granted on the basis of a question of law, the appellate court reviews the matter de novo.”).
. Cf. Colder v. Jones, 465 U.S. 783, 790, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) (holding that Florida defendants were the "primary participants in an alleged wrongdoing intentionally directed at a California resident, and jurisdiction over them is proper on that basis.”). | [
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KAREN R. BAKER, Justice.
IsThe Deer/Mt. Judea School District (DMJ) appeals from the decision of the Pulaski County Circuit Court. On appeal, DMJ asserts that the circuit court erred on three points: (1) in ruling that DMJ’s claims were barred by res judicata; (2) in striking only the date ranges of section 31 of Act 269 of 2010; and (3) in striking its amended and supplemental complaint. Beebe and the other appellees (“Beebe”) have also filed a motion to dismiss the appeal, which we ordered passed until the case was submitted by letter order dated March 28, 2013. We deny the motion to dismiss, affirm in part and reverse and remand in part on the first point, hold that the second point is moot, and affirm on the third point.
I. Facts and Procedural History
The current appeal has a long and complex history of litigation in circuit court and this court. The following is a summary of the procedural history and current posture of the case.
The appeal arises from a school-funding dispute. DMJ operates two kindergarten through twelfth-grade campuses in Newton County and serves approximately 360 students. On December 3, 2010, DMJ filed an action on its own behalf and on behalf of its taxpayers to enjoin state actions in violation of state law and the Arkansas Constitution. In its complaint, DMJ alleged that the State failed to conduct adequacy studies in compliance with Arkansas Code Annotated section 10-3-2102 (Supp.2007) in 2008 and 2010, and to make necessary adjustments to maintain an education system in compliance with article XIV, section 1 and article II, sections 2, 3, and 18 of the Arkansas Constitution. DMJ also claimed that section 32 of Act 293 of 2010 is local or special legislation in violation of amendment 14 to the Arkansas Constitution, as it provided extra funding to only one school district. For ease [4of reference, throughout this opinion, the claim regarding adequacy studies and adjustments will be referred to as “the adequacy claim” and the claim regarding local or special legislation will be referred to as “the special-and-local-legislation claim.”
Beebe filed a motion to dismiss the complaint on January 28, 2011, asserting that DMJ’s claims were barred by res judicata. On March 17, 2011, the circuit court held a hearing on Beebe’s motion to dismiss. At the hearing, the circuit judge stated from the bench that he would grant Beebe’s motion to dismiss as to the adequacy claim. On April 11, 2011, DMJ filed a motion for voluntary dismissal without prejudice as to the special-and-local-legislation claim, so as to “facilitate an immediate appeal.” The circuit court entered orders the next day dismissing both of DMJ’s claims. The adequacy claim was dismissed because it was precluded by previous school-funding cases. The special-and-local-legislation claim was dismissed pursuant to DMJ’s voluntary nonsuit of the claim. DMJ filed a timely notice of appeal of the Beebe case (NO. 60-CV-10-6936), which now consisted of only the adequacy claim, on April 14, 2011.
On March 1, 2012, this court dismissed the appeal of the Beebe case for lack of a final appealable order. Deer/Mt. Judea Sch. Dist. v. Beebe, 2012 Ark. 93, 2012 WL 665604. We held that the nonsuit of the special-and-local-legislation claim did not operate to make the April 12, 2011 order final because it could be refiled. The special-and-local-legislation claim, in fact, had been refiled on June 1, 2011, in the Pulaski County Circuit Court against Dr. Thomas W. Kimbrell (the Kimbrell case, NO. 60-CV-11-2677).
After this court dismissed the appeal, DMJ filed a motion to consolidate the Beebe case with the Kimbrell case in cir cuit court. The circuit court granted this motion over the Kimbrell’s objection.
DMJ filed a motion for summary judgment on March 29, 2012, regarding the Kimbrell case. The circuit court heard oral arguments on the motion on August 16, 2012, and held a second hearing on November 1, 2012. DMJ filed an amended and supplemental complaint on November 1, 2012, which included both the adequacy claim and the special-and-local-legislation claim. The circuit court entered an order on December 11, 2012, granting the motion for summary judgment and severing the date restrictions in section 31 of Act 269 of 2010.
On January 22, 2013, the circuit court entered an order denying DMJ’s motion for reconsideration of the order to dismiss filed April 12, 2011, striking DMJ’s amended and supplemental complaint, and granting a stay on the enforcement of the judgment during the pendency of this appeal. DMJ then filed a notice of appeal for both the Beebe and the Kimbrell cases on January 22, 2013.
Beebe filed a motion to dismiss the appeal on March 14, 2013, alleging that the notice of appeal in the Beebe case was not timely filed. We chose to take the motion with the case.
In summary, DMJ filed a complaint alleging two claims against Beebe. DMJ then ^voluntarily nonsuited the special- and-local-legislation claim so that it could immediately appeal the adequacy claim in the Beebe case. DMJ brought the special- and-local-legislation claim as a separate case, the Kimbrell case. This court then dismissed the appeal of the Beebe case, holding that there was a lack of finality. After we dismissed the Beebe case on appeal, DMJ moved to consolidate the Beebe case and the Kimbrell case, and the motion was granted by the circuit court. After the circuit court decided the Kimbrell case and the Beebe case, DMJ filed a notice of appeal for both cases. These appeals, and Beebe’s motion to dismiss the appeal of the Beebe case, are now before us.
We note that, while the cases were consolidated at the circuit-court level, they have not been consolidated on appeal, nor has a motion to do so been filed. This court may consolidate cases for appeal on its own motion under Arkansas Rule of Appellate Procedure — Civil 3(c) (2013). We hereby consolidate these cases to avoid unnecessary delay.
While we consolidate these cases for appeal, they are still separate cases. Consolidation does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in the other. Dwiggins v. Elk Horn Bank & Trust Co., 364 Ark. 344, 219 S.W.3d 181 (2005). Consolidated cases remain joint and separate entities. St. Louis Sw. Ry. Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1977). Because these remain separate cases on appeal, we will address the issues relating to each case separately.
II. The Beebe Case (NO. 60-CV-10-6936)
First, we address the matters in the appeal relating to the Beebe case. DMJ asserts that the circuit court erred in granting Beebe’s motion to dismiss based on the claim-preclusion 17aspect of res judi-cata. DMJ also asserts that the circuit court erred in striking its amended and supplemental complaint, which was filed in the Beebe case. First, however, we must take up the motion to dismiss the appeal in the Beebe case.
A. Beebe’s Motion to Dismiss
Beebe has moved to dismiss the appeal as to the Beebe case. In that mo tion, Beebe asserts that the appeal was not timely filed, as the Beebe case became final when the Kimbrell case was filed. Beebe further asserts that this court erred in ruling that the appeal in the Beebe case was not final. We hold that DMJ’s notice of appeal was timely and deny the motion to dismiss.
Beebe asserts that, under Mountain Pure LLC v. Affiliated Foods Southwest, Inc., 366 Ark. 62, 238 S.W.3d 609 (2006), because DMJ filed the special-and-local-litigation claim as a separate suit, the Beebe case became final upon the filing of the Kimbrell case and the notice of appeal was not timely in the Beebe case. This argument is founded on a misinterpretation of our holding in Mountain Pure. We did not hold in Mountain Pure that the filing of a nonsuited claim in a separate case made the remaining summary-judgment orders final. Instead, we held that those other claims remained “in limbo” until all outstanding claims were either finally adjudicated or were otherwise no longer a bar to finality and a final order was entered.
Under Mountain Pure, jurisdiction vests in the circuit court until such time as any outstanding claims are properly adjudicated or are no longer a bar to finality and a final order is entered. Thus, an order does not become final when the non-suited claims are refiled in a | ^separate case, as Beebe contends. A final order must still be entered in the record of the case for the remaining claims to be appeal-able.
Here, the final order entered in the Beebe case was the denial of the motion for reconsideration. As in Mountain Pure, at the time the order denying the motion for reconsideration was entered, all nonsuited claims had been finally adjudicated and were no longer a bar to finality. Therefore, the order denying the motion for reconsideration was the final order in the case, and DMJ has properly appealed from that order, thereby bringing up for review the intermediate orders.
B. Whether the Circuit Court Erred in Granting Beebe’s Motion to Dismiss Based on Res Judicata
For its first point on appeal, DMJ asserts that the circuit court erred in dismissing DMJ’s claims as to the Beebe case. The circuit court ruled that the claims were barred by res judicata, as the claims and issues had been adjudicated in Lake View School District No. 25 v. Huckabee (Lake View 2007), 370 Ark. 139, 257 S.W.3d 879 (2007).
A history of our decisions in school-funding cases is required for an understanding of DMJ’s argument on appeal. In 1994, the Lake View School District filed suit against the State alleging that the state’s school-funding system violated the equality provisions and the education article of the Arkansas Constitution. The circuit court ruled in favor of Lake View. We rejected an appeal of this ruling as it was not a final, appealable order. Tucker v. Lake View Sch. Dist. No. 25 of Phillips Cnty. (Lake View 1996), 323 Ark. 693, 917 S.W.2d 530 (1996).
The General Assembly repealed the school-funding scheme in 1995 and replaced it. Lake View filed a complaint and show-cause petition asserting that the new funding system ^violated the equality provisions and the education article of the Arkansas Constitution. The circuit court dismissed the complaint and show-cause petition, ruling that they were moot because amendment 74 had changed the standard for the school-funding system and allowed funding variances among the school districts. The circuit court also stated that the same analysis applied to the legislation passed by the General Assembly and added that the complaint and show-cause petition should be dismissed for failure to state a claim because the 1995 and 1997 legislative acts are presumed constitutional, and no facts were alleged supporting lack of a rational basis for those acts. We disagreed and remanded the case for trial. Lake View Sch. Dist. No. 25 of Phillips Cnty. v. Huckabee, 340 Ark. 481, 10 S.W.3d 892 (2000).
On remand, the circuit court ruled that the school-funding system remained unconstitutional. We agreed, citing our holding in DuPree v. Alma School District No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983), that equal opportunity is the touchstone for a constitutional system and not merely equalized revenues. We stated as follows:
It is the State’s responsibility, first and foremost, to develop forthwith what constitutes an adequate education in Arkansas. It is, next, the State’s responsibility to assess, evaluate, and monitor, not only the lower elementary grades for English and math proficiency, but the entire spectrum of public education across the state to determine whether equal educational opportunity for an adequate education is being substantially afforded to Arkansas’ school children. It is, finally, the State’s responsibility to know how state revenues are being spent and whether true equality in opportunity is being achieved. Equality of educational opportunity must include as basic components substantially equal curricula, substantially equal facilities, and substantially equal equipment for obtaining an adequate education. The key to all this, to repeat, is to determine what comprises an adequate education in Arkansas. The State has failed in each of these responsibilities.
Lake View Sch. Dist. No. 25 of Phillips Cnty. v. Huckabee, 351 Ark. 31, 79, 91 S.W.3d 472, 500 (2002). We then stayed the issue of the mandate in order to give the State time to correct the | ^constitutional disability. Id.
We recalled the mandate again in 2004, appointed masters, and released the mandate later that year based on the masters’ report. Lake View Sch. Dist. No. 25 of Phillips Cnty. v. Huckabee, 358 Ark. 137, 189 S.W.3d 1 (2004). We once again recalled the mandate the next year, appointed masters, and stayed the mandate until December 1, 2006. We then stayed the mandate a further 180 days. Lake View Sch. Dist. No. 25 of Phillips Cnty. v. Huckabee, 368 Ark. 231, 243 S.W.3d 919 (2006).
Finally, in 2007, this court adopted the masters’ reports and released the mandate. Lake View 2007, 370 Ark. 139, 257 S.W.3d 879. We stated the following:
We hold that the General Assembly has now taken the required and necessary legislative steps to assure that the school children of this state are provided an adequate education and a substantially equal educational opportunity. A critical component of this undertaking has been the comprehensive system for accounting and accountability, which has been put in place to provide state oversight of school-district expenditures. What is especially meaningful to this court is the Masters’ finding that the General Assembly has expressly shown that constitutional compliance in the field of education is an ongoing task requiring constant study, review, and adjustment. In this court’s view, Act 57 of the Second Extraordinary Session of 2003, requiring annual adequacy review by legislative committees, and Act 108 of the Second Extraordinary Session of 2003, establishing education as the State’s first funding priority, are the cornerstones for assuring future compliance.
Id. at 145-46, 257 S.W.Sd at 883.
DMJ’s complaint alleged that the General Assembly had no rational basis for not applying some of the recommendations in the Picus report, a report which created a model for the state’s system of education. The Picus report was developed in 2003 and recalibrated in 2006. The circuit court ruled that DMJ’s claims could have been brought in the Lake View cases, and thus were precluded by res judicata. DMJ asserts that the circuit court erred in | n ruling that the claims were precluded in two ways: (1) that the constitutionality of the educational system requires “constant study, review, and adjustment,” and (2) that the challenged acts and omissions of the General Assembly happened after Lake View 2007 had been decided.
In reviewing a circuit judge’s decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Baptist Health v. Murphy, 2010 Ark. 358, 373 S.W.3d 269. In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Id. Our standard of review for the granting of a motion to dismiss is whether the circuit judge abused his or her discretion. Dockery v. Morgan, 2011 Ark. 94, 380 S.W.3d 377. Res judica-ta means that “a thing or matter has been definitely and finally settled and determined on its merits by the decision of a court of competent jurisdiction.” Baptist Health, 2010 Ark. 358, 373 S.W.3d 269. Res judicata consists of two facets, one being issue preclusion and the other claim preclusion. The claim-preclusion aspect of 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 on proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action; and (5) both suits involve the same parties or their privies. Id. Res judicata 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, res judicata will apply even if the subsequent lawsuit raises h2new legal issues and seeks additional remedies. Id.
Collateral estoppel, the issue-preclusion facet of res judicata, bars reliti-gation of issues of law or fact previously litigated, provided that the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question and that the issue was essential to the judgment. Morgan v. Turner, 2010 Ark. 245, 368 S.W.3d 888. 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) the 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
In Lake View 2007, this court emphasized the masters’ finding that constitutional compliance in the field of education is an ongoing task requiring constant study, review, and adjustment. DMJ contends that this means the General Assembly has a continuous, constitutional duty to improve the school-funding system, which it asserts the General Assembly has not done. However, many of DMJ’s complaints stem from areas that were at issue or could have been brought in the previous school-funding cases.
This court held in Lake View 2007 that the system of public-school financing was in constitutional compliance and issued the mandate. In issuing the mandate, this court tacitly decided that it would no longer look over the shoulder of the General Assembly to ensure that the school-funding scheme was constitutional. To read Lake View 2007 as DMJ suggests would “disparage the work of the General Assembly and cast the role of this court into that of a brooding superlegislature.” Lake View Sch. Dist. No. 25 of Phillips Cnty. v. Huckabee, 358 Ark. 137, 189 S.W.3d 1 (2004) (mandate recalled by Lake View Sch. Dist. No. 25 of Phillips Cnty. v. Huckabee (Lake View 2005), 362 Ark. 520, 210 S.W.3d 28 (2005)). DMJ asks this court to maintain our jurisdiction over the school-funding cases to make sure that the General Assembly is continually adjusting the school-funding scheme to maintain its constitutionality. This we will not do.
DMJ also contends that the circuit court erred in granting the State’s motion to dismiss because the acts or omissions complained of occurred after this court had issued the mandate in Lake View 2007. We agree that not all of DMJ’s claims in the Beebe case are barred by res judicata, as several of them involve acts or omissions that occurred after this court had released the mandate in Lake View 2007. However, DMJ’s claims that arise out of whether the General Assembly has adopted the recommendations of the Picus report are barred by the claim-preclusion aspect of res judicata, as DMJ’s claims could have been litigated in the Lake View cases.
DMJ claims (1) that the adequacy reports filed in 2008 and 2010, as required by Arkansas Code Annotated section 10-3-2102 (Repl.2012), have failed to comply with that act; (2) that cost-of-living adjustments (COLAs) were determined based on what funds were available, not by what funds were necessary; (3) that there is no rational basis to support the State’s method of funding student transportation; (4) that DMJ’s facilities are unequal and inadequate; (5) that the way the State funds small, remote schools is unconstitutional; (6) that the State has failed to require schools to spend NSLA funding on programs that help struggling students as recommended by the Picus report; (7) that the State has not required | implementation of an effective professional-development system as recommended by the Picus report; (8) that the State must make adjustments to address the intrastate teacher-salary disparity; and (9) that the State must make adjustments to the way it pays teacher retirement.
DMJ asserts that the adequacy reports filed in 2008 and 2010, as required by Arkansas Code Annotated section 10-3-2102 have failed to comply with that Act. DMJ further asserts that the students of this State are not receiving a substantially equal opportunity for an adequate education based on alleged inequalities in funding.
Arkansas Code Annotated section 10-3-2102 states as following:
(a) During each interim, the House Committee on Education and the Senate Committee on Education shall meet separately or jointly, as needed, to:
(1) Assess, evaluate, and monitor the entire spectrum of public education across the State of Arkansas to determine whether equal educational opportunity for an adequate education is being substantially afforded to the school children of the State of Arkan sas and recommend any necessary changes;
(2) Review and continue to evaluate what constitutes an adequate education in the State of Arkansas and recommend any necessary changes;
(3) Review and continue to evaluate the method of providing equality of educational opportunity of the State of Arkansas and recommend any necessary changes;
(4) Evaluate the effectiveness of any program implemented by a school, a school district, an education service cooperative, the Department of Education, or the State Board of Education and recommend necessary changes;
(5) Review the average teacher salary in the State of Arkansas in comparison to average teacher salaries in surrounding states and member states of the Southern Regional Education Board and make recommendations for any necessary changes to teacher salaries in the State of Arkansas established by law;
(6) Review and continue to evaluate the costs of an adequate education for all students in the State of Arkansas, taking into account cost-of-living variances, diseconomies of scale, transportation variability, demographics, school districts with a disproportionate number of | ^students who are economically disadvantaged or have educational disabilities, and other factors as deemed relevant, and recommend any necessary changes;
(7) Review and continue to evaluate the amount of per-student expenditure necessary to provide an equal educational opportunity and the amount of state funds to be provided to school districts, based upon the cost of an adequate education and monitor the expenditures and distribution of state funds and recommend any necessary changes;
(8)Review and monitor the amount of funding provided by the State of Arkansas for an education system based on need and the amount necessary to provide an adequate educational system, not on the amount of funding available, and make recommendations for funding for each biennium.
(f) The study for subdivisions (a)(1) — (4) of this section shall be accomplished by:
(1) Reviewing a report prepared by the Division of Legislative Audit compiling all funding received by public schools for each program;
(2) Reviewing the curriculum frameworks developed by the Department of Education;
(3) Reviewing the Arkansas Comprehensive Testing, Assessment, and Accountability Program, § 6-15-401 et seq.;
(4) Reviewing fiscal, academic, and facilities distress programs;
(5) Reviewing the state’s standing under the No Child Left Behind Act of 2001, 20 U.S.C. § 6301 et seq.;
(6) Reviewing the Arkansas Comprehensive School Improvement Plan process; and
(7) Reviewing the specific programs identified for further study by the House Committee on Education and the Senate Committee on Education.
(g) (1) The study for subdivision (a)(5) of this section shall be accomplished by comparing the average teacher salary in Arkansas with surrounding states and Southern Regional Education Board member states, including without limitation:
(A) Comparing teacher salaries as adjusted by a cost of living index or a comparative wage index;
(B) Reviewing the minimum teacher compensation salary schedule; and
(C) Reviewing any related topics identified for further study by the House Committee on Education and the Senate Committee on Education.
(2)Depending on the availability of National Education Association data on teacher salaries in other states, the teacher salary comparison may be | ^prepared as a supplement to the report after September 1.
(h) The study for subdivision (a)(6) of this section shall be accomplished by reviewing:
(1) Expenditures from:
(A) Isolated school funding;
(B) National school lunch student funding;
(C) Declining enrollment funding;
(D) Student growth funding;
(E) Special education funding;
(2) Disparities in teacher salaries; and
(3) Any related topics identified for further study by the House Committee on Education and the Senate Committee on Education.
(i) The study for subdivision (a)(7) of this section shall be accomplished by:
(1) Completing an expenditure analysis and resource allocation review each biennium; and
(2) Reviewing any related topics identified for further study by the House Committee on Education and the Senate Committee on Education.
(j) The study for subdivision (a)(8) of this section shall be accomplished by:
(1) Using evidence-based research as the basis for recalibrating as necessary the state’s system of funding public education;
(2) Adjusting for the inflation or deflation of any appropriate component of the system of funding public education every two (2) years;
(3) Reviewing legislation enacted or rules promulgated during the biennium covered by the study to determine the impact of the legislation and rules on educational adequacy-related public school costs; and
(4) Reviewing any related topics identified for further study by the House Committee on Education and the Senate Committee on Education.
Under our standard of review, we treat DMJ’s allegations that the Joint Committee has not complied with Arkansas Code Annotated section 10-3-2102 as true. Because the adequacy reports and evaluations complained of were filed after we had released the mandate in Lake View 2007, these claims are not barred by res judica-ta. Therefore, the circuit court abused its discretion in granting Beebe’s motion to dismiss as to these claims.
DMJ contends that COLAs in 2009 and 2011 are based on what funds are available, |17not what funds are needed. The “Purpose” section of Act 57 makes it clear that the amount of funding given to schools shall be based on need and not funds available. See Lake View 2005, 362 Ark. 520, 210 S.W.3d 28. These adjustments were made after this court released the mandate; therefore, these claims are not barred by res judicata. The circuit court abused its discretion in dismissing these claims.
DMJ asserts that there is no rational basis to support the State’s method of funding the transportation of students. While this issue was addressed in the Lake View cases, the 2008 and 2010 adequacy-reports recommended that an additional line of funding be added to provide for those school districts whose transportation costs are not covered by the amount of funding provided to them by the current line item. The General Assembly chose not to adopt these recommendations. Because these acts or omissions by the General Assembly occurred after we had released the mandate in Lake View 2007, they are not barred by res judicata.
DMJ asserts that its facilities are inequitable and inadequate because it does not receive the funding it needs to maintain and repair those facilities. In Lake View 2005, we reviewed the masters’ findings with respect to facilities. They concluded that the financial responsibility required for a school district to enter into a partnership with the State for construction and repairs would be so great that many school districts would be unable to raise the required funds and, thus, would be forced to forgo needed construction and repairs. In Lake View 2007, this court cited the masters’ finding that Arkansas Code Annotated section 6-20-2502(l)(B) (Repl.2007) would provide some state assistance to every school district based on actual need for facilities in the individual school districts as well as the school district’s ability 11sto pay. DMJ contends that the State has not provided this assistance as contemplated, as it is still unable to raise the required funds to enter into a partnership with the State for construction and repairs. Taking these allegations as true, this claim is not barred by res judica-ta. It would not have been possible to bring a complaint about the effects of Act 727 of 2007, which amended section 6-20-2502(1)(B), before we issued our mandate in Lake View 2007.
DMJ alleges that the way that the State funds small, remote schools is unconstitutional because the funding amounts given to isolated schools is not rationally related to the needs of those schools. DMJ states that the 2006 Adequacy Report noted this and recommended that Arkansas Code Annotated sections 6-20-608 and -604, which control this funding, be rewritten. DMJ contends that the General Assembly rejected this recommendation, and the issue has not been addressed in subsequent reports. As this recommendation was made in the 2006 adequacy report, prior to our decision in Lake View 2007, DMJ’s claim is barred by res judica-ta.
DMJ contends that the adequacy reports show that school districts have failed to use National School Lunch Act (NSLA) funds as recommended by the Pi-cus report. The recommendations in the Picus report were implemented or rejected before we released the mandate in Lake View 2007 cases and could have been litigated in the school-funding cases prior to that cas© Therefore, DMJ is precluded from asserting this claim.
| ^Similarly, DMJ asserts that the State has not required implementation of an effective professional development system as recommended by the Picus report, and that the State must make adjustments to address the intrastate teacher-salary disparity and the way it pays teacher retirement. Each of DMJ’s arguments on these claims is based on whether the General Assembly has implemented or rejected a recommendation made in the Picus report. Because these claims could have been litigated in the Lake View cases, DMJ is precluded from bringing them.
In summary, DMJ contends that several acts or omissions of the General Assembly violate the Arkansas Constitution. We treat these allegations as true. Some of the acts or omissions complained of occurred after we had released the mandate in Lake View 2007. The circuit court abused its discretion in dismissing these claims. However, those acts or omissions that were brought or could have been brought in the previous school-funding cases are barred by res judicata, and the circuit court did not err in dismissing them.
C. Whether the Circuit Court Erred in Striking the Amended and Supplemental Complaint
DMJ’s second issue on appeal in this case is whether the circuit court erred in striking the amended and supplemental complaint. We affirm.
On November 1, 2012, DMJ filed an amended and supplemental complaint. The State filed a motion to strike the complaint, arguing that it would be prejudicial and would cause the disposition of the case to be unduly delayed. The circuit court agreed with the State and granted the motion to strike. DMJ asserts that the circuit court abused its discretion in striking the amended and supplemental complaint.
| gnRule 15 of the Arkansas Rules of Civil Procedure encourages liberal amendments of pleadings. Dupree v. Twin City Bank, 300 Ark. 188, 777 S.W.2d 856 (1989). Rule 15(a) states in pertinent part as follows:
[A] party may amend his pleadings at any time without leave of the court. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment, the court may strike such amended pleading or grant a continuance of the proceeding.
The circuit court is vested with broad discretion in allowing or denying amendments. Neal v. Sparks Reg’l Med. Ctr., 2012 Ark. 328, 422 S.W.3d 116. While Rule 15 allows for liberal amendments of pleadings, we adhere to our well-established standard of review that we will not reverse a circuit court’s decision allowing or denying amendments to pleadings absent a manifest abuse of discretion. Id.
The circuit court found that prejudice would result and that the disposition of the case would be unduly delayed if DMJ were allowed to amend and supplement its complaint. The amended and supplemental complaint was filed on November 1, 2012, the same day as the second hearing on DMJ’s motion for summary judgment. Further, the amended and supplemental complaint consisted of ninety-six pages of complaint and 1,337 pages of exhibits.
DMJ contends that the State cannot be prejudiced by supplementing the claim. However, prejudice is not necessary where the circuit court finds that the disposition of the case would be unduly delayed by the filing of an amendment. Here, an amended and supplemental complaint was filed on the day of the second hearing on a motion for summary judgment that decided the case. Allowing the amended and supplemental complaint at that DJate date could unduly delay the disposition of the case. Therefore, the circuit court did not abuse its discretion in striking the amended and supplemental complaint.
III. The Kimbrell Case (NO. 60-CV-l1-2677)
Next, we address the matters in the appeal relating to the Kimbrell case. DMJ asserts that the circuit court erred in severing only the date restrictions in section 31 of Act 269 of 2010. DMJ’s contends that severing only the date restriction in section 31 of Act 269 of 2010 does not render the statute constitutional. We hold that this point is moot.
The General Assembly amended Arkansas Code Annotated section 6-20-604(e) (Supp.2009) with section 32 of Act 293 of 2010. The statute reads as follows:
(e)(1) Except as provided in subdivision (e)(2) of this section, a school district meeting the requirements of subsection (b) of this section shall receive an amount equal to ten percent (10%) of the foundation funding received by the school district under § 6-20-2305(a)(2) based on the three-quarter average daily membership of the isolated school area under § 6-20-2305(a)(2) if the school district has school facilities open for kindergarten through grade twelve (K-12) in one (1) or more isolated schools meeting the requirements of subsection (b) of this section.
(2) A school district shall receive an amount equal to ten percent (10%) of the foundation funding received by the school district under § 6-20-2305(a)(2) based on the three-quarter average daily membership of the isolated school area under § 6-20-2305(a)(2) if:
(A) The school district has school facilities serving students in any grade in kindergarten through grade twelve (K-12) in one (1) or more isolated schools meeting the requirements of subsection (b) of this section; and
(B) The school district closed an isolated facility serving students in grades seven (7) through twelve (12) between January 1, 2008, and July 1, 2008.
DMJ contended below that the date restriction rendered this provision of the Act “local or special” legislation as it granted funding to only one school district, the Melbourne School District. The circuit court agreed and ruled that the statute was unconstitutional under amendment 14. The circuit court further ruled that severing the date range was consistent |22with the purposes of the act and would make the statute constitutional and ordered the date range struck from the statute.
DMJ appealed, contending that all of section 32 should be stricken from the statute. DMJ asserts that the sole purpose of section 32 was to provide Melbourne School District with funding, and provide funding to no other school district. As this purpose was unconstitutional, DMJ contends that the entirety of section 32 should be struck as unconstitutional.
This year, the General Assembly enacted section 33 of Act 1073 of 2013 (effective August 16, 2013), which deleted the date range that was struck by the circuit court. Both DMJ and the State conceded at oral argument that DMJ’s claim is now moot. As a general rule, the appellate courts of this state will not review issues that are moot because to do so would be to render an advisory opinion. Lott v. Langley, 2013 Ark. 247, 2013 WL 2460130. Generally, a case becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy. Id.
We have, however, recognized two exceptions to the mootness doctrine. Id. The first exception involves issues that are capable of repetition, yet evading review, and the second exception concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. Id. The claim of special and local legislation will not prevent future litigation if addressed, and if this issue occurs again, it will not evade review. Accordingly, neither of the exceptions apply here.
Because DMJ’s claims in the Kimbrell case are moot and neither of the exceptions apply, we hereby dismiss the appeal of this case.
| aJV. Conclusion
Because DMJ’s notice of appeal was timely filed, we deny Beebe’s motion to dismiss. We hold that the circuit court erred in dismissing DMJ’s claims from the Beebe case relating to the adequacy reports and evaluations, COLAs, transportation funding, and facilities funding based on res' judicata. Therefore, we reverse and remand those claims to the circuit court. However, we- affirm the circuit court’s ruling on res judicata as to DMJ’s claims relating to education funding in the Beebe case, which were or could have been litigated in the previous school-funding cases. We also hold that the circuit court did not abuse its discretion in striking DMJ’s amended complaint. Finally, we hold that the appeal in the Kimbrell case is moot.
Affirmed in part; reversed and remanded in part; moot in part; motion to dismiss denied.
CORBIN, J., dissents in part and concurs in part.
. This claim was also filed against the Melbourne School District, but this party was dismissed without prejudice on November 21, 2011.
. DMJ admits that section 6-20-604 has been rewritten, but only to allow a specific school district to gain isolated school funding. This point is addressed below in the Kimbrell case. | [
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JIM HANNAH, Chief Justice.
11 Petitioners, Pittman Moore, M.D.; Moore Surgical Arts & Gynecology, PLLC; The Moore Clinic for Women’s Health, LLC; and Phillips Hospital Corporation d/b/a Helena Regional Medical Center, petition this court for a writ of prohibition or, in the alternative, a writ of certiorari, against the Phillips County Circuit Court. The petitioners contend that the circuit court asserted authority beyond its jurisdiction and committed a plain, clear, and gross abuse of discretion when it ordered them to pay the expert-witness costs of Bobbie Troup, in her capacity as Administrator of the Estate of Easter Dawkins, Deceased. We deny the petition for writ of prohibition, and we deny without prejudice the petition for writ of cer-tiorari.
pin the underlying case, Administrator Troup filed suit alleging medical malpractice and wrongful death against the petitioners. The trial was originally set to begin on May 29, 2012. On May 16, 2012, the circuit court held a pretrial hearing to address numerous motions that had been filed. The parties did not get through all the motions, so at the conclusion of the hearing, the circuit court instructed the parties to return for a second pretrial hearing on May 22, 2012. That setting was cancelled, however, because of matters previously scheduled for that day, and the hearing was reconvened on May 29, 2012. The petitioners have represented in court filings that they moved for a continuance of the trial date at least three times during the pretrial hearings and that those motions were denied by the circuit court.
Arguments on pending motions continued through the day of trial, May 30, 2012. The circuit court called the jury pool into the courtroom and discussed the general nature of the case before taking a lunch break. Following the lunch break, the circuit court took the bench and continued the trial date.
On July 25, 2012, Troup filed a “Petition for Costs for Experts’ Trial Attendance,” requesting that the petitioners be required to pay for the cost of the five expert witnesses who had appeared to testify on her behalf on the scheduled trial date of May 30, 2012, but did not testify because the circuit court had granted a motion for continuance made by the petitioners. The petitioners responded that there was no legal or equitable basis for the relief Troup requested and that the petitioners should not be punished for costs that they did not cause Troup to incur. After a hearing, the circuit court entered an order directing the | .¡petitioners to immediately pay Troup $12,000 “for expenses and fees associated with the continuance” of the trial. The petitioners then filed the instant petition for extraordinary relief with this court. They claim that the circuit court was wholly without jurisdiction and committed a plain, clear, and gross abuse of discretion when it awarded expert-witness costs in this case.
The petitioners first ask this court to grant a writ of prohibition. This court has held that a writ of prohibition is extraordinary relief that is appropriate when the trial court is wholly without jurisdiction and when there is no other remedy, such as an appeal, available. E.g., Conner v. Simes, 355 Ark. 422, 139 S.W.3d 476 (2003). In addition, we have explained that the writ of prohibition cannot be invoked to correct an order already entered. E.g., White v. Palo, 2011 Ark. 126, 380 S.W.3d 405. Here, because the Phillips County Circuit Court has already entered an order awarding costs, relief in the form of a writ of prohibition will not he.
Alternatively, the petitioners ask this court to issue a writ of certiorari, another form of 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. E.g., S. Farm Bureau Cas. Ins. Co. v. Parsons, 2013 Ark. 322, 429 S.W.3d 215, 2013 WL 4858753. Two requirements must be satisfied in order for this court to grant a petition for writ of certiorari. Ark. Game & Fish Comm’n v. Herndon, 365 Ark. 180, 182, 226 S.W.3d 776, 778 (2006). The first requirement is that there can be no other adequate remedy but for the writ of certiorari. Id., 226 S.W.3d at 778. Second, a 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., 226 S.W.3d at 778.
The petitioners contend that they have satisfied the first requirement because they have no other adequate remedy. They argue that, because the order awarding costs is not immediately appeal-able under court rules, if this court does not issue a writ, then they cannot obtain relief unless they pay the expert-witness costs, litigate the entire case through final judgment, and then appeal the decision. Further, the petitioners argue that, if a verdict is entered in their favor at trial, “then it would be entirely inappropriate to mount an appeal over a $12,000 award when the appeal itself would eclipse that value in costs and attorney’s fees.” The petitioners assert that they will suffer irreparable harm if they are forced to pay the amount at issue and then endure the costs associated with litigation, trial, and appeal before the matter is reviewed by this court.
We are not persuaded by the petitioners’ argument that they will be irreparably harmed if this court declines to issue a writ and the petitioners are required to bring an appeal. Harm is normally considered irreparable only when it cannot be adequately compensated by money damages or redressed in a court of law. See, e.g., Monticello Healthcare Ctr., LLC v. Goodman, 2010 Ark. 339, 373 S.W.3d 256. Here, the sole issue is the payment |fiof costs, and the court can order return of that payment. See, e.g., Sunbelt Exploration Co. v. Stephens Prod. Co., 320 Ark. 298, 309, 896 S.W.2d 867, 873-74 (1995) (remanding to the circuit court the issue of whether unallowable expenses were awarded). Although we at one time appeared to endorse the use of an extraordinary writ to prevent untold time and expense, as well as unnecessary grief to the parties, see Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987), overruled by Wise Co. v. Clay Circuit, 315 Ark. 333, 335-A, 869 S.W.2d 6, 9 (1994) (supplemental opinion on denial of rehearing), we retreated from that overreaching language in Lupo v. Lineberger, 313 Ark. 315, 317, 855 S.W.2d 293, 294 (1993). Conner, 355 Ark. at 428, 139 S.W.3d at 480. We have explained that with respect to requests for extraordinary relief, such as writs of certiorari, the point is that we cannot, and should not, review cases in a piecemeal fashion. See id. at 429,139 S.W.3d at 480. Likewise, we have been steadfast in holding that certiorari may not be used as a substitute for appeal. See, e.g., Parsons, supra; Conner, supra; Arnold v. Spears, 343 Ark. 517, 36 S.W.3d 346 (2001); Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995); Gran v. Hale, 294 Ark. 563, 745 S.W.2d 129 (1988); Burney v. Hargraves, 264 Ark. 680, 573 S.W.2d 912 (1978).
Granting extraordinary relief in this case would permit a piecemeal appeal that merely tests the correctness of an interlocutory order. Conner, supra. Furthermore, we have explained that although an issue may be important, if the decision does not conclude the merits of a case, any appeal would be premature. Id. In the instant case, the issuance of a writ of certiorari would allow an extraordinary writ to serve as a substitute for an appeal and would | r,effectively endorse piecemeal appellate review. This we will not do. Because we conclude that the petitioners have an adequate remedy in the form of an appeal, we deny without prejudice their petition for writ of certiorari.
Writ of prohibition denied; writ of cer-tiorari denied without prejudice.
. Transcripts from the pretrial hearings were not filed with this court.
. At the petitioners' request, we granted a stay of the circuit court proceedings. See Ark. Sup.Ct. R. 6-1 (c) (2013).
. We note that after the parties' briefs were submitted to this court, the petitioners filed a "Motion to Take Judicial Notice,” in which they contend that our decision in the recent case of Cooper v. Circuit Court of Faulkner County, 2013 Ark. 365, 430 S.W.3d 1, 2013 WL 5497273, supports their argument that an appeal is not an adequate remedy in this case. The petitioners mischaracterize our holding in Cooper.
In Cooper, this court reviewed a circuit court’s order that (1) required the petitioners to pay fees and costs as a condition of granting their motion for continuance and (2) prohibited the petitioners from filing any additional pleadings in the circuit court until the fees and costs were paid in full. We discussed the prohibition of filing additional pleadings and, on that basis, we concluded that an appeal was not an adequate remedy:
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.
Cooper, 2013 Ark. 365, at 9, 430 S.W.3d at 6, 2013 WL 5497273 (emphasis added). Moreover, we specifically declined to reach the issue of whether the circuit court exceeded its jurisdiction and committed a manifest, clear, and gross abuse of discretion when it ordered the petitioners to pay $21,345 in fees and costs. Id. at 9-10, 430 S.W.3d at 6-7, 2013 WL 5497273 (noting that the conditions imposed in the order were inextricably intertwined and could not be parceled out individually and thus directing the circuit court to rescind the order in its entirety). In sum, Cooper is of no help to the petitioners in the instant case. | [
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BRANDON J. HARRISON, Judge.
|T Rose Butler appeals from the Workers’ Compensation Commission’s decision to deny her certain benefits. She argues that the Commission mistakenly found that she had reached the end of her healing period in July 2009 and was therefore not entitled to receive temporary-total-disability benefits. She also believes the Commission wrongly concluded that she was not entitled to treat with Drs. Bodemann, Burba, Ackerman, and Hefley.
The Lake Hamilton School District, Risk Management Resources, and Arkansas School Boards Association Death & Permanent Total Disability Trust Fund have cross-appealed. The issue on cross-appeal is whether the Commission erred in awarding Butler medical treatment from Drs. Pellegrino and Archer.
|2I. Temporary-Totalr-Disability Benefits
For more than eight years, Rose Butler worked for the Lake Hamilton School District preparing school lunches for children. The parties stipulated that, in November 2007, Butler sustained a compensable injury to her left shoulder, arm, and hand when she tripped while reaching for the microwave in the school kitchen. Butler, who was near seventy years old when injured, received a shoulder surgery in February 2008, wrist surgery in September 2008, and a second shoulder surgery in December 2008. The School District’s insurance carrier authorized these surgeries as treatment for Butler’s compensable work injury. Dr. Michael Young performed the surgeries.
Butler continued to have problems with the left side of her upper body, and the carrier allowed her to see Dr. Annette Meador in March 2009 for more treatment. Dr. Meador recommended a series of stel-late ganglion blocks and a MRI. In early June Meador noted that Butler had “reflex sympathetic dystrophy” in her left upper extremity, but that “overall she is better than prior to her first evaluation [in March].” Dr. Meador soon released Butler from her care, noting “I believe she [Butler] has reached maximum improvement and is no further in need of any stellate ganglion blocks.” She also recommended that Butler receive a functional-capacity evaluation and a permanency rating from Dr. Young.
Butler participated in a functional-capacity evaluation in late June; its results were deemed unreliable for various reasons.
Butler testified at the hearing before the administrative law judge that tremors in her left arm began the day of the functional-capacity evaluation and that she was in | ..¡tremendous pain during the exam. Dr. Young, however, agreed with Dr. Meador that Butler had reached her maximum medical improvement by July 2009. Dr. Young specifically wrote that Butler had “reached her maximum medical improvement. I do not think further surgery is warranted at this point.” He then gave Butler a twelve percent permanent-impairment rating and recommended that she be off permanently from her job. After follow up visits in September 2009 and January 2010, Dr. Young referred Butler to two neurologists to assess the tremors in her left arm.
In July 2009, the carrier stopped paying for additional treatment. Thereafter, on her own initiative, Butler visited several unauthorized doctors about the tremors. One of those doctors, neurologist Dr. Alonzo Burba, ordered a MRI in 2010. The test showed “no dominant enhancing mass lesion or abnormality involving the left axilla or left brachial plexus.” Dr. William Akerman — another unauthorized doctor— wrote in April 2011 that “it is my medical opinion that this patient is not at maximum medical improvement.” He cited Butler’s complex regional pain syndrome, injury to her left shoulder and rotator cuff, trapezi-us muscle spasms, and pain in her right knee as evidence that her healing period had not yet ended.
The administrative law judge found that Butler proved that she was entitled to additional total-temporary-disability benefits until a date yet to be determined. That decision was challenged, and the Commission reversed. It found that Butler had not proven that she was entitled to total-temporary-disability benefits after July 2009. The Commission weighed the medical evidence and found that Butler had reached the end of her healing period no later than 20 July 2009, that the left-arm tremors did not extend her |4healing period, and that she did not re-enter a healing period. The Commission relied on Dr. Young’s and Dr. Meador’s opinions to conclude that Butler’s healing period had ended in July 2009. Butler contests the Commission’s decision.
When an injured employee is totally incapacitated from earning wages and remains within her healing period, she is entitled to temporary total disability. Riggs v. B & S Contractors, Inc., 2010 Ark.App. 554, 377 S.W.3d 466. The healing period continues until the employee is restored as much as the permanent character of her injury will permit. Id. It ends when the underlying condition causing the disability becomes stable and no treatment will improve it. Id. When the healing period has ended is a fact-based question that the Commission must answer. Id. We review the Commission’s decision in the light most favorable to its findings and affirm when the decision is supported by substantial evidence. Parker v. Atl. Research Corp., 87 Ark.App. 145, 151, 189 S.W.3d 449, 452-53 (2004). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id.
Here, substantial evidence supports the Commission’s decision on temporary-total-disability benefits. Butler received three surgeries and other treatments to repair the workplace injuries. Her surgeon (Young) and another specialist (Mea-dor) specifically stated that Butler had reached maximum medical improvement by July 2009. The Commission placed “significant evidentiary weight” on the 2010 MRI, which showed no gross abnormalities with Butler’s brachial plexus. The Commission was entitled to weigh all the evidence and credit the medical opinions of Drs. Young and Meador over Dr. Akerman’s contrary opinion on the healing-period issue. See SSI, Inc. v. Cates, 2009 Ark. App. 763, 350 S.W.3d 421. We will not reverse the Commission’s decision regarding which medical evidence it chooses to accept when the medical evidence is conflicting, as it is in this case. Id. The Commission may not arbitrarily disregard medical evidence or the testimony of any witness, id., but we do not find that the Commission arbitrarily disregarded particular medical evidence.
We therefore affirm the Commission’s decision that Butler did not prove that she was entitled to temporary-total-disability benefits after her healing period ended in July 2009.
II. Unauthorized Physicians
Approximately eight months after the carrier had controverted any additional medical treatment, Butler saw her family physician, Dr. Michael Bodemann, who sent her to Dr. Lon Burba, a neurologist. Dr. Burba ordered tests, evaluated Butler, and eventually sent her to Dr. William Akerman for pain management. Dr. Ak-erman in turn recommended that Butler see Dr. Kevin Collins for a rehabilitation evaluation. Dr. William Hefley, Jr. also assessed Butler and recommended that she continue to see Dr. Burba, so he could oversee the management of her reflex sympathetic dystrophy (RSD). Dr. Hefley also wrote, “I would not want to operate now as it might exacerbate her RSD. I think her predominant pain source is the RSD.”
The Commission ruled that the appellees did not have to pay for Butler’s treatment with Drs. Bodemann, Burba, Ackerman, and Hefley because they were unauthorized physicians. The record shows that Butler did not petition the Commission for a ehange-of-physician pursuant to Ark. Code Ann. § 11 — 9—514(b); nor did she follow the statute’s | ^provisions that allow medical treatment to be authorized if certain steps are followed after the carrier controverts treatment. Ark.Code Ann. § ll-9-514(f). And Butler signed an ARN notice document informing her that any unauthorized medical expenses were her sole responsibility. We therefore affirm the Commission’s decision that the appel-lees do not have to pay for visits to Drs. Bodemann, Burba, Ackerman, and Hefley. Nor do the appellees have to pay for any referrals that these four doctors made.
III. The Cross-Appeal: Additional Medical Treatment with Drs. Pellegrino & Archer
The Lake Hamilton School District, Risk Management Resources, and Arkansas School Boards Association Death & Permanent Total Disability Trust Fund have cross-appealed, arguing that the Commission erred in awarding Butler evaluations from Dr. Pellegrino and Dr. Archer. We disagree.
As stated earlier, one of Butler’s treating physicians, Dr. Young, wanted Butler to get a neurological consult regarding her left-side tremors. So Dr. Young referred Butler to neurologist Dr. Pellegrino, writing that “I think this is simply necessary to follow through with her care and try to determine where she is at this point in time.” In his letter to Dr. Pellegrino, Dr. Young wrote that an “essential tremor appears to be in [Butler’s] upper extremity.” The office report from the same day states, “Today on exam [Butler] has developed a tremor in her left upper extremity. We discussed it and I think it is important to get her scheduled to see a neurologist .... We will get her in to see Dr. Pellegrino.”
The carrier did not authorize Butler to see Dr. Pellegrino.
17At a follow-up appointment with Butler in January 2010, Dr. Young again wrote, “she has developed a pretty significant tremor in this left arm.” He then tried to refer Butler to a neurologist at UAMS, Dr. Lee Archer, to get his advice after the carrier refused to let her see Dr. Pellegri-no. Butler never obtained a neurological evaluation from Dr. Pellegrino or Dr. Archer. She did receive a neurological evaluation from Dr. Burba, an unauthorized physician.
The Commission found that Butler “has proven by a preponderance of the evidence that she is entitled to additional medical benefits.” It also wrote that Butler “proved she was entitled to an evaluation by Dr. Pellegrino and Dr. Archer” and that an “assessment of [Butler’s] tremors by Dr. Pellegrino and Dr. Archer is reasonably necessary management of [her] injury.” The cross-appellants take issue with this particular determination.
Arkansas Code Annotated section ll-9-508(a) states that “the employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee.” An employee may receive ongoing medical treatment after the healing period has ended if the treatment is geared toward managing the compensable injury. Wilkerson v. St. Edward Mercy Med. Ctr., 2018 Ark. App. 345, at 3, 2013 WL 2285362. But the employee must prove by a preponderance of the evidence that medical treatment is reasonable and necessary. Id. What constitutes reasonable and necessary medical treatment is a question of fact that the Commission determines. Id. When the primary injury arises out of and in the course of the employment, the employer is responsible for any natural consequence that flows from that 1 sinjury. Jeter v. B.R. McGinty Meek, 62 Ark.App. 53, 58, 968 S.W.2d 645, 649 (1998). The basic test is whether a causal connection exists between the two episodes. Id. When the Commission awards a claimant benefits we will affirm the decision unless fair-minded persons, presented with the same facts, could not have arrived at the Commission’s conclusion. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 385, 944 S.W.2d 524, 526 (1997).
Here, the Commission found that allowing Butler’s tremors to be assessed by Drs. Pellegrino and Archer was reasonably necessary for the management of her original injury:
Whether the claimant’s complaints of tremor are truly connected to the com-pensable injury or are feigned and no-norganic, Dr. Young attempted to refer the claimant to Dr. Pellegrino, a neurologist, to assess the claimant’s left arm. The respondents did not approve treatment with Dr. Pellegrino. Dr. Young also attempted to refer the claimant to Dr. Archer at UAMS to examine the claimant’s reported tremors, but the record does not indicate that the respondents allowed the claimant to see Dr. Archer. The Full Commission therefore finds that the claimant proved she was entitled to an evaluation by Dr. Pellegri-no and Dr. Archer.
Cross-appellants argue that the Commission’s decision to allow an additional assessment regarding Butler’s left-sided tremors is not supported by substantial evidence because no objective findings “support a diagnosis regarding [Butler’s] ‘tremor’ complaints.” They also argue that no substantial proof connects Butler’s tremors to her compensable injury.
There is no requirement that objective evidence, or a doctor’s opinion, is required before the Commission may determine that further medical treatment in connection with a work injury is reasonably necessary. See Evans v. Bemis Co., Inc., 2010 Ark.App. 65, 6-7, 374 S.W.3d 51, 55 (2010). The cases that cross-appellants cite for this proposition — Liaromatis v. Baxter Cnty. Reg’l Hosp., 95 Ark. App. 296, 236 S.W.3d 524 (2006) and Smith-Blair, Inc. v. Jones, 77 Ark.App. 273, 72 S.W.3d 560 (2002) do not require us to reverse. Those cases addressed aggravations of preexisting conditions and whether the aggravations were separate compensable injuries. Here, the Commission did not rule that Butler’s tremors were an aggravation of a preexisting condition or a new and separate compensable injury; so the objective-findings requirement at issue in Liaromatis and Smith-Blair, Inc. does not apply in this case.
We also disagree with cross-appellants’ argument that insufficient proof connects Butler’s tremors to her work injury. Whether a causal connection exists between an initial work-related injury and later problems is a question of fact that the Commission must resolve. Jeter, supra. This record supports the Commission’s decision. As Butler points out, the cross-appellants pass over Dr. Young’s 2009 note: “Today on exam she has developed a tremor in her upper left extremity. We discussed it and I think it is important to get her in to see [neurologist] Dr. Pelle-grino.” Dr. Young also wrote that Butler thought she had sustained permanent nerve damage to her upper extremity, and that having Dr. Pellegrino review her situation “is simply necessary to follow through with her care and try to determine where she is at this point in time.” Butler had ongoing problems after she fell at work, and her treating physician recommended more evaluations. See Patchell v. Wal-Mart Stores, Inc., 86 Ark.App. 230, 236, 184 S.W.3d 31, 35 (2004) (a claimant may be entitled to ongoing medical treatment after the healing period has ended if the treatment’s purpose is to manage the compensable injury).
hnWe hold that substantial evidence supports the Commission’s decision to award Butler evaluations from Drs. Pellegrino and Archer.
We end with the contention that the Commission-ordered evaluations by Drs. Pellegrino and Archer are not reasonable or necessary medical treatment of Butler’s compensable injury because the same types of evaluations and testing have already been done by the unauthorized doctors, including the neurologist Dr. Burba. This argument appeals to economic efficiency, but the cross-appellants do not cite any legal authority to support the contention.
IV. Conclusion
We affirm the Commission on direct appeal and cross-appeal.
Affirmed.
GRUBER and WHITEAKER, JJ., agree. | [
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PER CURIAM.
hln accordance with section 2(D)(3) of amendment 80 to the Arkansas Constitution and Rule 6-8 of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas, the Honorable Susan 0. Hickey, of the United States District Court for the Western District of Arkansas, Hot Springs Division, filed a certification order with our clerk on October 1, 2013. The certifying court requests that we answer a question of law that may be determinative of a cause now pending in the certifying court, and it appears to the certifying court that there is no controlling precedent in the decisions of the Arkansas Supreme Court. After a review of the certifying court’s analysis and explanation of the need for this court to answer the question of law presently pending in that court, we accept certification of the following question, as herein formulated:
Whether “malicious” conduct, under Ark.Code Ann. § 18-11-307(1), includes conduct in reckless disregard of the consequences from which malice may be inferred.
We note that the question of the correct statutory interpretation of “malicious” was raised in Carr v. Nance, 2010 Ark. 497, 370 S.W.3d 826, but this court declined to address it because the jury was never instructed on malice and returned a general verdict form. This per curiam order constitutes notice of our acceptance of the certification of the question of law. For purposes of the pending proceeding in this court, the following requirements are imposed:
A. Time limits will be calculated from the date of this per curiam order accepting certification. The plaintiffs in the underlying action, Theresa Roeder, as the Administratrix of the Estate of Esther Kay Roeder, deceased, and on behalf of the wrongful death beneficiaries of Esther Kay Roeder; Tara Roe-der, as the Administratrix of the Estate of Bruce Wayne Roeder, and on behalf of the wrongful death beneficiaries of Bruce Wayne Roeder; and Tara Roe-der, as the Administratrix of the Estate of Deborah Busby Roeder, and on behalf of the wrongful death beneficiaries of Deborah Busby Roeder, are designated the moving parties and will be denoted as 12the “Petitioners,” and their brief is due thirty days from the date of this per curiam; the defendants, United States of America; James S. Watson, in his individual and official capacity; Gloria Maples Chrismer, in her individual and official capacity; Normal L. Wagoner, in his individual and official capacity; James B. Kozik, in his individual and official capacity; and John Does 1-5, in their individual and official capacity, shall be denoted as “Respondents,” and their brief shall be due thirty days after the filing of Petitioners’ brief. Petitioners may file a reply brief within fifteen days after Respondents’ brief is filed.
B. The briefs shall comply with this court’s rules as in other cases except for the briefs’ content. Only the following items required in Arkansas Supreme Court Rule 4-2(a) shall be included:
(8) Points on appeal which shall correspond to the certified question of law to be answered in the federal district court’s certification order.
(4) Table of authorities.
(6) Statement of the case which shall correspond to the facts relevant to the certified question of law as stated in the federal district court’s certification order.
(7) Argument.
(8) Addendum.
(9) Cover for briefs.
C. Oral Argument will only be permitted if this court concludes that it will be helpful for presentation of the issue.
D. Arkansas Supreme Court Rule 4-6 with respect to amicus curiae briefs will apply.
E. This matter will be processed as any case on appeal.
F. Rule XIV of the Rules Governing Admission to the Bar shall apply to the attorneys for the Petitioners and the Respondents.
| ¡¡Pursuant to Arkansas Supreme Court Rule 6 — 8(d), we request that the parties include in an addendum the following pleadings: the complaint; the answer, if any; the motion for summary judgment; and any responses, replies, and briefs in support thereof. In addition, if the parties believe that any additional pleadings will be useful to our understanding of the legal issues presented in this certified question, those pleadings should be included as well.
Certified question accepted. | [
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RITA W. GRUBER, Judge.
h Firestone Building Products and Sedg-wick CMS (collectively, Firestone) appeal a decision of the Arkansas Workers’ Compensation Commission regarding Pamela V. Hopson’s falls in the workplace on September 22, 2010. Firestone contends that (1) substantial evidence does not support the Commission’s decision that Hopson sustained a compensable injury, (2) neither the law nor substantial evidence supports the thirty-five-percent and thirty-two-percent impairment ratings assigned by the Commission, and (3) neither the law nor substantial evidence supports the Commission’s award of medical treatment for the injury. We disagree and affirm.
Where the sufficiency of the evidence is challenged on appeal, we review the evidence in the light most favorable to the findings of the Commission and will affirm if those findings are supported by substantial evidence. LVL, Inc. v. Ragsdale, 2011 Ark. App. 144, 381 S.W.3d 869. Substantial evidence is relevant evidence that a reasonable mind might accept |?as adequate to support a conclusion. Id. We will not reverse a finding based upon the Commission’s exercising its duty to determine credibility and to interpret conflicting evidence. Id.
I. Compensability
The claimant bears the burden of proving that her injury was the result of an accident that arose in the course of employment and that the accident grew out of, or resulted from, the employment. Delaplaine Farm Ctr. v. Crafton, 2011 Ark. App. 202, 382 S.W.3d 689. The appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings. Cedar Chem. Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008).
An employer takes the employee as it finds her, and employment circumstances that aggravate preexisting conditions are compensable. Heritage Baptist Temple v. Robison, 82 Ark.App. 460, 464, 120 S.W.3d 150, 152 (2003). An aggravation is a new injury resulting from an independent incident, and the aggravation of a preexisting, noncompensable condition by a compensable injury is, itself, compensable. Williams v. L & W Janitorial, Inc., 85 Ark.App. 1, 9, 145 S.W.3d 383, 388 (2004).
In ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 71, 977 S.W.2d 212, 216 (1998), our supreme court discussed the compensability of idiopathic falls in the workplace:
An idiopathic fall is one whose cause is personal in nature, or peculiar to the individual. 1 Larson, Workers Compensation Law, § 12.11 (1998); [other citations omitted]. Because an idiopathic fall is not related to employment, it is generally not compensable unless conditions related to employment contribute to the risk by placing the employee in a position which increases the dangerous effect of the fall. Larson, supra.
|sWhen a truly unexplained fall occurs while the employee is on the job and performing the duties of his employment, the injury resulting therefrom is compensable. Delaplaine, supra.
In an interview by Firestone’s insurance carrier, Hopkins explained that her work entailed helping fold rubber that was machine-poured and pulling sheets of it up a ramp from the floor. She said that at 6:00 a.m. on September 22, 2010 — after sitting on a ramp and cutting tape off rollers — she stepped down, twisted off balance, and fell: “my right leg went to turn around, and my head was facing in one direction and my back was facing another direction. So when I got up, I had to make a pivot turn to the right, take my right leg over, and stepped down.” She said that a coworker who heard her call for help sent two men over; she told them she could not move because her leg was hurt; they placed her in a wheelchair; and they took her to first aid, where an ice pack was put on her knee and her blood pressure was taken. She denied having pain or trouble with her knee before the fall, and she said that she had taken her blood-pressure medication and ibuprofen before going to work that night. She stated that a doctor had previously treated arthritis in her ankle with medication; that she had undergone surgery for a uterine hemorrhage; and that two weeks before her fall, she had been kept off work because of high blood pressure.
In the interview, Ms. Hopson related the following events that occurred after she sat in the wheelchair. She stood from the wheelchair to go to the bathroom, putting weight on her “other leg,” and fell a second time. She was asked if she could “make it out” to go home, and she said she would try to walk: “Bruce Yelverton [from management] grabbed my hand, a supervisor got behind me, and they helped me walk out of first aid. But, when we were j^outside of first aid, I fell again because my legs wouldn’t hold me up.” She ex plained that she did not have strength in her right leg when she fell the second time and that she fell on both knees during the third fall, with her left leg feeling “tender.” She stated that she went to her family-doctor at 11:30 a.m. that morning; he x-rayed her knees and told her that nothing was broken.
In testimony before the administrative law judge, Hopson again described her three falls — hitting her right foot stepping off the ramp and landing on her right knee, falling forward onto her right knee when she stood to go to the bathroom and put her weight on the left, and falling on her left leg when her legs gave out in the parking lot. She again explained that the first fall occurred when she was taking tape off rollers near a ramp:
I stood up and I began to step down, turning to my left, and my one shoe was already down close to the floor and ... I was stepping down and bringing my right leg over. That’s when my safety shoe ... hit the bar that’s on the floor and I lost my balance and went down. There is a metal bar between the ramp and the roller. As I stepped down off the ramp, my right foot, hit that piece of metal bar, I went off balance and hit the floor. When I fell I landed on my right knee, and I could not get back up.
Hopson testified that Danny Glass came to Dr. Fox’s office when she was there the morning of her falls and told her, after talking to Bruce Yelverton by telephone, that “workers’ compensation would not pay for this.” She testified that she had been noncompliant about taking her blood-pressure medication over the years but had taken it the morning of the accident. She denied telling Dr. Fox that she was out of medication, denied telling Yelverton she had taken strong pain medication that day, and said that Dr. Fox’s report on the day of her falls that she had taken hydroco-done the last two days was “a mistake.” She testified that she had been concerned about her obesity impacting her ability to do her work, 15that she had long-time problems with her wrists and arms, and that her osteoarthritis had not affected her knees. She explained that a “Dr. Ben-net” at Dr. Fox’s office told her the injury was not work related and had checked “no” on Firestone’s accident-and-sickness forms to indicate that her injury was not related to work. Hopson knew the check-mark had been made on the October 10, 2012 form, which she “felt was incorrect,” but she signed and submitted it anyway. She also testified that Danny Glass’s secretary told her that she “would have to pay back all that money” she had received if she “didn’t fill out the box no on those accident and sickness status forms.”
Dwight Dixon, a Firestone sealing-tape manager and Hopson’s supervisor, testified that he could not recall anyone else tripping or falling at the ramp as Hopson had done. He described her falls in the first-aid room and parking lot, which he witnessed, as slow-motion falls onto her backside that did not seem real, and he said that her knees did not impact anything. Bruce Yelverton testified that Hop-son’s blood pressure in the first-aid office was 180/90 and that she told him she was out of her medication and had recently taken relatively strong pain medicine. He described her fall when she stood to go to the bathroom as a slow-motion collapse onto her buttocks, rolling to the right side, with no visible knee impact. He described the fall when she attempted to leave for the parking lot — while he supported her on the right — as a collapse to the left in which she slid down the wall and he attempted to pin her against it, but she landed on her buttocks. Hopson testified on rebuttal testimony that the | Rtwo men’s descriptions of her falls were unfair, particularly of Yelverton’s holding her against the wall. She said, “I went down, bam. He couldn’t even hold me and it wasn’t no catching, I went down. I landed on my knees.”
A radiology report correlated October 18, 2010 x-rays of Hopson’s knees with her bilateral MRIs of October 20, 2010:
Complete tear of [right-knee] distal quadriceps tendon near the musculotendi-nous junction with inferior positioning of the patella and serpiginous folding of the quadriceps tendon in the suprapatellar space associated with a small calcification on radiograph which may be within the tendon. Left knee MRI of the same day also shows a distal quadriceps tendon tear, and bilateral tears are often associated with systemic disease including hyperparathyroidism, chronic renal failure, diabetes, rheumatoid arthritis, gout, or with history of steroid use/injections.
On January 7, 2011, Dr. Johannes Gru-enwald surgically repaired quadriceps tendons in Hopson’s knees. He wrote in a September 27, 2011 letter that she “sustained work related injuries to her bilateral lower-extremity injuries as a result of a fall” and that the injuries — “disruption of the bilateral extensor mechanism to the lower extremity consisting of quadriceps tears” — were ultimately treated with open repairs. The letter continues:
Please note that during the repair ... there was no indication of a chronic tear, we clearly found fresh tears to her bilateral lower extremities which were consistent with the history provided by Ms. Hopson.
Unfortunately, Ms. Hopson was unable to complete her physical therapy; we firmly believe that physical [sic] would be beneficial even at this late stage to maximize her best possible outcome.
There is no indication that arthritic joint pain and acute quadriceps tears have any positive connection.
At this time, we believe that Ms. Hopson has reached maximum medical improvement.
Applying the AMA Guides to the Evaluation of Permanent Impairment (4th ed.), Dr. Gruenwald assigned disability ratings of thirty-five percent for the right lower extremity and |7thirty-two percent for the left lower extremity.
Firestone contends that substantial evidence does not support the decision that Hopson sustained a compensable injury. Firestone argues that Hopson had preexisting conditions in her knees that led to her knee problems in the workplace, and that the initial incident was an idiopathic fall caused by not taking her blood-pressure medication and by taking hydroco-done. Firestone complains that there were inconsistencies in Dr. Gruenwald’s deposition testimony and letter of September 2011 concerning Hopson’s impairment ratings and chronic versus fresh bilateral quadriceps-tendon tears, and that he incorrectly reported the mechanics of Hopson’s fall by stating that she fell forward and hit both kneecaps at once. Firestone complains that Hopson gave varied versions of her three falls; that in seeking medical treatment, she repeatedly stated that this was not a workers’ compensation incident; that she refused to be tested for a possible systematic disease despite four doctors’ concerns; and that on accident-and-sick forms, in order to receive her short-term disability, she answered “no” to the question of whether the injury was due to employment. Firestone concludes that the injury did not arise out of Hopson’s employment but was personal to her.
The Commission, adopting and affirming the decision of the law judge, rejected these arguments:
Even if the claimant had preexisting conditions, a finding which I do not make, the claimant’s falls on September 22, 2010, aggravated any alleged preexisting condition thereby creating compensable injuries in and of themselves .... [NJothing in the record reflects that the claimant ever had a history of fainting or falling due to either preexisting conditions, lack of blood pressure medication, or for taking pain medication. To buy into the respondents’ argument of an idiopathic fall would be to engage in speculation and conjecture....
|sThe compensability of Hopson’s injury turned on credibility determinations and resolution of testimony. There was substantial evidence from which the Commission could have found that Hopson’s falls were work-related; did not result from preexisting conditions, pain medication or lack of blood-pressure medication; and were not idiopathic falls.
II. Impairment Rating
Any determination of the existence or extent of physical impairment must be supported by objective and measurable findings. Ark.Code Ann. § 11 — 9— 704(c)(1)(B) (Repl.2012). The Commission has adopted the American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed.1993) to be used in the assessment of anatomical impairment. Avaya v. Bryant, 82 Ark.App. 273, 105 S.W.3d 811; see Ark.Code Ann. § 11-9-522(g)(l)(A) (Repl.2012). Under Arkansas Code Annotated section 11 — 9— 102(4)(F)(ii) (Repl.2012):
(a) Permanent benefits shall be awarded only upon a determination that the com-pensable injury was the major cause of the disability or impairment.
(b) If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.
The major-cause requirement is satisfied where a compensable injury aggravates an asymptomatic preexisting condition such that the condition becomes symptomatic and requires treatment. Wright v. St. Vincent Doctors Hosp. Indem. Ins. Co. of N. Am., 2012 Ark. App. 153, 390 S.W.3d 779.
Firestone argues that Hopson failed to prove that the major cause of her disability or | gimpairment was her workplace fall as opposed to systemic disease or other preexisting condition and that she refused to be tested for diseases that could have caused her injury. It also argues that Dr. Gruenwald’s medical opinion of impairment is theoretical because he admitted the reference in his letter to “fresh tears” should have been “chronic” and was based on Hopson’s subjective history of how the injury occurred. It complains that Dr. Gruenwald “loosely” referenced the AMA Guidelines and testified that he could not rule out systemic disease.
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; thus, the Commission may assess its own impairment rating rather than rely solely on its determination of the validity of ratings assigned by physicians. Id. The Guides are just that: mere guides to aid the Commission in assessing the degree of a claim ant’s disability as defined by statute and interpreted by the courts. Singleton v. City of Pine Bluff, 102 Ark.App. 805, 285 S.W.3d 258 (2008). In Wayne Smith Trucking, Inc. v. McWilliams, 2011 Ark. App. 414, 384 S.W.3d 561, we noted our holding in Wal-Mart Assocs., Inc. v. Ealey, 2009 Ark. App. 680, 2009 WL 4654630 that in addressing an impairment rating, there is no requirement that medical testimony be based solely or expressly on objective findings, only that the medical evidence of the injury and impairment be supported by objective findings.
Here, MRIs of Hopson’s left and right knees showed bilateral quadriceps tendon tears. Dr. Gruenwald, after surgically repairing the tears, wrote in his September 27, 2011 letter: “According to Fourth Edition, AMA Guidelines this impairment rating is based on limitations | inas a result of her work-related injuries. Ms. Hopson has disability rating for the right lower extremity of 35% and 32% to the left lower extremity.” The Commission found the ratings in accord with the AMA Guidelines, accepted the ratings, and found that Hopson had proved her compensable bilateral knee injuries to be the major cause of impairment. On this basis, the Commission awarded the impairment ratings that Dr. Gruenwald had assigned.
The Commission exercised its duty to assess the medical evidence to make a finding of permanent impairment, using the opinion of Dr. Gruenwald and guidance of the AMA Guide to assess the degree of disability. Substantial evidence thus supports the Commission’s decision on this issue, and we affirm.
III. Medical Treatment
Arkansas Code Annotated section 11-9-508(a) (Repl.2012) requires an employer to promptly provide an injured worker such medical and surgical treatment “as may be reasonably necessary in connection with the injury received by the employee.” What constitutes reasonably necessary treatment is a question of fact for the Commission, which has the duty to use its expertise to determine the soundness of medical evidence and to translate it into findings of fact. Hamilton v. Gregory Trucking, 90 Ark.App. 248, 205 S.W.3d 181 (2005).
Firestone argues that the basis of Dr. Gruenwald’s opinion that the surgery was related to falls at work was inaccurate. It also argues that there is no evidence showing that expenses for Hopson’s “incurred and recommended medical treatments” were for a compensable injury as opposed to a preexisting condition, calcification from a prior infection, misuse of | n medications, or a systemic disease. The Commission rejected these arguments when deciding the issue of compensability, and it necessarily follows that the arguments fail to support Firestone’s challenge to medical treatment for the compensable injury.
Affirmed.
PITTMAN, VAUGHT, and WOOD, JJ„ agree.
WALMSLEY and HIXSON, JJ., dissent.
. The Commission’s decision states that Jak-eeli Bennett was Dr. Fox’s nurse practitioner. | [
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BRANDON J. HARRISON, Judge.
11 Savanna Dickinson’s life ended on a mid-November night in 2011. Harrison police officers responded to a call that Savanna had taken her own life in an apartment she shared with Jon Shatwell. With the help of the fire department, police officers entered the locked apartment. They found Savanna, alone, slumped on a couch by the front door. Her face and head were encased in blood. She was dead. A .45-caliber (1911 style) semi-automatic pistol lay near her right hand.
Savanna had been shot between her eyes. There was a live round of ammunition on the living-room floor and a spent casing next to the coffee table by the couch. Law enforcement secured the scene and began investigating Savanna’s death.
Shatwell became a person of interest because he and Savanna had fought at a party earlier the same evening over a personal matter. Not long after Savanna’s death, Shatwell | ¡.appeared at his mother’s house; he had blood on his jacket, hands, and face. He told his mother that Savanna had shot herself in the head, so his mother called the police to report what happened. Shatwell gave a voluntary statement to the police shortly after his mother called them. According to Shat-well’s first account to police, he found Savanna in the living room holding a gun and, despite his efforts to dissuade her, she shot herself. Shatwell said that he remained with Savanna, holding her for about ten minutes before going to his mother’s house. He told the suicide story to family and friends from November 2011 until April 2012, when the police interviewed him a second time; that’s when a different story about the cause of Savanna’s death emerged.
In his second interview, the police confronted Shatwell with forensic evidence and told him that they believed suicide was an unlikely cause of Savanna’s death. Shatwell then told the police that he had accidently shot Savanna. The State of Arkansas subsequently charged Shatwell with committing murder in the first degree, tampering with physical evidence, and using a firearm while committing a felony (sentencing enhancement). In October 2012 he was tried before a Boone County jury.
The jury convicted Shatwell of purposefully killing Savanna. It also found that Shatwell had used a firearm while committing a felony and tampered with evidence. The circuit court sentenced Shatwell to a total of 672 months’ (56 years) imprisonment in the Arkansas Department of Cor rection. Shatwell appealed his conviction and here argues the following points:
• The circuit court abused its discretion by denying a motion for a mistrial after his former girlfriend, Melissa Weaver, testified that he physically abused her.
• IsThe circuit court erred when it denied his motion in limine to exclude evidence of prior bad acts under Ark. R. Evid. 404(b) because Weaver testified improperly that he had threatened her with the same gun he used to kill Savanna Dickinson, and her testimony was solely offered to show that he would use gun violence against a subsequent girlfriend.
• The circuit court erred by concluding that the probative value of Weaver’s gun-related testimony outweighed its prejudicial effect.
• The circuit court should have granted Shatwell’s motion for a directed verdict on the first-degree murder charge.
• The circuit court should have granted Shatwell’s motion for a directed verdict on the tampering charge.
We treat motions for directed verdict as challenges to the sufficiency of the evidence. Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005). Shatwell’s two insufficient-evidence arguments come first. Boldin v. State, 373 Ark. 295, 297, 283 S.W.3d 565, 567 (2008).
I. The First-Degree Murder Conviction
Shatwell committed first-degree murder if, with a purpose of causing Savanna’s death, he caused Savanna’s death. Ark.Code Ann. § 5-10-102(a)(2) (Repl. 2006). In reviewing Shatwell’s challenge to the sufficiency of the State’s evidence, we ask whether the verdict is supported by substantial evidence; it does not matter whether the evidence is direct, circumstantial, or some combination of the two. Dunn v. State, 371 Ark. 140, 264 S.W.3d 504 (2007). For circumstantial evidence to be substantial, the evidence must exclude every reasonable hypothesis other than the accused’s guilt. The jury gets to decide whether the circumstantial evidence excludes every hypothesis consistent with innocence. Substantial evidence forces or compels a conclusion one way or the other so 14that the jury does not have to speculate to reach a decision. We will not overturn its determination unless the verdict required speculation and conjecture. The jury also weighs the evidence and judges witness credibility. Id.
A criminal defendant’s state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Leaks v. State, 345 Ark. 182, 45 S.W.3d 363 (2001). The existence of criminal intent or purpose is a matter for the jury to determine when criminal intent may be reasonably inferred from the evidence. McClard v. State, 2012 Ark. App. 573, 2012 WL 4832293.
In his directed-verdict motions, Shatwell argued that the State failed to prove that he acted with the intent to purposely cause Savanna’s death. Shat-well was alone in his apartment with Savanna the same night that the two had argued and Savanna was shot. Shatwell admitted at trial that he was holding a loaded .45 — with his finger on the trigger — when the gun fired. Detective Schaeffer testified that a safety release had to be disengaged at the same time the trigger was pulled for the gun to fire. The spray of gunpowder across Savanna’s forehead indicated a close-range shooting. The State’s forensic expert, Adam Craig, said the gun was three feet or less from Savanna’s forehead when it discharged. Craig also said that the bullet’s path through Savanna’s head was “suspicious” and “atypical for a suicide.” Detective Schae-fer told the jury how the blood patterns on the gun, and swiping patterns on Savanna’s body, did not match Shatwell’s suicide story. Shatwell’s fingerprints were on the gun’s magazine.
Shatwell also changed his story about what happened inside the apartment the night Savanna died. The jury could properly consider Shatwell’s vacillating stories as proof of a |fipurposeful mental state. Leaks v. State, 345 Ark. 182, 186, 45 S.W.3d 368, 366 (2001). The jury could also infer Shatwell’s intent from the circumstances surrounding the shooting. See Thompson v. State, 338 Ark. 564, 999 S.W.2d 192 (1999) (the natural and probable consequence of putting a pistol against another person’s neck and firing the gun is the death of the victim); Walker v. State, 324 Ark. 106, 918 S.W.2d 172 (1996) (gun fired at close range to victim’s head can be substantial evidence of defendant’s purposeful intent). The jury was ultimately allowed to accept or reject Shatwell’s story that he accidentally killed Savanna. See Williamson v. State, 2013 Ark. 347, at 6, 2013 WL 5375431.
The jury also heard testimony from a woman who had dated Shatwell before he reunited with Savanna. Her name is Melissa Weaver, and she testified that, about one month before Savanna died, she had broken up with Shatwell. But before she did so, he had held a gun to her forehead and threatened her. Weaver’s testimony, which we discuss in more detail below, is additional evidence that the jury heard when judging Shatwell’s accidental-shooting story.
The jury’s guilty verdict on the first-degree murder charge was based on substantial evidence. We affirm it.
II. The Tampering-with-Evidence Conviction
Arkansas Code Annotated section 5-53-lll(a) (Repl.2005) provides that
[a] person commits the offense of tampering with physical evidence if he or she alters, destroys, suppresses, removes, or conceals any record, document, or thing with the purpose of impairing its verity, legibility, or availability in any official proceeding or investigation.
Shatwell argues that the State did not prove that he altered or removed anything from the crime scene with the purpose of impairing the investigation. The same standard-ofjreview6 points we applied to Shatwell’s challenge of his murder conviction apply here. We also reach the same result: the jury’s conviction on this charge was supported by substantial evidence, so it is affirmed.
This court and our supreme court have interpreted section 5-53-111 (a) in cases where a defendant removes or conceals a murder weapon. Puckett v. State, 328 Ark. 355, 358, 944 S.W.2d 111, 113 (1997); Scott v. State, 1 Ark.App. 207, 210, 614 S.W.2d 239, 241 (1981). Here, there was no evidence that Shatwell totally removed the gun from a crime scene or concealed its presence from potential investigators. But having read the plain words of the statute — and being mindful that criminal statutes must be construed narrowly in favor of a defendant — we hold that the State produced substantial evidence that Shatwell altered the position of Savanna’s body and the murder weapon with the purpose of impairing the Harrison Police Department’s investigation into Savanna’s death. Puckett, 328 Ark. at 358, 944 S.W.2d at 113.
Shatwell told investigators that Savanna had fallen on the floor after she shot her self and that he picked her up and placed her on the couch. Based on the placement of Savanna’s body and the location of the gun beside her, Detective Schaefer told the jury that he thought Shatwell manipulated the crime scene to make it look like Savanna had committed suicide. The detective said specifically that Savanna’s body had been moved at least 5 to 12 inches from where it lay originally. The State also presented evidence that the blood-swiping patterns on Savanna’s head and arms indicated that she was found in a different position from where she was shot.
We affirm Shatwell’s conviction under section 5-53-lll(a).
|7I1I. Prior Bad-Acts Evidence
We collapse Shatwell’s first three points on appeal into this question: did the circuit court abuse its discretion and prejudice Shatwell’s case by admitting Melissa Weaver’s testimony? Some background is needed to understand the related points that touch on why we hold that the jury did not receive inadmissible and prejudicial bad-acts evidence about how Shatwell treated Weaver, a former girlfriend.
Shatwell filed a pretrial motion in limine asking the court to exclude evidence of prior bad acts, including “threats with the use of a gun both to the victim and other persons.” Weaver testified at the second pretrial hearing on Shatwell’s motion. She told the court about her volatile relationship with Shatwell and how he had threatened her with his gun on more than one occasion. She also said that Shatwell’s abuse permanently damaged her neck.
Weaver detailed several gun-related incidents with Shatwell. Weaver also provided a detailed description of the same gun that Shatwell admitted getting from his grandfather and with which he claimed to have accidentally shot Savanna. Weaver told the circuit court that, on one night, Shatwell forced her to her knees and placed his gun to the back of her head. Another time Shatwell became upset while they were watching a movie and fired the gun while inside the bedroom. He later apologized, claiming an accidental discharge. On cross-examination, Weaver said that she did not know if it was an accident but that is what she told the police.
According to Weaver, another gun-related incident occurred within two months of Savanna’s death, after Weaver and Shat-well had argued for hours. The fight got | ¿‘physical,” Weaver testified, and Shatwell told her to get on her knees; he then stood directly in front of her and put his gun to her forehead. Weaver testified that she was scared but looked Shatwell in the eyes and said, “They’re going to know you did this.” He then reportedly said, “You have so many problems [that] they’re going to think it’s a suicide.” Shatwell then set the gun down, according to Weaver, and she quickly hid it from him.
Shatwell argued to the circuit court that Weaver’s testimony was impermissible character evidence meant only to portray him as a “bad person” and that “he is supposed to be tried on the merits of this case, not for allegedly bad stuff that happened in the past.” He contended that the incidents Weaver described — and the physical evidence at the crime scene— were too dissimilar, so Weaver’s testimony was irrelevant. The State argued that the past incidents with Weaver were independently relevant to show that Savanna’s death was not an accident or mistake and that the past acts tended to prove Shat-well’s criminal intent.
The court seems to have orally granted in part and denied in part Shatwell’s motion to exclude Weaver’s testimony. The court’s ruling was not crystal clear, but the record as a whole shows that the parties understood that Weaver could testify about how Shatwell had threatened her with his gun during their relationship; but she could not testify about other physical abuse. The court also issued posttrial written orders denying Shatwell’s motion in limine and memorializing its oral ruling. We have not considered those orders because they were filed after the jury returned its verdict, meaning the parties did not have 19the benefit of the written orders on the limine issue before the jury decided the case, just the oral rulings.
After the trial began, but before Weaver told the jury her story, Shatwell again objected to her testimony, citing Ark. R. Evid. 404(b) and 408. The court permitted Weaver to testify. After establishing that Weaver had a past romantic relationship with Shatwell, and in the jury’s presence, the prosecuting attorney asked the following questions on direct examination:
PROSECUTOR: And when [was] your relationship terminated?
WEAVER: It was — it was October?
PROSECUTOR: Okay, of 2011?
WEAVER: Yes, ma’am.
PROSECUTOR: So about a month before Savanna was killed?
WEAVER: Yes, ma’am[.]
PROSECUTOR: Describe your relationship with Jon, was it a good relationship, bad, tell the Court and the jury about that?
WEAVER: The relationship — just the relationship standings.
PROSECUTOR: Yes?
WEAVER: It was good. There was a lot of — there wasn’t any problems at all in the beginning. And then the exact opposite when the conditions on a regular basis until the end of—
PROSECUTOR: All right. Tell the jury what you mean by things toward the end getting bad?
WEAVER: They started to become bad. It started with a lot of different variations of physical abuse.
DEFENSE: Your Honor, may we approach?
hnCOURT: You may.
DEFENSE: Your honor at this point in time, I’m going to ask for a mistrial because she is going into exactly what I filed the motion in limine about, about the prior bad acts. This Court ruled that she was not supposed to be talking about any acts of violence other than this deal with the gun. Now she is saying there was physical abuse.
PROSECUTOR: I can ask her to define that, Your Honor?
COURT: I think — I think all she said was verbal abuse, the Court is going to allow that. That’s not a prior bad act under the law. The Court’s finding—
DEFENSE: I just want to make sure—
COURT: I understand what you’re saying. You know, I am assuming the State has cautioned the witness about what can be talked about, so that’s what we’re going to—
DEFENSE: Thank you, Your Honor.
The remainder of Weaver’s trial testimony mirrored that which she gave the court during the pretrial hearing on Shatwell’s motion in limine. Weaver did not subsequently mention physical abuse beyond the gun-related incidents.
Shatwell argues here that the court erred by denying his motion for mistrial and allowing the State to present reputation and other bad-acts evidence. He specifically argues that Weaver’s testimony was so prejudicial that a new trial is due. The State argues that Shatwell failed to preserve his arguments on appeal, or alternatively, that the court did not abuse its discretion in admitting the testimony because any prejudice to Shatwell did not substantially outweigh the probative value of Weaver’s testimony, which was to help establish the required mental state.
|nWe review the admissibility of Weaver’s testimony under an abuse-of-discretion standard. Flanery v. State, 362 Ark. 311, 314, 208 S.W.3d 187, 189 (2005). The circuit court also has wide discretion in granting or denying a motion for mistrial, and absent an abuse of that discretion, the court’s decision will not be overturned on appeal. Smith v. State, 354 Ark. 226, 243, 118 S.W.3d 542, 552 (2003).
Character evidence is not admissible during the State’s case in chief if its only purpose is to suggest that a defendant is more likely to have committed the charged crime. Ark. R. Evid. 404(b) (2012). But a defendant’s prior bad conduct is admissible evidence if it tends to establish a specific point related to the current charge. Id. The “something specific” may include — but is not necessarily limited to — motive, intent, absence of mistake, identity, or common plan. Id. If the prior bad act is independently relevant then the State may use it as part of its case. Vance v. State, 2011 Ark. 243, at 8, 383 S.W.3d 325, 339-40. For example, any circumstance that links a defendant to the crime, or raises a possible motive for the crime, is independently relevant and admissible under Rule 404(b). Id.
But a 404(b) analysis is only half the process. Even if evidence of other crimes or bad acts is admissible under Rule 404(b), the court must then, under Rule 403, weigh the evidence’s probative value against its prejudicial effect. Considerable leeway is given to the circuit courts when determining if the eircum-stances of prior acts or crimes, and the crimes at hand, are sufficiently similar to admit them under Rules 404(b) and 403.
Weaver testified that Shatwell told her, ‘You have so many problems, they’re going to think it’s a suicide.” She accurately described the gun that was used in the 112murder, which Shatwell possessed, and recounted an incident where he put that same gun to her forehead. Weaver’s testimony was relevant and probative to Shatwell’s murder, tampering, and firearm charges because it concerned his defense that the shooting was accidental.
The most recent gun incident between Weaver and Shatwell occurred a month or two before Savanna’s death. The close proximity of time between the Shat-well/Weaver incident and Savanna’s death also weighs in favor of admissibility. See Smith v. State, 90 Ark.App. 261, 268, 205 S.W.3d 173, 178 (2005). Weaver’s testimony is also sufficiently probative because it has a tendency to reveal Shatwell’s mental state when agitated with or by a girlfriend — that he might intentionally point a loaded pistol at or near a girlfriend and threaten to fire it. That Shatwell was arguably familiar with the gun, had placed it to a previous girlfriend’s forehead under similar circumstances as this case presented and not fired it, was highly relevant to the State’s effort to prove that Savanna was purposely, not accidentally, shot. See Stevenson v. State, 2013 Ark. 100, at 12, 426 S.W.3d 416, 423-24. Simply put, the prior acts admitted in this case were similar enough to the current alleged unlawful conduct to be admitted under 404(b) and 403.
Shatwell relies heavily on Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006) for reversal on this point. There, our supreme court reversed a murder conviction in a death-penalty case and remanded for a new trial because of bad-act testimony that was erroneously admitted. The bad-act testimony portrayed the defendant as a “controlling abusive father.” Id. at 492-501, 231 S.W.3d at 650-56. The supreme court found that the testimony was related to the defendant’s credibility but was not independently relevant |1sto whether he murdered his neighbors. Id. at 497, 231 S.W.3d at 653. Unlike the testimony in Green, Weaver’s testimony was independently relevant to two material issues in the case: Shatwell’s mental state and whether an accidental shooting had occurred.
The circuit court did not abuse its discretion in denying Shatwell the drastic remedy of a mistrial just because Weaver said the words “physical abuse” when testifying at trial. The State argues that Shatwell’s mistrial motion is not preserved because he failed to tell the court that it had misunderstood Weaver’s testimony and because Shatwell failed to request an admonition to the jury regarding physical abuse. That argument does not square with the caselaw in point; Shatwell properly preserved his argument that Weaver crossed the line to his legal detriment. See Russell v. State, 2013 Ark. 369, at 7, 2013 WL 5519965 (a specific motion is required); Anderson v. State, 357 Ark. 180, 213, 163 S.W.3d 333, 353 (2004) (defendant must obtain a ruling from the circuit court on a mistrial motion when it appeared that the circuit court’s previous in limine ruling favoring the defendant was violated by the State).
We agree that the circuit court misspoke when it said that Weaver mentioned “verbal abuse” while testifying before the jury. Weaver did say “physical abuse.” But no reversible error occurred during the court’s handling of Weaver’s trial testimony. Weaver never testified about specific acts of violence that were unrelated to the gun. And as soon as she mentioned the words physical abuse, Shatwell’s lawyer, alert to the problem, objected. Weaver did not subsequently speak of inadmissible past physical abuse after the court’s bench conference. Shatwell has not demonstrated “an error so prejudicial that justice could not be served by continuing the trial, or that the fundamental fairness of the _]_ytrial itself has been manifestly affected.” Tate v. State, 367 Ark. 576, 580-81, 242 S.W.3d 254, 259 (2006).
We affirm Shatwell’s convictions in all respects.
Affirmed.
WYNNE and BROWN, JJ., agree. | [
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DAVID M. GLOVER, Judge.
|Appellant David Pack suffered an idiopathic injury while working for appellee Little Rock Convention and Visitors Bureau on April 16, 1991, resulting in an award of benefits. Little Rock Convention & Visitors Bureau v. Pack, 60 Ark.App. 82, 959 S.W.2d 415 (1997) (Pack I). His case now returns on appeal from the Commission’s finding that his employer and its insurance carrier, Risk Management Resources, are not liable for long-term-care expenses at Timber Ridge Ranch (Pack II). On the facts presented, the ALJ determined that the services provided at Timber Ridge qualified as nursing services for which appellees were responsible, but the Commission reversed the ALJ, finding that Pack had failed to prove that residential placement at Timber Ridge qualified as compensable nursing care; Pack now appeals this decision. We affirm the Commission’s decision that Pack failed to prove that residential placement at Timber Ridge qualified as compensable nursing care.
In Nabholz Construction Corp. v. Gates, 2010 Ark.App. 182, at 1, 2010 WL 653568, this court set forth our standard of review in workers’ compensation cases:
In reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Whitlatch v. Southland Land & Dev., 84 Ark.App. 399, 141 S.W.3d 916 (2004). Substantial evidence is that relevant evidence which reasonable minds might accept as adequate to support a conclusion. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2004) [(2002)]. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Geo. Specialty Chem., Inc. v. Clingan, 69 Ark.App. 369, 13 S.W.3d 218 (2000).
Arkansas Code Annotated section 11-9-508(a) (Supp.2009) requires an employer to provide an injured employee such medical services “as may be reasonably necessary in connection with the injury received by the employee.” The employee has the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary. Stone v. Dollar Gen. Stores, 91 Ark.App. 260, 209 S.W.3d 445 (2005). What constitutes reasonable and necessary medical treatment is a question of fact to be determined by the Commission. Bohannon v. Wal-Mart [Wal-mart] Stores, Inc., 102 Ark.App. 37, 279 S.W.3d 502 (2008).
Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Cedar Chemical Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008). When there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Id. 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; this court is foreclosed from determining the credibility and weight to be accorded to each witness’s testimony. Id. The Commission has the authority to accept or reject a medical opinion and the authority to determine its probative value. Poulan Weed Eater v. Marshall, 79 Ark.App. 129, 84 S.W.3d 878 (2002).
As a result of the 1991 injury, Pack suffered an organic brain injury and is permanently and totally disabled. In Pack I, this court affirmed the Commission’s finding of a compensable injury on direct appeal and also affirmed the finding on cross-appeal that Pack’s mother, with whom Pack lived on a full-time basis, was not entitled to payment for nursing services. Pack’s mother testified that she had to give Pack “verbal cues” to perform tasks such as bathing, dressing, and other personal care because Pack was not likely to do those things without prompting; however, she was able to leave Pack at home unattended while she worked until midday.
Pack lived with his mother until her death in 2003; he then moved in with his mother’s sister, Katherine, now sixty-five, and her husband, Clem Volpert, now sixty-eight, who are his legal co-guardians. Katherine Volpert testified that she and her husband had put off attempting to find a long-term care facility, but that they now would like to get their nephew into long-term care soon because Katherine’s health was not good and she did not want to leave him “out in the field like his mother did.” For this reason, she stated that she and her husband sought an alternative placement for Pack in long-term care at Timber Ridge.
Mrs. Volpert testified that nothing had changed with her nephew’s condition since he had come to live with her and her husband in February 2003, except that his personal appearance had improved and he no longer smoked. She confirmed that Pack could care for his basic hygiene, but that he had to be reminded verbally to perform such tasks, including bathing, combing his hair, using the toilet, and brushing his teeth. She also stated that he could make his bed and dress himself if she told him what to do. She said that he did not prepare any meals, and that she and her husband did not leave him alone.
Dr. Gary Souheaver, a clinical neuropsychologist, testified that Pack was going to require constant verbal and visual reminders to function in routine activities. He stated that, while Pack’s IQ had diminished fifteen points since his accident in 1991, Pack was clearly not “nursing-home material,” that he did not need twenty-four-hour care, and that he was able to stay by himself for short periods of time. It was Dr. Souheaver’s opinion that Pack would benefit from the most independent setting consistent with his abilities — possibly a group-home setting where he would have someone to help with grooming, bathing, laundry, housekeeping, meal preparation, shopping, health needs, and transporta tion — and he also believed that Pack was capable of working in a structured, sheltered-workshop setting.
Robbie McDaniel, the administrator at Timber Ridge, a post-acute brain-injury-rehabilitation and residential-care facility, stated that the facility offered supported-living services to match its clients’ functional capabilities. The goal at Timber Ridge, according to McDaniel, is to provide the highest quality of life capable to the individual, to provide meaningful activities on a daily basis, to provide professional services in nursing or medical care with monitoring on an ongoing basis, and to try to prevent functional regression over a period of time. McDaniel testified that nursing services were available twenty-four hours a day, seven days a week. According to McDaniel, the daily rate for Pack would be $600 per day, which included room and board, any of the therapies, counseling, supervision needs, transportation, behavioral observation, and, if needed, behavioral intervention. This per diem rate did not include medication or outside medical consultation. However, even after repeated questioning, McDaniel was unable or unwilling to break down the $600 per diem from a comprehensive rate to its individual components.
Pack contends that Timber Ridge’s services qualify as nursing services and as such, should be compensable under Pine Bluff Parks & Recreation v. Porter, 6 Ark. App. 154, 639 S.W.2d 363 (1982). We disagree. In Porter, the Commission found that it was reasonable and necessary for appellee Lorenzo Porter to be maintained in a residential facility for paraplegics, and that the employer was responsible for paying a portion of the rent for Porter’s apartment in that facility. This court remanded to the Commission, finding that while it was reasonably necessary for Porter to be housed at the facility designed for paraplegics, the Commission had to determine the portion of costs attributable to nursing services and medical apparatuses (the facility had special accommodations for paraplegics, such as ramps, lower light switches and counters, wider doorways for wheelchairs, especially designed bathrooms, and intercom systems), and services that were not covered, such as custodial care, lodging, and other nonmedical services such as housekeeping.
Porter’s case is different because, as a paraplegic, there were certain medical services that he had to have. However, in Pack’s case, the services he needs are not nursing services. As noted in Pack I,
The supreme court has said that the services contemplated under “nursing services” are those rendered in tending or ministering to another in sickness or infirmity. Pickens-Bond Constr. Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979). Nursing services do not include assistance with household and personal tasks which the claimant is unable to perform. Pine Bluff Parks & Recreation v. Porter, 6 Ark.App. 154, 639 S.W.2d 363 (1982); Pickens-Bond Constr. Co., supra. Benefits for nursing services have been allowed where the services consisted of medical care, including changing bandages and cleaning a wound, (Tibbs v. Dixie Bearings, Inc., 9 Ark.App. 150, 654 S.W.2d 588 (1983)), giving injections, enemas, and hot baths, (Dresser Minerals v. Hunt, 266 [262] Ark. 323 [280], 584 [556] S.W.2d 21 [138] (1979)), physical therapy, (Wasson v. Losey, 11 Ark.App. 302, 669 S.W.2d 516 (1984)), and where the claimant was mentally and physically helpless with no control over bodily functions and needed twenty-four hour per day care (Sisk v. Philpot, 244 Ark. 79, 423 S.W.2d 871 (1968)).
60 Ark.App. at 90, 959 S.W.2d at 419-20.
This court held in Pack I that while the doctors noted that he needed “encourage ment” to perform personal tasks and that his mother testified that she assisted him in daily tasks and housekeeping, these were not nursing services. In the present case, Pack II, the testimony from Pack’s aunt was that his situation has not changed since he lived with them as far as the help he required; likewise, Dr. Souheaver stated that Pack did not need to be placed in a nursing home. There was no testimony that Pack required what has been defined in our case law as “nursing services”; instead, he needs verbal cues to bathe, brush his teeth, comb his hair, and get dressed. He also needs help with housekeeping, financial matters, transportation, and meal preparation.
The dissent contends that Pack would benefit from some of the therapies offered at Timber Ridge; however, that is not the reason the Volperts sought out Timber Ridge for their nephew — they simply need an appropriate place for him to live. While the dissent is of the opinion that the Volperts’ motives are not germane to the issue on appeal, we disagree. Nowhere in Mrs. Volpert’s testimony does she contend that Pack needs cognitive therapy — rather, she said that her health was not good, they did not want to leave Pack “out in the field,” and that is why they sought out long-term care.
Furthermore, even assuming that the therapies offered at Timber Ridge are in the realm of nursing services and not simply “cues,” Timber Ridge’s administration declined to carve out the costs of such therapies from other non-nursing services, even after being asked repeatedly to do so. Those asking on behalf of Pack had the opportunity to have the value of the services determined at the hearing, which they failed to do; they therefore cannot now ask for the Commission’s decision to be reversed for a “second bite at the apple.” The dissent asserts that the Commission could simply assign a value to the service at Timber Ridge that it considers to be nursing services — somewhere between zero and six hundred dollars a day. However, without any factual basis for the number — which Timber Ridge was either unable or unwilling to provide — any determination would be arbitrary and speculative. This opinion does not foreclose the medication monitoring or medical attention Pack may require — it simply declines to require the appellees to provide non-nursing services.
On the matter presented to the Commission, we cannot say that the Commission erred in finding that the services Pack requested do not constitute “nursing services” under our law.
Affirmed.
VAUGHT, C.J., and PITTMAN, ROBBINS, and ABRAMSON, JJ., agree.
HART, MARTIN, HOOFMAN, and BROWN, JJ., dissent.
. In Pack I, there was evidence that Pack's mother left him alone while she worked from 5 a.m. to 1 p.m. while he was living with her. | [
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RITA W. GRUBER, Judge.
In Jordan v. Home Depot, Inc., CA07-1031, 2008 WL 727046 (Ark.Ct.App. March 19, 2008) (unpublished), Jonathan Jordan appealed a 2007 decision of the Arkansas Workers’ Compensation Commission that denied his claim for additional medical treatment and additional temporary total-disability benefits related to his 2003 com-pensable back injury. We reversed and remanded the denial of additional medical benefits, and reversed and remanded for reconsideration of disability benefits. In a subsequent decision of September 2008, the Commission found that medical services provided and recommended by Dr. Cyril Raben — including possible surgical intervention — were reasonably necessary medical services for Mr. Jordan’s compen-sable lumbar injury, and that Mr. Jordan was entitled to additional temporary total-disability benefits from the cessation of his employment in mid-2004 but not prior to July 15, 2004, and continuing through a date yet to be determined. That decision was not appealed.
|2The present appeal involves Mr. Jordan’s claims for an additional period of temporary total-disability benefits from February 2011 until a date to be determined and for additional medical treatment recommended by Dr. James Blankenship. In a 2012 opinion, the Commission found that Mr. Jordan did not prove entitlement to additional temporary total-disability benefits but did prove entitlement to medical services recommended by Dr. Blankenship. Mr. Jordan appeals the denial of additional temporary total-disability benefits, contending that substantial evidence instead supports a finding that he was entitled to benefits from February 2011 to a date yet to be determined. Home Depot cross-appeals, contending that no substantial evidence supports the finding that additional medical treatment is reasonably necessary in connection with the 2003 compensable injury. We affirm on appeal and cross-appeal.
Where the sufficiency of the evidence is challenged on appeal, we review the evidence in the light most favorable to the findings of the Commission and will affirm if those findings are supported by substantial evidence. Wal-Mart Stores, Inc. v. Brown, 82 Ark.App. 600, 602-603, 120 S.W.3d 153, 155 (2003). Where the Commission denies benefits because the claimant failed to meet his burden of proof, the substantial-evidence standard of review requires that we affirm if the Commission’s decision displays a substantial basis for the denial of relief. Woodmancy v. Franco, Inc., 2011 Ark. App. 785, 387 S.W.3d 286.
Is Temporary Total-Disability Benefits
On direct appeal, Mr. Jordan challenges the Commission’s finding that he was not entitled to temporary total-disability benefits. The healing period is that period for healing of an injury resulting from an accident. Ark.Code Ann. § 11 — 9— 102(12) (Repl.2012). An injured employee is entitled to temporary total-disability benefits when he is totally incapacitated from earning wages and remains in his healing period. Hickman v. Kellogg, Brown & Root, 372 Ark. 501, 277 S.W.3d 591 (2008). The healing period ends when the employee is as far restored as the permanent nature of his injury will permit, and if the underlying condition causing the disability has become stable and if nothing in the way of treatment will improve that condition, the healing period has ended. Id. The determination of when the healing period has ended is a factual determination for the Commission. Id.
Evidence before the Commission included Mr. Jordan’s medical records, his testimony before the law judge at an April 2012 hearing, and the deposition testimony of Dr. Blankenship. The 2009 medical records reveal that Dr. Raben performed a caudal epidural steroid injection in February, a bilateral neural forminal block at L5-S1 in May, and surgery at L4-5 and L5-S1 in June or July. Dr. Raben referred Mr. Jordan to pain-management physician Dr. D. Wayne Brooks, who in March 2010 planned to continue physical therapy for strengthening and lumbar stabilization. Dr. Brooks referred Mr. Jordan to Dr. James B. Blankenship, a neurosurgeon certified in pain management, in November 2010.
Mr. Jordan underwent a lumbar MRI on June 1, 2011, and first saw Dr. Blankenship on June 6, 2011. Dr. Blankenship recommended a sacroiliac (SI) joint injection, active |4physical therapy, and after two months, “If he is not any better, ... a CT scan -with reconstructions — to evaluate the construct, and I will see him back. If he is doing better, we will proceed on with exercise as appropriate for his SI joint pain and his post laminectomy syndrome.”
Regarding Mr. Jordan’s healing and treatment for pain, Dr. Blankenship testified:
He had some intermittent right posterior buttock pain for the past three months.... Essentially Jordan had a fusion at L4-5 and L5-S1. I am intimately familiar with those procedures. The length of time a patient remains in their healing period is extremely variable. The fusion itself is not the critical issue. The fusion can take up to six months to a year to be solid, but ... how quickly you get- to fusion doesn’t really have anything to do with how well you do. I will have some patients that undergo a 4-5, 5-1 fusion, and four weeks postoperatively, they are back doing their regular job. Then I will have some that never get any better....
Mr. Jordan indicated that his back and leg pain were better after that surgery. If he continued to treat with Dr. Brooks for pain management, it is not necessarily part of the healing period. It is just that some patients that are still having problems or still having some degree of pain will still need some type of either pain management from a medication standpoint or physical therapy or a combination of both postoperatively and can need that even long-term. It doesn’t state one way or the other as to whether he is still healing or is in the recuperative period because ... although not the typical outcome, it is not infrequent that I will have patients that we will still be following for long term after having surgery. My interpretation of the MRI was that there was no gross complication in his implants. It appeared, both with the MRI and his plain films that he had a solid fusion, although you cannot absolutely state that with either of those tests. That requires a CT scan.
Dr. Blankenship testified that Mr. Jordan’s clinical examination was consistent with his complaints of SI joint pain, which was not uncommon after a fusion, and that it was not uncommon for patients “to experience some level of symptomatology indefinitely” after the fusion. Reiterating that Mr. Jordan’s pain was in an adjacent seg ment well known to have problems after lumbar fusion, Dr. Blankenship stated, “I didn’t really think that he had a problem with his lumbar spine. I thought it was his SI joint.” He further testified:
| r,Whether Jonathan has reentered a healing period it is just from the standpoint that he is. having a new pain, if we are doctoring on it, then he has entered a new healing period. I am not sure that terminology is that germane. He is not entering a healing period from his lumbar fusion. That is healed up, and he is solid. The new pain, at least as far as I know, he never did get his SI joint injections, so it is still a diagnosis of examination and clinical history. It is a new problem in a new area. I still think it is related to the fact that he had a lumbar fusion. So he is in a new healing period for that that is indirectly related to his original injury. As far as a permanent impairment for that fusion that he had at those two levels, ... subjective complaints [really don’t matter] when you are dealing with workers’ compensation. The Fourth Edition of the AMA Guides is ten percent.... So it is a ten-percent impairment rating to the body as a whole, based on the guidelines.
Dr. Blankenship stated that a functional-capacity exam (FCE) was always helpful at the end of treatment and would be beneficial in determining whether any type of activity could be tolerated. He stated that Mr. Jordan had not received physical therapy in more than a year, that patients “get significantly de-conditioned,” and that Mr. Jordan’s underlying condition “no doubt” was affected by the delay in his not seeing Dr. Blankenship until June 2011, despite the November 2010 referral.
Mr. Jordan notes that he received pain management from February 2011 until June 2011 but did not see a neurosurgeon during that time despite requests by his counsel after Dr. Raben left practice and Dr. Brooks’s 2010 recommendation. He asserts that in February 2011 he was not even to the point that an FCE should be performed and that his back was in all probability de-conditioned due to the lack of treatment. He notes that neither Dr. Raben nor Dr. Brooks released him to work or opined that he was at maximum medical improvement. He asserts that the Commission misused Dr. Blankenship’s deposition testimony regarding an impairment rating, which was based only on the type of surgery and not on Mr. Jordan’s individual condition. He contends that his healing period did not end, entitling him to | (¡benefits from February 2011 to a date to be determined.
The Commission found that Mr. Jordan’s healing period for the compensa-ble injury ended before February 2011 and, thus, that he was not entitled to additional temporary total-disability benefits beginning on that date. The Commission reasoned as follows:
An MRI on June 1, 2011 showed “no gross complication” from the claimant’s 2009 surgery. Dr. Blankenship testified in May 2012 regarding the claimant, “He’s not entering a healing period from his lumbar fusion. That’s healed up. He’s solid.” Dr. Blankenship also testified that the claimant had sustained a 10% permanent anatomical impairment to his lumbar spine.... The evidence in the present matter demonstrates that the claimant has sustained a permanent anatomical impairment for his 2003 com-pensable injury and surgery, and the claimant has reached the end of the healing period for same.
The Commission noted Dr. Blankenship’s testimony that a new healing period for new pain would be related to the SI joint rather than the fusion. Based upon his assessment of a ten-percent impairment, the Commission found that the lumbar condition had stabilized and become permanent. Finally, the Commission found that even if the healing period continued, Mr. Jordan did not prove a total incapacity to earn wages. It pointed to his testimony that he was able to drive a motor vehicle and to participate in physical activities such as hunting and camping.
It is the Commission’s duty to make determinations of credibility, to weigh the evidence, and to resolve conflicts in medical testimony and evidence. Martin Charcoal, Inc. v. Britt, 102 Ark.App. 252, 284 S.W.3d 91 (2008). In reviewing decisions from the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings. Cedar Chem. Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008). The issue is not whether the appellate court might have reached a |7different result from the Commission, but whether reasonable minds could reach the result found by the Commission: if so, the appellate court must affirm. Parker v. Comcast Cable Corp., 100 Ark.App. 400, 269 S.W.3d 391 (2007).
Here, the Commission exercised its duty to assess the weight and credibility of evidence regarding whether Mr. Jordan’s healing period had ended and whether he was totally incapacitated from earning wages. We hold that substantial evidence supports the factual findings that the healing period ended by February 2011 and that Mr. Jordan was not totally incapacitated from earning wages. Therefore, the Commission’s opinion displays a substantial basis for the denial of his claim for an additional period of temporary total-disability benefits.
Additional Medical Services
An employer must provide for an injured employee such medical services “as may be reasonably necessary in connection with the injury received by the employee.” Ark.Code Ann. § ll-9-508(a) (Repl.2012). What constitutes reasonably necessary treatment is a question of fact for the Commission, which has the duty to use its expertise to determine the soundness of medical evidence and to translate it into findings of fact. Hamilton v. Gregory Trucking, 90 Ark.App. 248, 205 S.W.3d 181 (2005).
Cross-appellant Home Depot contends that substantial evidence does not support the Commission’s award of additional medical services recommended by Dr. Blankenship. Pointing to Dr. Blankenship’s opinion that Mr. Jordan’s lumbar fusion was solid and that his pain complaints were related to SI joint pain, Home Depot argues that there is no causal relation between the proposed treatment for Mr. Jordan’s lumbosacral problems and his 1 soriginal injury. We disagree.
The Commission found Dr. Blankenship’s testimony that Mr. Jordan’s SI joint pain was “related to the fact that he had a lumbar fusion” to be probative evidence demonstrating that his need for additional medical treatment was related to the reasonably necessary surgery by Dr. Raben in 2009. The Commission noted that no medical reports of record contradicted Dr. Blankenship’s opinion. The determination of the need for additional medical treatment turned on the interpretation of Dr. Blankenship’s opinion. The Commission has the authority to accept or reject a medical opinion and the authority to determine its probative value. Poulan Weed Eater v. Marshall, 79 Ark.App. 129, 84 S.W.3d 878 (2002). We are unable to say that reasonable minds could not come to the decision of the Commission that the medical services recommended by Dr. Blankenship were not reasonably related to the 2009 fusion surgery, which itself was reasonably necessary surgery for the 2003 lumbar injury.
Affirmed.
HIXSON and WOOD, JJ., agree.
. Appellant misstates the substantial-evidence standard of review for the denial of a claim. On the issue of additional temporary total-disability benefits, our role is limited to determining whether substantial evidence supports the Commission’s denial of the claim. Foster v. Gilster Mary Lee Corp., 2011 Ark. App. 735, 387 S.W.3d 212. | [
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DONALD L. CORBIN, Justice.
| Appellant, Davis Tillman, as special administrator of the estates of Rodney Nickle Tillman and Rebecca Ann Tillman, deceased, appeals the amended order of the Garland County Circuit Court granting summary judgment to Appellees, Raytheon Company, Hawker Beechcraft Corporation (“HBC”), Hawker Beechcraft Incorporated, and Beech Aircraft Corporation (collectively “the Beech defendants” or “Appellees”). For reversal, Appellant contends that there are genuine issues of material fact in dispute as to whether the fraud exception to the General Aviation Revitalization Act of 1994 (“GARA”), Pub.L. No. 103-298, 108 Stat. 1552 (1994) (codified at 49 U.S.C. § 40101 (2006), note), applies and asj^to whether GARA’s limitation period began anew by Appellees’ publication of an allegedly defective flight manual. In addition, Appellant contends that GARA is unconstitutional in violation of the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment. Jurisdiction of this case involving a fatal airplane crash is properly in this court, as it presents an issue of first impression for this court concerning interpretation of the federal statute, GARA. Ark. Sup.Ct. R. l-2(b)(l) (2013). We conclude that the circuit court did not err in granting summary judgment and affirm.
The following facts are taken from the allegations in the fifth amended complaint. Appellant’s decedents hired Gregory L. Secrest to fly them from Hot Springs, Arkansas, to Nashville, Tennessee, on November 24, 2008. Mr. Secrest was the owner and pilot of a 1979 Beechcraft 95 B55 Baron airplane, Serial Number TC-2198 (“the subject aircraft” or “the Beech Baron”). Mr. Secrest and his two passengers departed Hot Springs Memorial Field at approximately 9:11 a.m., and the flight proceeded under instrument flight rules because of prevailing weather conditions. During the flight, the left engine of the Beech Baron lost power, and the light twin-engine plane went into a flat spin and then crashed into a wooded area near Whites Creek, Tennessee. All persons on board, the pilot and two passengers, died as a result of injuries sustained in the crash.
Appellant filed suit in the Garland County Circuit Court on behalf of his decedents’ estates alleging claims of wrongful death based on negligence and products liability. The complaint was ultimately amended several times and named numerous defendants, including the pilot, Appellees as manufacturer of the subject aircraft, as well as many other defendants hwho manufactured, sold, or installed parts on the subject aircraft subsequent to its original manufacture in 1978. With respect to Ap-pellees, the complaint alleged that they negligently designed the subject aircraft due to its propensity to engage in an unrecoverable flat spin and that Appellees misrepresented, concealed, or withheld material information from the Federal Aviation Administration (“FAA”) about the flat-spin characteristic of the Beech Baron. The complaint also alleged that Appellees negligently failed to include in its revised flight manual the most current instructions on spin avoidance and control.
Appellees moved for summary judgment on the basis that Appellant’s suit was barred by the 18-year statute of repose set forth in GARA. Appellant responded to the motion, contending that genuine issues of material fact existed as to the applicability of the fraud exception to GARA and to the new-part rolling provision of GARA; alternatively, Appellant responded that GARA is unconstitutional. After a hearing, the circuit court entered an amended order granting summary judgment to Ap-pellees on the basis that Appellant’s claims were barred by GARA and that neither the fraud exception or the new-part rolling provision of GARA applied. In addition, the circuit court found in its amended order that Raytheon Co., Hawker Beechcraft Inc., and Beech Aircraft Corp. were improperly named defendants as they did not design or manufacture the subject aircraft and could have no liability to Appellant even if separate defendant and Appellee HBC were liable. The amended order also dismissed with prejudice the cross-claims against the Beech defendants. Finally, the amended order contained a certificate, pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure, stating that considerations of judicial economy and fundamental fairness to the |4litigants of preventing duplicate trials justified the entry of a final order with regard to the summary judgment granted to the Beech defendants.
Appellant has timely appealed the order granting summary judgment and raises three points for reversal. Appellant does not challenge the circuit court’s findings that HBC was the only properly named defendant and that GARA applies here and operates to bar this suit. Rather, Appellant challenges the circuit court’s findings as to the fraud exception and the new-part rolling provision of GARA. Appellant also raises a constitutional challenge to GARA.
Prior to addressing the merits of the arguments on appeal, however, a very brief review of the federal statute in question is helpful. A statute of repose proceeds on the basis that it is unfair to make someone defend an action long after a product is sold; it declares that “nobody should be liable at all after a certain amount of time has passed, and that it is unjust to allow an action to proceed after that.” Lyon v. Agusta S.P.A., 252 F.3d 1078, 1086 (9th Cir.2001). GARA establishes a federal statute of repose, and was enacted by Congress in 1994 to revitalize the general aviation industry by protecting manufacturers from the long tail of products-liability lawsuits arising out of accidents involving general aviation aircraft or component parts that are more than 18 years old. See id. at 1084 (citing H.R.Rep. No. 103-525, pt. I, at 1-4 (1994), reprinted in 1994 U.S.C.C.A.N. 1638); see also Wright v. Bond-Air, Ltd., 930 F.Supp. 300 (E.D.Mich.1996). GARA is a classic stat ute of repose, as it does not run from the date of injury but from what is effectively the date of the first transfer from the manufacturer. Lyon, 252 F.3d 1078. Unless one of GARA’s four exceptions applies, or unless | athe new-part rolling provision applies, GARA “supersedes any state law to the extent that such law permits a civil action ... to be brought after the applicable limitation period.” See Wright, 930 F.Supp. at 303 (quoting in pertinent part GARA § 2(d)).
One exception to GARA is at issue in this case, as is the rolling provision. The exception at issue here is sometimes referred to as the “fraud exception” or the “knowing misrepresentation” exception. The 18-year limitation of GARA does not apply if plaintiff pleads with specificity facts and proves that (1) the manufacturer knowingly misrepresented, concealed or withheld from the FAA required information that is material and relevant to the performance, maintenance, or operation of the allegedly defective aircraft or component part; and (2) the misrepresentation, concealment, or withholding is causally related to the harm allegedly suffered. GARA § 2(b)(1); see Wright, 930 F.Supp. 300. “It is not sufficient for a plaintiff to allege that the aircraft was negligently designed. The plaintiff must offer evidence that the defendant knowingly misrepresented or concealed or withheld this design defect in communications with the FAA.” Robinson v. Hartzell Propeller Inc., 326 F.Supp.2d 631, 647 (ED.Pa.2004).
The rolling provision at issue in this case is not a true exception, but is a rolling feature of the statute that begins a new 18-year period when a new part is installed as a replacement part. Although not a true exception, the rolling provision is nonetheless sometimes referred to as the “new-part exception.” Section 2(a)(2) of GARA sets out the rolling feature and provides that the addition of “any new component, system, subassembly, or other part which replaced another component, system, subassembly, or other part originally in, or which was |6added to, the aircraft, and which is alleged to have caused such death, injury, or damage” can start a new 18-year period of repose running from the date of completion of the addition of that part to the aircraft. See Lyon, 252 F.3d 1078.
Turning now to our standard of review in summary-judgment cases, we note our well-settled law 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. Skalla v. Canepari, 2013 Ark. 415, 430 S.W.3d 72. Once the moving party has established a prima facie case of entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. 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. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. Id. With respect to cases involving time-bars, albeit from statutes of limitation rather than statutes of repose, we note that “[u]nder Arkansas law, once it is clear from the face of the complaint that an action is barred by an applicable statute of limitations, the burden shifts to the plaintiff to prove that the limitation period was in fact tolled.” Summerhill v. Terminix, Inc., 637 F.3d 877, 880 (8th Cir.2011).
Appellee moved for summary judgment on the basis that the subject aircraft was delivered to its first purchaser on December 21, 1978, and therefore GARA’s period of repose 17ran on December 21, 1996, over 12 years before the fatal accident in question. As noted, Appellant does not challenge the circuit court’s findings in this regard.
As his first point for reversal, Appellant contends that the circuit court erred in granting summary judgment because a genuine issue of material fact exists with respect to whether the fraud exception to GARA applies here. The gist of Appellant’s argument is that HBC withheld or concealed material information from the FAA or misled or misinformed the FAA about the propensity of the Beech Baron to enter what Appellant describes as an uncontrollable flat spin. Under GARA’s fraud exception, GARA’s period of repose does not apply
if the claimant pleads with specificity the facts necessary to prove, and proves, that the manufacturer with respect to a type certificate or airworthiness certificate for, or obligations with respect to continuing airworthiness of, an aircraft or a component, system, subassembly, or other part of an aircraft knowingly misrepresented to the Federal Aviation Administration, or concealed or withheld from the Federal Aviation Administration, required information that is material and relevant to the performance or the maintenance or operation of such aircraft, or the component, system, su-bassembly, or other part, that is causally related to the harm which the claimant allegedly suffered.
GARA § 2(b)(1).
The Supreme Court of Washington has observed that there is a split of authority as to whether “knowingly” modifies only “misrepresented” or whether it also applies to “concealed” and “withheld.” Burton v. Twin Commander Aircraft LLC, 171 Wash.2d 204, 254 P.3d 778, 785 (2011) (comparing Rickert v. Mitsubishi Heavy Indus., Ltd., 923 F.Supp. 1453, 1456, rev’d on other grounds on reh’g, 929 F.Supp. 380 (D.Wyo.1996) (holding that knowledge is a separate element that must be pled and proved with regard to misrepresentation, |sconcealment, or withholding), with Butler v. Bell Helicopter Textron, Inc., 109 Cal.App.4th 1073, 135 Cal.Rptr.2d 762, 774 n. 25 (2003) (indicating that the knowing requirement applies only to misrepresentation)). We agree with the reasoning and conclusion of the Washington Supreme Court that, when construing GARA as a whole and with Congressional intent in mind, “[misrepresented,” “concealed,” and “withheld” together indicate that a mental state of “knowingly” applies to all of the means by which information may be kept from the FAA. Burton, 254 P.3d 778, 786. In addition, we agree that the requirement of knowledge extends to the nature of the information, such that a manufacturer would also have to know that the information was material and relevant. Id. Finally, we agree with the conclusion that GARA expressly provides that it is the claimant who must set out the facts to show that the fraud exception applies and must do so with specificity. Id. Accordingly, we conclude that GARA places the burden on Appellant to plead facts with specificity and to prove that the fraud exception applies.
Although Appellees argued at the hearing below that Appellant had not sufficiently pled facts to establish the fraud exception, that was not the basis of the circuit court’s ruling. We do note, as did the Sixth Circuit Court of Appeals in Crouch v. Honeywell International, Inc., 720 F.3d 333 (6th Cir.2013), that Appellant’s complaint clearly failed to plead sufficiently specific facts to invoke GARA’s fraud exception. The circuit court in this case |9did, however, rule that “the actions which the [Appellant] alleges would invoke the fraud exception do not constitute fraud as defined and contemplated by [GARA] and would not serve to invalidate or toll the statute of repose.” Thus, our review on appeal is focused on this ruling. And we are mindful that this case was decided on a motion for summary judgment rather than a motion to dismiss for inadequate pleading.
It was not until Appellant filed his response to Appellees’ motion for summary judgment that we see any factually specific allegations of fraud. To his response, Appellant attached several exhibits demonstrating ongoing communications over a period of years between the FAA, the National Transportation and Safety Board (“NTSB”), and the Beech defendants about the safety of general aviation aircraft and specifically about the flat-spin characteristic of the Beech Baron. On appeal, Appellant’s argument that the fraud exception applies focuses on the contention that the Beech defendants either misled the FAA or failed to report to the FAA in the following ways.
First, Appellant relies on the letter dated March 12,1981, from HBC to the FAA, which was a response to the FAA’s request for HBC to comment on a safety recommendation. Appellant maintains that HBC’s response in this letter was misleading because it criticized results of the tests conducted by the United States Army on the military |inversion of the Beech Baron as being due to inappropriate or unreliable flight procedures. Appellant maintains that the falsity of this response is demonstrated in HBC’s own internal engineering report dated June 9, 1982, where Appellant maintains that HBC admits to following the same procedures used by the Army. The specific flight procedures at issue here are the deceleration rate of one knot per second and whether full asymmetric power was held during a stall and for how long.
Second, but also in the March 12, 1981 letter, Appellant points to HBC’s statements on the Army’s use of neutralized ailerons in a stall. HBC stated that such was an “improper use of ailerons [and] is contrary to accepted practices under FAA training and certification procedures, which emphasize use of the ailerons in the stall to maintain wings level.” (Emphasis added.) Appellant maintains that this statement from HBC is false and contrary to HBC’s “Safely Information” pamphlet reissued in March 1981, wherein HBC directs pilots to maintain neutral ailerons during recovery from a spin.
Third, but also in the March 12, 1981 letter, Appellant points to HBC’s reference to statements made by Mr. Bobby Bray who conducted the spin testing on the military version of the Beech Baron. According to Appellant, Appellees misrepresented that Mr. Bray had no difficulty in recovering from a spin using the recovery methods recommended by HBC. Appellant contends that this statement was false and misleading, and points to a letter from the NTSB to HBC indicating that the NTSB had contacted Mr. Bray, who revealed, “[a]s outlined in his original statement regarding those tests, he indicated that the spin went flat, |nas a result of the application of asymmetric power and that all subsequent efforts to recover were futile until in desperation he applied power in the pro-spin direction.”
Fourth, and finally, Appellant points to HBC’s Pilot Operating Handbook and FAA Approved Airplane Flight Manual (“POH” or “flight manual”) and HBC’s “Safety Information” pamphlet as withholding material information about the sufficiency of HBC’s spin-recovery recommendations. Appellant argues that the Safety Information pamphlet instructs that a pilot is certain to become disoriented if an airplane flown under instrument conditions is allowed to enter a stall or spin because the pilot will not be able to reference the horizon. Yet, Appellant points out, the POH instructs a pilot to immediately engage in specified spin-recovery techniques, if a spin is entered inadvertently. Appellant contends that this is misleading because, according to the Safety Information pamphlet, a pilot who is flying under instrument controls will be disoriented in a spin and will not be able to immediately engage in HBC’s spin-recovery techniques. Appellant argues that, per applicable federal guidelines, HBC was under a continuing duty to disclose this dilemma to the FAA under 14 C.F.R. § 21.3 and was also under a duty to disclose to the FAA the adequacy of its procedures outlined in the POH.
Appellees respond by disputing Appellant’s interpretation of the March 1981 letter. Appellees contend that they criticized how late the Army pilot initiated recovery measures in the flight tests and how long asymmetric power was continued into the stall, and did not challenge the use of the industry standard-deceleration rate. Similarly, Appellees respond that it was not the use of neutral ailerons in general, but the timing of their use in the spin recovery |12as opposed to the stall, that Appellees challenged in the March 1981 letter. Ap-pellees respond further that its flight manual is consistent with its criticism of the Army flight tests and is not any evidence of misinformation or fraud. With respect to statements of Mr. Bray, Appellees respond that HBC had already supplied copies of Mr. Bray’s statement to the FAA prior to the March 12, 1981 letter, thus there was no knowing misrepresentation or concealment of his statements. As for Appellant’s challenge to the dilemma described in the POH and Safety Information pamphlet, Appellees respond that Appellant’s challenge demonstrates a basic misunderstanding of two principles: (1) spin avoidance is ideal, and immediate action is appropriate as soon as the pilot experiences the first sign of loss of control; and (2) the laws of physics cannot be changed. Appellees maintain that by advising pilots to take immediate action because they will become disoriented without reference to the horizon is merely stating sound advice and scientific truth on the laws of physics. Finally, Appellees respond that, despite having no duty to disprove the fraud exception, HBC volunteered a plethora of evidence showing that the FAA received all required material information relevant to the stall and spin characteristics of the Beech Baron aircraft.
In reply, Appellant contends that, by arguing the facts and substance of the March 1981 letter as HBC perceives them to be, HBC has demonstrated that a genuine issue of material fact exists as to whether and to what extent this letter misled the FAA.
At first glance, Appellant’s argument in reply appears meritorious, as generally speaking, fraud is a question of fact. See, e.g., Delanno, Inc. v. Peace, 366 Ark. 542, 237 S.W.3d 81 (2006) (stating that although the question of fraudulent concealment sufficient to toll the | ^statute of limitations is usually one of fact and, thus, unsuited for summary judgment, a trial court may resolve the question as a matter of law when there is no evidentiary basis for reasonable differences of opinion). However, upon review of all the information volunteered by Appellees as well as all of the exhibits attached to Appellant’s response to the motion for summary judgment, it is clear that what we have in the present case is a years-long discussion occurring via letters back and forth between the Beech defendants, the FAA, and the NTSB that establish a genuine concern on the part of all those involved as to the safety of twin-engine general aviation aircraft. In reading these letters and internal documents of HBC’s such as the engineering reports, the flight manual, and the Safely Information pamphlets, it is clear that both the FAA and the Beech defendants disagree at various points. But it is equally clear that despite the disagreement, there is nothing in any of the letters or internal documents to indicate a knowing misrepresentation, concealment, or withholding of material information that was causally related to the crash and subsequent deaths of Appellant’s decedents. On the contrary, the letters are evidence of the Beech defendants’ open and candid communications with the FAA about the safety of the flat-spin characteristic of the subject aircraft. Appellant thus falls woefully short of demonstrating any intent the Appellees knowingly misled, concealed, or withheld material and relevant required information from the FAA. Accordingly, the circuit court’s finding that “the actions which the Plaintiff alleges would invoke the fraud exception do not constitute fraud as defined and contemplated by the act and would not serve to invalidate or toll the statute of repose” is affirmed.
114For his second point for reversal, Appellant contends that there is a genuine issue of material fact with regard to whether the statute of repose has been rolled by HBC’s publication of an allegedly defective flight manual. As noted, the rolling feature of GARA extends the 18-year statute of repose “with respect to any new component, system, subassembly, or other part which replaced another component, system, subassembly, or other part originally in, or which was added to, the aircraft, and which is alleged to have caused such death, injury, or damage.” GARA § 2(a)(2).
Appellant argues that the original version of the POH was produced in 1976, and then supplemented in 1980, 1983, 1990, 1994, 1997, and 2002. According to Appellant, the original POH provided limited instructions with regard to spin avoidance that were based on the “best available information.” Appellant points out that from 1998 to 2004, HBC issued a series of “Safety Communiques” to its authorized service centers, dealers, operators, and owners of record for all Beech Baron airplanes on the subject of spin-avoidance and spin-recovery characteristics. Appellant then points to the 2002 supplement to the POH where “[n]o [c]hange” is indicated with respect to the section related to “Handling, Service] & Maintenance].”
Appellant thus argues that none of the information included in the Safety Communiques was published in the most recent version of the POH prior to the accident in question. Appellant maintains that a jury could easily conclude that the POH, as revised, was defective in that it did not contain the most updated warnings and instructions regarding spin avoidance and spin control, which were the alleged proximate cause of the accident at issue 11shere. Appellant also argues that further evidence of Appellees’ failure to provide a meaningful POH can be found in its letter to the FAA of May 31, 1991, in which Appellees discuss the results of tests that Appellees conducted relating to the effect of the installation of a V.G. Systems vortex generator on the Beech Baron planes. In that letter, Appellant points out that Ap-pellees bring to the FAA’s attention certain characteristics of the modified airplane that are not defined in the POH. Appellant also emphasizes that although Appellees stated in the letter that they were considering putting the test results of the modified airplane in a Safety Communique, such information was never included in the POH.
Appellees respond that Appellant’s allegations are insufficient to invoke GARA’s new-part rolling provision as a matter of law. Appellees maintain that passing up the opportunity to revise the POH within 18 years of the accident is not analogous to revising the POH in a defective way. Ap-pellees respond that the May 31, 1991 letter concerned an after-market kit that was not manufactured by HBC; and HBC could therefore not include any information about that after-market kit in HBC’s POH. Appellees also respond that Appellant is in effect raising a “failure-to-warn” argument and that the failure to warn of a newly perceived problem does not amount to the replacement of a part. Accordingly, Appellees respond that the case law uniformly holds that there must be a substantive change to the POH that is causally related to the accident in order to roll the GARA repose period and start the running of a new 18-year period.
Appellant relies primarily on Caldwell v. Enstrom Helicopter Corp., 280 F.3d 1155 (9th Cir.2000) to support his argument that a revised aircraft manual constitutes a new system or [ 1fiother part of an aircraft so as to fall within GARA’s rolling provision. Appellant’s reliance on Caldwell is misplaced. Caldwell does indeed recognize that a revised FAA approved flight manual can constitute a new part of an aircraft such that GARA is rolled. However, Caldwell does not stand for the proposition that the complete omission of material from a flight manual triggers the rolling provision of GARA. Rather, Caldwell stands for the proposition that GARA’s rolling provision is triggered when a manufacturer “substantively alter[s], or delete[s], a warning ... from the manual within the last 18 years.” Id. at 1158. According to Caldwell, in order for a revised flight manual to constitute a new part that triggers the rolling of the GARA period of repose, the revision must either contain wrong instructions or delete existing warnings or information. “No change,” which is what Appellant argues occurred here with respect to the POH in question, is not a deletion or alteration of information that previously appeared in the manual, but is an alleged omission of information, or, in other words, a failure to warn. See Crouch, 720 F.3d 333(observing that if claims for negligently failing to warn in manual revisions were not barred by GARA’s period of repose, plaintiffs could artfully plead suits arising out of design defects as “failure-to-warn” claims, thereby defeating Congress’s intent); see also Lyon, 252 F.3d 1078 (rejecting proposition that failure to warn of a newly perceived problem in revised manual is analogous to a replacement part triggering new period of repose).
Appellant’s argument as to the failure to revise the POH to include a warning about the flat-spin issue is contrary to the foregoing case law and is therefore without merit. The circuit court’s finding that “as a matter of law ... the [Appellees’] failure to revise the Subject 117Aircrafts’s flight manual in the ways [Appellant] suggests is not a basis to invoke GARA’s new part provision” is therefore affirmed.
As his final point for reversal, Appellant raises a constitutional challenge to GARA, arguing that the statute violates the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Appellant argues that GARA, by its terms, places an unreasonable and arbitrary restraint on a person’s ability and right to be compensated for a loss that was proximately caused by a third party. Appellees respond that the constitutionality of GARA has been upheld, even for lawsuits involving passengers on the same airplane. E.g., Lyon, 252 F.3d 1078(upholding GARA as “assuredly rational,” even though plaintiffs who filed actions before GARA’s effective date received “special protection” while those plaintiffs who filed after GARA’s effective date were time-barred). Appel-lees respond further that an even more recent challenge to GARA’s constitutionality has failed both due-process and equal-protection challenges. In support, Appellees cite Bianco v. Cessna Aircraft Co., 1 CA-CV 08-0647, 2004 WL 3185847, ¶65 (Ariz.Ct.App. Oct. 19, 2004) (upholding Fifth Amendment substantive due-process challenge because there is no property interest in common-law claims that are not reduced to judgment and because GARA is not arbitrary or irrational; and upholding Fifth Amendment equal-protection challenge because GARA’s line-drawing is not arbitrary but strikes a reasonable balance “between the competing interests of fairly compensating accident victims and keeping the price of general aviation aircraft at an affordable level”).
hsWe are precluded from reaching Appellant’s constitutional argument because the circuit court did not rule on it. Appellant raised this constitutional argument for the first time in his response to Appellees’ motion for summary judgment. The abstract does not reveal that Appellant ever argued the constitutional challenge at the hearing, although Appellees very briefly defended the constitutionality at the hearing. In any event, the circuit court did not rule on this issue or mention it in the order granting summary judgment. It is Appellant’s burden to obtain a ruling to preserve an issue for appeal, and the failure to do so precludes our review. Neal v. Sparks Reg’l Med. Ctr., 2012 Ark. 328, 422 S.W.3d 116.
The circuit court specifically ruled that GARA applied and that it barred Appellant’s suit, that Appellant’s allegations in support of the fraud exception did not constitute fraud as defined in GARA, and that the new-part rolling provision was not triggered. The order was silent as to the constitutional claim, and we are therefore precluded from reviewing that argument on appeal. TEMCO Constr., LLC v. Gann, 2013 Ark. 202, 427 S.W.3d 651 (stating that we do not presume rulings on constitutional challenges to statutes even when the trial court’s decision enforces or applies the statute). We also note that, because the circuit court made specific findings as to the application of GARA and the inapplicability of the fraud exception and the new-part rolling provision, our recent decision in Hardin v. Bishop, 2013 Ark. 395, 430 S.W.3d 49, does not require that we address the constitutional argument in the absence of a specific ruling.
The circuit court’s order granting summary judgment to Appellees on Appellant’s claims and dismissing with prejudice the cross-claims against them is affirmed.
Affirmed.
. Beginning with Appellant’s second amended complaint, as that is the first version of the complaint appearing in the record, and concluding with the fifth amended complaint, we see the same following conclusory allegations: the Beech defendants “misrepresented, and/or concealed, and/or withheld information of the problem associated with the flat spin characteristic of the aircraft” and "[t]he knowing misrepresentation, omissions, and concealment ... are related to information that was material and relevant ... and directly relate to the cause of the accident and [Appellant’s] injuries and deaths.” The Sixth Circuit Court of Appeals observed that similar allegations were conclusory and insufficient to satisfy GARA’s requirement of pleading specific facts. See Crouch, 720 F.3d 333. | [
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ROBIN F. WYNNE, Associate Justice
| iHerman L. White pled guilty to first-degree battery of a law enforcement officer acting in the line of duty and possession of a firearm by certain persons. He now appeals from the Hempstead County Circuit Court’s order denying his petition for writ of error coram nobis. We affirm.
The instant offenses occurred on March 23, 2012, when Arkansas State Police Corporal Pete Penney initiated a traffic stop of the vehicle White was driving. White cooperated during field-sobriety testing, but he resisted when Corporal Penney attempted to place him under arrest for driving while intoxicated. White fired- a .357 Magnum revolver at Corporal Penney, and Penney’s body armor absorbed at least one round at close range. Penney returned fire, and White was hit. White was on probation at the time these events occurred.
12Puring the pendency of the case,- two psychological evaluations were performed on White: one at the Arkansas State Hospital on July 3, 2012, and one at the request of the defense on August 6, 2013. On November 18, 2013, White entered a negotiated plea of guilty to charges of first-degree battery of a law enforcement officer acting in the line of duty (a Class Y felony) and possession of a firearm by certain persons (a Class B felony), for which he was sentenced as a habitual offender with four or more prior felony convictions. White was facing a sentence of not less than ten and not more than life imprisonment for the Class Y felony; the State recommended sixty years’ imprisonment. White was-sentenced to sixty and forty years’ imprisonment, respectively, to be served concurrently. He did not file a petition pursuant to Arkansas Rule of Criminal Procedure 37.1.
On March 20, 2014, White filed a peti7 tion for writ of error coram nobis in the Hempstead County Circuit Court. Attached to the petition was a time computation card from the Arkansas Department of Correction indicating that White was required to serve one hundred percent of his sixty-year sentence for first-degree battery. White alleged that he was “adamant about wanting to go to trial” and that he “only agreed to plea after undersigned counsel advised him that he would be eligible for parole. Undersigned counsel made no guarantees about whether he would be paroled, but, undersigned counsel advised Mr. White that he would be paroled.” White went on to allege in the petition that he was denied the right to effective assistance of counsel, causing him to accept a plea that was “not knowingly |-¡entered upon advice of counsel,” and to acknowledge that his recourse was the filing of a petition under Arkansas Rule of Criminal Procedure 37. Since the time, for filing a Rule 37 petition had expired, White stated that he was left with no other remedy than to seek to have the judgment set aside with a petition for writ of error coram nobis. He stated:
In the instant case, given Mr. White’s education and mental capacity, he was easily coerced into pleading guilty. Pri- or to the plea, Mr. White was allowed to speak with his sisters while undersigned counsel was present. Mr. White’s, sisters explained the same advice that led him to enter into this .plea.
White asked the circuit court to set aside the judgment and grant him a new trial. The State responded to the petition, and the circuit court entered an order denying it and citing a colloquy at the plea hearing that indicated that White understood that the Arkansas Department of. Correction would determine his parole eligibility, regardless of what his attorney or the prosecutor believed. The circuit court found that White had not been denied effective assistance of counsel. White filed a timely notice of appeal from the order denying his petition for writ of error coram nobis.
A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Howard v. State, 2012 Ark. 177, at 4, 403 S.W.3d 38, 42. The function of the writ is to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. Id. The writ is issued only under compelling circumstances to achieve justice and to address errors of the most fundamental nature, and it is available to address only certain errors that are found in one of four categories: (1) insanity at the time |4of 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. Nelson v. State, 2014 Ark. 91, at 3, 431 S.W.3d 852, 854. The standard of review of a denial of a petition for writ of error coram nobis is whether the circuit court abused its discretion in denying the writ. Wright v. State, 2014 Ark. 25, 2014 WL 260993 (per curiam).
On appeal, White argues that he was vulnerable to coercion because of his illiteracy, age, poor health, and his “marginal capacity to effectively assist counsel with his defense despite scattered memory loss,” mental disease, and long-standing diffuse mental defects. He asserts that he relied heavily on his family for advice and counsel. Thus, White argues that when he spoke with his sisters prior to entering his plea, they coerced him into accepting the plea based on the incorrect belief that he would be eligible for parole. While White attempts to couch his claims in terms of a coereed-guilty plea, the actual basis for his claims is ineffective assistance of counsel with the underlying claim that his plea was not entered intelligently and voluntarily because of the erroneous advice he received regarding his parole eligibility. These are matters that can only be brought pursuant to Rule 37, not in a petition for writ of error coram nobis. E.g., Nelson v. State, 2014 Ark. 91, at 5-6, 431 S.W.3d 852, 856 (“[W]e have been clear that error coram nobis proceedings are not a substitute for proceeding under Rule 37.1 to challenge the validity of a guilty plea, nor are the two proceedings interchangeable.”). As White acknowledges in his brief, ineffective-assistance-of-counsel claims are not cognizable in error-coram-nobis proceedings under our state law and coram-nobis proceedings are not to be used as a substitute for claims |fiof ineffective assistance of counsel. State v. Tejeda-Acosta, 2013 Ark. 217, at 8, 427 S.W.3d 673, 678.
As for White’s claim that his sisters coerced him into pleading guilty, he does not contend that they actually threatened him or did anything to make his plea entered under fear or duress; he merely alleges that his sisters incorrectly advised him that he would be eligible for parole, apparently repeating the erroneous advice of White’s attorney. White claims that he “relied heavily upon his family for advice and counsel.” White’s allegations do not rise to the level of coercion, which 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). Thus, White has submitted a bare allegation without any facts to support a finding that he was coerced into pleading guilty. See Wright v. State, 2014 Ark. 25, 2014 WL 260993 (per curiam) (holding that a claim that a guilty plea was coerced in the sense that it was involuntarily and unknowingly given as a result of erroneous advice did not constitute a coerced plea within the scope of a coram-nobis proceeding).
Because White’s petition for writ of error coram nobis did not state a cognizable claim for relief, the circuit court did not abuse its discretion in denying his petition.
- Therefore, we affirm.
Affirmed.
. Because appellant pled guilty in this case, White was not required to petition this court to reinvest jurisdiction in the circuit court. See, e.g., McJames v. State, 2010 Ark. 74, 2010 WL 569752. | [
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COURTNEY HUDSON GOODSON, Associate Justice
. | Appellant Cody Lee Martin appeals the order entered by the Ouachita County Circuit Court denying his motion to set aside his plea of nolo contendere to a single count of sexual assault in the first degree. For reversal, Martin contends that the circuit court erred and abused its discretion by not permitting him to withdraw his plea. We affirm the circuit court’s decision.
By an amended felony information, the prosecuting attorney of Ouachita County charged Martin with three counts of sexual assault in the first degree, a violation of Arkansas Code Annotated section 5-14-124(a)(1)(C) (Repl. 2013). Pursuant to the referenced statute, a person commits this offense if the person engages in sexual intercourse or deviate sexual activity with a minor who is not the actor’s spouse and the actor is a person in a position of trust or authority over the victim. Ark. Code Ann. § 5-14-124(a)(l)(C). According to the probable-cause affidavit, Martin, an agriculture teacher at Camden Fairview High School, 12engaged in an ongoing sexual relationship with a student, which began when the victim was fourteen years old. During the course of the proceedings, the prosecution filed a motion stating its intent to introduce evidence of Martin’s prior sexual advances toward other underage females pursuant to Rule 404(b) of the Arkansas Rules of Evidence.
After several continuances, the circuit court scheduled a trial date for May 21, 2013. As a result of negotiations, the parties entered into a plea agreement filed on May 17, 2013. In it, while maintaining his innocence of the charges, Martin agreed to enter an Alford plea to one count of sexual assault in the first degree, and in exchange, the prosecution agreed to recommend a sentence- of eight years in prison and to dismiss the remaining two counts of first-degree sexual assault. At the plea hearing held on May 17, 2013, defense counsel stated that he had advised Martin that each offense carried a maximum sentence of thirty years in prison. Counsel explained that, although Martin did not admit guilt, Martin had agreed that, given the strength of the State’s evidence, it was in his best interest to enter an Alford plea to one count of first-degree sexual assault, as opposed to taking the risk of a jury finding him guilty of all three counts and of his receiving a sentence greater than the recommended eight-year term of imprisonment. After the circuit court expressed the opinion that an Alford plea entails entering a guilty plea, the following exchange occurred between the court and defense [¡¡counsel:
The Court: But the plea has to be guilty pursuant to Alford, rather than run the risk of taking it to trial. Alford is a guilty plea.
I mean what he’s saying under Alford is a person will decide to plead guilty and take the plea agreement rather than run the risk of going to trial where he could face greater penalties. The Court doesn’t have to ask him to say what he did. The State will offer that version of proof. But it’s actually a guilty plea.
Defense Counsel: Your Honor, our agreement was that he would not be required to admit that he committed sexual assault in the first degree. Now whether that’s under Alford or a no contest, that doesn’t really matter. But what he’s not prepared to do is to admit that he committed the offense of sexual assault in the first degree.
He’s willing to accept the fact that the State has sufficient evidence from which the jury could make that finding, and rather than undertake that risk — and I’ve already said all of this — he thinks that this is in his best interest. .
The Court: The Court understands, but I’m just saying—
Defense Counsel: Your Honor, Mr. Smart advises me that the State would have no objection to a nolo contendere, no contest plea. And that would be satisfactory with Mr. Martin, provided he’s not required to admit that he committed the offense of sexual assault.
The Court: Well, no contest, he doesn’t have to say anything.
Defense Counsel: Okay. Then he’ll enter his plea of nolo contendere, and we’ll withdraw the request that the plea be entered under North Carolina v. Alford.
And, Your Honor, what I’m telling him is that he will not be required to admit his guilt to that particular offense.
The Court: He will not be required to offer a factual basis for the plea.
Defense Counsel: Okay, do you understand that, Cody?
Mr. Martin: Yes, sir, I understand that.
^Accordingly, Martin pled nolo conten-dere to a single count of sexual assault in the first degree. After the prosecution presented the factual basis for the plea, the circuit court accepted the plea and pronounced a sentence of eight years in prison.
On May 23, 2013, through different counsel, Martin filed a motion to withdraw the plea of nolo contendere pursuant to Rule 26.1 of the Arkansas Rules of Criminal Procedure. In this motion, Martin as- ■ serted that he had steadfastly maintained his innocence and that he had learned that, in order to be eligible for parole, he must complete the Reduction of Sexual Victimization Program (RSVP) which requires him to admit his guilt of the crime. On June 6, 2013, the circuit court entered a sentencing order reflecting the plea of nolo contendere to the offense of first-degree sexual assault and a term of eight years’ imprisonment. The order also reflects the dismissal of two counts of sexual assault in the first degree.
On September 9, 2013, the circuit court conducted a hearing on the motion to withdraw the plea. At the hearing, Martin clarified that his grounds for withdrawing the plea were that he had received ineffective assistance of counsel and that he did not voluntarily enter the nolo contendere plea. In this regard, Martin testified that he was told that he would serve no longer than two years in prison and that at present his parole date exceeded that period of time. He also stated that his attorney did not advise him about the RSVP. Martin testified that his nolo contendere plea made him ineligible for the program and that he would |5not be paroled without completing the program. In addition, Martin testified that he considered taking the plea and a sentence of eight years to avoid the risk of a greater sentence and that he also accepted the plea agreement because of financial concerns and the desire “not to humiliate my family any further.”
At the conclusion of the hearing, the circuit court found that Martin’s complaints concerned parole eligibility and thus the “collateral effects” of the plea. Further, the court found that withdrawing the plea was not necessary to correct a manifest injustice. Martin appeals the circuit court’s order denying the motion to withdraw his plea.
As his argument on appeal, Martin contends that the circuit court erred in concluding that his complaints about parole eligibility were “collateral effects” of his plea that do not warrant relief. He argues that his counsel erroneously ad vised him that he would be paroled in two years; that his counsel did not inform him about the RSVP; and that his parole eligibility hinged oh his admission of guilt and the completion of the program. Martin asserts that, under these circumstances, the circuit court erred in finding that he was not denied effective assistance of counsel and that his plea was voluntarily entered.
At the outset, we note that Martin timely filed the motion to withdraw his plea pursuant to Rule 26.1 and that the circuit court properly considered the motion under this rule. See Dockery v. State, 2012 Ark. 109, 2012 WL 745304 (per curiam) (holding that, because the motion to withdraw was filed before the commitment order was entered, the circuit court erred in ruling that it lacked jurisdiction to consider a motion to withdraw pursuant to Rule 26.1 after the entry of the commitment order). When a motion to withdraw a plea of guilty or nolo | ^contendere is filed after a circuit court’s acceptance of the plea but before the entry of judgment, the circuit court has the discretion to grant the motion to correct a manifest injustice. Ark. R. Crim. P. 26.1(a). As relevant here, withdrawal of a guilty plea or a plea of nolo contendere is deemed necessary to correct a manifest injustice if the defendant proves to the satisfaction of the circuit court that he was denied effective assistance of counsel or that the plea was involuntary. Ark. R. Crim. P. 26.1(b)(i) & (iii).
To withdraw a plea under Rule 26.1, there is no distinction made between pleas of guilty and nolo contendere. Scott v. State, 2012 Ark. 159 (per curiam); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996) (per curiam). Claims of ineffective assistance of counsel made pursuant to Rule 26.1 are governed by the two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Duncan v. State, 304 Ark. 311, 802 S.W.2d 917 (1991) (per curiam) (citing Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). Under this test, the defendant must show that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. In order to satisfy the second requirement of demonstrating prejudice, the defendant must show that there is a reasonable probability that, but for counsel’s error, he would not have pleaded guilty and would have insisted on going to trial. Id.
Supreme Court precedent establishes that a guilty plea “not only must be voluntary,” but it must also be a knowing, intelligent act “done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). |7However, the accused need only be informed of the “direct consequences” of the guilty plea. Id. at 755, 90 S.Ct. 1463. It is not necessary to inform the defendant of all the indirect or collateral consequences of the plea. George v. Black, 732 F.2d 108 (8th Cir.1984); United States v. Lambros, 544 F.2d 962 (8th Cir. 1976). The distinction between “direct” and “collateral” consequences turns on “whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” Lambros, 544 F.2d at 966.
Consistent .with these principles, we have observed that the United States Constitution does not require a defendant to be furnished with information about parole eligibility in order for the defendant’s plea to be voluntary, and erroneous advice on parole eligibility does not automatically render a plea involuntary. Haywood v. State, 288 Ark. 266, 704 S.W.2d 168 (1986) (citing Hill, supra). In the context of cases involving legal advice regarding a defendant’s eligibility for parole, we have distinguished between cases in which no advice about parole is given and those in which positive representations directly resulted in the defendant’s acceptance of the plea bargain. Riddle v. State, 2015 Ark. 72, 2015 WL 854327. We have held that there is no constitutional requirement for defense counsel to inform his or her client about parole eligibility and that the failure to impart such information does not fall outside the range of competence demanded of attorneys in criminal cases. Id. On the other hand, where an attorney. provides incorrect advice “of a solid nature, directly affecting [a defendant’s] decision to plead guilty,” we have recognized that such positive representations may amount to ineffective assistance of counsel. Buchheit v. State, 339 Ark. 481, 485, 6 S.W.3d 109, 112 (1999) (quoting Hill v. Lockhart, 894 F.2d 1009, 1010 (8th Cir. 1990)). An attorney’s |serroneous advice about parole eligibility will support a finding of ineffective assistance of counsel when it is clear that the defendant’s parole eligibility was the “basis of the bargain” with the State. Propst v. State, 335 Ark. 448, 452, 983 S.W.2d 405, 407 (1998) (per curiam).
In the instant case, Martin has failed to demonstrate that the withdrawal of his plea is necessary to avoid a manifest injustice. Neither in his petition nor his testimony at the hearing did Martin state that he would have insisted on going to trial had his counsel adequately and accurately informed him of the consequences of his plea. On the contrary, Martin’s testimony indicates- that he was motivated to accept the plea to avoid the risk of receiving a greater sentence at trial and out of financial concerns and the best interests of his family. Accordingly, we find no abuse of discretion in the circuit court’s denial of Martin’s motion to withdraw his plea of nolo contendere. Propst, supra (finding no error when the decision to plead guilty was motivated by the likelihood that additional evidence would lead to the filing of a capital-murder charge); Haywood, supra (holding that the prejudice requirement of Strickland was not satisfied where the appellant did not allege that he would have insisted on going to trial).
Affirmed.
. Under ■ the Supreme Court's decision in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), a court may accept a guilty plea from a defendant who maintains his innocence, provided the court finds an adequate factual basis for the plea of guilty. Davis v. State, 366 Ark. 401, 235 S.W.3d 902 (2006). “Typically, a criminal defendant will utilize an Alford plea when he-‘intelligently concludes that his interests require entry of a guilty plea’ in light of strong evidence of actual guilt with the intention of limiting the penalty to be imposed.” Id. at 402, 235 S.W.3d at 903 (quoting Alford, 400 U.S. at 37-38, 91 S.Ct. 160).
. A plea of nolo contendere is one by which the defendant does not contest or admit guilt. Black's Law Dictionaiy 1269 (9th ed. 2009). See also Patterson v. Odell, 322 Ark. 394, 909 S.W.2d 648 (1995) (describing the plea as one that may be entered with leave of court to a criminal indictment by which the defendant does not admit or deny the charges, though a fine or sentence may be imposed pursuant to it). | [
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PER CURIAM
hln 1983, a jury found petitioner Rodney Williams guilty of aggravated robbery and murder in the first degree. He was sentenced as a habitual offender to an aggregate term of life imprisonment. We affirmed. Williams v. State, 281 Ark. 91, 663 S.W.2d 700 (1983), cert. denied, 469 U.S. 980, 105 S.Ct. 382, 83 L.Ed.2d 317 (1984) (Williams I). He subsequently filed a petition here seeking relief pursuant to our postconviction rule, Arkansas Rule of Criminal Procedure 37.1 (1983). The petition was denied. Williams v. State, CR-83-94, 1986 WL 1464 (Ark. Jan. 16, 1986) (unpublished per curiam) (Williams II).
In 2005, more than twenty-one years after he was convicted, petitioner filed in this court a pro se petition in which he requested permission to proceed in the trial court with a petition |2for writ of error coram nobis. The petition was denied. Williams v. State, CR-83-94, 2005 WL 2886023 (Ark. Nov. 3, 2005) (unpublished per curiam) (Williams III). Petitioner has now filed a second petition in this court entitled “Writ of Error Coram Nobis or Motion for New Trial.” We construe the petition as a second request that jurisdiction be reinvested in the trial court so that petitioner may proceed with a petition for writ of error coram nobis.
A petition for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Cromeans v. State, 2013 Ark. 273, 2013 WL 3179379 (per curiam).
A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Id. 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. Cromeans, 2013 Ark. 273, 2013 WL 3179379. 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. McFerrin v. State, 2012 Ark. 305, 2012 WL 3366058 (per curiam). The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Williams v. State, 2011 Ark. 541, 2011 WL 6275431 (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 first petition, petitioner alleged that various police officers conspired to convict him by coercing his statements and then lying to the court about the circumstances under which the statements were given. He further contended that the prosecution knew the officers’ testimony was untrue and withheld the testimony of two other officers who could have offered testimony favorable to the defense at the hearing on his motion to suppress the statements. He argued that the withhold ing of the witnesses’ testimony amounted to withholding exculpatory evidence and violated the right to due process guaranteed by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). As his second ground to proceed in the trial court, petitioner alleged that erroneous evidence was used to establish that he was a habitual offender. After setting out the due diligence requirement in making an application for coram-nobis relief, this court concluded that it was abundantly clear that petitioner was aware at the time of trial that certain police officers had testified concerning his' statements at the suppression hearing and at his trial but other officers had not. We then held that, even if the prosecution had somehow hidden the fact of the other officers’ existence, petitioner did not explain why he could not have learned about the officers at the time of trial or, with diligence, produced the issue without a delay of more than twenty years. Finally, we held that petitioner was also fully aware at the time of trial of evidence put forth by the prosecution to establish that he was a habitual offender. Williams III, slip op. at 2.
Now, in his second petition, petitioner again alleges a Brady violation based on the | repeated claim that various police officers gave false testimony regarding the circumstances of his confession and that the prosecution withheld the testimony of other officers who would have offered testimony to support his motion to suppress statements. Petitioner also again asserts that he is entitled to coram-nobis relief because erroneous evidence, namely two suspended sentences, should not have been considered in determining his status as a habitual offender. These two claims are an abuse of the writ, and we decline to exercise our discretion to permit the renewal of petitioner’s previous application on these points because he fails to state additional facts sufficient to provide grounds for the writ. See Rodgers v. State, 2013 Ark. 294, at 3-4, 2013 WL 3322344 (per curiam) (“[A] court has the discretion to determine whether the renewal of a petitioner’s application for the writ, when there are additional facts presented in support of the same grounds, will be permitted.”). Petitioner alleges no facts in the petition now before us that are sufficient to distinguish his instant claims of a Brady violation and improper consideration of evidence from the claims that he advanced in his first petition. He did not establish a basis for issuance of the writ in his first petition based on these claims, and his reassertion of the same claims in the instant petition is a misuse of the remedy.
Petitioner next relies on former Arkansas Rule of Criminal Procedure 36.4 to support a claim that he is entitled to relief because the trial court did not advise him of his right to raise collateral issues on appeal, namely the issue of ineffective assistance of trial counsel. Petitioner, who was represented by counsel on direct appeal, further appears to contend that Rule 36.4 provided a posttrial rather than a postconviction remedy and that he was denied the right to | s“new counsel” to raise an ineffective-assistance claim on appeal. Because petitioner fails to state a fundamental error extrinsic to the record which would have resulted in a different verdict had the fact been known at trial, there is no cause to reinvest the trial court with jurisdiction to consider a coram-nobis petition based on this claim. See Pacee v. State, 332 Ark. 184, 962 S.W.2d 808 (1998).
Finally, petitioner raises a number of claims of ineffective assistance of counsel. Such allegations are outside the purview of a coram-nobis proceeding. See Mason v. State, 2014 Ark. 29, 2014 WL 260983 (per curiam). Allegations that counsel did not render the effective assistance guaranteed by the Sixth Amendment are properly raised in a timely petition for postconviction relief pursuant to Rule 37.1. Mason, 2014 Ark. 29, 2014 WL 260983. A petition for writ of error coram nobis is not a substitute for proceeding under Rule 37.1. Id.
To the extent that petitioner is raising the argument that, because he was not given an adequate opportunity to present claims of ineffective assistance of counsel, this court should reinvest jurisdiction in the trial court to entertain these allegations based on Martinez v. Ryan, — U.S. -, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), his reliance on Martinez is misplaced. The Martinez Court held that, when state law requires a prisoner to use a collateral attack rather than a direct appeal to raise a claim that his trial attorney was not effective under the Sixth Amendment, the prisoner’s failure to comply with state rules in bringing his collateral attack on the judgment will no longer bar a federal judge from granting' habeas relief on that claim, if the prisoner had no attorney to represent him in the collateral proceeding or that attorney was ineffective and if the petition filed in the state court had a meritorious claim. Martinez does not require this court to expand the scope of a coram-nobis proceeding to allow for issuance of a writ of error coram nobis to permit a collateral challenge to a judgment of conviction based on claims of ineffective assistance of counsel. Jarrett v. State, 2014 Ark. 272, 2014 WL 2566093 (per curiam). Again, a coram-nobis proceeding is an exceedingly narrow remedy that requires a showing of facts that were extrinsic to the record that would have prevented rendition of the judgment at trial. Pitts v. State, 2014 Ark. 132, 2014 WL 1096185 (per curiam). Petitioner’s claim that he was not afforded an adequate opportunity to present claims of ineffective assistance of counsel is not within the scope of such a proceeding. We decline to refashion the writ to afford petitioner a remedy. See Zulpo v. State, 2014 Ark. 14, 2014 WL 197837 (per curiam) (holding that the scope of a coram-nobis proceeding would not be expanded to include an argument outside the four categories recognized as being within the purview of a coram-nobis proceeding).
As the State urges and as we held in Williams III, petitioner has failed to exercise due diligence in bringing a coram-nobis petition. Although there is no specific time limit for seeking a writ of error coram nobis, due diligence is required in making an application for relief. Philyaw v. State, 2014 Ark. 130, 2014 WL 1096201 (per curiam). In the absence of a valid excuse for delay, the petition -will be denied. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771. Due diligence requires that (1) the defendant be unaware of the fact at the time of the trial; (2) the defendant could not have, in the exercise of due diligence, presented the fact at trial; and (3) the defendant, after discovering the fact, did not delay bringing the petition. Id. The requirements are a sequence of events, each of which a petitioner must show to prove due diligence. Wright v. State, 2014 Ark. 25, 2014 WL 260993 (per curiam). Here, petitioner waited more than thirty-one years after the judgment of conviction before filing this second petition for coram-nobis relief. Even if petitioner had presented grounds sufficient to support issuance of the writ, his failure to act with due diligence, alone, would constitute good cause to deny the petition.
Petition denied.
. When petitioner was convicted, the rule required a petitioner to obtain leave from this court before filing a Rule 37.1 petition in the trial court. The rule was abolished by this court effective July 1, 1989. In re Abolishment of Rule 37 & the Revision of Rule 36 of the Arkansas Rules of Criminal Procedure, 299 Ark. 573, 770 S.W.2d 148 (1989). The rule was reinstated in a revised form effective January 1, 1991. In re Reinstatement of Rule 37 of the Arkansas Rules of Criminal Procedure, 303 Ark. 746, 797 S.W.2d 458 (1990). The revised rule did not require petitioners to gain leave of this court before proceeding in the trial court.
. As with the first such petition, the petition was assigned the same docket number as the direct appeal in the case.
. Appellant appears to be confused with regard to our criminal procedural rules in effect at the time of his conviction. At the time that petitioner was convicted in 1983, postconviction Rule 37.1 was in effect, and the trial court was not required pursuant to Rule 36.4 to advise him of his right to raise the issue of ineffective assistance of counsel. At the time of appellant’s conviction, Rule 36.4 provided, in pertinent part, that, "[a]t the time sentence is pronounced and judgment entered, the trial judge must advise the defendant of his right to appeal, the period of time prescribed for perfecting the appeal, and either fix or deny the bond.” When Rule 37 was abolished, effective July 1, 1989, we amended Rule 36.4 to require the trial court upon sentencing to inform a defendant of his or her right to file within thirty days a motion for new trial on the ground of ineffective assistance of trial counsel. In re Abolishment of Rule 37 & the Revision of Rule 36 of the Arkansas Rules of Criminal Procedure, 299 Ark. 573, 770 S.W.2d 148. (This provision was abolished when Rule 37 was reinstated in a revised form, effective January 1, 1991. In re Reinstatement of Rule 37 of the Arkansas Rules of Criminal Procedure, 303 Ark. App’x 746, 797 S.W.2d 458.). ' | [
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Elizabeth W. Danielson, Judge.
In this case, appellee Roger Reed and his attorney, appellee Phil Stratton, attempted to collect unpaid judgments that were awarded to Reed by the Arkansas Workers’ Compensation Commission. Appellees sought recovery of these judgments against appellant H. T. Larzelere, the chief executive officer and chairman of the board of Vidare Manufacturing, Inc., Reed’s uninsured employer. In the trial below, appellees prevailed as the jury found that the appellant actively participated in the operation of Vidare at a time when the Vidare corporate charter had been revoked due to nonpayment of its corporate franchise taxes. We affirm.
Reed was injured on November 15,1984, while in the course of his employment for Vidare. He timely filed his claim for temporary total, medical, and permanent benefits with the Arkansas Workers’ Compensation Commission. His medical expenses were incurred during the time the Vidare corporate charter was revoked.
In a controverted case, the commission ordered Vidare to pay accrued medical and related expenses in the sum of $10,836.99, permanent partial benefits equal to 20 % to the body as a whole in the sum of $13,860.00, and maximum attorney’s fees on all the sums due. Vidare did not pay the judgments.
Appellees filed suit in Faulkner County Circuit Court seeking to collect the judgments from the appellant. At trial, the case was submitted to the jury on interrogatories. The jury found that the claims arose between November 15, 1984, and July 19, 1985, which was a period when Vidare’s corporate charter was revoked, and that the appellant actively participated in the operation of business activities at Vidare during this period of time.
The appellant’s appeal is based on his contention that it was error for the trial court to allow this case to go to the jury. He raises several points in support of his argument that the trial judge should have issued a directed verdict in his favor.
Appellant first argues that it was error for the trial judge to deny his motion for a directed verdict because the statute of limitations for bringing a workers’ compensation claim had run. The work related injury occurred in November of 1984. Three years later, the case now on appeal was brought against appellant as a shareholder and an officer of the corporation to recover payment for an earlier judgment. Appellant’s reliance on Ark. Code Ann. § 11-9-702 (1987) is not applicable as Reed’s workers’ compensation claim was timely filed within two years of his injury. The suit against the appellant, a director and officer of the corporation, was brought in order to enforce payment of the judgments rendered by the Arkansas Workers’ Compensation Commission. We find no error in failing to grant a directed verdict.
Second, appellant argues that the trial court erred in denying his motion for a directed verdict on the basis that he is not individually liable for the debts of the corporation. It is clear from appellant’s testimony that he actively participated in the operation of Vidare during the time when the corporate charter was revoked. Appellant participated in a special meeting of the board of directors of Vidare on May 21,1985, during the period that the corporate charter was revoked, and purchased, along with William Cook, 51 % of the capital stock of Vidare. Shortly after his stock purchase, and before the corporate charter was restored, appellant was elected chairman of the board of directors and chief executive officer of Vidare. Appellant testified that he was very involved in securing additional funds to avoid bankruptcy and participated in management decisions during the period the corporate charter was revoked.
Officers and directors of a corporation who actively participate in its operation during the time when the corporate charter is revoked for failure to pay corporate franchise taxes are individually liable for debts incurred during the period of revocation. Mullenax v. Edward Sheet Metal Works, Inc., 279 Ark. 247, 650 S.W.2d 582 (1983); Moore v. Rommel, 233 Ark. 989, 350 S.W.2d 190 (1961). It was not error for the trial court todeny appellant’s motion for directed verdict.
Appellant next contends that the trial court erred in denying his motion for directed verdict because shareholders are not individually liable for debts or obligations of a corporation while the corporate charter is temporarily suspended. Appellant’s argument is based on the law governing administrative dissolution of a corporation, found in Ark. Code Ann. § 4-27-1422 (Supp. 1987), which is not applicable in this case. The applicable law is based on forfeiture of a corporate charter for failure to pay franchise taxes, found in Ark. Code Ann. § 26-54-111 (1987). Thus appellant’s argument is without merit.
In appellant’s next point, he argues that it was error to not grant a directed verdict because appellant was not an active participant at the time the workers’ compensation claim arose. Again, there was ample evidence presented that the appellant was actively participating in the corporation’s business affairs during the time Reed’s workers’ compensation claim was maturing, which coincided with the time the corporate charter was revoked. We find no merit in appellant’s argument.
Appellant argues in his fifth point that the trial court erred in denying his motion for a directed verdict under the “incoming partner” law, Ark. Code Ann. § 4-42-309 (1987). He argues that since the workers’ compensation claim arose six months before he became a shareholder, liability on his part would be limited to only the assets of the “partnership.” Also, appellant argues that since all assets of Vidare were marshaled pursuant to Chapter 7 bankruptcy proceedings, appellees are limited to the assets of Vidare and may not seek additional liability from appellant.
Again, citing Mullenax and Moore, the appellant incurred personal liability when he actively participated in the operation of Vidare during the time when the corporation charter was revoked. Appellant did not enter into a partnership with the other directors and officers of Vidare. The board of directors of Vidare followed the procedures set by Arkansas law and filed articles of incorporation with the Secretary of State’s office, purchased or were allocated shares of stock, and as officers and directors, actively operated the corporate business during the period when the corporate charter was revoked for non-payment of franchise tax. Again, appellant would have us view the revoked status of the corporation the same as if it was a corporation which was experiencing administrative dissolution. Revocation for nonpayment of corporate taxes is totally different from dissolution of a corporation as noted in appellant’s fourth argument. The law which governs these two types of corporate status are different as is the status of its shareholders, officers, and directors. There is no merit to appellant’s argument on this point.
For his next point, appellant argues that the trial court erred in denying his motion for directed verdict based on estoppel. Appellant argues that when appellees sued the corporation based on the workers’ compensation claim, appellees were estopped from later suing the appellant as an officer and director of the corporation and holding him personally liable because doing so would “deny the corporate existence.” Appellant argues that appellee Reed waived any action against appellant by not suing him as an officer and director on the workers’ compensation claim in the first place. Estoppel arises by a detrimental change of position of one party resulting from the conduct of another. Beeson v. Beeson, 11 Ark. App. 79, 667 S.W.2d 368 (1984).
Appellant, although he may suffer financial setbacks when ordered to pay the judgment ordered below, has not pointed out an inequitable circumstance which resulted from appellees Reed and Stratton bringing their action against him as a shareholder and director or any detrimental change in appellant’s position caused by relying on the conduct of Reed and Stratton. See Id. Reed would not have had to sue the appellant if appellant would have seen to it that the corporation paid for Reed’s medical bills. Reed’s suit against the appellant as an officer and director of the corporation was to enforce payment of his medical expenses after the corporation would not pay them. The trial judge acted properly in denying appellant’s motion for a directed verdict.
Moving to appellant’s seventh point, he argues that the trial court erred in denying his motion for directed verdict based on election of remedies. The appellant contends that because appel-lee Reed elected to recover against the corporation initially, it was error for the trial court to allow him to later seek to enforce the workers’ compensation judgments against the appellant as an officer and director of Vidare since Reed had already elected his remedy against the corporation.
There was no election. The action brought against the appellant as an officer and director of Vidare was an attempt by appellees to collect the judgments that were awarded them by the Arkansas Workers’ Compensation Commission. When the corporation would not pay these judgments, appellees sought payment against those individual officers and directors who actively participated in the operation of the business during the period of time the corporate charter had been forfeited and these judgments were entered. There is no merit in appellant’s argument.
Finally, appellant argues that the trial court erred in submitting interrogatories § 1 and #3 to the jury. Interrogatory #1 stated:
Do you find by a preponderance of the evidence that the claims of Roger Reed and Phil Stratton arose between November 15,1984 and July 19,1985 when the corporate charter was restored?
Interrogatory #3 stated:
Do you find from the preponderance of the evidence that H. T. Larzelere actively participated in the operation of the business known as Vidare Corporation between November 15, 1984 and July 19, 1985 when the corporate charter was restored?
After reviewing the evidence, it is clear that the content of both of these interrogatories raised questions of fact. It is also clear that because of the somewhat complicated corporate details of this case, submitting interrogatories to the jury to determine if the jury understood the evidence presented was a good idea. Thus, the trial judge acted properly in submitting these interrogatories to the jury to determine the outcome of the case.
In reviewing the denial of a motion for a directed verdict, we give the proof its strongest probative force. Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987). Such proof, with all reasonable inferences, is examined in the light most favorable to the party against whom the motion is sought; if there is any substantial evidence to support the verdict, we affirm the trial court. Id.; Ark. R. Civ. P. 50. There is substantial evidence to support the verdict.
Affirmed.
Jennings and Mayfield, JJ., agree. | [
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JOHN E. Jennings, Chief Judge.
Evelyn Lindsey was found guilty by a Pope County jury of sexual abuse in the first degree and sentenced to a term of ten years in the department of correction. At trial, the State presented evidence that appellant had sexual contact with her stepdaughters, B.L. and C.L. For reversal, appellant contends that the trial court erred in not granting a directed verdict because jurisdiction was lacking and that the trial court erred in refusing to admit the testimony of Rennie Bowles, the children’s aunt. We conclude that the failure to admit Ms. Bowles’s testimony was error and reverse and remand.
Arkansas Code Annotated section 5-1-111 (1987) provides that a conviction may not be had unless jurisdiction and venue are proved beyond a reasonable doubt. The statute also provides that “the State is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the court lacks jurisdiction or venue.” There is a presumption that venue was properly laid. Higgins v. State, 317 Ark. 555, 879 S.W.2d 424 (1994).
Before the State is called upon to offer any evidence on the question of jurisdiction, there must be positive evidence that the offense occurred outside the jurisdiction of the court. DeWitt v. State, 306 Ark. 559, 815 S.W.2d 942 (1991). It is generally accepted that if the requisite elements of the crime are committed in different jurisdictions, any state in which an essential part of the crime is committed may take jurisdiction. Glisson v. State, 286 Ark. 329, 692 S.W.2d 227 (1985). The test is whether the record contains substantial evidence showing that the offense, or elements of it, occurred within the jurisdiction and venue of the court. See Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978).
In the case at bar, B.L. testified that the sexual abuse took place in Russellville. This constitutes substantial evidence that venue was properly laid in Pope County.
At a pretrial hearing under the Rape Shield Statute, Ark. Code Ann. § 16-42-101, appellant called Rennie Bowles, the children’s aunt. Ms. Bowles testified:
I asked B.L. about the accusations she made, and she said that Evelyn made her suck her tits and kiss her private parts. This is the only conversation I had with B.L. I asked her if it was true and she put her head down and started crying. I told her if it is not, you know, tell me the truth, and she said that she lied. I asked her why and she said because she was mad at Evelyn.
The trial court made no ruling at that time on whether the evidence was barred under the Rape Shield Statute.
At trial, appellant called Rennie Bowles as a witness and the court held that the testimony of Ms. Bowles would be barred under the Rape Shield Statute. The State takes no position as to the propriety of the court’s ruling, but contends only that Ms. Bowles’s testimony was not properly proffered. Rule 103 of the Arkansas Rules of Evidence provides, in part:
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
(b) Record of Offer and Ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
Rule 102 of the Rules of Evidence provides that the rule shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence, to the end that the truth may be ascertained and proceedings justly determined.
A proffer is required for two reasons: first, so that the trial court may be aware of the nature of the evidence; and second, to enable the appellate court to decide whether the evidence should have been admitted and, if so, whether the error in excluding it may have been harmless. In the case at bar, when the record is viewed in context, it is clear that the trial court and counsel knew exactly what testimony they were talking about when the court made its ruling. Ms. Bowles’s proposed testimony was already in the record and there was no need, under the circumstances, to repeat it. In the language of the rule, the substance of the evidence was apparent and the proffer was adequate.
The Rape Shield Statute, Ark. Code Ann. § 16-42-101 (Repl. 1994), provides in pertinent part:
(b) In any criminal prosecution under §§ 5-14-102 — 5-14-110, or for criminal attempt to commit, criminal solicitation to commit, or criminal conspiracy to commit an offense defined in any of those sections, opinion evidence, reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct with the defendant or any other person, evidence of a victim’s prior allegations of sexual conduct with the defendant or any other person, which allegations the victim asserts to be true, or evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegations is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.
The statute simply has no application to a prior inconsistent statement made by the victim as to the offense charged. Ms. Bowles’s testimony that the victim recanted was clearly relevant for impeachment purposes and should have been admitted. Finally, given the critical nature of B.L.’s testimony, we cannot say that the error was harmless.
For the reasons stated this case is reversed and remanded to the trial court for a new trial.
Reversed and remanded.
Rogers and Griffen, JJ., agree. | [
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James R. Cooper, Judge.
The appellant, Marla Ramey, was injured when her automobile collided with a vehicle driven by Ricky Wooten. Mr. Wooten’s insurer, Allstate, contacted the appellant and negotiated a settlement of her property damage claim, but no settlement was reached concerning her personal injury claim. Subsequendy, the appellant sued Mr. Wooten. Neither the appellant nor Mr. Wooten notified Allstate that a suit had been filed. Mr. Wooten failed to answer or appear, and a default judgment in the amount of $50,000 was entered for the appellant. Allstate was subsequently contacted but refused to pay the judgment amount because Mr. Wooten had failed to provide it with notice that a suit had been filed. The appellant then requested payment under the uninsured motorist provision of her own insurance policy with the appellee State Farm, but State Farm refused payment on the ground that Mr. Wooten was not an uninsured motorist by virtue of his coverage with Allstate.
The appellant sued State Farm, alleging that Mr. Wooten was uninsured within the meaning of her uninsured motorist policy with State Farm. She subsequendy amended her complaint to include Allstate as an additional defendant under the theory that the appellant was a third-party beneficiary of Mr. Wooten’s policy with Allstate. State Farm and Allstate filed reciprocal motions for summary judgment. The trial court concluded that Allstate was Hable to the appellant because it had knowledge of the appellant’s claim against its insured and, on that basis, dismissed the complaint against State Farm. The appellant went to trial against Allstate and, at the conclusion of the evidence, Allstate moved for a directed verdict on the same grounds previously rejected by the trial court in the context of its motion for summary judgment, i.e., that it was not liable because its insured failed to comply with the policy provision requiring him to inform the insurer that suit had been filed. At this point, the trial court granted the motion, leaving the appellant with no recovery from either insurer. From that decision comes this appeal.
For reversal, the appellant contends that the trial court erred in dismissing State Farm from, the action; granting Allstate’s motion for a directed verdict; refusing to allow her to present rebuttal evidence regarding her injuries; allowing the adjuster to testify concerning the policy terms; and allowing the adjuster to testify on the basis of documents not maintained by her.
We first address the appellant’s contention that the trial court erred in granting Allstate’s motion for a directed verdict because we find it to be dispositive. We find no merit in the appellant’s argument that Allstate’s coverage became absolute upon the occurrence of an accident under Ark. Code Ann. § 27-19-713(f)(1) (Repl. 1994). That statutory section is part of the Motor Vehicle Safety Responsibility Act, which has no applicability to an insurance policy where, as here, the pleadings fail to indicate that the policy in question had been used as proof of financial responsibility at the time the accident occurred. See Aetna Cas. & Sur. Co. v. Simpson, 228 Ark. 157, 306 S.W.2d 117 (1957).
Nor do we agree with the appellant’s argument that the trial court erred in granting a directed verdict in favor of Allstate because Allstate, failed to present proof concerning the reason for Mr. Wooten’s failure to give notice that a suit had been filed. This argument is based on Shelter Mut. Ins. Co. v. Page, 316 Ark. 623, 873 S.W.2d 534 (1994), which held that, where an insurer seeks to avoid liability based on a breach of the policy’s cooperation clause resulting from the insured’s failure to appear at trial, the insurer must show that it exercised due diligence to locate the insured or to find the reason for the insured’s absence. However, the situation in Page is distinguishable from the case at bar because the insurer in Page knew that suit had been filed and in fact appeared at trial, whereas in the case at bar, Allstate was not present at trial and was notified of the suit only after a default judgment had been entered against its insured. Furthermore, the policy provision at issue in the case at bar was not the “cooperation” clause at issue in Page, but was instead a provision requiring the insured to immediately inform the insurer in the event that the insured is sued as the result of an auto accident. As a general rule, there can be no waiver of an insured’s noncompliance with such a provision where the insurer does not have knowledge of all the material facts. See generally, 14 Couch on Insurance 2d § 51:204 et seq. (Rev. ed. 1982). In the case at bar it is undisputed that Allstate was unaware that the suit was filed. The purpose of provisions requiring the insured to inform the insurer of suits filed is to afford the insurer the opportunity to defend on the merits of the case. See M.F.A. Mut. Ins. Co. v. White, 232 Ark. 28, 334 S.W.2d 686 (1960). Allstate was afforded no such opportunity, and we hold that the trial court did not err in granting Allstate’s motion for a directed verdict.
Given our resolution of the foregoing issue, we conclude that the trial court erred in granting summary judgment in favor of State Farm. Summary judgment is appropriate only where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Dickson v. Delhi Seed Co., 26 Ark. App. 83, 760 S.W.2d 382 (1988). Contrary to the trial court’s conclusion based on its erroneous construction of the Allstate policy, there remained genuine issues of material fact as to whether Mr. Wooten was an uninsured motorist as defined in the State Farm policy. Consequently, we reverse on this point and remand for further consistent proceedings.
Insofar as the remaining points for reversal are all evidentiary issues relating to Allstate, they will not recur on retrial and we need not address them.
Affirmed in part, reversed in part, and remanded.
Jennings, C.J., Pittman, and Robbins, JJ., agree on affirming as to Allstate.
Mayfield and Stroud, JJ., concur as to Allstate.
Jennings, C.J., Pittman, Robbins, and Stroud, JJ., agree to reverse and remand as to State Farm.
Mayfield, J., dissents as to State Farm.
State Farm has moved to strike portions of Allstate’s brief on the ground that they constitute a request for affirmative relief that is improper in the absence of a cross appeal by Allstate. Although we grant the motion, we note that the practical effect of our order is minimal because the appellant properly requested the identical relief sought by Allstate. | [
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John F. Stroud, Jr., Judge.
Kathlene Williams was found guilty of possession of marijuana with intent to debver and two counts of possession of methamphetamine with intent to deliver. She was sentenced to a total of fifteen years in the Arkansas Department of Correction and a fine of $10,000. She appeals her conviction, asserting that the trial court erred: 1) in failing to grant her motion for a directed verdict; 2) in limiting the scope of cross-examination of a witness; 3) in denying her motion to sever offenses; 4) in denying her motion to suppress evidence found in her purse at the time of her arrest; 5) in denying her motion to suppress evidence obtained in a search of her home; and 6) in allowing the State to reopen its case to introduce additional evidence. Houston Williams was found guilty of possession of marijuana with intent to deliver and possession of methampetamine with intent to deliver and sentenced to a total of thirty years in the Arkansas Department of Correction and a fine of $25,000. He appeals asserting only that the trial court erred in failing to suppress evidence found in a search of his home. We find that the trial court erred in failing to suppress the evidence found in the search of the Williams’ home and reverse and remand for a new trial.
On November 12, 1992, the Fayetteville Police Department received information from a confidential informant that Houston Williams was a trafficker of controlled substances who lived at 37 Centerwood in West Fork, Arkansas. According to the informant, Houston Williams traveled to Arizona and California to pick up large amounts of methamphetamine and brought them back to the Northwest Arkansas area for distribution.
On December 31, 1992, the Fayetteville Post of Duty Drug Enforcement Administration Office received information from Special Agent Johnny Cardinez of the Drug Enforcement Agency in Alpine, Texas, that he had a confidential informant from the Northwest Arkansas area in custody in Alpine, Texas. The informant said that Butch and Kathleen Williams, who lived at 37 Centerwood in West Fork, Arkansas, would travel to Albuquerque, New Mexico, every three weeks and pick up approximately one to two pounds of methamphetamine and cocaine. They would return to West Fork, Arkansas, and distribute the drugs in the Northwest Arkansas area.
On February 22, 1993, at approximately 4:10 p.m., Detective McCarty received a phone call from Detective Scott Rogers of the 19th Judicial District Drug Task Force. Detective Rogers told Detective McCarty that he had just received a phone call from a confidential informant who told him that Henry Glosemeyer was leaving Rogers, Arkansas, with a person named Butch. The Cl said that Glosemeyer and Butch were en route to 37 Centerwood in West Fork, Arkansas, where Glosemeyer was to pick up a large amount of methamphetamine. The informant gave Detective Rogers two vehicle descriptions, a red Ford Flareside pickup with license number TWT-932 and a gray Mercury Capri with license number WEI-997. The informant stated that Glosemeyer would then return to Rogers, Arkansas, around 9:00 p.m. to deliver the methamphetamine to his customers.
Upon receiving the information, officers went to the West Fork address. On the way there, Detective McCarty and Sgt. Tabor passed the 1991 gray Mercury Capri bearing Arkansas vehicle license WEI-997, which was southbound into West Fork. Later, the officers saw the car arrive at 37 Centerwood. Over a period of approximately 30 minutes, the officers saw the car leave the house on two occasions. Once it went to a car wash in West Fork; the second time it left southbound on Highway 71.
At approximately 7:30 p.m. on February 22, 1993, the surveillance officers saw a red Ford Flareside pickup arrive at 37 Centerwood in West Fork, Arkansas. ■ The truck remained at the residence until approximately 8:00 p.m. when someone drove it to a church on McKnight Street and dropped off a passenger. The driver then returned to the Centerwood address where the officers drove by and saw the driver place something behind the front seat of the truck.
On February 22, 1993, at approximately 8:35 p.m., the red Ford Flareside pickup left northbound on Highway 71 heading toward Fayetteville. Fayetteville Police Department Officer Brian Waters was contacted and asked to watch for a red pickup traveling north on Highway 71. Officer Waters, who was stationed on Highway 71 at the south city limits in Fayetteville, saw the truck and visually estimated its speed at 50 miles per hour. He then followed the truck and paced it at 48 miles per hour in a 45 mile per hour zone. Officer Waters continued to pace the truck and verified its speed. He stopped the truck when it went from a 45 mile per hour zone into a 40 mile per hour zone without slowing down.
The driver, Mr. Glosemeyer, was issued a warning for speeding. Officer Waters, noticing that Mr. Glosemeyer appeared nervous, asked him if he was transporting any guns, drugs, stolen property, or large sums of unreported cash. Mr. Glosemeyer said that he was not. Officer Waters asked if he would give consent to a search of the truck, and Mr. Glosemeyer said that he would. Officer Waters then filled out a consent to search form and explained it to Mr. Glosemeyer. He asked Mr. Glosemeyer to read the consent to search form and, if he had no objections, to sign it. Mr. Glosemeyer then read the consent form and signed it.
The officers searched the truck manually, but they did not find any contraband. Then they used a drug dog to search the truck, and the dog gave an active, aggressive alert. A second manual search was conducted, but nothing was found. The officers decided to transport the vehicle to an indoor facility where a thorough search could be conducted. During this search, they found approximately two ounces of a white powder substance under the truck bed mat. Detective McCarty field tested the powder, and it tested positive for the presence of methamphetamine, a Schedule II controlled substance.
The officer read Glosemeyer his Miranda rights. After being Mirandized, Glosemeyer told detective McCarty that he had received an extremely large amount of methamphetamine from Houston Williams over the last year. He said that in the last month he had dealt at least one pound of methamphetamine that he had gotten from Williams. Glosemeyer stated that Williams borrowed his truck, drove to California, picked up four pounds of methamphetamine, and returned to West Fork, Arkansas, on February 22, 1993. He also said that, on February 22, 1993, he received two ounces of the methamphetamine from Williams at his residence in West Fork, Arkansas.
On February 23, 1993, based on the above information, Officers Norman, Tabor, Lovett, and Nelson arrived at 37 Centerwood at approximately 9:00 a.m. Norman and Tabor knocked on the door and were greeted by Kathlene Williams. Norman and Tabor identified themselves as narcotics officers and asked her if she would let them in to speak to her and her husband, Houston Williams. Kathlene Williams invited all four officers into the house. Norman observed an automatic pistol on top of a dresser located in the living room and immediately took possession of it and disarmed it. At that point, Tabor asked Kathlene Williams if her husband, Houston Williams, was home. She said that he was home but that he was asleep. Officers asked Mrs. Williams to wake him, and she went to the back bedroom and told her husband that the officers were there and wanted to speak with him. Mr. Williams came into the living room with his wife, and the officers immediately identified themselves as narcotics investigators.
Lovett and Nelson went into the kitchen with Mrs. Williams while Norman and Tabor sat in the living room area and spoke with Houston Williams. Norman and Tabor advised him that they were conducting a narcotics investigation which stemmed from the arrest of Henry Glosemeyer. Before asking Mr. Williams any questions, Norman advised him of his Miranda warnings. Mr. Williams agreed to talk with the officers. Mr. Williams denied knowing of any narcotics trafficking. Norman and Tabor told Mr. Williams that they believed that he knew the location of approximately four pounds of methamphetamine he had brought in from California. Mr. Williams again said that he was unaware of what the officers were talking about.
At approximately 10:00 a.m., Ronald Fox, a documented methamphetamine dealer, arrived at the Williamses’ home. Tabor intercepted Fox, identified himself as a narcotics investigator, and told him that Houston Williams was under investigation for narcotics trafficking. Mr. Fox decided not to go inside the house, and he left the area.
At approximately 10:45 a.m., Norman asked Houston Williams if he would consent to a search of his residence by the officers. He refused. Houston Williams told the officers that he needed to use the restroom. He went to a restroom connected to his bedroom, and Norman followed him to the restroom and quickly scanned the master bedroom for any weapons. Norman scanned the adjoining bedroom, which had been converted into an office, and saw two handguns. He waited for Houston Williams to leave the restroom and then asked him if the handguns in the office were loaded. Houston Williams Said that they were not and Stated, “Go ahead and check.”
Norman entered the office and checked both weapons to see if they were loaded; they were not. Norman observed a set of scales, sitting on a desk in the room, which were partially hidden by a bag of cookies. Norman moved the bag and saw what appeared to be a white rock sitting on the scales. Norman believed that this was a controlled substance and considered Houston Williams to be under arrest. Norman also saw what appeared to be a plastic bag in a partially opened drawer of the same desk where the scales were located. He opened the drawer and observed what appeared to be a large rock of suspected methamphetamine along with various drug paraphernalia including a mirror with powder residue, a spoon with residue, and several other empty plastic bags. Houston Williams told Norman that the methamphetamine was for his personal use.
While the officers were at the residence with Houston Williams, Lowry of the Drug Enforcement Administration contacted Assistant U.S. Attorney Steven Snyder of the Western District of Arkansas and advised him of the investigation. Snyder told the officers to clear the residence and obtain a search warrant for it. Snyder also authorized the prosecution of Houston Williams, and he was placed under arrest for possession of methamphetamine with the intent to distribute.
The officers obtained a search warrant based on the information obtained from the confidential informants, Henry Glosemeyer, and the officers’ investigation of Williams’s house. They executed the warrant and seized twenty-nine pieces of evidence.
On February 24, 1993, appellant Kathlene Williams went to court to attempt to post bail for Houston Williams. When she arrived at the courthouse, she was arrested based on the evidence found during the search of her house the previous day, and her purse was searched incident to her arrest. The officers found .02 ounces of methamphetamine in her purse.
The trial court found both Houston and Kathlene Williams to be indigent and appointed counsel from the Washington County Public Defender’s Office. Kathlene Williams obtained separate counsel in July 1993.
Both appellants filed a motion to suppress the evidence seized at their home without a search warrant, and the trial court granted the motion. The trial court denied motions to suppress the evidence seized as a result of the search pursuant to the search warrant. It also denied Kathlene Williams’s motion to sever the trial to permit the defendants to be tried separately. The court originally granted her motion to sever the count in the information charging her with possession of methamphetamine as a result of the drugs found in her purse at the courthouse, but it later denied the motion.
At trial, a police officer testified, and the evidence seized as a result of the search of the Williams’s house pursuant to the search warrant was admitted. At the close of the State’s case, appellants made motions for directed verdicts, contending that there was insufficient evidence to convict them. As part of her motion for directed verdict, Kathlene Williams called attention to the fact that the State failed to have marijuana seized from the house introduced into evidence. The State asked to reopen its case and admit the marijuana, and the court allowed it to reopen its case over appellants’ objections.
Kathlene Williams called character witnesses in her behalf, and the State offered the testimony of Terri Glosemeyer, Henry Glosemeyer’s wife, in rebuttal. She testified that Kathlene Williams often used drugs with her when they lived together. When Kathlene Williams’s attorney tried to cross-examine Terri Glosemeyer, the State objected to the relevance of any questions concerning her relationship with Henry Glosemeyer. The court sustained the objection, in part, by limiting the scope of cross-examination to asking whether she had been given any particular deal by the State for her testimony or any special favors or consideration.
Appellants renewed their motions for directed verdicts at the close of their cases and again after the rebuttal testimony. The court denied the motions. The jury convicted both appellants of possession of marijuana with intent to deliver and possession of methamphetamine with intent to deliver.
We first consider Kathlene Williams’s argument that the trial court erred in failing to grant a directed verdict in her favor on the counts charging her with possession of marijuana and methamphetamine with intent to deliver based on the drugs seized from her home. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). We review the sufficiency of the evidence before considering any alleged trial error and in doing so we must consider all the evidence, including any which may have been inadmissible. Hardrick v. State, 47 Ark. App. 105, 885 S.W.2d 910 (1994). When reviewing the sufficiency of the evidence, we must view the evidence in the fight most favorable to the appellee and affirm if the verdict is supported by substantial evidence. Knight v. State, 51 Ark. App. 60, 908 S.W.2d 664 (1995). 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 resort to speculation or conjecture. Id.
Kathlene Williams contends that the State failed to prove that she was in possession of the drugs seized from her home because the only evidence connecting her to the drugs was circumstantial evidence that was also consistent with appellant’s lack of knowledge of the drugs. She alleges that there is nothing to link her to the drugs found in her home. She also contends that character evidence is insufficient to convict.
In order to convict a defendant of possession of a controlled substance, the State need not prove that the accused had actual possession of the controlled substance. Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995). Constructive possession, which is control or the right to control the contraband, is sufficient. Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991). Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Mosley v. State, 40 Ark. App. 154, 844 S.W.2d 378 (1992). However, where the conviction is based on joint occupancy of the premises where contraband is found, the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband; and (2) that the accused knew that the matter possessed was contraband. Darrough, supra. Such control and knowledge can be inferred from the circumstances where there are additional factors linking the accused to the contraband. Mosley, supra.
In this case, there is sufficient additional evidence to link Katblene Williams to the drugs found in her home. At trial, the State introduced several firearms into evidence which were seized from various locations around appellant’s house. In addition, the State introduced into evidence marijuana along with rolling papers that were found in a desk drawer in the den of the house. It introduced four bags of methamphetamine, a bottle of Inositol powder, and a set of small plastic scales seized from the middle desk drawer of the desk in the den. It also presented a plastic bag containing powdered methamphetamine and a plastic bag containing a rock of methamphetamine which were seized from a different drawer in the desk. In addition, the State introduced twelve plastic bags of marijuana seized from the freezer part of the refrigerator in the kitchen and a photograph showing a brown paper bag in which the marijuana was found in the freezer. The presence of numerous firearms, drug paraphernalia, and the large quantity of drugs throughout the house in various locations, coupled with testimony by the State’s rebuttal witness that she had used methamphetamine on numerous occasions with the appellant in her home and helped her bag the drugs, was sufficient to link her with the contraband. Thus, there was sufficient evidence for the jury to infer that she was in possession of the marijuana and methamphetamine, and there was substantial evidence to support appellant’s conviction.
Both appellants argue that the trial court erred in denying their motions to suppress the drugs, drug paraphernalia, and firearms seized from their home during the execution of the search warrant. They claim that the search warrant was invalid under the “fruit of the poisonous tree” doctrine because some of the facts set forth in the affidavit for the search warrant to establish probable cause to search their home were discovered in a previous, unlawful search of their home.
In reviewing a trial court’s denial of a motion to suppress evidence, we make an independent determination based on the totality of the circumstances and reverse the trial court’s ruling only if it is clearly against the preponderance of the evidence. Phillips v. State, 53 Ark. App. 36, 918 S.W.2d 721 (1996).
The trial court found that the officers’ initial intrusion into appellants’ home, which yielded information used in the affidavit for the search warrant, was an unlawful search and suppressed the evidence seized in that initial search. The State’s position is that the initial intrusion was not an unlawful search because the appellants consented to the officers entering their home and the contraband found in the initial visit to appellants’ home was in plain view. Thus, the initial issue we must decide is whether the information contained in the affidavit was the result of an unlawful search.
Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject to a few specifically established and well-delineated exceptions. Washington v. State, 42 Ark. App. 188, 856 S.W.2d 631 (1993)(citing California v. Acevedo, 500 U.S. 565 (1991)). The observation of evidence in plain view, however, is not a search and therefore the resulting seizure is not the result of an unreasonable search. Id. The requirements of the plain view exception are: (1) the initial intrusion must be lawful; (2) the discovery of the evidence must be inadvertent; and (3) the incriminating nature of the evidence must be immediately apparent. Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995).
In this case, Kathlene Williams consented to the officers’ entry into the Williamses’ home; thus, the officers’ intrusion was lawful. Although the testimony indicates that some of the firearms seized may have been in plain view such that their discovery was inadvertent, other contraband was not. Officer Norman testified that he moved a bag of cookies away from a set of scales in order to see a rock-like substance on the scale. He also said that he opened a desk drawer because he saw the top of a plastic bag hanging out. Upon opening the drawer, he saw what appeared to be methamphetamine and drug paraphernalia. Clearly, Officer Norman’s discovery of the methamphetamine was not inadvertent. Thus, the plain view exception to the warrant requirement does not apply to the drugs and drug paraphernalia described in the affidavit for the search warrant.
When he opened the desk drawer and moved the bag away from the scales, Officer Norman conducted a search of appellant’s home. He did so without a warrant, and none of the exceptions to the warrant requirement of the Fourth Amendment apply. Thus, Officer Norman conducted an unlawful search of appellant’s home. The information gleaned in this unlawful search was included in Officer Norman’s affidavit for the search warrant.
The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawful search and of testimony concerning knowledge acquired during an unlawful search. Murray v. United States, 487 U.S. 533 (1988). Beyond that, the exclusionary rule also prohibits the introduction of derivative evidence that is acquired as an indirect result of the unlawful search. Id. However, evidence received through an illegal source is admissible if it is also obtained through an independent source. Id.
The State argues that application of the independent-source doctrine renders the search of the Williamses’ home valid and the evidence seized admissible. The United States Supreme Court addressed a similar situation in Murray, supra,and held that the ultimate question that must be addressed is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue. Murray has been interpreted to require a two-step analysis in determining whether the search was in fact an independent source. See, U.S. v. Restrepo, 966 F.2d 964 (5th Cir. 992) and State v. Gulbrandson, 906 P.2d 579 (Ariz. 1995).
We believe that Gulbrandson, supra, sets forth the proper method under Murray for determining the validity of a search pursuant to a warrant based on an affidavit that contains information unlawfully obtained. The first step is to excise the illegally obtained information from the affidavit and determine whether the remaining information is sufficient to establish probable cause. The second step is to examine whether the information gained from the illegal entry affected the officers’ decision to seek the warrant or the magistrate’s decision to grant it.
We find that, when the information obtained by the officers in the initial, unlawful search is excised from the affidavit in this case, there is sufficient information left to constitute probable cause. The officers had information from three different confidential informants over a period of several months indicating that Houston Williams was engaged in methamphetamine trafficking. In addition, Glosemeyer told police that Williams was trafficking in methamphetamine out of his house. Although the affidavit did not specifically set forth facts that would tend to show the reliability of the informants, the officers corroborated or confirmed many of the tips given by informants. They confirmed the description of the vehicles en route to Williams’s home, the identity of the driver of one of the vehicles, and the presence of methamphetamine in one of the vehicles. In addition, Glosemeyer’s admission that over a long period and currendy he had been buying methamphetamine from the home of Houston Williams implicated that property. Under the “totality of the circumstances” test set forth in Illinois v. Gates, 462 U.S. 213 (1983), we believe that Norman’s affidavit is sufficient to establish probable cause even after the illegally obtained information is excised. Thus, under the first part of the Murray analysis, the warrant would be valid.
Under the second part of the Murray analysis, we next examine the question of whether the illegal entry affected the officer’s decision to seek the warrant. Officer Norman testified that the reason the officers did not get a search warrant before they went to the Williamses’ house the first time was because the Prosecuting Attorney of Washington County told them that they did not have enough information to establish probable cause. He said that they gained sufficient additional information during the search to get the search warrant. In light of this testimony by the officer who eventually sought the warrant, we find that his decision to seek the warrant was prompted by what he saw during his initial, unlawful search. Thus, under Murray v. United States, 487 U.S. 533 (1988), we find that the exclusionary rule mandates exclusion of the evidence seized pursuant to the search warrant. Accordingly, we find that the trial court erred in refusing to suppress the evidence and reverse and remand for a new trial as to both appellants.
Kathlene Williams’s argument that the trial court erred in allowing the State to reopen its case to introduce a pound of marijuana into evidence is not likely to recur on retrial; thus, we do not address it. She has, however, raised other allegations of error that are likely to recur on retrial, which we address in order to prevent piecemeal appeals.
Kathlene Williams argues that the trial court erred in limiting the scope of her cross-examination of Terri Glosemeyer. Although this issue may arise on retrial, we are unable to address this argument because she failed to make a sufficient proffer of the excluded evidence. There is no information in the abstract from which this court can determine the substance of the offer. Appellant’s counsel merely- stated that he intended to ask questions about Mrs. Glosemeyer’s relationship with Mr. Glosemeyer to show that she was biased. There was no proffer of the substance of these questions. There must be a proffer of the evidence that is improperly excluded for us to find error. Ark. R. Evid. 103(a)(2), Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980). Thus, we cannot address this issue. See Hodge v. State, 27 Ark. App. 93, 766 S.W.2d 619 (1989).
Kathlene Williams also argues that the trial court erred in refusing to sever the offense of possession on the day she was arrested from the possession charge stemming from the search of her house the day before because the second offense was not a part of a single scheme or plan, and evidence of one offense would not be allowed in a separate trial to prove the other offense. She contends that the charges involving the drugs found at her house were independent of the subsequent charge of possession of methamphetamine for the drugs found in her purse at the courthouse. The trial court initially granted her motion to sever, but later denied it.
When offenses are based on the same conduct or a series of acts connected together or constituting parts of a single scheme or plan, they may be joined for trial. McArdell v. State, 38 Ark. App. 261, 833 S.W.2d 786 (1992). The decision to join or sever offenses is within the discretion of the trial court, and we will not reverse absent an abuse of discretion. Id. The State argues that the offenses of possession of methamphetamine and marijuana with intent to deliver occurring on February 23, 1993, and the offense of possession of methamphetamine one day later on February 24, 1993, were part of a single scheme or plan because they involved appellant possessing the same type of controlled substance close in time in the same general area. Appellant argues that this is insufficient and cites Teas v. State, 266 Ark. 572, 587 S.W.2d 28 (1979), for the proposition that the sale of drugs on two different occasions by a defendant to an informer was insufficient to constitute a single scheme or plan. However, the facts of this case are clearly distinguishable from those present in Teas. In Teas, supra, a confidential informant bought marijuana from the defendant on December 5, 1977, and morphine from the defendant on December 14, 1977. In this case, Kathlene Williams was found in possession of the same type of drug on the day after the original seizure of contraband from her home. Under these circumstances, we cannot say that the trial court abused its discretion in refusing to sever the offenses. These acts are sufficiently similar in character, locatión, and time to constitute a continuing course of conduct which, in effect, constituted a single scheme or plan.
Finally, Kathlene Williams contends that the trial court erred in failing to grant her motion to suppress the evidence found in her purse which was searched incident to her arrest. She claims that her arrest was invalid because the probable cause for her arrest was based on evidence obtained when the police executed the invalid search warrant on her home. We agree.
At the time of Kathlene’s arrest, the only probable cause that existed for the officers to believe that she had committed or was committing a crime was the information obtained from the unconstitutional search of her home. Thus, her arrest was unlawful. Any evidence obtained as a result of an unconstitutional and unlawful arrest must be excluded at trial unless it falls within one of the exceptions because it is considered fruit of the poisonous tree. Brown v. Illinios, 422 U.S. 590 (1975); Wong Sun v. United States, 371 U.S. 471 (1963). Thus, the trial court erred in failing to suppress the methamphetamine found in Kathlene’s purse in the search incident to her arrest.
Reversed and remanded.
Jennings, C.J., Mayfield, Neal, and Griffen, JJ., agree.
Robbins, J., concurs in part, dissents in part. | [
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Melvin Mayfield, Judge.
Doyne Brown appeals from a decision of the Arkansas Board of Review which denied his claim for unemployment benefits.
Appellant filed a claim for unemployment benefits on August 8, 1994. On August 30, 1994, appellant completed an “Arkansas Employment Security Department Work Sheet” in which he stated he quit because Larry Sigler questioned him about an insurance claim he submitted for substance abuse treatment; that he felt that this was an invasion of his privacy; and that he felt he could not continue working under those conditions. He also stated that his wages and working hours had been reduced about a year prior to August 30, 1994.
The agency found that appellant quit his job for undisclosed reasons and denied benefits based upon Ark. Code Ann. § 11-10-513(A)(1) on the finding that appellant left his work voluntarily and without good cause connected with the work.
Appellant appealed to the Appeal Tribunal, and at a hearing held October 19, 1994, appellant testified he walked off the job because he was so outraged he felt it best to say nothing to anyone. He testified he was upset because Mr. Sigler, the employer’s president, told him he was not going to pay a health insurance claim. Appellant said Sigler asked about the claim and it was appellant’s understanding that this was illegal under the Americans with Disabilities Act. Appellant testified that he had filed two claims for substance abuse treatment approximately eight months previously, and only one was paid. Appellant said the other claim was paid six weeks after he was “constructively discharged.” Appellant said he made no effort to discuss the problem with his employer; that he was demoted approximately one year ago because of a substance abuse insurance claim; and although he did not receive a pay cut, his hours were reduced from 47 V2 to 45 hours per week. Appellant testified further that he was not aware that, under the Americans with Disabilities Act, there are situations where an employer has the right to ask for assurances that an employee is not currently using drugs.
Terry Stalnaker testified he observed the confrontation between Sigler and the appellant; he saw that appellant was very upset; and he saw appellant go out the back door, but he did not hear what was said.
Barbara Brosett, the employer’s office manager, testified that the employer was a self-insured company with an administrator. She testified that Sigler has nothing to do with the insurance checks and would not have the authority to stop a claim. She said that on the day in question Sigler opened the mail and said he would ask appellant what he was on. She testified that to her knowledge appellant was not reduced in pay.
The Appeal Tribunal denied benefits on the basis that appellant voluntarily left his last work without good cause connected with the work within the meaning of the law. The referee held there was insufficient evidence to show that appellant’s wages or hours were reduced, but that the evidence shows he primarily quit because he became upset that the employer was questioning him about his condition.
The Board of Review affirmed the decision of the Appeal Tribunal, and found:
The evidence indicates that the claimant became upset when the president of the company asked him about a claim for drug rehabilitation costs, and walked off the job. He acknowledged that'he made no effort to resolve the problem before quitting, because of what he termed his “outrage.” . . . The claimant also contended that he was improperly demoted and reduced in pay. He did not testify as to the date that occurred, but information in the record indicates that occurred in 1993. Because of the remoteness in time, the Board cannot see how that could be considered part of the catalyst in his decision to quit on the day he did.
On appeal to this court, the appellant argues that the Board’s decision is not supported by substantial evidence.
On review of unemployment compensation cases, the factual findings of the Board of Review are conclusive if they are supported by substantial evidence. Substantial evidence is valid, legal and persuasive evidence; such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Victor Industries Corporation v. Daniels, 1 Ark. App. 6, 611 S.W.2d 794 (1981).
Appellant argues he had good cause to resign his employment because he believed his insurance benefits were being wrongly withheld from him. In support of this argument he cites Young v. Everett, 6 Ark. App. 295, 641 S.W.2d 39 (1982), but that case is factually different from this case. There, the appellant testified that when he was hired the employer agreed to provide expenses for any change in location of the job site. But when the employer’s operation was moved to another county, the appellant was told the employer would not pay his out-of-town expenses. Appellant resigned when he discovered his wages would not cover his expenses.
Here, the appellant left his job when he became upset because his employer told him he was not going to pay an insurance claim. However, appellant admitted one claim had already been paid; the other claim was paid six weeks after he quit; and there was evidence that the employer did not have the authority to stop a claim. Moreover, appellant said he did not make an effort to discuss the problem before walking off the job. The taking of appropriate steps to prevent a perceived misconduct from continuing is an element to be considered in determining whether an employee had good cause to quit work. See Teel v. Daniels, 270 Ark. 766, 606 S.W.2d 151 (Ark. App. 1980).
In the instant case, we think the Board’s decision is supported by substantial evidence.
Appellant has also argued that because the record on appeal was not timely filed the appellee should be estopped from denying that appellant is entided to unemployment benefits. Appellant says he filed his pro se petition for review on January 24, 1995; the agency filed an answer on March 1, 1995; and the transcript of the record was filed August 18, 1995. The appellant argues the record should have been filed within 90 days from the date the petition was filed.
In support of this argument, appellant cites Wortham v. Director of Labor, 31 Ark. App. 175, 790 S.W.2d 909 (1990), where we issued a writ of certiorari requiring the record to be filed because over five months had passed since the filing of the notice of appeal, and the record was not yet filed. Drawing upon the requirement of the Rules of Appellate Procedure in appeals from circuit and chancery courts, we held that a period of 90 days after the filing of the notice of appeal was a reasonable time in which to file the record in an appeal from the Board of Review. Appellant says the Wortham rule is meaningless unless a penalty is enforced against the agency for failure to adhere to the rule.
It is true that the appellee failed to file the transcript of the record in this case until seven months after the date the appellant’s petition was filed. The problem is that Ark. Code Ann. § 11-10-529(b)(1) (Repl. 1996) provides that the Director of the Arkansas Employment Security Department shall file a certified copy of the record of the case, including all documents, papers, and a transcript of the testimony, but does not specify a time period in which this must be done. In Wortham we granted a petition for writ of certio-rari and ordered that the record be transmitted within 30 days.
Of course, if the Board were the appellant in this case there would be precedent for dismissing the appeal. See Coggins v. Benton, 45 Ark. App. 189, 873 S.W.2d 820 (1994). And if the director had failed to file the record as required by a writ of certiorari, it would not be improper for sanctions of some kind to be applied. But we do not think that we should, without some advance warning, apply sanctions for simply failing to file the record on appeal within 90 days after the notice of appeal has been filed by a claimant. However, we think it fair to state that this court might in the future consider this opinion sufficient advance warning.
Affirmed.
STROUD and Neal, JJ., agree. | [
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John Mauzy Pittman, Judge.
Tommy Stafford appeals from an order of the Arkansas Workers’ Compensation Commission denying additional temporary total disability benefits and medical benefits arguing lack of support by substantial evidence.
Appellant sustained a compensable injury to his left shoulder on August 2, 1986, while working for Arkmo Lumber Company. He was treated by Dr. Joe W. Crow, an orthopedic surgeon, who performed an acromioplasty on appellant’s left shoulder and assigned a 20 percent impairment rating when he released appellant on September 9, 1987, to return to work with lifting restrictions. On December 16, 1988, while working for Diamond Constructing Company, appellant sustained a compensable injury to his neck and back. Appellant stated that before the 1988 injury, his shoulder was “stiff” but he was able to work without problems. However, after the 1988 injury, he began having pain in his left shoulder. Appellant returned to Dr. Crow for treatment, who opined that the 1988 injury was a new injury rather than a recurrence. Appellant became dissatisfied with Dr. Crow’s treatment. The administrative law judge appointed Dr. William F. Blankenship to be appellant’s treating physician. Dr. Blankenship provided conservative treatment, physical therapy and injections, and conducted numerous diagnostic tests, such as an EMG and nerve conduction studies. On January 8, 1990, Dr. Blankenship released appellant to return to work with restrictions of no sweeping, mopping, lifting in excess of twenty pounds or overhead lifting. Dr. Blankenship thought that appellant could perform some limited work and that no further medical treatment was needed.
Subsequent to being released by Dr. Blankenship, appellant continued to have complaints and in 1990 sought treatment at UAMS. There, appellant was treated by several physicians. Dr. Samuel Agnew performed a second acromioplasty on November 4, 1992, which alleviated appellant’s symptoms. Following the surgery, appellant sought additional temporary total disability benefits from January 1, 1990, to April 1993, medical benefits for treatment from UAMS, and a retroactive change of physician to Dr. Agnew.
The Commission found that appellant failed to prove that his treatment from UAMS was causally related to either compensable injury or to the surgery following the 1986 injury. When reviewing the sufficiency of the evidence to support a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the Commission’s findings and will affirm if the Commission’s decision is supported by substantial evidence. Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Cagle Fabricating & Steel, Inc. v. Patterson, 42 Ark. App. 168, 856 S.W.2d 30 (1993). Moreover, the Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989).
Dr. Agnew’s December 9, 1992, report stated: (1) that a May 9, 1991, examination revealed recurrent impingement syndrome of appellant’s left shoulder, (2) that a repeat acromioplasty was performed November 4, 1992, and (3) that there was no indication that the acromioplasty performed by Dr: Crow after the 1986 injury was inadequate. He further stated, “It cannot be determined with any degree of reasonable certainty as to what event caused the recurrent or persistent symptoms.... Specifically, one cannot determine whether the accident of August 1986, December 16, 1988, or the surgery of Dr. Crow specifically is the event. One can state with reasonable assurity that all three play in some part to [appellant’s] overall complaints.” Dr. J. M. Grunwald, a physician at UAMS who treated appellant, stated in a September 19, 1990, report that “there is no way to decide if the orthopedic problem which [appellant] has is related to or caused by his work related injury or if they were caused by Dr. Crow’s treatment surgery. I do not feel that Dr. Crow’s surgery was inadequate or substandard.” He further said, “There is no way to decide which part of the symptoms that [appellant] is presenting with is related to his first and which part is related to his second accident.” Lastly, Dr. James Blankenship, a UAMS physician, said in a March 23, 1993, report that appellant has two cysts which are almost certainly congenital and which are believed to be causing some of appellant’s complaints.
Appellant argues that Dr. Agnew’s opinion should be interpreted to mean that both compensable injuries and the first surgery played a part in his need for the second surgery although Dr. Agnew could not say which one precipitated his condition. He also contends that causation was established because the second surgery in November 1992 alleviated his problems.
The interpretation of medical opinion was for the Commission, and we cannot say that the Commission’s finding that a causal connection between his medical treatment and the compensable injuries was not established is not supported by substantial evidence. Therefore, we decline to address appellant’s arguments concerning a change of physician to Dr. Agnew.
Appellant also argues that he is entided to temporary total disability benefits from January 1, 1990. The Commission found that appellant failed to prove that he was unable to perform employ ment subsequent to January 1990 and that the medical and lay testimony indicated that appellant had reached a plateau of recovery and was performing some gainful employment.
Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. J. A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990). After Dr. William Blankenship’s release to return to work with restrictions on January 8, 1990, appellant testified that he returned to his employer who did not have any work available within the restrictions. Appellant said that had there been a job available, he would have tried to do it. Appellant stated that he has not sought employment anywhere since his second injury in December 1988. However, the record shows that from at least 1990 to 1992, appellant operated a lawn care business. Appellant said that he could do only two or three yards each week, never worked more than four hours a day, only did a dozen yards in 1991 and earned less than $600 a year in the business. Our review indicates that the Commission’s findings and decision to deny temporary total disability benefits is supported by substantial evidence.
Affirmed.
Jennings, C.J., and Griffen, Neal, and Rogers, JJ., agree.
Mayfield, J., dissents. | [
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JUDITH Rogers, Judge.
Appellant, Tina Roberson, was convicted by a jury of possession of a controlled substance with intent to deliver and sentenced to twenty-three years in the Arkansas Department of Correction. Prior to trial, appellant filed a motion to suppress the fruits of an alleged illegal search and her subsequent statement. The trial court denied the motion, and it is from that denial that appellant appeals. We affirm.
The record reveals that a Hot Springs officer received a radio broadcast advising the officer to be on the look out for a yellow Datsun pick-up truck with a certain license plate number, occupied by a white male and black female. The officer was informed that the occupants were suspected of selling stolen jewelry. Lieutenant Bond observed the suspect vehicle and made an investigatory stop. Lieutenant Bond observed a ring box on the front seat of the vehicle. He was questioning the occupants when a back-up officer arrived. The back-up officer conducted a weapons search of appellant and located controlled substances and drug paraphernalia. Appellant was arrested and gave a statement to local Drug Task Force agents.
On appeal, appellant argues that Lieutenant Bond lacked sufficient probable cause or reasonable suspicion to make an investigatory stop of the vehicle in which she was a passenger. Appellant specifically contends that Lieutenant Bond could not have had more than a bare suspicion that the occupants of the vehicle were involved in any criminal activity, either a felony or a misdemeanor.
Rule 3.1 of the Arkansas Rules of Criminal Procedure permits a police officer to stop and detain any person that he reasonably suspects has committed or is about to commit a felony or a misdemeanor involving danger of forcible injury to persons or property, where it is reasonably necessary to obtain or verify the identification of the party or to determine the lawfulness of his conduct. “Reasonable suspicion” means that suspicion based on facts and circumstances which, in and of themselves, may not constitute probable cause to justify a warrantless arrest, but which give rise to a suspicion that is reasonable as opposed to imaginary or conjectural. Ark. R. Crim. P. 2.1; Folly v. State, 28 Ark. App. 98, 771 S.W.2d 306 (1989). The justification for an investigatory stop depends on whether under the totality of the circumstances the police have a particularized, specific, and articulable reason indicating that the person or vehicle may be involved in criminal activity. Nottingham v. State, 29 Ark. App. 95, 778 S.W.2d 629 (1989).
In the Nottingham case, an officer received a phone call from the owner of a local Travel Mart alerting him of a possible DWI suspect in a red Ford pickup. The officer proceeded to the area and approached the suspect’s vehicle and found him asleep in the truck with a beer can. We found that the information provided by the owner acted as a catalyst for the officer to investigate which the officer had a duty to perform. Thus, we concluded that the officer’s actions were justified based upon reasonable suspicion pursuant to Ark. R. Crim. P. 3.1. Also, in the case of Leopold v. State, 15 Ark. App. 292, 692 S.W.2d 780 (1985), we found that an officer had a reasonable suspicion to make an investigatory stop when he spotted appellants’ truck at 2:00 a.m. traveling at ten miles an hour down a gravel road owned by International Paper but open to the public. The officer suspected that appellants could possibly have been head-lighting or spotlighting for deer.
The facts presented to the trial court in this case, with all presumptions favorable to the trial court’s ruling, Johnson v. State, 319 Ark. 78, 889 S.W.2d 764 (1994), are these: the owner of Monty’s Pawn Shop reported that a white male and black female had tried to pawn some jewelry which appeared to be stolen. A radio dispatch was sent to officers alerting them to “be on the look out for” a yellow Datsun pickup occupied by a white male and black female who had been attempting to sell possibly stolen jewelry. The dispatch described the vehicle, the occupants, and provided the license number of the vehicle.
Lieutenant Bond testified that he received the radio dispatch and subsequently spotted the vehicle matching the description. He testified that he stopped the vehicle because it was his understanding that “they had been down to Monty’s Pawn Shop and tried to sell some jewelry that appeared to have been stolen.” When asked what gave rise to his suspicion that the individuals were doing something wrong, Lieutenant Bond responded “[w]ell, after thirteen years with the Detective Bureau, we’d dealt with pawn shops quite a bit. They, any time they have someone who comes in there with an obviously expensive piece of jewelry who don’t, obviously don’t appear to be people who would have this type of jewelry normally, or a large quantity of jewelry and so forth creates, anything of a suspicious nature, they usually give us a call or some of them do.” Lieutenant Bond indicated that the pawn shops in the area had provided information in the past of illegal activity being attempted in their stores. Lieutenant Bond testified that after stopping the truck, he approached the vehicle and noticed a ring box on the front seat. Lieutenant Bond said that he then questioned the occupants of the vehicle.
Appellant argues that the person reporting to the police did not see a crime committed or have knowledge that a crime was being committed. Also, appellant asserts that there was no independent corroboration of the radio dispatch that the occupants of the vehicle were involved in any criminal activity. In arguing that the stop was unreasonable, appellant places great emphasis on the proposition that no one knew that a crime had been committed. However, the Supreme Court noted in U.S. v. Hensley, 469 U.S. 221 (1985), that “although the officer who issues a wanted bulletin must have a reasonable suspicion sufficient to justify a stop, the officer who acts in reliance on the bulletin is not required to have personal knowledge of the evidence creating a reasonable suspicion.” Id. at 231. Quoting from the Ninth Circuit, the Supreme Court further expressed “that effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.” Id. at 231. Also, in the cases of Terry v. Ohio, 392 U.S. 1 (1968); Nottingham, supra; and Leopold v. State, 15 Ark. App. 292, 692 S.W.2d 780 (1985), no one knew that a crime had been committed. Therefore, it is clear that it has never been a requirement that someone know that a crime had been committed before an officer can conduct an investigatory stop. As the Supreme Court noted in Adams v. Williams, 407 U.S. 143 (1972):
The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be more reasonable in light of the facts known to the officer at the time.
As noted in Terry v. Ohio, 392 U.S. 1 (1968), one general interest present in the context of ongoing or imminent criminal activity is “that of effective crime prevention and detection.” In this case, it would have been impossible for the police to determine if the jewelry was stolen before appellant was stopped because the jewelry was in the possession of the suspected individuals. “Restraining police action until after probable cause is obtained would not only hinder the investigation, but might also enable the suspect to flee in the interim and to remain at large. Particularly in the context of felonies or crimes involving a threat to public safety, it is in the public interest that the crime be solved and the suspect detained as prompdy as possible.” U.S. v. Hensley, 469 U.S. 221, 229 (1985).
Here, Lieutenant Bond not only had the information from the dispatch but he also had personal knowledge that the local pawn shops had given reliable information in the past that was used by the police, and he confirmed the vehicle description, license number and identification of the occupants of the truck. Lieutenant Bond also observed a ring box on the front seat of the individuals’ vehicle before questioning the suspects. Based on the totality of the circumstances in this case, we cannot say that the trial court’s denial of appellant’s motion to suppress was clearly against the preponderance of the evidence. See Bliss v. State, 33 Ark. App. 121, 802 S.W.2d 479 (1991).
Affirmed.
Cooper, Stroud, and Mayfield, JJ., agree.
Jennings, C.J., and Griffen, J„ dissent.
This was simply the description broadcast over the radio, and there is no indication that it was intended to convey a malevolent purpose. Nevertheless, the dissent suggests that the report and the actions of the police were racially motivated. While we respect the dissenting judge’s sensitivity to such issues, there is nothing in the record to support that conclusion, nor does appellant herself suggest that the color of her skin, or the fact that she was in the company of a white male, played any role in the chain of events culminating in her arrest.
The dissent is simply wrong in suggesting that a case such as this should be dismissed upon revenal. The double jeopardy clause does not forbid retrial so long as the sum of the evidence offered by the State and admitted by the trial court — whether erroneously or not — would have been sufficient to sustain a guilty verdict. Nard v. State, 304 Ark. 159, 163-A, 801 S.W.2d 634, 637 (1990) (supplemental opinion denying rehearing). See also Crutchfield v. State, 306 Ark. 97, 104, 816 S.W.2d 884 (1991) (supplemental opinion granting rehearing). Considering all of the evidence in this case, there is substantial evidence to support the verdict. Consequently, if this court were to reverse based on appellant’s claim of trial error, it would be appropriate for this court to remand, leaving it to the prosecution to decide whether or not the appellant is to be retried. | [
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JOHN B. Robbins, Judge.
On June 4, 1992, August in Arkansas, Inc., placed an order for “souvenir-style” tickets with appellee Weldon, Williams, and Lick, Inc. (Weldon), in the amount of $44,766.65. August in Arkansas wanted to purchase the tickets on credit, but Weldon would not furnish the tickets without a personal guaranty of payment. Such a guaranty was received by Weldon, which allegedly bore the signature of August in Arkansas founder Mark Abernathy. After August in Arkansas failed to pay the amount due on the tickets, Weldon sued Mr. Abernathy for the debt. Mr. Abernathy denied ever making or signing the personal guaranty. However, after a bench trial, judgment was entered against Mr. Abernathy in the amount of $54,350.43. This amount included the purchase price, interest, and attorney’s fees. Mr. Abernathy now appeals.
For reversal, Mr. Abernathy argues that the trial court erroneously excluded the testimony of two of his witnesses. He also argues that the trial court’s decision was erroneous because its finding that the signature on the guaranty was his was clearly against the preponderance of the evidence. Finally, Mr. Abernathy asserts that the trial court erred as a matter of law in ruling that, even if the signature on the guaranty was not his, he had ratified the personal guaranty. We find no error and affirm.
Tina Solesbee Clark was the first to testify at trial on behalf of Weldon. She stated that, in June 1992, she was employed with Weldon as a customer services representative. Ms. Clark testified that, during this time, she was involved in negotiations with Brigette Williams, a representative of August in Arkansas. According to Ms. Clark, Ms. Williams placed an order for tickets and requested that the purchase be made on credit. However, Weldon’s president, Jim Walcott, denied August in Arkansas’ credit application, and advised Ms. Clark to tell Ms. Williams that the tickets could not be provided on credit unless a personal guaranty was provided by Mr. Abernathy. After this information was relayed to Ms. Williams, she faxed to Weldon a document that purported to be a guaranty signed by Mr. Abernathy. This guaranty stated, “I, Mark Abernathy, am the founder and president of August in Arkansas and present myself as guarantor for payment of August in Arkansas festival tickets money.”
Terry Vaughan, credit manager for Weldon, testified next. She asserted that she received the fax which purported to be the personal guaranty of Mr. Abernathy. Ms. Vaughan stated that, upon consideration of this document, Weldon decided to extend credit. After the account became delinquent, Ms. Vaughan had a telephone conversation with Mr. Abernathy. According to Ms. Vaughan, this occurred on August 26, 1992, and during the conversation Mr. Abernathy “told me that since he had signed a personal guaranty, that we would be at the top of his list for payment, and he would probably make one the following week.” However, no such payment was ever received.
Mr. Walcott also testified that he talked with Mr. Abernathy by telephone when the account became delinquent. He stated thát, during a conversation on November 13, 1992, Mr. Abernathy acknowledged that he had signed a personal guaranty and was personally liable for the indebtedness. Mr. Walcott further stated that Mr. Abernathy convinced him that everything was being done to make sure that the payment would be made. Although no payment terms were arranged during the conversation, Mr. Walcott stated that Mr. Abernathy’s representations convinced him that Mr. Abernathy was going to make the necessary payment.
Mr. Abernathy testified on his own behalf, and he denied having signed the guaranty or giving anyone else permission to do so. He reasoned that the purported guaranty that was faxed to Weldon must have been a forgery, and that he knew nothing about any supposed guaranty until long after the festival. Mr. Abernathy acknowledged speaking with Mr. Walcott in November 1992, but said that he never told Mr. Walcott that he had signed the document or would guarantee the debt. Mr. Abernathy testified that he had never seen or talked with anyone from Weldon prior to the festival, and that he had nothing to do with the credit extended for the purchase of the tickets.
Mr. Abernathy’s first argument on appeal is that the trial court erred in excluding the testimony of two of his witnesses. Only four days before the trial was scheduled to begin, Mr. Abernathy supplemented his answers to Weldon’s interrogatories, and this supplement contained the names of two additional witnesses, Jackie Michelle and Thomas Vastrick, who were to testify on his behalf. Before the trial began on June 28, 1994, Weldon orally moved in limine to bar the testimony of these two witnesses because their names were not made available in a timely fashion to allow for adequate preparation. Mr. Abernathy responded that Weldon was given adequate notice of the witnesses. The trial court agreed and denied Weldon’s motion in limine. However, when Weldon renewed its objection later in the trial, the trial court decided to exclude the testimony of the witnesses because the supplement to Mr. Abernathy’s answers to interrogatories was not verified. The supplement was signed by Mr. Abernathy’s counsel, but not by Mr. Abernathy. Consequently, the trial court refused to allow the witnesses to testify, and Mr. Abernathy now takes exception to that ruling.
Mr. Abernathy asserts that, while he did not sign the supplement to his answers, this was only a technical error and should not have precluded the witnesses’ testimony, particularly in light of the fact that at trial he testified under oath that he approved of the supplement. Mr. Abernathy refers to Rule 37 of the Arkansas Rules of Civil Procedure, which provides certain sanctions for discovery violations. He acknowledges that under the rule, a court may refuse to allow the presentation of certain evidence if it finds that a party has failed to comply with a discovery order or answer interrogatories. However, Mr. Abernathy contends that he answered the interrogatories in a timely fashion, as the trial court originally found. He asserts that the sanctions imposed by the court, which were based solely on the fact that his pleading was unverified, placed form over substance and were unjustified under the circumstances.
Mr. Abernathy further asserts that, had the testimony of the two excluded witnesses been admitted, the outcome of the trial may have been different because their testimony was essential to his defense. An affidavit made by one of the witnesses, Thomas Vastrick, a handwriting expert, was attached to Mr. Abernathy’s supplement to his answers. In the affidavit, the expert stated that his analysis of the signature on the purported guaranty, which was faxed to Weldon, was inconclusive. He indicated that, while the signature was similar to that of Mr. Abernathy, he could not rule out forgery or a transfer of the signature from another document because he did not have a copy of the original guaranty. Mr. Abernathy asserts that this evidence and the testimony of the other witness, Jackie Michelle, would have been beneficial to his case, although he does not indicate what the substance of Michelle’s testimony would have been.
With respect to Jackie Michelle, we hold that Mr. Abernathy’s first argument is precluded from our review because he failed to make a proffer of her testimony at trial. Arkansas Rule of Evidence 103(a)(2) provides that error may not be predicated upon a ruling which excludes evidence unless a substantial right of the party is affected and the “substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.” When a party fails to make a proffer of testimony, he may not take issue with its exclusion on appeal. Carr v. General Motors Corp., 322 Ark. 664, 911 S.W.2d 575 (1995); Garner v. Kees, 312 Ark. 251, 848 S.W.2d 423 (1993). In the case at bar, it is undisputed that no offer of proof was made regarding the excluded testimony of Jackie Michelle. Therefore, any argument about this exclusion was not preserved for our review.
As to the excluded testimony of Thomas Vastrick, we believe that the substance of his testimony was apparent because of his affidavit that was attached to Mr. Abernathy’s supplemental answers to interrogatories. However, the gist of his testimony was that he could not determine whether the signature on the guaranty was or was not a forgery. Consequently, even if the trial court erred in excluding this testimony, Mr. Abernathy has failed to demonstrate prejudice. It is no longer presumed that error is prejudicial. Hibbs v. City of Jacksonville, 24 Ark. App. 111, 749 S.W.2d 350 (1988).
Mr. Abernathy next contends that the trial court’s finding that the signature on the guaranty was his was clearly against the preponderance of the evidence. Prior to issuing its ruling, the trial judge stated, “[t]he court believes that this is the signature of Mr. Abernathy or someone has done a good job of forging it.” Mr. Abernathy cites Rule 52(a) of the Arkansas Rules of Civil Procedure as authority for the proposition that, after a bench trial, a trial court’s findings of fact should be set aside when clearly against the preponderance of the evidence. He asserts that the trial court’s ruling on this issue should be reversed pursuant to the above rule.
Although Mr. Abernathy denied signing the guaranty and there were no witnesses to his signing the document, we cannot find that the trial court’s ruling on this issue was clearly against the preponderance of the evidence. It is undisputed that Mr. Abernathy was director of development for August in Arkansas and that Weldon would not provide the tickets absent a personal guaranty agreement signed by Mr. Abernathy. While the original guaranty could not be produced at trial, the trial court was presented with a faxed copy which purported to contain Mr. Abernathy’s signature. The trial court was able to compare this signature to the signatures on various pleadings filed by Mr. Abernathy in the case, and determined that the signatures matched. From this information, we believe that the trial court could reasonably conclude that Mr. Abernathy signed the guaranty agreement.
Mr. Abernathy’s remaining argument is that the trial court erred in finding that he ratified the personal guaranty agreement through his subsequent telephone conversations with Ms. Vaughan and Mr. Walcott. Specifically, Mr. Abernathy asserts that, absent the finding that he signed the guaranty, he could not be held accountable for the debt because there was insufficient evidence that he ratified a forgery.
We find Mr. Abernathy’s final argument to be misplaced. The trial court never made a finding that he ratified a forgery by his subsequent actions. Rather, the trial court stated, “[t]he court further believes that whatever is represented in this Exhibit A was adopted by Mr. Abernathy in subsequent conversations with Mr. Walcott and Ms. Vaughan.” This finding was one that the trial court apparently considered in strengthening its opinion that Mr. Abernathy actually signed the guaranty and intended to be bound by it. The trial court believed testimony to the effect that, after the festival, Mr. Abernathy represented that he signed and was bound by a guaranty to cover the indebtedness from the tickets. This is further evidence that Mr. Abernathy was the individual who signed the guaranty agreement. The trial court never found that the signature on the guaranty was a forgery or was not that of Mr. Abernathy, or that any ratification took place in the event that the signature was not his. Thus, we reject his final argument.
Affirmed.
Jennings, C.J., Mayfield, and Stroud, JJ., agree.
Cooper, J., dissents.
Weldon argues that Mr. Abernathy’s appeal is untimely. The judgment against him was entered on July 20, 1994; Mr. Abernathy filed a “Motion for Reconsideration, or in the Alternative, to Offer Proof” on July 26,1994; this motion was deemed denied on August 25, 1994 pursuant to Rule 4(c) of the Arkansas Rules of Appellate Procedure; and he then failed to file his notice of appeal until September 26, 1994 — more than thirty days after his motion was deemed denied. We acknowledge that Rule 4(a) of the Arkansas Rules of Appellate Procedure allows an appealing party only thirty days to file a notice of appeal from the date that its post-judgment motion is deemed denied. However, we also note that Rule 9 of the Arkansas Rules of Appellate Procedure provides that, when the last day of such a time period falls on a weekend, the tíme for filing is extended until the following Monday. In the instant case, Mr. Abernathy’s notice of appeal was timely because September 24, 1994, fell on a Saturday and his notice of appeal was filed on the following Monday. | [
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JAMES R. Cooper, Judge.
The appellant was convicted in a jury trial of delivery of a controlled substance and sentenced to eleven years in the Arkansas Department of Correction. On appeal, he argues that the trial court erred in denying his motion for a new trial because the State failed to disclose that its sole material witness had filed a false police report and had resigned from the police department prior to trial. We agree and reverse and remand.
At the appellant’s trial on October 27, 1994, the State’s witness, Officer Elliott Johnson, testified that the appellant sold him crack cocaine. Johnson testified that he was investigating narcotics activity in a housing project area on March 9, 1994. He testified that at approximately 5:15 p.m., he and a confidential informant were flagged down by the appellant who was driving a Chevrolet truck with license plate number TWY 553. He testified that he purchased $20.00 worth of crack cocaine from the appellant.
Johnson testified that he saw the appellant driving the same truck again on April 12, 1994. He radioed other officers to stop the appellant’s vehicle in order to identify and photograph him. Johnson testified that there was no doubt that the appellant was the person who sold him the cocaine. Three alibi witnesses testified on the appellant’s behalf. During closing arguments, the prosecutor stated:
Can he [Johnson] make an identification after just looking at somebody for five minutes? Well, yes, I think he can. He’s a detective, a professional at that. . . . This is a police officer who is making a buy of cocaine. . . . He would pay attention to that kind of thing. That’s what he’s trained to do.
The appellant filed a motion for a new trial on December 1, 1994, after discovering that Johnson was not, in fact, a police officer at the time of the trial. Captain Sam Williams of the Little Rock Police Department testified during the hearing on the appellant’s motion for a new trial. He testified that on September 11, 1994, Officer Johnson informed a supervisor that his city-supplied car had been stolen out of the driveway of his home in Little Rock. Captain Williams testified that approximately three to four weeks later it was determined that the car had not been stolen but that Johnson had wrecked it in Tunica, Mississippi, and had been unable to return the vehicle to Little Rock. Captain Williams explained that taking the car to Tunica was a violation of police department rules. Captain Williams further testified that Johnson had filed a false police report. Johnson resigned from the Police Department on October 4, 1994, and thus was not employed as a police officer at the time of the trial. The prosecuting attorney admitted at the hearing that it had been discussed prior to trial that Johnson should not be asked at trial where he was employed.
The appellant argues that he was prejudiced by the State’s failure to disclose that Johnson had filed a false police report and had resigned from the police department because he was prevented from using that information to attack Johnson’s credibility. He also argues that the State’s failure to disclose this information amounted to prosecutorial misconduct. This second argument, however, was not made to the trial court and hence, it is not preserved for appeal. We do not consider arguments raised for the first time on appeal. Walker v. State, 314 Ark. 628, 864 S.W.2d 230 (1993).
Here, the appellant filed a discovery motion on September 7, 1994. The State did not disclose any information regarding Johnson’s resignation although it had knowledge of it prior to trial. Rule 17.1(d) of the Arkansas Rules of Criminal Procedure incor porates the due process requirement that evidence favorable to a defendant on issues of guilt or punishment be disclosed by the prosecutor. Brady v. Maryland, 373 U.S. 83 (1963); Yates v. State, 303 Ark. 79, 794 S.W.2d 133 (1990). Insofar as the rule requires pretrial disclosure, it represents an extension of the Brady mandate. Yates, supra. The Brady rule has been interpreted to include impeachment, as well as exculpatory evidence. United States v. Bagley, 473 U.S. 667 (1985). Rule 19.2 further imposes a continuing duty on the prosecutor to disclose this information.
If the State fails to provide information pursuant to pretrial discovery procedures, the burden is on the appellant to establish that the omission was sufficient to undermine confidence in the outcome of the trial. Bray v. State, 322 Ark. 178, 908 S.W.2d 88 (1995). The key in determining whether a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor’s failure to disclose. Mosley v. State, 323 Ark. 244, 914 S.W.2d 731 (1996).
In the case at bar, the State’s case was based upon Johnson’s testimony and his identification of the appellant as the person who sold him the crack cocaine. Consequently, the importance of the evidence that would have been used to attack Johnson’s credibility cannot be minimized. The appellant’s defense depended on bringing into question Johnson’s credibility. Furthermore, the evidence of the appellant’s guilt is not overwhelming absent Officer Johnson’s testimony, see Hall v. State, 306 Ark. 329, 812 S.W.2d 688 (1991), and given the close proximity ofjohnson’s resignation to the time of trial, we cannot say that the appellant was not diligent in attempting to discover this information during his own investigation prior to trial. We conclude that the appellant was prejudiced by the State’s failure to disclose the information regarding Johnson’s resignation, and thus find that the trial court abused its discretion in denying the appellant a new trial.
Reversed and remanded.
Robbins and Stroud, JJ., agree. | [
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John E. Jennings, Chief Judge.
Houston Williams and Kathlene Williams, husband and wife, were each convicted of conspiracy to deliver methamphetamine. They each appeal from their convictions. Houston Williams argues three points on appeal: (1) that the trial court erred in failing to grant his motion for directed verdict in that the evidence was insufficient because Henry Glosemeyer and bis wife Terry Glosemeyer were accomplices and their testimony was uncorroborated; (2) that the trial court erred in refusing to instruct the jury that Henry and Terry Glosemeyer were accomplices as a matter of law whose testimony must be corroborated; and (3) that the trial court erred in failing to grant appellants’ motions to dismiss for double jeopardy. Kathlene Williams argues these same points, and also that the trial court erred in refusing to sever her trial from that of her husband; the court erred in refusing to grant a mistrial after the prosecutor referred to facts outside of the record; the court erred in preventing her cross-examination of Henry Glosemeyer; and the court erred in allowing evidence of her previous conviction for enhancement purposes at sentencing. We affirm as to both appellants on all issues.
SUFFICIENCY OF THE EVIDENCE
We first address appellants’ arguments concerning their motion for directed verdict, as they involve a challenge to the sufficiency of the evidence. Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995); Martin v. State, 316 Ark. 715, 875 S.W.2d 81 (1994); Coleman v. State, 315 Ark. 610, 869 S.W.2d 713 (1994). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Substantial evidence is evidence forceful enough to compel a conclusion one way or another without suspicion or conjecture. Owens v. State, 313 Ark. 520, 856 S.W.2d 288 (1993). In determining the sufficiency of the evidence, we review the proof in the light most favorable to the State, considering only that evidence which tends to support the verdict. Gunter v. State, 313 Ark. 504, 857 S.W.2d 156 (1993).
Viewed in the light most favorable to the State, the following evidence was presented at trial. Henry Glosemeyer testified that he and Terry Glosemeyer met Houston Williams and Kathlene Williams around Thanksgiving of 1991 when they were all working for a trucking company. Henry Glosemeyer was aware that the Wil-liamses were behind in their house payments. He had a Mac Ten .9mm semi-automatic handgun that he wanted to get rid of, and he suggested that Houston Williams take the weapon to California and either sell it or trade it for drugs so that they could split the proceeds. Glosemeyer testified that Williams took the weapon to California and when he returned he gave Glosemeyer a quarter ounce of methamphetamine in return. Just before Christmas of 1991, the Williamses lost their job with the trucking company. Glosemeyer testified that he and Terry continued to have contact with the Williamses, living out of a bedroom and staying at their residence just about every weekend when they came through. Glosemeyer testified that the Williamses would make trips to California to obtain drugs and were making their living collecting unemployment and dealing drugs. He testified that he and Terry used drugs at the Williams’ residence. In April 1992, Henry and Terry Glosemeyer quit their job with the trucking company and moved into the Williams’ residence full time, where they all did drugs regularly. He testified that they had numerous conversations about buying, selling, and using drugs. He testified that Houston Williams, sometimes accompanied by his wife Kathlene, would make a trip to California every four to six weeks to procure more drugs. On one trip, the Williamses took Henry Glosemeyer’s personal pickup truck to California to procure drugs. Glosemeyer testified that Terry moved out of the Williams’ residence in either June or July, but he continued to live there until September 1992. During the time he was living with the Williamses he saw people come to the house to talk to the Williamses about drugs. He testified that people came to the house and they all did drugs and there was constant conversation about selling drugs and that both Houston and Kathlene were part of the conversations. Henry Glosemeyer testified that even after he moved out of the Williams’ house he continued to be involved with drugs and with the Wil-liamses. In November of that year, Glosemeyer began to sell quantities of methamphetamine to another truck driver he knew. He testified that he got the drugs from Houston and gave the money to both Houston and Kathlene. Glosemeyer continued to sell drugs that he got from Houston Williams until February 22, 1993, when he was arrested leaving the Williams’ house with two ounces of methamphetamine in his truck. After his arrest, Glosemeyer cooperated fully with the police and told them about the Williamses and his own role in the drug trade. He testified that before his arrest he had been waiting for Williams to return from a trip to California that he had made in Glosemeyer’s truck, and that Williams had told Glosemeyer he was to pick up four pounds of methamphetamine in California. Glosemeyer testified that at this time “I was a major distributor for him.”
Terry Glosemeyer testified about meeting the Williamses, moving in with them, and their collective drug use. She testified that they all used methamphetamine, but she never bought drugs from Houston and Kathlene Williams. She testified that Henry did buy drugs from the Williamses and that she had witnessed Houston and Kathlene sell drugs to other people. Terry Glosemeyer testified that on one occasion she and Kathlene took some methamphetamine, mixed it with Inositol, and put it in bags. On another occasion, she testified that she counted between eight and ten thousand dollars in cash for Houston before a trip to California to buy drugs. She testified that after her husband was arrested on February 22, 1993, eight days later when he was out of jail they went to the Williams’ house. Terry testified that she slept on the couch that night and when she woke in the morning, she heard conversations in the house between Houston Williams, Richie Dickson, and Ron Fox. They were discussing the location of methamphetamine that they had hidden. She believed the drugs they were talking about were the last shipment that Houston had brought in.
Detective Allen McCarty testified that he had been involved in an investigation of Houston and Kathlene Williams involving their distribution of methamphetamine. He first received information regarding Houston Williams in November 1992. He eventually interviewed a confidential informant named Fred Colvin. Colvin told him that a person living in West Fork named Houston Williams was making approximately three trips a month to California, was buying drugs, and bringing them back to northwest Arkansas for distribution. In February 1993, after receiving information from a detective with the Ninth Judicial Drug Task Force, McCarty and members of the Fourth Judicial Drug Task Force set up surveillance of the Williams’ residence. They saw Henry Glosemeyer drive to the Williams’ residence, and then leave. A few hours later a red pickup arrived at the residence driven by Glosemeyer. About 8:30 p.m., they observed the pickup leave the residence driven by Glosemeyer. The truck was stopped and Glosemeyer consented to a search, which produced two ounces of methamphetamine. After Glosemeyer’s arrest, he indicated that he had gotten the drugs from Houston Williams.
We hold that there was substantial evidence presented at trial to support the jury’s verdict. Because the trial court ruled that Henry and Terry Glosemeyer were not accomplices as a matter of law, there was no requirement of corroborating evidence to send the case to the jury for deliberation. See King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996). The trial court did not err in denying the appellants’ motions for directed verdict.
ACCOMPLICES AS A MATTER OF LAW
Both appellants contend that the trial court erred in not holding that both Henry and Terry Glosemeyer were accomplices to the conspiracy as a matter of law. We cannot agree. Arkansas Code Annotated section 5-2-403 provides, in part:
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...aids, agrees to aid, or attempts to aid the other person in planning or committing it.
In the case at bar the trial court gave AMCI 2d 403, which allowed the jury to determine whether the Glosemeyers were accomplices to the conspiracy and therefore whether corroboration was required. The “Note on Use” to AMCI 2d 403 states that the instruction should be given when an alleged accomplice has testified and the sufficiency of the corroborating evidence presents an issue of fact for the jury. The court should not instruct the jury that a certain witness is an accomplice if there is any dispute in the testimony upon that point. Odom v. State, 259 Ark. 429, 533 S.W.2d 514 (1976). Whether a witness is an accomplice is ordinarily a mixed question of law and fact, to be submitted to the jury. Odom v. State, supra. The problem here cannot be adequately understood without some discussion of the nature of the crime of conspiracy. Professor Lafave states:
As courts have so often said, the agreement is the “essence” or “gist” of the crime of conspiracy.
Because most conspiracies are clandestine in nature, the prosecution is seldom able to present direct evidence of the agreement. Courts have been sympathetic to this problem, and it is thus well established that the prosecution may “rely on inferences drawn from the course of conduct of the alleged conspirators.” This notion has been traced to an oft-quoted instruction in an 1837 English case, where the judge told the jury: “If you find that these two persons pursued by their acts the same object, often by the same means, one performing part of an act and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object.”
2 Wayne R. LaFave and Austin W. Scott Jr., Substantive Criminal Law § 6.4 (1986).
In the case at bar, the Williamses were charged with conspiring to deliver methamphetamine in northwest Arkansas. Although there was considerable evidence of criminal activity on their part, there was no direct evidence of the actual agreement between them. The jury in the case at bar was permitted to draw such an inference. Likewise, there is abundant evidence that the Glosemeyers were involved in all sorts of criminal activities with the Williamses, but again there is no direct evidence of their agreement in the charged conspiracy. If different inferences may reasonably be drawn from the proof regarding complicity, the question of accomplice status is one for the jury. See 75A Am. Jur. 2d Trial § 822 (1991). Our courts have repeatedly said that the drawing of inferences is for the trier of fact. See Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979); Crow v. State, 248 Ark. 1051, 455 S.W.2d 89 (1970); Lewis v. State, 7 Ark. App. 38, 644 S.W.2d 303 (1982).
While we agree that the jury could readily infer, in the case at bar, that the Glosemeyers were accomplices to the conspiracy, we cannot say the court erred in submitting the question to them.
DOUBLE JEOPARDY
Prior to this trial on charges of conspiracy to distribute methamphetamine, both Houston and Kathlene Williams were convicted in a separate trial of possession of methamphetamine with intent to deliver. They argue that Ark. Code Ann. § 5-1-113 provides them with an affirmative defense to the second prosecution, and cite Tackett v. State, 294 Ark. 609, 745 S.W.2d 625 (1988), in support. They also argue that the doctrine of merger prohibits the second prosecution, citing Elsey v. State, 47 Ark. 572, 2 S.W. 337 (1886). Arkansas Code Annotated section 5-1-113 provides in pertinent part:
A former prosecution is an affirmative defense to a subsequent prosecution for a different offense under the following circumstances:
(1) The former prosecution resulted in...a conviction... and the subsequent prosecution is for:
(B) An offense based on the same conduct, unless:
(i) The offense of which the defendant was formerly convicted...and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of the offenses is intended to prevent a substantially different harm or evil; or
(ii) The second offense was not consummated when the former trial began.
In Tackett v. State, 294 Ark. 609, 745 S.W.2d 625 (1988), the defendant was convicted of manslaughter in the death of one victim while a second victim of the same incident remained in a coma. After the second victim died, defendant’s subsequent prosecution for her death was held not to be barred because the second offense was not consummated when the former trial began. In the case at bar, appellants argue that the charges in the first trial and the charges of conspiracy in the subsequent trial arose out of the same conduct, and the “not yet consummated” exception does not apply because all of the activities constituting the elements of the conspiracy charges had been consummated before the first trial began.
While accurate as far as it goes, appellants’ argument overlooks the other exception, contained in subsection (l)(B)(i). The offense of possession with intent to deliver and the offense of conspiracy to distribute “each requires proof of a fact not required by the other and the law defining each of the offenses is intended to prevent a substantially different harm or evil.” Arkansas Code Annotated section 5-1-110(a)(2) provides that when the same conduct of a defendant may establish more than one offense, the defendant may be prosecuted for each such offense but may not be convicted of more than one offense if one offense consists only of a conspiracy to commit the other. By allowing prosecution for both conspiracy and the underlying offense, this section does not merge the inchoate offense into the ultimate offense as was the law in Elsey v. State. However, as the Original Commentary to this section of the Code .illustrates, the use of the word “only” is significant. As the Commentary points out:
[I]t restricts] application of the subsection in the conspiracy context to the situation where the consummated offense was the sole object of the conspiracy. If the defendant conspired to commit a continuing series of offenses, he may be convicted of both the conspiracy and a completed offense committed pursuant to the conspiracy. For example, the person who agrees with others to engage in the continuing sale and distribution of drugs may be convicted of both conspiracy and a completed drug sale.
We found this reasoning persuasive in Lee v. State, 27 Ark. App. 198, 770 S.W.2d 148 (1989), where we held that § 5-1-110 did not prohibit convictions for both delivery of a controlled substance and conspiracy to deliver. The same reasoning is applicable to the case before us. While in a sense both the offenses of possession of methamphetamine with intent to deliver and conspiracy to distribute methamphetamine may be based on the same conduct, each requires proof of a fact not required by the other; therefore the affirmative defense of § 5-1-113 does not apply. Nor does § 5-1-110 prevent conviction for both offenses, as the conspiracy that was the subject of the conviction in the case at bar was not only a conspiracy to commit the other offense of possession with intent to deliver on February 23, 1993, that was the subject of the prior conviction. The conspiracy was to engage in the continuing sale and distribution of methamphetamine over the course of more than a year. The appellants’ conviction on the conspiracy charge did not violate the principle of double jeopardy.
SEVERANCE
The remaining arguments are made solely by appellant Kathlene Williams. She argues that the trial court erred when it refused to sever her case from that of her husband, as the evidence against him was so much stronger than that against her.
In order to preserve for appeal a trial court’s denial of a motion to sever, the defendant must renew the motion at the close of all the evidence. Ark. R. Crim. P. 22.1(b). General renewals of motions, that do not make clear to the court the grounds relied upon, have been held insufficient to preserve the issue for appeal. See Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995); Jacobs v. State, 317 Ark. 454, 878 S.W.2d 734 (1994); Wynn v. State, 316 Ark. 414, 871 S.W.2d 593 (1994). In the case at bar, appellant’s counsel stated to the court, “[I]n order to preserve my motion for severance I have to reurge it.” Even if this is considered sufficient to preserve the issue, we recognize that the trial court has broad discretion in determining whether to grant or deny a motion to sever. Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995). While there may have been some disparity in the quantity and quality of evidence presented against the two appellants, there was evidence presented that went specifically to the conduct of Kathlene as well as to that of Houston. We note that the jury was appropriately instructed to consider the evidence for or against each of them separately, and to render verdicts accordingly. We find no abuse of discretion in refusal of the motion to sever.
MOTION FOR MISTRIAL — PROSECUTOR’S CLOSING ARGUMENT
Appellant Kathlene Williams argues that the trial court erred in failing to grant a mistrial for some of the prosecutor’s remarks made during closing argument. In referring to defense counsels’ questioning of Henry Glosemeyer about his incentive to testify because of the charges pending against him, the prosecutor stated “you’re looking at the person who makes that decision, and he doesn’t know what’s going to happen.” Appellant’s counsel objected to the prosecutor’s referring to information not in evidence, and was overruled. Again, the prosecutor stated that Glosemeyer never testified what “deal” he had with the prosecutor, “because there ain’t none.” Again, the same objection was overruled. The prosecutor then referred to statements made by Fred Colvin, another defendant, implying that they may possibly have been induced to avoid the appellants “messing with his friends or messing with him.” Appellant’s counsel objected again on grounds that the prosecutor had argued facts not in evidence and asked that the jury be admonished not to consider the statements. The trial court responded that the jury had been instructed that arguments are not evidence. Counsel then asked for mistrial, which was denied.
Mistrial is an extreme remedy to which the court should resort only when there has been an error so prejudicial that justice cannot be served by continuing the trial. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994). Counsel are given leeway in closing argument to argue plausible inferences that can be drawn from the testimony, and the trial court has a wide latitude of discretion in controlling the arguments of counsel. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). While the prosecutor’s comments were outside of the evidence, the jury was instructed that closing arguments were not evidence. We will not overturn the trial court’s ruling absent clear abuse, and we do not find such manifest abuse of discretion here.
LIMITATION OF CROSS-EXAMINATION
Appellant Kathlene Williams argues that the trial court erred in disallowing her cross-examination of Henry Glosemeyer regarding “the extent to which his deal to testify favorably for the State might be motivated by what he faced if convicted.” She argues that her cross-examination was attempting to show that he had ample motive to testify favorably for the State.
Glosemeyer testified that he had been in trouble for methamphetamine twice before, had been to prison, and did not want to go back. He indicated that in a prior case he had testified for the prosecution and had gotten probation. He testified that he was being prosecuted for possession with intent to deliver and faced the possibility of a life sentence. He acknowledged that his case had been continued a number of times for the purpose of seeing the outcome of appellants’ trial. He admitted that he was “testifying in order to do as much as I can to help myself”; that there was “no doubt about the fact that I am seeking favorable consideration for my testimony^] I want leniency”; and that “I will come in and say anything to prevent myself from sitting in that defense chair as long as its the truth.”
When the prosecutor objected to appellant’s counsel’s attempt on cross-examination to ask more about the possible sentence Glosemeyer faced, counsel made an offer of proof in which he had Glosemeyer admit that thirty years in prison would deprive him of the opportunity to earn forty hours a week of minimum wage; that Glosemeyer did not want his child to have to visit him in prison; and that he did not want to be deprived of his freedom. The court indicated to counsel that the substance of the proffer was irrelevant, redundant, and repetitive. We agree. Glosemeyer’s motives for testifying favorably for the State were clear, and appel lant has not shown how she was prejudiced by the court’s curtailment of her repetitive cross-examination.
ENHANCEMENT
Appellant’s final argument is that it was error for the court to allow evidence of her previous conviction for possession with intent to deliver for enhancement purposes at sentencing. She argues that as the two convictions arose from a single act it was fundamentally unfair to use one to enhance punishment for the other, citing Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989). In that case the supreme court held that enhancement of punishment was directed towards habitual offenders, and because Tackett was convicted on two manslaughter charges arising out of a single criminal act, there was nothing habitual about his conduct and it would contravene fundamental fairness to treat him as an habitual offender. In contrast, appellant was convicted of conspiracy to distribute methamphetamine as an ongoing course of conduct, with her prior conviction for possession with intent to deliver representing a single episode therein. We do not perceive the same fundamental unfairness in addressing her habitual conduct through use of enhancement.
Affirmed.
Cooper and Mayfield, JJ., agree.
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Melvin Mayfield, Judge.
This is an appeal from a decision of the Arkansas Workers’ Compensation Commission holding that appellant’s claim for wage loss benefits was barred by that portion of Act 10 of the Second Extraordinary Session of 1986, which is codified as Ark. Code Ann. § ll-9-522(b) (1987), and which provides that an injured employee who has returned to work at wages equal to what he was making at the time of injury shall not be entitled to benefits in excess of his permanent physical impairment.
At a hearing before the administrative law judge held on August 10, 1989, it was stipulated that appellant suffered a compensable injury on May 24, 1988; that his average weekly wage was $539.00; that all medical bills and appropriate temporary total disability had been paid; and that he was being paid compensation at the rate of $154.00 per week based on a 17 % permanent partial disability. Appellant contended that he was permanently and totally disabled, or, in the alternative, that he had sustained a degree of permanent partial disability in excess of the doctors’ anatomical rating of 17%.
The appellant was 57 years old at the time of the hearing. He is a high school graduate who had worked for appellee for 35 years. On May 24, 1988, while working the night shift, he fell approximately fifteen feet from a ladder and landed on his back. He was hospitalized for approximately two weeks with a compression fracture at T-12, recuperated at home and returned to work on December 5, 1988. Two doctors, both orthopedic specialists, one of whom was appellant’s treating physician, authorized appellant’s return to work, and both doctors agreed that he had a permanent physical impairment rating of 17 % to the body as a whole. On September 27, 1988, a report from the treating doctor stated appellant could return to work in two months, but he “will have some permanent limitation of the heavy lifting, sudden vigorous twisting, and will have some level of permanent discomfort in his back as a result of this compression fracture.”
Appellant testified that his back hurts at times when he is working and that at times other employees help him with heavy lifting activities. He testified that he makes the same hourly rate that he made before his injury. However, he said that based on “seven or so” weeks prior to his injury and the “ten or so weeks” immediately preceding the hearing, he was now making “around” $60.00 per week less than before his injury. He acknowledged that this calculation included overtime pay and that overtime was in greater supply before his injury. His classification has not changed, and he has never been refused overtime since his return to work. His injury does not prevent him from working overtime; he has accepted overtime work four of the five times it has been offered since his return to work; he is one of four employees in his classification eligible for overtime work; generally this work is offered to the one who has the least accumulated overtime.
A certified rehabilitation counselor testified by deposition, and a report made by him to appellant’s counsel was introduced into evidence. The conclusion of that report reads as follows:
It is my opinion, therefore, that because of Mr. Cook’s age, physical impairment, and vocational background that he would not be employable by any other firm or business, whose job description and work requirements were the same as the position he now holds.
On appeal, it is appellant’s first argument that except for Ark. Code Ann. § 11-9-522(b) (1987), this is a “classic case” for the application of Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961). The holding of that case was succinctly explained by Justice David Newbern, while a judge on the Arkansas Court of Appeals, as follows:
The Arkansas Supreme Court long ago departed from the restrictive view that only anatomical or functional disability could be considered in determining disability to the body as a whole. The departure came in Glass v. Edens . . . and since that case was decided we have been among the great majority of jurisdictions which allow consideration of several factors in determining not just functional bodily limitations, but loss of earning capacity as a predicate for workers’ compensation.
M.M. Cohn v. Haile, 267 Ark. 734, 736, 589 S.W.2d 600 (Ark. App. 1979). However, appellant admits that Ark. Code Ann. § 11-9-522(b) (1987), if applicable to this case, would prevent the Commission from giving consideration to the appellant’s age, education, experience and other matters affecting wage loss, see Glass v. Edens, 233 Ark. at 788, in addition to the medical evidence that appellant sustained a 17 % physical impairment to the body as a whole. Ark. Code Ann. § 11-9-522(b) reads as follows:
In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent physical impairment, the commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee’s age, education, work experience, and other matters reasonably expected to affect his future earning capacity. However, so long as an employee, subsequent to his 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 average weekly wage at the time of the accident, he 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.
But it is appellant’s contention that this section of the workers’ compensation law does not apply in this case because the appellee has “totally failed in its proof to meet its burden” to show that appellant has returned to work “at wages equal to or greater than his average weekly wage at the time of the accident.”
Appellant argues that the word “wages” is not defined and “it makes absolutely no difference why or under what circumstances wages are less after an accident than they were before,” but if the claimant is not making preinjury wages “then the respondent has failed in its affirmative proof and the statute is inapplicable.” The appellee counters with the argument that “we cannot tell” whether the Commission decided this case on the equality of wages theory since appellant failed to prove by a preponderance of the evidence that his future earning capacity was affected sufficiently to entitle him to a disability rating in excess of 17%.
We think it is clear that the Commission’s decision was based upon Ark. Code Ann. § 11-9-522(b). The Commission plainly stated:
Payments were voluntarily made for a 17 % permanent anatomical impairment rating, but the claim for wage loss benefits is barred by that portion of Act 10 of 1986 which is codified as Ark. Code Ann. § 11-9-522(b) (1978).
Thus, the Commission held that appellant’s claim for “wage loss benefits” in excess of the physical or anatomical impairment was “barred” by section 11-9-522(b). Moreover, it is our duty to review the decision of the Commission to determine whether it is supported by the facts found by the Commission. Mosley v. McGehee School District, 30 Ark. App. 131, 783 S.W.2d 871 (1990); Wright v. American Transportation, 18 Ark. App. 18, 709 S.W.2d 107 (1986). In appeals from the Commission, we cannot indulge the presumption used in appeals from trial courts, see Morgan v. Downs, 245 Ark. 328, 432 S.W.2d 454 (1968), and Hyde v. Quinn, 298 Ark. 569, 769 S.W.2d 24 (1989), that even if the court states the wrong reason, we will affirm if the judgment is correct.
We think it is also clear as to which party has the burden of proof on the issue of whether the injured party has returned to work at wages equal to or greater than his average weekly wage at the time of the accident. To obtain benefits, it is the claimant’s burden to show that injury or death of the employee was the result of an accidental injury that arose in the course of the employment, and that it grew out of, or resulted from, the employment. Farmer v. L.H. Knight Company, 220 Ark. 333, 336, 248 S.W.2d 111, 113 (1952). However, Ark. Code Ann. § 11-9-522(c)(1) (1987) specifically provides:
The employer or his workers’ compensation insurance carrier shall have the burden of proving the employee’s employment, or the employee’s receipt of a bona fide offer to be employed, at wages equal to or greater than his average weekly wage at the time of the accident.
So, Ark. Code Ann. § 11-9-522, which contains the provision about the wages after injury being equal to or greater than the wages at the time of the injury, also contains a provision stating which party shall have the burden of proving that the wages were the same after the injury as they were at the time of injury. Both provisions were part of Section 5 of Act 10 of the Second Extraordinary Session of 1986, which amended Ark. Stat. Ann. § 81-1313(d). See Volume 1, Book 2, General Acts of Arkansas 1987 at 2914.
It may not be clear, however, as to what the word “wages” or the term “average weekly wages” as used in Ark. Code Ann. § ll-9-522(b), means in all cases. It is true that the general “Workers’ Compensation Law” contains a section on definitions and that “wages” is defined therein. See Ark. Code Ann. § 11-9-102(8) (1987). As an aside, it might also be noted that under this section, the word “wages” can mean more than money paid for services rendered. It is also true that Ark. Code Ann. § 11-9-518 provides that “average weekly wage” shall not be computed on less than a full-time workweek; that the section gives directions on how to determine “average weekly wages” for employees working on a “piece basis,” and for overtime earnings; and there is a general provision that allows the Commission to determine “average weekly wage” by a method that is “just and fair” where required by exceptional circumstances. But there may be cases where there is room for argument on the issue of whether an employee’s “wages” after injury are equal to or greater than his “average weekly wage” at the time of the accident in which he was injured. There seems, however, to be no problem in this regard that would affect the validity or constitutionality of Ark. Code Ann. § 11-9-522(b).
Appellant did present constitutional questions to the Commission and they are argued here. But to conclude our discussion of his first argument- — that section ll-9-522(b) does not apply in the instant case because the appellee failed to meet its burden of showing that appellant returned to work at wages equal to or greater than his average weekly wage at the time of accident — we think there is substantial evidence to support the Commission’s decision on that issue. Although the weeks selected by appellant for comparison show that he earned less after his injury than he was earning at the time of the accident, the difference results from the fact that he did not work as much overtime after his injury as he did before his injury. Appellant admits his hourly rate was the same before and after his injury.
The brief filed for the appellant expresses concern over the possibility that the employer has, or may, simply put appellant back to work for a few hours a week, at the same hourly rate, in order to claim the application of section 11-9-522(b) and prevent a determination of disability based upon Glass v. Edens considerations. But Ark. Code Ann. § 11-9-522(d) (1987), provides as follows:
In accordance with this section, the commission may reconsider the question of functional disability and change a previously awarded disability rating based on facts occurring since the original disability determination, if any party makes application for reconsideration within one (1) year after the occurrence of the facts.
This provision appears to be sufficient to prevent an employer from just keeping or putting an injured employee on the payroll in order to invoke the application of section 11-9-522(b). Other provisions of the compensation law might also be applicable in this regard. But there is substantial evidence in this case that at the time of the hearing before the law judge the appellant was employed and making wages equal to his average weekly wage at the time of his accident. Future events may change this situation, and no definitive answer can be given with respect to all questions that may arise concerning the application of this statute, but the Commission is not stripped of its authority or ability to deal with those issues when they are presented.
With regard to appellant’s constitutional arguments, we first note that there is a presumption of constitutionality attendant to every legislative enactment. Hamilton v. Jeffrey Stone Co., 25 Ark. App. 66, 752 S.W.2d 288 (1988). One contention made by appellant is that section 11-9-522(b) allows an employer—by continuing to pay the same wages to an injured employee—to determine whether the employee receives compensation for the wageloss disability he has sustained. Crowly v. Thornbrough, 226 Ark. 768, 294 S.W.2d 62 (1956), is cited in support of this contention. That case held that legislation which allowed the Secretary of Labor of the United States to fix the minimum wage scale to be paid in certain areas of the state was an unlawful delegation of legislative authority in violation of the Arkansas Constitution. But if the legislature can fix the amounts to be paid for disability sustained by injured workers, it can surely limit compensable disability to the percentage of physical impairment for as long as the employee’s wages are the same after the injury. Whether this situation exists, the amounts involved, and other questions that may arise may constitutionally be left to the Commission to adjudicate. That, we find, is the effect of Ark. Code Ann. § 11-9-522 (1987).
Appellant also argues that section 1 l-9-522(b) violates the 14th amendment to the United States Constitution because there is “absolutely no ‘nexus’ between the statute and any governmental objective.” He cites Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983), and Love v. Hill, 297 Ark. 96, 759 S.W.2d 550 (1988), in support of this argument. Those cases hold that the test of constitutionality is whether the legislation is rationally related to achieving a legitimate governmental objective. While we have not been cited to any similar legislation in other states, it seems obvious that our legislature was attempting to prevent the employer from being liable for benefits for the loss 206, 655 S.W.2d 459 (1983), and Love v. Hill, 297 Ark. 96, 759 S.W.2d 550 (1988), in support of this argument. Those cases hold that the test of constitutionality is whether the legislation is rationally related to achieving a legitimate governmental objective. While we have not been cited to any similar legislation in other states, it seems obvious that our legislature was attempting to prevent the employer from being liable for benefits for the loss of the ability to earn wages while the injured employee is actually earning wages equal to the wages he was earning at the time of his injury. This seems to be a legitimate governmental objective and not a product of utterly arbitrary and capricious government. See Corbitt v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W.2d 184 (1974) (statute which encourages employers to retain injured employees has a rational basis).
Affirmed.
Cracraft, C.J., and Jennings, J., agree. | [
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John B. Robbins, Judge.
This appeal results from an order of the Lonoke County Chancery Court that increased appellant’s child-support obligation and ordered appellant to pay appellee $11,570.00 for his failure to make the parties’ Chapter 13 bankruptcy payments as ordered by the court. Appellant, Jeffrey Adair, does not challenge the chancellor’s increase in his child-support obligation on appeal; however, he does contend that the award of $11,570.00 to appellee is clearly erroneous. We agree and therefore reverse in part.
The parties to this appeal were divorced in October 1987, and appellee, Julie Adair, was awarded custody of the parties’ two minor children. In the divorce decree, the chancellor noted that the parties’ joint debts, house and property, were subject, to a Chapter 13 bankruptcy petition and ordered appellant to make the weekly $168.00 Chapter 13 payments under the plan in lieu of paying child support. Approximately six months after the decree was entered, appellant stopped making the bankruptcy payments, and the bankruptcy petition was subsequently dismissed. Sometime thereafter, appellant began paying appellee $62.50 in weekly child support.
In May 1994, appellee filed a motion to increase child support and a motion to have appellant held in contempt for his refusal to comply with the portion of the divorce decree that ordered him to make the Chapter 13 payments. After a hearing on these motions, the chancellor set appellant’s child-support obligation at $116.00 per week and awarded appellee judgment against appellant in the amount of $11,570.00 because of appellant’s failure to make the Chapter 13 payments as ordered by the court.
On appeal, appellant claims that the $11,570.00 award to appellee is clearly erroneous. The only evidence appellee offered concerning the bankruptcy petition was her testimony that the Chapter 13 petition was filed while the parties were separated but still married; that appellant was ordered to make the bankruptcy payments by their divorce decree; and that the case was dismissed for lack of payment after six months. There was no evidence that appellee had paid any creditors included in the bankruptcy petition or that she had even been contacted by these creditors. In sum, appellee offered no evidence that she had suffered any injury as a result of the dismissal of the bankruptcy petition. Had there been such evidence, this court would have no hesitation in affirming an award to appellee to reimburse her for those amounts. The issue before us, however, is whether the award to appellee is clearly erroneous, and because there is no evidence to support such an award, we must conclude that it is. Accordingly, we must reverse the $11,570.00 award to appellee.
On appeal, chancery cases are tried de novo on the record, and the findings of the chancellor will not be reversed unless they are clearly erroneous or clearly against the preponderance of the evidence. Hardison v. Jackson, 45 Ark. App. 49, 55, 871 S.W.2d 410, 413 (1994).
Affirmed in part; reversed in part.
Cooper and Mayfield, JJ., agree. | [
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JOHN Mauzy Pittman, Judge.
The appellant, Hartford Insurance Company, appeals from an order granting summary judgment in favor of appellees, Damon and Carolyn Brewer, on their claim to entitlement to the proceeds of an insurance policy issued by appellant. Appellant contends that the trial court erred in granting appel-lees’ motion for summary judgment and instead should have awarded summary judgment to appellant. For the reasons that follow, we affirm.
Although the record in this case is sketchy at best, the parties seem to agree upon certain facts. In December 1990, appellee Damon Brewer’s mother, Ethel Brewer, died intestate, leaving a residence in Conway to vest in her heirs by operation of law. See Ark. Code Ann. § 28-9-203(c) (1987). In July 1991, appellant issued a homeowner’s insurance policy covering the property through June 1992. Apparently, the named insured was the “Estate of Ethel Brewer.” On February 3, 1992, the other heirs of the decedent transferred all their interest in the property to appellees, who are husband and wife. Twelve days later, the property burned. Appellees then sought to collect under the policy issued by appellant. The claim was denied, and appellees filed this action, in their individual capacities only, in circuit court. After initial pleadings were filed, both appellant and appellees filed motions for summary judgment. The court granted appellees’ motion and awarded them judgment for $38,500.00 under the policy, attorney’s fees, and a twelve-percent penalty.
On appeal, appellant argues that the trial court erred because the named insured, the “Estate of Ethel Brewer,” had no insurable interest at the time of the loss as required by Ark. Code Ann. § 23-79-104 (Repl. 1992). While appellant seems to concede that the estate had an insurable interest at the time that the policy was issued and that the appellees had an insurable interest at the time of the loss, appellant specifically argues that an estate is a legal entity separate and distinct from a decedent’s individual heirs and that “it is not enough to have an insurable interest in property unless the person or persons having such interest also are specifically named as insureds.” In other words, it is appellant’s argument that appellees had no contract of insurance with appellant, and that appellant was entitled to judgment as a matter of law. Appellees respond that, “[s]ince the heirs of Ethel Brewer already had whatever interest they were to obtain from her estate when the estate became the named beneficiary, it is clear that the policy must be read to cover the heirs of the estate and, by conveyance, to [cover] Damon and Carolyn Brewer.”
Summary judgment is an extreme remedy and should be granted only when there are no genuine issues of material fact left to be determined and when the case can be decided as a matter of law. Cherepski v. Walker, 323 Ark. 43, 913 S.W.2d 761 (1996). In fight of the record with which we have been presented, however, we are unable to reach the merits of appellant’s argument. Although we are essentially being asked to construe a written contract of insurance so as to reverse a circuit court’s solemn judgment thereon, the contract appears neither in the abstract nor even in the record. It is axiomatic that, to determine rights and duties under a contract, we must determine the intent of the parties. This is not to be accomplished through the establishment of a judicial inquisition, but instead by examining the written agreement to construe it and declare its legal effect. Duvall v. Massachusetts Indemnity and Life Insurance Co., 295 Ark. 412, 748 S.W.2d 650 (1988); Floyd v. Otter Creek Homeowners Association, 23 Ark. App. 31, 742 S.W.2d 120 (1988). It is well settled that the intent of the parties is to be determined from the whole context of the agreement; the court must consider the instrument in its entirety. Continental Casualty Co. v. Davidson, 250 Ark. 35, 463 S.W.2d 652 (1971); Fowler v. Unionaid Life Insurance Co., 180 Ark. 140, 20 S.W.2d 611 (1929); Floyd v. Otter Creek Homeowners Association, supra. Clearly, it is an appellant’s burden to bring up a record sufficient to demonstrate error. McAdams v. Automotive Rentals, Inc., 324 Ark. 332, 924 S.W.2d 464 (op. del. May 6, 1996); May Construction Co., Inc. v. Benton School District No. 8, 320 Ark. 147, 895 S.W.2d 521 (1995); Young v. Young, 316 Ark. 456, 872 S.W.2d 856 (1994). Without the contract in question, which may have spoken in any number of ways to the issue of the person or persons entided to the policy proceeds, we cannot determine whether the trial court erred. Therefore, we conclude that appellant has failed in its burden, and we affirm.
Affirmed.
Rogers, J., agrees.
Jennings, C.J., concurs.
Mayfield, Neal, and Griffen, JJ., dissent.
The dissenting judges assert that necessary facts and parties are absent, and advocate remand for further factual development and joinder of the estate as a party. This displays a fundamental misapprehension of the scope of our review and the role of appellate courts in general. Essentially, the dissent would have us sua sponte order joinder of a “party” that may not exist in order to determine the answer to a question that the actual parties have not asked. | [
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Judith Rogers, Judge.
Appellant, Billy Lewis, appeals from a two to one decision of the Workers’ Compensation Commission denying his claim for permanent total disability benefits. On appeal to this court, appellant urges that he is permanently and totally disabled under the “odd-lot” doctrine, and that the commission’s decision to the contrary is not supported by substantial evidence. We agree with appellant’s argument; therefore, we reverse and remand.
On March 25, 1988, appellant sustained an admittedly compensable injury when a stack of eight-foot banquet tables collapsed, severely crushing the upper portion of his right leg. Appellant underwent emergency surgery performed by Dr. W. Scott Bowen, who described the injury in his admitting diagnosis as having crushed the upper portion of the tibia, shattering the proximal!h of the shaft, producing a compound fracture, and also involving the knee joint with severe comminution and depression. Dr. Bowen related that the injury was extremely difficult to repair, requiring four and a half hours of surgery with the placement of multiple screws and plate fixation devices. In his early reports, Dr. Bowen warned that appellant’s prognosis was fair at best, and the injury would require a long period of rehabilitation of nine months to a year. He also stated that, due to the severity of the injury, he fully anticipated that appellant would develop post-traumatic arthritis, which would in time necessitate a total knee replacement.
By letter of January 16, 1989, Dr. Bowen reported that he had explained to appellant that he would never be able to return to a normal level of function, but that he felt that appellant was doing well considering the nature of his injury. After a year, Dr. Bowen assessed a thirty percent impairment rating. Thereafter, on July 6, 1989, Dr. Bowen again performed surgery on appellant, involving the removal of the hardware and bone grafting, as well as an arthroscopic debridement of the knee. Twenty-one months after the accident, Dr. Bowen released appellant to pursue sedentary employment with the restrictions that he avoid prolonged standing, and that he not be required to do any stooping, squatting, climbing or lifting more than five pounds. Specifically, it was Dr. Bowen’s opinion that appellant could pursue some type of office job or one at a computer terminal. He also believed that a job involving fine manipulation in a factory situation would be appropriate.
At the time of the injury, appellant was fifty-five years of age, and was employed as a banquet manager by appellee, the Camelot Hotel. In this position, which he had held for eight to ten years, appellant was responsible for preparing the facilities of the hotel for guests and parties, which involved physical duties, such as arranging tables and chairs, and moving platforms and risers. To this end, appellant testified that he was required to be on his feet a majority of the time. Appellant also testified that as banquet manager he supervised twenty-two to thirty employees, scheduled their shifts, and did the hiring and firing of employees. The record reflects that, since his graduation from high school, appellant has been employed in related occupations. Appellant testified that he worked as a waiter to the Marion Hotel from 1955 to 1970, and for the last five years there he held the position of assistant head waiter. After the Marion Hotel closed, appellant worked for a year at the Lafayette Hotel as a waiter, and was subsequently employed for several years as a bartender at the Little Rock Club, before being hired by the appellee when it opened in 1973.
Since the injury, appellant testified that he had worked only once as a bartender for his cousin, a caterer, at a Christmas party in 1989. He said that he had more trouble doing the work than he expected, and that after the first hour or two he experienced discomfort, which was eased when the hostess provided a stool for him to sit. The services of Rehabilitation Management, Inc., which provides vocational and rehabilitation consulting, were retained to help appellant locate employment. The rehabilitation specialist met with the appellant at his home and accompanied him on visits to the doctor. There was evidence that the specialist met with appellee’s personnel director regarding the possible return of appellant to work within the guidelines established by Dr. Bowen. Appellant said that it had been some time since he had heard from the specialists he had seen regarding a job. Appellant testified that on his own he had applied for positions as a bartender at the Capitol Hotel, and a funeral home driver. He said that he was waiting, but had not again been contacted by his cousin about work. Appellant further testified that he preferred to go back to his old job, which he felt he could do if he were not required to climb stairs. Appellant also related that he had difficulty in doing chores around the house, and that he could no longer mow the yard or wash the car. He said that he has had to forego taking walks for exercise, as he tires easily.
As a result of the injury, appellee, Royal Insurance Company, provided temporary total disability benefits from the date of the injury until March 25,1989. Thereafter, permanent partial benefits were provided based on Dr. Bowen’s impairment rating of thirty percent to the knee. Temporary total benefits were reinstated on July 6, 1989, after the second operation, and continued until September 1, 1989. Appellant then filed this claim for permanent total disability benefits pursuant to the odd-lot doctrine.
The “odd-lot doctrine” refers to employees who are able to work only a small amount. The fact that they can work some does not preclude them from being considered totally disabled if their overall job prospects are negligible. M.M. Cohn Co. v. Haile, 267 Ark. 734, 589 S.W.2d 600 (1979). In reference to the odd-lot doctrine, we have recognized that “total disability” does not require a finding that the employee is utterly helpless, and an employee who is injured to the extent that he can perform services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist may be classified as totally disabled. Hyman v. Farmland Feed Mill, 24 Ark. App. 63, 748 S.W.2d 151 (1988). We have also observed:
If the evidence of degree of obvious physical impairment, coupled with other facts such as the claimant’s mental capacity, education, training, or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant.
Johnson v. Research-Cottrell, 15 Ark. App. 48, 50, 689 S.W.2d 8, 9 (1985) (quoting A. Larson, Workmen’s Compensation Law § 57.61 (1983)).
In rejecting appellant’s claim, the commission quoted excerpts from appellant’s testimony in which he expressed a marked willingness to work, and eagerness to “try” any job that might be offered. The commission noted that appellant’s physician stated that he was capable of performing sedentary work, and concluded that appellant’s inability to find a job was not due to his disability, but was attributable to the unavailability of employment. The commission also noted appellant’s experience in office work and his past role as a supervisor.
On appellate review of workers’ compensation cases, the extent of our inquiry is limited to a determination of whether the findings of the commission are supported by substantial evidence. Hardin v. Southern Compress Co., 34 Ark. App. 208, 810 S.W.2d 501 (1991). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. College Club Dairy v. Carr, 25 Ark. App. 215, 756 S.W.2d 128 (1988). We may reverse the commission’s decision only when we are convinced that fair-minded persons, with the same facts before them, could not have reached the conclusion arrived at by the commission. ITT/Higbie Manufacturing v. Gilliam, 34 Ark. App. 154, 807 S.W.2d 44 (1991). We are so persuaded in this case.
According to the reports generated by the rehabilitation specialist, appellant’s optimism was noted, particularly with regard to his desire to return to his former job. However, the specialist did not believe that appellant had accepted the limitations resulting from his injury, and considered that his attitude was unrealistic. As evidenced by these reports, the specialist’s efforts were initially focused on identifying a position with the appellee hotel, within the guidelines and restrictions given by Dr. Bowen. In speaking with appellant’s supervisor, the specialist learned that as a banquet manager, appellant would spend no more than an hour and a half a day in the office, and that although he was considered a good employee, the supervisor informed her that appellant was less than an adequate administrator and “number cruncher.” The specialist spoke with appellee’s personnel director and discussed alternative clerical or bookkeeping positions, but the personnel director did not think appellant had the education or training to fill any of these positions. Ultimately, appellee refused to rehire appellant without a 100% release for all work. The specialist’s final report indicates a decision to assist appellant in locating other employment. The specialist reported, however, that appellant’s age, his physical limitations and experience only in banquet service, were factors which would limit the availability of jobs for appellant. It does not appear that suitable jobs were located.
As indicated by the lengthy quotation from appellant’s testimony in the opinion, we think the commission placed undue emphasis on appellant’s eagerness to work. From his.testimony, it is clear that appellant said he would try most any job offered to him, even those that did not fall within the restrictions recommended by Dr. Bowen. More importantly, the record reflects that appellant’s willingness to work has not translated into opportunity. Indeed, the commission appears to have accepted the fact that there were no jobs available to appellant, but found that, since it was the opinion of Dr. Bowen that appellant could pursue sedentary work, appellant was not totally disabled. We believe this finding was in error. As indicated in the case law, the fact that a claimant is not utterly helpless or can perform some work does not preclude a finding of total disability under the odd-lot doctrine when it is shown that the claimant’s future job prospects are negligible. We think the record amply demonstrates that suitable work was not available to appellant due to a combination of his advancing age, his level of education, his limited experience in one area of the job market, and his disability.
Based on the record before us, we hold that there is no substantial evidence to support the commission’s decision, and that appellant does fall within the odd-lot category of workers. See e.g. Sunbeam Corp. v. Bates, 271 Ark. 385, 609 S.W.2d 102 (Ark. App. 1980). Accordingly, we reverse and remand for an award of benefits not inconsistent with this opinion.
Reversed and remanded.
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Melvin Mayfield, Judge.
The appellant Barbara J. (Pack) Davenport appeals from the decree of the chancellor who dismissed a motion to enforce a provision of a property settlement agreement contained in the parties’ decree of divorce. We reverse and remand.
The parties were divorced on September 8,1983, by a decree which contained a property settlement agreement dated August 30, 1983. Paragraph V of the agreement provided that “HUSBAND agrees to provide carpet and wallpaper (to be selected by WIFE) for the house to be purchased by WIFE as her future residence.” (Parentheses in the original.) The decree approved the property settlement agreement and also contained a provision stating that the court retained jurisdiction to enter such orders “as may be appropriate in enforcing the terms of this agreement.”
On October 25, 1989, appellant filed a “Motion to Enforce Decree” which alleged that on June 1,1989, appellant purchased her “future residence”; that on August 8,1989, appellant notified the appellee in writing of her desire for appellee to perform the agreement; and that appellee had failed to do so. Appellant asked that appellee be compelled to perform his contract, or in the alternative, that appellant be awarded judgment in an amount to compensate her for the carpet and wallpaper.
Appellee denied appellant’s allegations and pleaded the defenses of laches and the statute of limitations, and accord and satisfaction. By way of counterclaim, appellee alleged appellant was indebted to him in the amount of $100.00 per month for insurance payments.
A hearing was held on April 2, 1990, and on April 9, 1990, the chancellor entered an order dismissing appellant’s motion. The order stated:
From the motion filed herein, the divorce decree entered on September 8, 1983, including the contractual property settlement contained therein, the answer and counterclaim filed by the defendant and the plaintiffs response thereto and the arguments of counsel, the Court finds that the five (5) year statute of limitation and the doctrine of laches applies to this claim and bars the claim asserted by the plaintiff. The defendant withdraws his counterclaim.
Appellant argues the trial court erred in finding her claim barred by the statute of limitations. She argues that under the terms of the property settlement agreement, appellee’s obligation would not arise until some future time, and that appellant’s right to enforce the contract for wallpaper and carpet accrued upon the purchase of her “future residence.”
Appellant also argues the trial court erred in finding her claim barred by the doctrine of laches because that doctrine is premised upon some detrimental change in position which makes it inequitable to enforce the claim. Appellant argues that the trial court took no testimony, therefore, there was no evidence of inequitable circumstances resulting from delay or detrimental change in appellee’s position.
The appellee argues that the burden is on the appellant to bring up a record sufficient to demonstrate error and that where no attempt is made to make a record according to the established procedure contained in Rule 6(d) of the Rules of Appellate Procedure, it is presumed the matters presented in an unrecorded hearing support the findings of the trial court.
We first consider the appellee’s argument that we should affirm the order of dismissal because the record on appeal contains no record of a hearing before the trial judge. This argument raises preliminary matters for consideration.
To begin with, we see nothing to indicate that the court’s order of dismissal was based upon something that occurred in a hearing. The trial court’s order states that the court’s findings were based upon “the motion filed herein, the divorce decree entered on September 8,1983, including the contractual property settlement contained therein, the answer and counterclaim filed by the defendant and the plaintiffs response thereto and the arguments of counsel.” All the matters mentioned as a part of the basis for the court’s order are in the record as exhibits to pleadings or in response to a request for production of documents — except the arguments of counsel.
Now, the appellant did file a motion in this (appellate) court stating that the court reporter had advised counsel for appellant that the transcript of record of argument of counsel had been accidently erased by the recording device used by the reporter, and appellant prayed for an “Order Ordering the Trial Court to Assist Counsel in Reconstructing the Record.” We denied the motion with the notation “See Rule 6(d) of the Rules of Appellate Procedure.” Apparently the appellant did not proceed under Rule 6(d) as nothing further was filed in this court. But we know of nothing in argument by counsel — short of agreement or stipulation — that could have authorized the order of dismissal. The trial court’s order does not state that it is entered by “agreement or “stipulation” and the appellee does not even contend that this occurred. As the court said in Dent v. Adkisson, 184 Ark. 869, 43 S.W.2d 739 (1931), “all that the record justifies us in concluding is that the chancellor heard no testimony.” 184 Ark. at 874-75.
Another matter for consideration concerns the procedure followed by the trial court. Appellee’s response to the motion filed by appellant pleaded the defenses of laches and limitations and alleged an accord and satisfaction. Rule 12 of the Arkansas Rules of Civil Procedure allows certain defenses to be asserted in a responsive pleading and authorizes a party to move for judgment on the pleadings as to those defenses. However, laches and limitations are affirmative defenses, see Ark. R. Civ. P. 8(c), and are not listed as defenses that may be the subject of a motion to dismiss under Rule 12. Even so, it has been held that where this is only a procedural point, the motion to dismiss may be treated as if it were properly raised. Amos v. Amos, 282 Ark. 532, 669 S.W.2d 200 (1984). Thus, if the defenses of laches and limitations were considered under a Rule 12 motion to dismiss, there would be no evidence to be reported. But if matters outside the pleadings were presented to and not excluded by the court, Rule 12(c) requires that the motion to dismiss be treated as one for summary judgment and disposed of as provided in Ark. R. Civ. P. 56. Again, under that procedure, no evidence would have been taken. The accord and satisfaction pleaded by appellee is also an affirmative defense under Rule 8(c), supra, but, in addition, it is based upon evidence that is in the record by response to a motion to produce. Rule 12(c), supra, provides that if, on a motion for judgment on the pleadings, matters outside the pleadings are presented, the motion shall be treated as one for summary judgment; and again, there would be no evidence to be taken by the court reporter. See also Guthrie v. Tyson Foods, 285 Ark. 95, 685 S.W.2d 164 (1985).
The net effect of the above discussion is that we do not agree with the appellee’s argument that because the record does not contain the record of a hearing before the trial judge, the court’s order of dismissal should be affirmed. It is true, as appellee says, that it is presumed that matters presented in a hearing that are not in the record will support the trial court’s findings. In Phillips v. Arkansas Real Estate Commission, 244 Ark. 577, 426 S.W.2d 412 (1968), the court said that where there has been a failure to bring “into” the record “the testimony” presented to the trial court, it will be presumed that the testimony was sufficient to support the trial court’s findings. 244 Ark. at 584. But we do not find that there was any testimony presented to the trial court at the hearing on the motion to dismiss in the case at bar. And in SD Leasing, Inc. v. RNF Corporation, 278 Ark. 530, 647 S.W.2d 447 (1983), the court held that the burden is upon the appellant to bring up a record sufficient to demonstrate that the trial court is in error. We find, however, that the record in this case does demonstrate error.
The property settlement, approved by the divorce decree, plainly provided that “HUSBAND agrees to provide carpet and wallpaper (to be selected by the WIFE) for the house to be purchased by WIFE as her future residence.” The statute of limitations for a contract runs from the point at which the cause of action accrues rather than from the date of the agreement. Rice v. McKinley, 267 Ark. 659, 590 S.W.2d 305 (1979). The true test in determining when a cause of action arises or accrues is to establish the time when the plaintiff could have first maintained the action to a successful conclusion. Dupree v. Twin City Bank, 300 Ark. 188, 111 S.W.2d 856 (1989). One who relies upon a statute of limitations as a defense to a claim has the burden of proving the full statutory period had run on the claim before an action was commenced. Broadhead v. McEntire, 19 Ark. App. 259, 720 S.W.2d 313 (1986). In order to prevail on a motion to dismiss the complaint on the basis of limitations, it must be barred on its face. Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361 (1984). Here, the pleadings and attached exhibits do not show that limitations on the appellant’s cause of action could have started to run until the wife purchased her future residence on June 1, 1989. Her motion to enforce the written agreement was filed on October 25,1989. Clearly, the record shows that the five-year statute of limitations had not run when her motion was filed.
The doctrine of laches does not apply in cases involving unreasonable delay unless the opposing party has suffered some prejudice as a result of the delay, and does not apply unless some change in position or circumstance makes it inequitable to enforce the claim. Gordon v. Wellman, 265 Ark. 914, 582 S.W.2d 22 (1979). See also Briarwood Apartments v. Lieblong, 12 Ark. App. 94, 671 S.W.2d 207 (1984), where we held that laches is a species of estoppel and said:
These equitable principles are premised on some detrimental change in position made in reliance upon the action or inaction of the other party. The length of time after which inaction constitutes laches is a question to be answered in the light of the facts presented in each individual case.
12 Ark. App. at 100.
Although the trial court did not base its decision on the defense of accord and satisfaction, we could affirm on the basis that a correct result was reached even if the wrong reason was given, if the court could have decided the accord and satisfaction issue on the pleadings. However, that defense, as the defense of laches, presents an issue of fact and should not have been decided on the pleadings. See Holland v. Farmers & Merchants Bank, 18 Ark. App. 119, 711 S.W.2d 481 (1986).
Since' the chancellor’s decision was not based on any evi dence, we reverse and remand to the trial court for further proceedings in accordance with this opinion.
Reversed and remanded.
Cracraft, C.J., and Jennings, J., agree. | [
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James R. Cooper, Judge.
The parties in this marital property case were divorced by a decree dated October 30, 1989. In that decree, the chancellor specifically reserved the issue of property rights for later determination. Subsequently the parties entered into stipulations regarding the division of all marital property except 190,532 shares of common stock in Wal-Mart Stores, Inc. On January 24, 1990, a hearing was held on the sole issue of the division of those shares. The chancellor found that the appellant failed to meet his burden of proof in tracing the stock to his premarital profit sharing account, and that all the stock was acquired subsequent to the marriage. On the basis of those findings he concluded that the stock in question was marital property.
From that decision, comes this appeal.
For reversal, the appellant contends that the chancellor erred in finding that he failed to trace the stock to the premarital profit sharing account, and in ruling that the stock was entirely marital property. We agree, and we reverse and remand.
The record shows that the appellant began full-time employment with the Walton Management Company on June 1, 1956, and that he was a fully-vested participant in Walton Management Company’s profit sharing trust when it was created on June 21, 1961, approximately five years prior to his marriage to the appellee on May 1, 1966. The appellant’s fully-vested balance in the profit sharing trust on the date of his marriage to the appellee was $1,207.91. The appellant continued to work for Walton Management Company, Inc. until January 31, 1971, when he was hired by Wal-Mart Stores, Inc. The annual employer contributions to the Walton Management profit sharing trust subsequent to the marriage totaled $5,595.38 when the trust was frozen in 1972. The appellant did not elect to take distribution from the Walton Management profit sharing trust when he terminated his employment in 1971, but did take distribution from the Walton Management profit sharing trust on his retirement from Wal-Mart Stores, Inc., on July 31, 1981. It should be noted that Walton Management Company and Wal-Mart stores are separate corporations with separate profit sharing trusts. The appellant recognized that the interest in the Wal-Mart profit sharing trust is marital property, and disbursements from the Wal-Mart profit sharing trust on his retirement are not at issue. Instead, the issues in the case at bar arise from the distribution from the Walton Management Co. profit sharing trust, in which the appellant elected to receive, in lieu of cash, 18,907 shares of Wal-Mart, Inc., stock issued in a single certificate in the name of the appellant, Charles Cate.
The stock split on July 9,1982; on July 8,1983; on October 4, 1985, and on July 10, 1987. The record also shows that, on occasion, some shares of stock derived from the original certificate were transferred to a brokerage account held jointly with the appellee to facilitate sales of portions of the stock. The appellant concedes that all shares held in the joint brokerage account at the time of the divorce were marital property. At trial, the appellant offered evidence consisting of various accounting methods employed to determine the increase in value, ruling that all the stock was marital property because it had been acquired during the marriage, and finding that the parties had made no effort to make a distinction between the marital stock and non-marital stock during the marriage.
We agree with the appellant’s contention that the chancellor erred in ruling that the stock was entirely marital property because it was acquired subsequent to the marriage of the parties. The record shows that the appellant had a fully-vested interest in the Walton Management Company’s profit sharing plan prior to his marriage to the appellee. In Arkansas, the time when a retirement plan vests is determinative in deciding whether it is acquired during the marriage. When a pension “vests” it becomes a right which cannot be unilaterally terminated by the employer without also terminating the employment relationship, see Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), and we have held that:
the time that a right to property is acquired, rather than the time the property is actually received, is the determinative factor in deciding whether or not that property had been acquired during the marriage.
Wright v. Wright, 29 Ark. App. 20, 779 S.W.2d 183 (1989).
In the case at bar, the appellant’s right to benefits under the profit sharing plan was fully vested before his marriage to the appellee. As a general rule, the right to receive pension benefits is a marital asset only insofar as that right was acquired during the marriage. See 24 Am. Jur. 2d Divorce and Separation § 905 (1983), see also Donovan v. Donovan 25 Wash. App. 691, 612 P.2d 387 (1980) (holding that retirement benefits which accrued prior to marriage were husbands’ separate property). This principle was recognized by Arkansas Supreme Court in Marshall v. Marshall, 285 Ark. 426, 688 S.W.2d 279 (1985), which held that pension benefits based on contributions or services not made during the marriage constitute the separate property of the recipient. Clearly, the appellant’s premarital interest in the plan is his separate property. Marshall, supra, Ark Code Ann. § 9-12-315(b)(1) (Repl. 1991).
Likewise, under Arkansas law, property acquired in exchange for property acquired prior to the marriage or in exchange therefore, is excluded from the definition of marital property. Ark. Code Ann § 9-15-315 (b) (2), (5) (Repl. 1991). It is clear from the record that the stock in question was acquired in exchange for the balance existing in the Walton Management Company profit sharing trust on the date of the appellant’s retirement, and that there were substantial increases in the value of both the profit sharing account prior to distribution and the stock obtained at the time of distribution. We hold that the chancellor erred in ruling that all of the stock was marital property under Arkansas law. See Marshall, supra; Wright v. Wright, 29 Ark. App. 20, 779 S.W.2d 183 (1989); Ark. Code Ann. § 9-15-315.
Furthermore, we hold that the chancellor erred in finding that the stock in question had been commingled with marital stock and was therefore not traceable to the appellant’s premarital interest in the Walton Management profit sharing plan. Our review of the record shows that the stock in question was held in certificates issued only in the appellant’s name, with new certificates issued only in the appellant’s name, with new certificates being issued as each stock split occurred. Although some shares were transferred to a joint brokerage account for sale, and were therefore arguably commingled, we need not decide whether those shares lost their separate character because the appellant has conceded for purposes of appeal that any shares which were transferred to the joint brokerage account are marital property. Likewise, we find no commingling in the fact that stock splits resulted in shares from the wholly marital Wal-Mart profit sharing plan being issued in certificates including shares from the Walton Management distribution, because the evidence clearly shows that all the certificates in the appellant’s sole name representing the stock at issue can be traced to the first 18,907 share certificate that the appellant received as the distribution on his retirement from the Walton Management Company profit sharing trust.
We find no merit in the appellee’s assertion that it is necessary to trace individual shares of stock, as opposed to the certificates in which the stock was issued. Through their experts, the parties agreed that all the stock in question has a zero cost basis, and all three experts agreed that the stock was traceable through the certificates. Moreover, after taking into account the appellant’s concessions on appeal, the only stock now at issue consists of shares held in certificates originally issued to the appellant and always maintained in his individual name in his separate safe deposit box. We hold that the chancellor erred in finding that the appellant failed to maintain the identity of the 151,256 shares of stock at issue on appeal.
It would seem logical for our next step to be a determination of the extent of the appellant’s non-marital interest in the 151,256 shares of Wal-Mart stock, see Nowell v. Nowell, 31 Ark. App. 78, 787 S.W.2d 698 (1990). The appellant offers three alternative formulas which he claims would be appropriate in performing this task. However, because the case must be remanded for reasons we will explain shortly, regardless of the extent of the appellant’s non-marital interest in the stock, we decline to do so, leaving that task for the chancellor.
The case must be remanded because our holding that the 151,256 shares of stock are traceable to the Walton Management profit sharing trust and are at least in part, non-marital property, does not end the inquiry: the Arkansas Supreme Court has recognized that
[T] racing is a tool, a means to an end, not an end in itself. The fact that one spouse made contributions to certain property does not necessarily require that those contributions be recognized in the property division upon divorce.
Canady v. Canady, 290 Ark. 551, 721 S.W.2d 650 (1986). Under Ark. Code Ann. § 9-12-315(a)(1) (Repl. 1991), all marital property is to be distributed one-half to each party unless the court finds such a division to be inequitable. See Canady, supra. Moreover, under Ark. Code Ann. § 9-12-315(a) (2) (Repl. 1991), all separate property is to be returned to the party who owned it prior to the marriage unless the court deems some other division to be equitable. Therefore, the chancellor’s award on remand need not necessarily correspond to the findings regarding the extent of the separate and marital interests of the parties. See Yokey v. Yokey, 25 Ark. App. 321, 758 S.W.2d 421 (1988). Because the record is not fully developed regarding the equities relating to the property division, we remand for the chancellor to make this determination.
Reversed and remanded.
Jennings, J., dissents. | [
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James R. Cooper, Judge.
The appellant and the appellee in this domestic relations case were married on August 5, 1972. On September 19, 1989, the appellant filed for divorce and a temporary order was entered requiring the appellee to pay the appellant $24,000.00 from the parties’ joint savings account, $473.00 per month temporary support and $350.00 as a temporary attorney’s fee. On February 23, 1990, the final divorce decree was entered and provided, in pertinent part, for the appellee to pay the appellant an additional $6,000.00 from their joint savings account and further specified that the appellee’s disability income was not marital property. The appellant subsequently filed motions to amend the decree with regard to the disability income determination and the division of the savings account; however, the chancellor declined to modify his earlier determinations. From that decision, comes this appeal.
The appellant first argues that the chancellor erred in ruling that the apppellee’s long-term disability insurance was non-marital property, and second, that the chancellor erred by failing to divide the parties’ joint bank account equally. Having deter mined that the appellant’s first argument is meritorious, we do not reach the merits of her second argument and we reverse and remand.
On appeal from a chancery court case, we consider the evidence de novo, and we will not reverse the chancellor unless it is shown that the lower court’s decision is clearly contrary to a preponderance of the evidence. Kerby v. Kerby, 31 Ark. App. 260, 792 S.W.2d 364 (1990). Furthermore, we recognize that the chancellor is given broad powers to distribute all of the parties’ property in a divorce action, non-marital as well as marital, in order to achieve an equitable division. Ark. Code Ann. § 9-12-315; Smith v. Smith, 32 Ark. App. 175, 798 S.W.2d 442 (1990).
Our review of the record shows that the parties had been married eighteen years and, at the time of their divorce in 1990, the appellee and the appellant were 55 and 59 years old, respectively. When the couple married in 1972 the appellee was employed by Pepsi Cola Bottling Company where he remained employed during the marriage. The appellee testified that, in 1984, he underwent bypass surgery and that he quit working and elected to collect disability benefits in 1987. The appellee explained that these benefits were paid pursuant to a company-sponsored long-term disability plan carried by Massachusetts Mutual. The appellee stated that the disability sick pay insurance plan was a non-contributory plan provided by the company to its executives in lieu of workers’ compensation and that the plan was not tied to workers’ compensation but paid benefits based on disability regardless of the circumstances of the disability provided that the disabled person was an employee. The appellee testified that, in addition to these benefits, he had a retirement plan with disability coverage (MEI pension plan). He testified that he was not receiving disability benefits provided under his pension plan.
The first argument concerns the characterization of property. All property acquired during the marriage is marital property unless it falls under an exception to the statutory definition of marital property. See Ark. Code Ann. §9-12-315 (b) (1987); Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984).
In considering whether or not the property at issue was acquired during the marriage, we recognize that the determinative factor is the time that the right to the property was acquired, Wright v. Wright, 29 Ark. App. 20, 779 S.W.2d 183 (1989) (citing Bunt v. Bunt, 294 Ark. 507, 744 S.W.2d 718 (1988)); Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986), and under the facts presented here, we find that the appellee’s right to the disability benefits accrued during the marriage and therefore, the property was acquired during the marriage.
The appellee argues that the disability benefits he is receiving are sick pay, but, as noted, he testified that these benefits are derived from a non-contributory disability insurance plan which was provided by the company, for its executives, in lieu of workers’ compensation. Under these circumstances, we think that the long-term disability plan under which the appellant was receiving benefits was consideration he received from the company in return for his services as a company executive. His coverage under the plan was consideration earned during the marriage. See generally Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986) (finding that a noncontributory pension plan was marital property as it was consideration of employment which was earned during the marriage.) Furthermore, his right to claim these benefits was contingent upon a subsequent disability which also occurred during the marriage.
The occurrence of the appellant’s disability during the marriage caused the appellee’s eligibility for the disability benefits to become an enforceable right. We therefore find that the appellee’s entitlement to the benefits accrued during the marriage and that his right to the benefits is certain even though the amount of these benefits is not.
The appellee also asserts that the benefits are not marital property because they were not acquired during the marriage in that they were not vested. He cites Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), for the proposition that a vested pension is one which cannot be terminated unilaterally by the employer without terminating the employment relationship. Despite his assertion, we fail to see circumstances under which the appellee’s employer could terminate the appellee’s status as an employee. The appellee argues that he could return to work and the benefit would cease, however, we do not find the possibility that he might choose to return to work and cause the benefit to cease to be the equivalent of his employer having the right to unilaterally terminate the benefit. Nor do we think that the appellee can defeat his entitlement to the benefits by choosing not to enforce his right to them.
Having concluded that the property at issue was acquired during the marriage, we still must determine whether or not the property is marital property. Marital property is all property acquired during the marriage unless it is specifically exempted by the statute. See Ark. Code Ann. § 9-12-315(b) (19 8 7); See also Bunt, supra; Day, supra. Applying the statute to the facts of the case before us, we fail to see any applicable exemption specified. Even recognizing the appellee’s assertion that the benefits are in lieu of workers’ compensation, the benefits are not excepted under the statute as they are not for any degree of permanent disability nor are they for future medical expenses; moreover, the appellee testifies that he could return to work and the benefits would cease. See Ark. Code Ann § 9-12-315 (b)(6) (1987). We therefore hold, that these benefits are marital property to the extent that the appellee acquired an enforceable right in them during the marriage.
Under these circumstances, where the appellee’s employer during the marriage provided a long-term disability insurance plan for its executives; where these benefits were in lieu of workers’ compensation, and were not awarded as benefits for a permanent disability or for future medical costs; and where the disability entitling the appellee to collect the benefits provided by the plan occurred during the marriage; we hold that the property was acquired during the marriage and furthermore, is marital property as defined by the statute. See Ark. Code Ann.§ 9-12-315, see also Wright v. Wright, 29 Ark. App. 20, 779 S.W.2d 183 (1989); Bunt v. Bunt, 294 Ark. 507, 744 S.W.2d 718 (1988); Young v. Young, 288 Ark. 33, 701 S.W.2d 374 (1986); Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984).
On de novo review of a fully developed chancery record, where we can plainly see where the equities lie, we may enter the order which the chancellor should have entered. Bradford v. Bradford, 34 Ark. App. 247, 808 S.W.2d 794 (1991). However, we decline to do so in this case as only a portion of the marital assets are before us and because the benefits at issue are a significant marital asset, we think the interests of justice will be better served by remanding the case for a complete resolution of the property rights of these parties in a manner consistent with this opinion. In conducting such further proceedings, the chancellor will not be bound by prior determinations regarding the valuation of assets or the relative share of the marital estate to be awarded to each of the parties, and may permit the introduction of such additional evidence as is necessary for the just resolution of the issues.
Having decided that we must remand the case we need not address the appellant’s argument that the court erred in making an unequal division of the parties’ joint savings account. The case is remanded to the chancellor for a complete resolution of the parties’ property rights.
Reversed and remanded.
Mayfield, J., agrees.
Jennings, J., concurs.
The Chancellor divided the pension plan as provided by Ark. Code Ann. §9-12-315 (a)(1)(A) (1987), and on appeal, the division of that plan is not at issue. | [
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Steele Hays, Justice.
Appellant was charged with operating a tractor-trailer in excess of the weight limits prescribed by Act 7 of the 1983 Acts of Arkansas , known as the “Bridge Formula Restriction.” Appellant’s vehicle, loaded with coal, weighed 78,200 lbs. and exceeded the allowed weight by 4,920. A fine of $92 was imposed.
The circuit court rejected appellant’s argument that coal is a form of rock and therefore he was exempt under § 74-817(i) of the Act which provides that vehicles hauling, “sand, gravel, rock or crushed stone,” are not subject to the Act. Appellant renews the argument on appeal and we affirm.
Appellant called two geologists as expert witnesses who gave an opinion that coal is a kind of rock. Rock, they said, was a very general term for materials occupying a significant portion of the earth’s crust, and includes sandstone, granite, limestone, shale and coal, as examples. Several texts they regarded as authoritative were cited which supported their view.
But the issue is not whether coal is a type of rock in a geological sense, but whether the legislature intended to include coal when it exempted “sand, gravel, rock and crushed stone” from the bridge formula. We think not. The basic rule of construction is that words of a statute are to be given their commonly accepted meaning. Phillips Petroleum Co. v. Heath, 254 Ark. 847, 497 S.W.2d 30 (1973); Black v. Cockrill, Judge, 239 Ark. 367, 389 S.W.2d 881 (1965).
Sand, gravel, rock and crushed stone are generally regarded as building materials, whereas coal is not. Coal is a fuel, the others are not. Nor do the dictionary definitions suggest that coal is a type of rock. Webster’s New International Dictionary of the English Language, Second Edition, defines coal as:
A black or brownish-black, solid, combustible mineral substance formed by the partial decomposition of vegetable matter without free access of air, under the influence of moisture and, in many cases, of increased pressure and temperature.
Random House College Dictionary, Revised Edition, defines coal as a dark combustible mineral substance consisting of carbonized vegetable matter, used as a fuel.
Finally, it is conceded that gravel, sand and crushed stone are also rocks, which detracts from the theory the legislature intentionally used the word “rock” in a generic sense. Had the legislature intended coal to be exempt, we believe it would have added it to sand, gravel and crushed stone, and not have thought it to be included within the meaning of rock.
Affirmed.
Ark. Stat. Ann. § 75-817 (1983 Supp.). | [
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Per Curiam.
Appellant, Henry Gunn, Jr., by his attorney, John L. Kearney, has filed a motion for rule on the clerk.
The motion admits that the record was not timely filed, without fault on the part of the appellant. His attorney admits that the record was tendered late due to an error on his part. We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Per Curiam opinion, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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John I. Purtle, Justice.
The Pulaski County Chancery Court issued an injunction against the appellants on the grounds that they had not timely sought a review of an agency ruling. On appeal it is successfully argued that the trial court erred in granting appellees injunctive relief.
Rehab Hospital Service Corporation filed an application for the issuance of a certificate of need (CON) with the State Health Planning and Development Agency (Agency) for the purpose of constructing a rehabilitation hospital in Jonesboro, Arkansas. Arkansas law requires CON approval from the Agency prior to construction of a new facility such as the one appellees desired to build. The administrative process requires that an application for a CON first be reviewed by one of four Health Systems Agencies. In this case the review was made by Delta-Hills Health Systems Agency (Delta) and the CON was denied. The recommendation was overruled by Joel North, Director of the Agency. Delta’s request for reconsideration was denied on May 2, 1984. North informed Delta that a request for review of the Agency’s decision could be filed no later than June 4,1984. A request for review was filed by Delta on June 4,1984. Rehab then filed its petition for injunction alleging that the request for review was not timely filed. The chancellor granted the injunction. This case reaches us from the issuance of an injunction, but it is more in the nature of an appeal from the decision of an administrative agency. Although chancery courts are not proper courts to review the decisions of administrative agencies, we accept this case because of the need for an immediate appellate review and because we have before us an appeal from the circuit court on the same application for a CON.
The Agency rule at issue reads in part: “Any decision of the State Agency to issue, deny, or withdraw a certificate of need. . . will, upon request... be reviewed by an agency of the state. . . designated by the Governor. . .To be effective, the request [for review] must be received . . . within thirty days of the State Agency decision. . . .”
An attorney with the Agency computed the deadline for filing the request for review and caused the date to be sent to Delta by letter dated May 2, 1984. Thirty days from the date of the decision would have been June 1, 1984, which was a Friday. In computing the deadline, the Agency allowed one day for delivery of the letter, which would have caused the deadline to fall on Saturday, June 2,1984. The next working day would have been Monday, June 4, 1984, the date the request was filed.
The only question presented for our consideration is whether the Agency properly extended the time within which to file for review. Testimony of Agency employees indicated it was the custom to allow mail delivery time in addition to the 30 day limit stated in the Agency rules and ARCP Rule 6. An agency or department interpretation of its own rules and regulations is not binding upon the courts but it is highly persuasive. Brawley School District No. 38 v. Kight, 206 Ark. 87, 173 S.W.2d 125 (1943). In Mohawk Rubber Co. v. Buford, 259 Ark. 614,535 S.W.2d 819 (1976) we said that “where the decision is based upon the application of the commission’s own rules, we must also view it in deference to the commission’s treatment of these rules. . . . Any reasonable construction or interpretation given such rules is certainly entitled to great weight upon judicial review.. . .” An administrative agency’s interpretation of its own rule is controlling unless plainly erroneous or inconsistent. Arkansas Savings and Loan Association Board v. Grand Prairie Savings and Loan Association, 261 Ark. 247, 547 S.W.2d 109 (1977). “We must accept the agency’s interpretation, if it is reasonable in terms of the words of the regulation and the purposes of the statute, even though, as an original matter, we might have reached a different conclusion.”Baker v. Heckler, 730 F.2d 1147 (8th Cir. 1984). It is basic that administrative procedure requires that an agency be given the opportunity to address a question before resorting to the courts. Truck Transport, Inc. v. Miller Transporters, Inc., 285 Ark. 172, 685 S.W.2d 798 (1985).
When we give due deference to the Agency’s interpretation of. its own rules and consider the purpose of the review, we do not find that the slight variance of one day was detrimental to the purposes of the law or the rights of the parties. Therefore, we hold that Delta was not in error in relying on the deadline as computed and communicated to the parties a month before the date fixed by the Agency.
The injunction is dissolved and the case remanded with directions to allow a hearing on Delta’s request for review.
Reversed.
George Rose Smith, J., concurs in the results. | [
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Jack Holt, Jr., Chief Justice.
This case involves a petition filed by the commissioners of the Cache River Bayou DeView Improvement Dis trict seeking permission in circuit court to alter the plans for the district. The petition was granted and this appeal is brought by the landowners who oppose the proposed changes. Our jurisdiction is under Sup. Ct. R. 29(1) (c) as we are being asked to interpret a statute.
The improvement district was established by court order entered on July 21, 1958, pursuant to Ark. Stat. Ann. §§21-1001 to 21-1003. Its purpose was to channelize the Cache River and Bayou DeView to create a large channel or ditch to drain an extensive area of land surrounding the rivers. The Corps of Engineers made plans and estimated costs for the project but it was never completed and work ceased.
The commissioners for the district petitioned the circuit court in 1983 for an order extending and enlarging the powers of the improvement district to include those rights, powers and privileges of drainage districts as provided by Ark. Stat. Ann. §§ 21-501 to 21-581. The commissioners sought the order because the rivers were not navigable, and the lands in the district were suffering from floods and lack of drainage because of the failure to complete the original project.
The extension and enlargement of powers was sought pursuant to Ark. Stat. Ann. § 21-1026 (Supp. 1983) which provides:
By such Order of the Circuit Court the powers of such an improvement district shall be enlarged and extended to embrace all the powers, rights, and privileges of drainage districts organized under the existing laws of the State of Arkansas. . .The purpose of this extension of powers shall be to complete the improvements contemplated by the Act of Congress and the plans of the Corps of Engineers. . .which were filed with and made a part of the petition for the establishment of the improvement district. . .
Protests, which included a claim that the altered plans do not complete the improvements contemplated by Congress as required by Ark. Stat. Ann. § 21-1026, supra, were filed by landowners in Poinsett County. After a hearing on October 4, 1983, the trial court granted the petition to acquire powers of drainage districts and ordered the commissioners to proceed with the steps required by law for determination of the work to be done under the proposed project and for the assessment of benefits.
Ark. Stat. Ann. § 21-1025 (Supp. 1983) provides:
The order of the Circuit Court enlarging the powers of the district shall have all the force and effect of a judgment. Any owner of real property within the district may appeal from said judgment within thirty (30) days after the same has been made, but if no appeal is taken within that time, the judgment authorizing the enlargement of the powers of the district shall be deemed conclusive and binding upon all the property within the boundary of the district and upon the owners thereof. . .
Nevertheless, the order of October 4, 1983, was not appealed. Subsequently the commissioners filed a petition for alteration of the plans of the district on March 28, 1984. The petition was filed in accordance with Ark. Stat. Ann. § 21-517 (Repl. 1968) which states:
The commissioners may at any time alter the plans of the ditches and drainage [drains], but, before constructing the work according to the changed plans, the changed plans, with accompanying specifications, showing the dimensions of the work as changed, shall be filed. . . and notice of such filing shall be given. If by reason of such change of plans, . . . any property owners deem that the assessment on any property has become inequitable, they may petition the county court.
With the petition, the commissioners filed a proposed work map and cost schedule detailing the changes. The plan provided for the removal of blockage, drifts, trees, stumps, and silt from the stream beds. The petition stated that the improvements originally proposed would be too expensive for the district’s present assets and that therefore, “It has been determined by the Board of Commissioners that the altered plans will provide relief presently needed by the landowners of the District and will relieve a considerable part of the existing flood damage which occurs periodically, at a cost within the means of the District.”
After hearing testimony on behalf of the commissioners and the opposing landowners, the court on May 2, 1984, approved the alteration of plans and directed the commissioners to proceed with the plans and to reassess the property. The court further provided that the property owners would be given an opportunity “to appear and present their view for or against the proposed assessment of benefits.” This appeal results from the court’s May 2, 1984 order approving alteration of plans, rather than the previous order of October 4, 1983, enlarging the district.
The abstract is deficient in several aspects, making it difficult for this court to assess the issues raised by this appeal. However, we will address the merits upon the materials presented utilizing the points relied upon by appellants.
I.
APPELLEES HAVE FAILED TO COMPLY WITH ARK. STAT. ANN. § 21-1026
Initially the appellants contend that the appellees failed to comply with § 21-1026, supra, inasmuch as the statute provides that the purpose of an extension of powers “shall be to complete the improvement contemplated by the Act of Congress and the plans of the Corps of Engineers.” Yet it is alleged that the plans as altered do not complete the Corps’ original plan.
This point raised by the appellants, that the altered plans do not comport with the original purpose of the project, is not timely made. The same argument was presented to the trial court by the appellants in their amended protest to the petition for enlargement and was the subject matter of the earlier hearing on October 4, 1983, which resulted in the court entering final judgment in favor of appellees. The appellants, protesting landowners, were entitled to appeal from such a ruling within 30 days of the date the judgment was entered. § 21-1025. No appeal was taken from this ruling. Instead an appeal was filed seven months later from the court’s order of May 2, 1984, approving the alteration. Likewise, appellants did not object to the petition for alteration based on the appellee’s failure to comply with § 21-1026. This argument therefore cannot be resurrected on appeal by the appellants in their protest to the petition for alteration. Issues raised for the first time on appeal are not considered. Green v. Ferguson, 263 Ark. 601, 567 S.W.2d 89 (1978). The trial court is therefore affirmed on this point.
II.
APPELLEES HAVE FAILED TO SHOW THE PROPOSED PLAN IS IN THE BEST INTERESTS OF THE LANDOWNERS
The appellants argue that the appellees have failed to show by a preponderance of the evidence that the proposed plan is in the best interest of the owners of the real property within the district.
The appellants state that no landowner other than a commissioner testified on behalf of the appellees’ plan, while several landowners testified in opposition. This statement overlooks the fact that the nine commissioners who presented the petition to the court calling for extension and enlargement of this district are landowners from each of the counties making up the district. § 21-1003. By comparison, the opposing landowners who testified came from only three of the same nine counties.
In order to sustain appellant’s contentions, we must find that the trial judge’s findings were “clearly erroneous (clearly against the preponderance of the evidence) and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Ark. R. Civ. P. 52(a); Superior Improvement Co. v. Mastic Corp., 270 Ark. 471, 604 S.W.2d 950 (1980); Ford Motor Credit v. Yarbrough, 266 Ark. 457, 587 S.W.2d 68 (1979).
The trial judge in his findings labored over the stormy history of the Cache River Bayou DeView project. He gave considerable thought to expert testimony that current plans will give partial relief to landowners in the district by getting at least 50% of the flood waters off of the land and out of the area in question, as opposed to the testimony of the protesting landowners who sincerely feel that the project is of little or no value and that it should be stopped, thus maintaining and preserving the status quo. Weighing the interests of all parties, the trial judge stated:
There are other landowners, since the evidence says there is nearly a million acres involved here, that have an interest in what the Court does today. I must be concerned with and take into consideration their interest and the overall ultimate benefit, if a benefit is to be derived from this plan.
In further deliberations, the court concluded:
It is a plan which will, in the Court’s humble opinion, improve, enhance and benefit the vast majority affected within the area.
By approving the plan, we cannot say the trial court clearly acted against the evidence. Harrell Motors, Inc., et al v. Flanery, 272 Ark. 105, 612 S.W.2d 727 (1981). “In reviewing the sufficiency of the evidence on appeal to support the decision of a trial judge sitting as a jury, we consider the evidence in the light most favorable to the appellee and affirm unless the trial court’s decision is clearly erroneous. ... It must be remembered that the credibility of the witnesses is determined by the fact finder, not this Court.” Orsby v. McGee, 271 Ark. 268,608 S.W.2d 22 (1980). See also, Bass v. Koller, 276 Ark. 93, 632 S.W.2d 410 (1982).
Our ruling does not preclude the opposing parties, many of whom are named in supporting petitions which are part of the trial record, from presenting their views on the tax assessments of their property when the commissioners make that determination. Ark. Stat. Ann. § 21-1028 (Supp. 1983).
Affirmed.
Hickman and Hays, JJ., dissent. | [
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Per Curiam.
Petitioner William F. Brents was found guilty by a jury of theft by receiving and sentenced to a term of 20 years imprisonment and a fine of $ 10,000. The Court of Appeals affirmed. Brents v. State, CACR 82-5 (June 20, 1984). Petitioner seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37 on the ground that his counsel was ineffective at trial and on appeal.
In 1982 the Court of Appeals reinvested the trial court with jurisdiction to reconstruct and settle the trial record. After both the petitioner and the state made corrections in the record, the trial court entered a final order settling the record. Petitioner alleges that counsel was incompetent in that he failed to object to the order, but he has neither stated a basis for an objection nor demonstrated that counsel’s conduct impeded appellate review of the trial. Factual support and some showing of actual prejudice must underlie an allegation of ineffective assistance of counsel before this Court will grant postconviction relief. Strickland v. Washington,_U.S._, 104 S. Ct. 2052 (1984). Also, the issue of the completeness of the record was raised on appeal despite the lack of an objection to the final order, and the appellate court found no error. The question cannot be raised again under the guise of a claim of ineffective assistance of counsel. See Guy v. State, 282 Ark. 424, 668 S.W.2d 952(1984).
Petitioner next asserts that the appellate court opinion sets out the shortcomings of counsel and is evidence of his ineffectiveness. We have held that all grounds for postconviction relief and factual support for such grounds must be contained in the petition itself. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). Since petitioner is contending that counsel’s representation on appeal was inadequate, however, the opinion will be considered at least insofar as it pertains to that issue.
Petitioner argued on appeal that certain evidence was improperly admitted into evidence. The court affirmed on the point pursuant to Rule 9(e)(2) of the Rules of the Supreme Court and Court of Appeals because it found that “appellant has failed to clearly frame the evidentiary issue which he apparently contends represents reversible error.” Petitioner states that the evidentiary issues which were not fully developed in counsel’s brief were the questions of whether petitioner was held in custody without an arrest warrant, whether there was probable cause fpr his arrest and the concomitant question of whether evidence obtained as a result of the arrest was admissible. Petitioner specifically cites as error admission into evidence of money in the possession of petitioner’s wife but he fails entirely to explain how this was the fruit of an illegal arrest or state the basis for a claim of error on any other ground.
It is not clear whether petitioner is contending in regard to these evidentiary questions that counsel’s conduct at trial was in some unspecified way inadequate or whether he is arguing that counsel’s failure to raise the issues properly on appeal constituted incompetence. In either case, we do not find grounds for postconviction relief in this petition.
First, petitioner would not be entitled to a new trial in the event the arrest was found illegal. A flaw in the manner of arrest is not sufficient cause to set aside a judgment of conviction. Singleton v. State, 256 Ark. 756, 510 S.W.2d 283 (1974). Secondly, the record indicates that various evidence was introduced which was obtained sometime after petitioner’s arrest, but petitioner does not say which particular evidence was inadmissible as a result of the arrest. In any event, petitioner was not arrested until it was learned that six one-hundred dollar bills taken in the robbery could be traced directly to him.
An examination of the record and briefs in this case, paticularly the State’s brief, indicates that the appellant may well have made the only arguments he could make with regard to the evidence. The fact that he was unable to prevail on them in the appellate court is not in itself evidence that counsel was ineffective. Success at trial or on appeal is not the criterion for gauging effective assistance of counsel. See Fink v. State, 280 Ark. 281, 658 S.W.2d 359 (1983). It is a matter of pure speculation and hindsight at this point whether counsel did everything he could at the appellate level to obtain a favorable decision.
Petition denied. | [
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Jack Holt, Jr., Chief Justice.
This is a tort case in which a motion to dismiss for failure to state facts upon which relief could be granted was sustained. Our jurisdiction is based on Sup. Ct. R. 29 (1) (o).
The complaint alleged that the appellee had excavated a hole on its premises and had negligently and carelessly left it unguarded. It was further alleged that the appellant had been injured by stepping into the hole while she was walking across the appellee’s premises “after working hours. ’ ’ The complaint did not allege that the appellant was employed by Tyson, nor did it otherwise allege by what right the appellant was on the appellee’s premises.
After reviewing briefs supporting and opposing the motion to dismiss, the trial court sustained the motion on the basis that statements by both sides and exhibits to the briefs showed the appellant to be a Tyson employee and thus her exclusive remedy would be a worker’s compensation claim. It was improper for the trial court to look beyond the complaint to decide a motion to dismiss pursuant to Ark. R. Civ. P. 12(b)(6), unless he was treating the motion as one for summary judgment according to the last sentence of Rule 12 (b). Even had he treated the motion as one for summary judgment it would have been incorrect to base the decision on allegations in briefs and attached exhibits. Ark. R. Civ. P. 56 (c) provides the court may consider “pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any.”
The result reached by the court was, however, correct. No fact stated in the complaint showed the appellant to have been other than a trespasser. The duty owed by a landowner to a trespasser or licensee is to refrain from wantonly or wilfully causing injury. Husted v. Richards, 245 Ark. 987, 436 S.W.2d 103 (1969). See, Note, 33 Ark. L. Rev. 194 (1979). The complaint in this case alleged simple negligence at best. Although the language of Ark. R. Civ. P. 8 (a) is similar to Fed. R. Civ. P. 8 (a), we require a statement of “facts” showing the pleader is entitled to relief. Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981); H. Brill, Faculty Note, 34 Ark. L. Rev. 722 (1982). See also, Chiles v. Fort Smith Comm’n Co., 139 Ark. 489, 216 S.W. 11 (1919),. for an example of a complaint showing injury on defendant’s premises and the right of plaintiff’s decedent to be there.
Although the reason given by the court for sustaining the motion to dismiss was incorrect, the result was correct, as the appellant’s complaint failed to state facts upon which relief could be granted, and thus we need not reverse. Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979); Greeson v. Cannon, 141 Ark. 540, 217 S.W. 786 (1920).
Affirmed. | [
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Robert H. Dudley, Justice.
This appeal comes before us under Rule 29( 1 )(c) as one in a series of cases in which we construe and interpret the Omnibus DWI Act of 1983, Ark. Stat. Ann. § 75-2501 — 75-2514 (Supp. 1983). We affirm the judgment finding the appellant guilty.
Appellant first argues that he should not have been convicted of operating a motor vehicle while intoxicated because the state failed to introduce evidence of a chemical test to prove intoxication. The argument is without merit. Ark. Stat. Ann. § 75-2503 (a) (Supp. 1983) provides that it is illegal for anyone to operate a vehicle while intoxicated. Subsection (b) of the same statute provides that it is illegal for anyone to operate a vehicle with a blood alcohol content of .10% or more. Proof-of the blood alcohol content is not necessary for a conviction under subsection (a), driving while intoxicated. However, such proof is admissible as evidence tending to prove intoxication. Yacono v. State, 285 Ark. 150, 685 S.W.2d 500 (1985).
The appellant next argues that he was charged under subsection (b) of the act but was convicted under subsection (a) of the act, and therefore, his conviction must be reversed. Again, the argument is without merit. The charging instrument, whether a citation or information, is not in the record. The municipal court appeal transcript reflects that appellant was “charged with the offense of DWI one. ’ ’ Other parts of the record indicate that he was charged with “DWI one.” Such a charge is sufficient for a conviction under either subsection (a) or (b), even though the evidentiary requirements of the subsections are different. Yacono v. State, supra.
Affirmed. | [
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Darrell Hickman, Justice.
The issue is whether the appellant stated a cause of action based on an oral agreement between his uncle and aunt to execute joint or reciprocal wills and as evidenced by his uncle’s will. The chancellor allowed the appellant to amend his complaint twice and finally concluded tht the appellant failed to state a cause of action. We agree.
The appellant, Fred C. Newman, is the nephew and sole heir of John R. Newman, who died in February, 1972. His wife, Clyde Newman, died in March, 1983, and this lawsuit was filed in chancery court to enjoin the probate of her will. It was alleged that John and Clyde made an agreement in 1949 to execute reciprocal wills in which it was agreed that upon the death of one, the survivor would inherit all the property of the deceased, and upon the death of the survivor, one-half of the property would go to John’s collateral heirs and one-half would go to Clyde’s collateral heirs. The complaint alleged that John had executed his will in accordance with the agreement; Clyde, however, breached the agreement by executing another will. The appellant argues that Clyde should be held to the agreement.
The trial court held that the will of John Newman, essential to appellant’s claim, was evidence that the appellant’s claim must fail. (The will is reproduced as an appendix to this opinion.) It does not provide for the collateral heirs, which include the appellant, to inherit unless both John Newman and Clyde Newman died of a common disaster, which did not occur. Indeed, it is alleged that John Newman died in 1972 and Clyde Newman ten years later.
We feel the trial court was right in finding that the language of the will was clear, and oral evidence is not admissible to alter that intent. Vaught v. Vaught, 247 Ark. 52, 444 S.W.2d 104 (1969).
The appellant attempts to take one sentence in John Newman’s will out of context to support his case. That sentence is in Paragraph 3 and it reads:
. . .1 hereby direct that any property which my wife and I owned jointly at the date of such common disaster, or which I have acquired by reason of having survived my wife, shall be equally divided among my collateral heirs and the collateral heirs of my wife, ....
This interpretation, of course, overlooks the obvious qualification of this statement, which precedes it and states that this provision is effective if both parties die of a common disaster, a fact the appellant concedes in his pleadings did not occur.
The appellant persists, however, by stating that the complaint should not be dismissed because it was alleged that an oral agreement was made which did provide for the collateral heirs to get one-half each on the death of the last party. This, of course, would be clearly contrary to the intent of the testator in his will which was offered as proof of the agreement. This allegation is nothing more than an attempt to alter the plain and unambiguous language of the will with oral testimony. Furthermore, the trial court correctly observed that even if there were an oral agreement, the appellant obviously cannot prevail because John’s will breaches the alleged oral agreement. To be in accordance with the agreement, his will should have stated that upon the survivor’s death, their collateral heirs would share equally. Since it does not, his will violated the very agreement asserted, a fact which defeats the appellant’s argument. Allen v. First National Bank of Batesville, 230 Ark. 201, 321 S.W.2d 750 (1959).
Therefore, no matter which route the appellant takes, he does not have a cause of action, and the trial court correctly dismissed the suit.
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Jack Holt, Jr., Chief Justice.
At issue in this case is appellee’s claim for unemployment benefits. The appellee was denied the benefits by the employment agency, the Arkansas Appeal Tribunal and the Board of Review of the Department of Labor based on a finding that she quit her last work without good cause connected with her work, pursuant to Ark. Stat. Ann. § 81-1106 (a) (Supp. 1983). The appellee appealed that decision to the Court of Appeals who reversed the board’s findings. Coit v. Stiles, et al, 12 Ark. App. 397, 678 S.W.2d 373 (1984). We granted the director of the board’s petition for review to be certain the court did not misconstrue the statute. We agree with the Court of Appeals.
Arkansas Stat. Ann. § 81-1106 (a) provides;
For all claims filed on and after July 1,1973, if so found by the Director an individual shall be disqualified for benefits;
(a) [voluntarily leaving work.] If he voluntarily and without good cause connected with the work, left his last work. . .
Provided no individual shall be disqualified under this subsection if, after making reasonable efforts to preserve his job rights, he left his last work due to a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification;
The appellee was employed for ten years by Publisher’s Bookshop in Little Rock. She was laid off on March 17,1983, and began receiving unemployment benefits. In June, 1983, the appellee obtained part-time employment with Kelly Services. On September 15,1983, the appellee quit her job at Kelly Services to move to Arizona with her husband, whom she married on October 8, 1983. At that time the appellee again filed for unemployment benefits based on her employment at Publisher’s. In denying the claim, the board found the appellee was not entitled to benefits because she voluntarily quit her last work, at Kelly Services, without good cause.
On appeal, the appellee has contended that the board erred when it concluded that her last employment was with Kelly Services rather than with Publisher’s Bookshop.
The court of appeals relied on an earlier case, Hopkins v. Stiles, Director, 10 Ark. App. 77,662 S.W.2d 177 (1983), for the finding that “a claimant should not be disqualified from receiving unemployment benefits as a result of her accepting part-time employment when no suitable full-time employment is available.” This court reversed the Hopkins decision on procedural grounds, finding the issue was not properly raised. Stiles & Sears Portrait Studio v. Hopkins, 282 Ark. 207, 666 S.W.2d 703 (1984). The issue is properly raised by this case however and we concur with the court of appeals’ reliance on the rationale used in Hopkins.
In making its determination, the court of appeals quoted the decisions of several other courts. In Tomlin v. California Unemployment Insurance Appeals, 82 Cal. App. 3d 642, 147 Cal. Rptr. 403 (1978), the California court interpreted their unemployment compensation benefit statute which precludes benefits if an employee left his “most recent work” voluntarily and without good cause. The court said:
[T]he phrase “most recent work” should not be construed to mean merely the last employment of any kind prior to filing for benefits. It must refer to significant or regular employment in order to effectuate the purposes of the act. The most reasonable meaning for the term “most recent work,”. . .is the most recent primary or principal or full-time employment of the individual. . .Therefore, if an individual had a full time job, on the basis of which he is now eligible for unemployment insurance benefits, his qualification for benefits is not totally eliminated because he voluntarily leaves a part-time job.
Accord: Gilbert v. Hanlon, 214 Neb. 676, 335 N.W.2d 548 (1983); Unemployment Comp. Bd. of Review v. Fabric, 24 Pa. Commw. Ct. 238, 354 A.2d 905 (1976); and Neese v. Sizzler Family Steak House, 404 So. 2d 371 (Fla. App. 1981).
The board argued that the statute was unambiguous and therefore not subject to interpretation. Both our decision and that of the court of appeals are consistent with priniciples of statutory construction. The Nebraska court in Gilbert, supra, relied on an Iowa decision for the proposition that a provision disqualifying an individual from benefits if he or she “has left work” voluntarily needed interpretation because it did not specify whether it meant “all his work” or “any of his work” or “part of his work”. “It seems not to recognize that there might be more than one ‘work’ and two or more concurrent employers. Some construction or interpretation thus becomes necessary of a statute otherwise ‘plain and unambigous.’ ” Gilbert, supra. Similarly, here the phrase “left his last work” does not specify whether the work must have been full-time or whether it could include part-time employment and therefore it must be interpreted.
In Whitlow v. American Greetings Co., 268 Ark. 1122, 599 S.W.2d 410 (Ark. App. 1980), the court of appeals stated that in interpreting § 81-1106 (a) it must be remembered that “the basic design of the Act is to protect the employee from the economic consequences of unemployment through no fault of the employee; and, to that end, the Act should be liberally construed.” We find that a liberal construction of this statute requires a finding that the appellee is entitled to benefits based on her job at Publisher’s subject only to a reduction in benefits to the extent that her part-time wages compel that result. We need not reach the other issues raised by the appellee.
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George Rose Smith, Justice.
The appellee bank brought this suit to foreclose mortgages securing notes executed after the effective date of Amendment 60 to the Constitution of 1874. The notes bore interest at thirteen percent per annum, which was a permissible rate under Amendment 60 when the notes were given. The appellants, the debtors, defended the suit on the ground that Amendment 60 is unconstitutional, so that the original ten percent limitation is still in effect, and the notes are usurious and void. The chancellor upheld Amendment 60 and entered a decree for the bank. The appeal comes to this court for a construction of our Constitution. Rule 29(1 )(a).
The case presents questions of law, on undisputed facts. The Constitution originally had an inflexible ten percent limitation on interest rates. Amendment 60 changed that by declaring that the maximum rate shall not exceed five percent above the Federal Reserve Discount Rate at the time of the contract. The essential issue before us is whether the people of Arkansas had the power to adopt by constitutional amendment a variable maximum interest rate to be fixed from time to time by an agency of the United States government, without state action.
Needless to say, the members of this court would not assume responsibility for striking down a constitutional amendment, after its adoption by the people, without being certain of our position. In this case, however, the question is so simple, because it is so fundamental, that we have not the slightest uncertainty about the validity of Amendment 60. That being true, a long and detailed discussion of the matter is not required.
It is first argued that Amendment 60 unlawfully delegates authority to an agency of the federal government. Such a delegation of power is said to violate the Tenth Amendment to the United States Constitution, which reserves to the states all powers not delegated to the United States, and to violate the provisions of the Arkansas Constitution dividing the powers of the state government into three departments, the legislative, the executive, and the judicial. Article 4, §§ 1 and 2; Amendment 7.
This argument misconceives the basic principles of our system of self-government. The people of Arkansas adopted their own Constitution and expressly reserved the power to change its provisions by amendments approved by popular vote. Cases cited by counsel hold that the General Assembly cannot delegate legislative authority to another branch of the state government or to an agency of the United States. That is true, but under the state Constitution the people themselves are subject to no similar incapability. What they have done they can undo. They were free to anchor their interest rate to the federal discount rate unless there is some prohibition in the United States Constitution against that action.
The only such prohibition in that Constitution must be found in “some invisible radiation from the general terms of the Tenth Amendment,” to quote Justice Holmes’s words. Missouri v. Holland, 252 U.S. 416 (1920). That Amendment was drafted to limit the powers of the federal government, not those of the states. It neither commands the states to exercise their reserved powers to the fullest possible extent nor forbids them from sharing their reserved authority with the United States. If that were not so, every effort by the federal and state governments to join forces in some endeavor falling within the reserved power of the states would be subject to question. Our history of countless such cooperative and successful endeavors is itself a practical answer to the argument now being made.
Second, it is argued that Amendment 60 runs counter to the clause in the national Constitution that directs the United States to guarantee to every state “a republican form of government.” Art. 4, § 4. This argument is without weight. A republic is a political state in which the supreme power rests in the citizens entitled to vote and is exercised by them either directly or through their elected representatives. We are not persuaded that the people of Arkansas abandoned their republican form of government by approving Amendment 60. Quite the contrary. The people evidently believed, after almost a century of experience with a rigid interest limitation, that it should be replaced by a flexible limitation taking into account interest rates elsewhere. The people might have tried to create some system of their own for determining how the rate should be set, but the choice of the federal rate as a base figure had the advantages of simplicity and of uniformity with rates prevailing in neighboring states. At any rate, the choice was made by the voters themselves, by democratic means, and does not seem to us to present even a remote threat to the republican form of government in Arkansas.
Affirmed. | [
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Per Curiam.
Petitioner was found guilty by a jury of attempted capital murder and fleeing. He was sentenced to terms of ten and three years imprisonment in the Arkansas Department of Correction. The Court of Appeals affirmed. Elmore v. State, 13 Ark. App. 221, 682 S.W.2d 759 (1985). Petitioner has now filed a petition for postconviction relief pursuant to A.R.Cr.P. Rule 37 on the allegation that his trial attorney, Bob Scott, was ineffective.
Petitioner alleges that counsel failed to subpoena witnesses, did not prepare for trial adequately, and was ineffective in the questioning of witnesses. He also contends that there was a conflict of interest because counsel intended to file a civil suit in petitioner’s behalf, the outcome of which was likely to be affected by the outcome of the criminal proceeding.
To prevail on an allegation of ineffective assistance of counsel, the petitioner has the heavy burden of overcoming the presumption that counsel is competent. Travis v. State, 283 Ark. 478, 678 S.W.2d 341 (1984). The presumption cannot be overcome without factual substantiation for the allegation sufficient to show that counsel’s conduct undermined the adversarial process and resulted in actual prejudice to the degree that petitioner was denied a fair trial. Strickland v. Washington, _U.S. _, 104 S.Ct. 2052 (1984). Petitioner has not met that burden.
Petitioner offers no proof that the civil suit affected counsel’s conduct at trial. He also fails to provide in the petition specific instances of poor trial performance beyond the general statement that the questioning of witnesses was inadequate. Petitioner’s allegation that counsel did not subpoena witnesses would be deserving of an evidentiary hearing, but petitioner fails to state in the petition what the witnesses’ testimony would have been. As a result, we cannot determine whether the witnesses were important to the defense. This Court will not peruse the record in an attempt to determine what factual grounds, if any, exist for an allegation. Hill v. State, 278 Ark. 194, 664 S.W.2d 282 (1983).
Petitioner also contends that the prosecutor offered to recommend a suspended sentence on the fleeing charge and drop the attempted capital murder charge if petitioner would enter a guilty plea. He alleges that counsel never communicated the plea offer to him. The affidavit of the deputy prosecutor is attached to the petition verifying that he discussed the negotiated plea with counsel but counsel refused it.
We have held that a plea agreement is an agreement between the accused and the prosecutor, not an agreement between counsel and the prosecutor. Rasmussen v. State, 280 Ark. 472, 658 S.W.2d 867 (1983); see also A.R.Cr.P. 25.2. As such, counsel has the duty to advise his client of an offer of a negotiated plea. Before this Court will order an evidentiary hearing in circuit'court, however, the petitioner must allege that he would have accepted the plea. Accordingly, the petition is denied without prejudice to the filing of a subsequent petition addressing the failure to communicate a plea bargain. In all other respects the petition is denied with prejudice.
Petition denied without prejudice in part and with prejudice in part.
Hays, would deny. | [
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Per Curiam.
Appellant Gary Lomax was found guilty by a jury of aggravated robbery and séntenced to a term of 20 years imprisonment in the Arkansas Department of Correction. He subsequently filed a petition pursuant toA.R.Cr.P. Rule 37 to vacate the sentence, alleging ineffective assistance of counsel. The petition was denied without a hearing and appellant brings this appeal.
Pursuant to Anders v. California, 386 U.S. 738 (1967), appellant’s counsel has filed a motion to be relieved and a brief stating there is no merit to the appeal. Appellant was notified of his right to file a pro se brief within 30 days. See Rules of the Supreme Court, Rule 11(h), Ark. Stat. Ann. Vol. 3A (Supp. 1983). He did not file a brief. The State concurs that the appeal has no merit.
Petitioner alleged in his petition for postconviction relief that counsel was ineffective for urging him to accept a plea bargain, advising him not to testify and failing to perfect an appeal. Neither urging an accused to accept a negotiated plea nor merely advising him against taking the stand constitutes ineffective assistance of counsel. Both are matters of strategy and therefore outside the purview of Rule 37. Smith v. State, 283 Ark. 264, 675 S.W.2d 627 (1984).
The circuit court need not hold an evidentiary hearing where it can be conclusively shown on the record or the face of the petition itself, as it can be in this case, that the allegations have no merit. See Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979). On appeal, we affirm the trial court’s denial of postconviction relief unless it is clearly against the preponderance of the evidence. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984). The trial court’s decision here was not clearly against the preponderance of the evidence.
With regard to petitioner’s claim that his attorney failed to appeal when requested to do so, petitioner was entitled at most to a belated appeal, but he failed to request one in accordance with A.R.Cr.P. Rule 36.9 which governs motions for belated appeal. Appellant was committed in February, 1982, and therefore could have filed a motion for belated appeal in this Court at any time between that date and August, 1983, which was eighteen months after the date of commitment. Rule 36.9. He did not file such a motion. Instead, petitioner raised the question of whether counsel was ineffective for failure to appeal in his Rule 37 petition, filed April 11, 1984. Rule 37, however, is not a means of by-passing a motion for belated appeal. If it were construed to be so, an appellant could simply ignore the rule limiting the time for filing a motion for belated appeal in favor of filing a Rule 37 petition which may be filed at any time up to three years from the date of commitment. See Rule 37.2(c).
From a review of the record and briefs before this Court, we find the appeal to be without merit. Accordingly, counsel’s motion to be relieved is granted and the judgment is affirmed.
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Darrell Hickman, Justice.
Roger Dale Sherron was convicted of first degree murder in the death of his estranged wife. The Crittenden County Circuit Court sentenced him to life imprisonment. On appeal the only issue is whether the trial court erred in refusing to instruct the jury on the lesser offense of negligent homicide. The trial court did instruct the jury on the lesser offenses of second degree murder and manslaughter.
In an unbroken line of decisions, it has been held there is no error in failing to give an instruction on one lesser offense if other lesser offenses were covered by the instructions given, and the jury returns a verdict for the greater offense. Cooper v. Campbell, 597 F.2d 628 (8th Cir. 1979); Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984); Robertson v. State, 256 Ark. 366, 507 S.W.2d 513 (1974); Chaney v. State, 256 Ark. 198, 506 S.W.2d 134 (1974); Newsome v. State, 214 Ark. 48, 214 S.W.2d 778 (1948). Since that is the only question before us, we find no error.
Under Ark. Stat. Ann. § 43-2725 (Repl. 1977), as put into effect by our Rule 11 (f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the point argued or in the other objections abstracted for review.
Affirmed. | [
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Per Curiam.
Respondent’s motion to reconsider issuance of temporary Writ of Prohibition is granted.
Purtle and Newbern, JJ., dissent. | [
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Jack Holt, Jr., Chief Justice.
Whether or not there is a constitutional and statutory right to counsel at a revocation hearing is the issue presented by this appeal. We find that where imposition of sentence is suspended and a defendant is placed on probation, there is a right to counsel at a subsequent revocation hearing. The case was transferred by the Court of Appeals under Sup. Ct. R. 29(4)(b).
The appellant, Vernell Furr, pleaded guilty on July 11, 1983, to possession of a controlled substance with intent to deliver. His plea was taken under advisement by the court, which deferred imposition of sentence for a period of five years subject to certain conditions. A motion to revoke the probationary period and impose sentence was filed by the State on November 8, 1983. Although formal notice to the appellant of a hearing on the revocation was filed the same day, the record does not reflect that the appellant ever received the notice. On June 11, 1984, the appellant was arrested pursuant to a bench warrant. He was brought before the court on June 15,1984, and, without being advised of his right to counsel and without the assistance of counsel, was questioned by the court. The appellant admitted that he had violated the conditions of his probation, but attempted to offer mitigating circumstances. The trial judge sentenced the appellant to the maximum statutory period, a term of 10 years imprisonment.
Ark. Stat. Ann. § 41-1209 (Repl. 1977) provides in pertinent part:
(2) A suspension or probation shall not be revoked except after a revocation hearing. Such hearing shall be conducted by the courf that suspended imposition of sentence on defendant or placed him on probation within a reasonable period of time ... The defendant shall be given prior written notice of the time and place of the revocation hearing, the purpose of the hearing, and the condition of suspension or probation he is alleged to have violated. Except as provided in subsection (3), the defendant shall have the right to hear and controvert evidence against him, to offer evidence in his own defense, and to be represented by counsel. [Emphasis added.]
The burden is on the State to demonstrate that the appellant was informed of the revocation hearing and given an opportunity to contact an attorney. Akins v. State, 4 Ark. App. 235, 628 S. W.2d 880 (1982). Here there is evidence of the filing of notice but no proof that it was received by the appellant as required by § 41-1209(2), supra. The record further reflects that the appellant was not informed while in court of his statutory right to be represented by counsel.
The appellant’s statutory rights are reinforced by the sixth amendment of the United States Constitution. The U.S. Supreme Court addressed the issue of right to counsel in Mempa v. Rhay, 389 U.S. 128 (1967) finding that counsel is required “at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” The Court held that the time of sentencing is a critical stage in a criminal case and counsel’s presence is necessary. See Annotation, Parole or Probation Revocation, 36 L.Ed. 2d 1077 § 23(a) p. 1117 (1974); Annotation, Probation — Revocation — Right to Counsel, 44 ALR3d 306 § 2 p. 311 (1972). The commentary after § 41-1209 cites Mempa for the proposition that indigent defendants are entitled to appointed counsel if sentencing is to follow revocation. See also Hawkins v. State, 251 Ark. 955, 475 S.W.2d 887 (1972).
The right to counsel may be waived, but the waiver must be made knowingly, voluntarily, and intelligently. Leak v. Graves & State, 261 Ark. 619, 550 S.W.2d 179 (1977). Here the only potential evidence of waiver is the fact that appellant waived his right to counsel when he initially pled guilty. Almost one year passed'between the appellant’s plea of guilty and his revocation hearing. Obviously, it cannot be said that the waiver of counsel when the plea was entered constitutes an intelligent waiver to all further proceedings. Such a rule would circumvent the appellant’s right to counsel during the most critical aspect of the criminal proceedings against him, revocation of his probation and sentencing nearly a year later.
Under the circumstances of this case, the trial court had a duty to advise appellant, either by the service of notice of the revocation hearing, or in open court, of. his right to be represented by counsel. When the court failed to do so it committed prejudicial error.
The State’s argument that the appellant’s failure to object to the lack of counsel at the trial level precludes this argument on appeal is without merit. In Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980) this court stated four exceptions to the basic requirement of an objection to the trial court. The second exception which “arises when the error is made by the trial judge himself at a time when defense counsel has no knowledge of the error and hence no opportunity to object” is applicable here. The very fact that the appellant was not aware of his right to object further demonstrates the necessity for counsel at a hearing of this nature. The appellant had the right to be represented by counsel. Accordingly, the sentence is reversed and remanded for further proceedings consistent with this opinion.
Reversed and remanded. | [
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Robert H. Dudley, Justice.
The appellees filed a complaint in chancery court stating that they had suffered irreparable damage because the appellant did not pay money due under the terms of a contract. They asked for a temporary injunction directing that the appellants pay the money already due, and also pay the money which would become due under the terriis of the contract. The chancellor refused to transfer the case to circuit court and granted the temporary injunction ordering that appellants pay $40,760.13 into the registry of the court and to make future payments under the terms of the contract. We reverse and remand. Jurisdiction to hear this interlocutory appeal is vested in the Court under Rule 29(1 )(k).
The prospect of irreparable harm or lack of an otherwise adequate remedy is at the foundation of the power to issue injunctive relief. Harm is normally only considered irreparable when it cannot be adequately compensated by money damages or redressed in a court of law. Kreutzer v. Clark, 271 Ark. 243, 607 S.W.2d 670 (1980). Money damages are the only damages asked in this case. The remedy at law is adequate. The chancellor erred in refusing to transfer the case to circuit court and erred in granting an injunction for money damages.
The complaint does state that appellees suffered irreparable damage. However, such a conclusory allegation, with no statement of fact, is not sufficient to give equity jurisdiction. Duncan v. Baxter, 222 Ark. 955, 264 S.W.2d 395 (1954).
This case is reversed and remanded with directions to dissolve the injunction, to return the money which appellants have paid into the registry of the court, and to transfer the case to circuit court.
Reversed and remanded. | [
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Per Curiam.
Petitioner Lonnie W. Dudley stabbed a fellow inmate at Cummins Prison and was subsequently convicted by a jury of first degree battery, Ark. Stat. Ann. § 41-1601 (1977). He was sentenced as an habitual offender with five prior felony convictions to a term of thirty years imprisonment in the Arkansas Department of Correction. The Court of Appeals affirmed. Dudley v. State, CA CR 83-21 (September 21, 1983). Petitioner seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37 on the grounds of ineffective assistance of counsel and the failure of the trial court to raise sua sponte the issue of his sanity.
Petitioner was examined before trial by the Southeast Mental Health Center and found competent. He contends now that he was not competent to stand trial and was mentally ill before, during and after the stabbing. He alleges that if counsel had investigated, he would have found evidence of his long history of mental illness and proof that he was under the influence of a drug when he stabbed the inmate. Petitioner argues that counsel should have put the evidence of his insanity before the jury even though he was found legally competent when examined at the mental health center.
Petitioner called several witnesses at trial to testify that he was watching television when the crime occurred. The main point of this petition appears to be that counsel should have employed an insanity defense instead of the alibi strategy which proved unsuccessful. If the question is one of mere trial strategy, then petitioner has stated no ground for granting postconviction relief. Questions of trial strategy are matters of professional judgment about which experienced advocates could engage in endless debate. As a result, such questions are not cognizable under Rule 37. Leasure v State, 254 Ark. 961, 497 S.W.2d 1 (1973).
Petitioner suggests, however, that counsel’s conduct was unreasonable and therefore should be considered fundamentally unsound representation. Petitioner lists witnesses who could have testified to his history of mental illness, drug use at the time of the offense and his general incompetence to stand trial, implying that an insanity defense was the only real choice open to counsel.
The United States Supreme Court has provided guidelines for assessing attorney performance in the area of investigation of a defense. These guidelines are applicable to petitioner’s case.
[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. Strickland v. Washington,_U.S._, 104 S. Ct. 2052 (1984).
In light of the psychiatric report finding petitioner legally competent, petitioner has failed to overcome the presumption that counsel’s decision to employ an alibi amounted to other than a reasonable professional judgment. The mere fact that an accused might have raised the question of mental competence at trial does not entitle him to a new trial or a hearing pursuant to Rule 37.
The allegation that the trial court should have injected the question of petitioner’s sanity into the proceedings and given an instruction on insanity as a defense is without merit. While a trial court should be alert to circumstances suggesting that an accused is not competent to stand trial, Drope v. Missouri, 420 U.S. 162 (1975), there is nothing in the petition before us to show that the court had any reason to question the petitioner’s competence.
After trial, counsel filed a motion to be relieved and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating there was no merit to the appeal of the judgment. Petitioner’s final assertion of ineffective assistance of counsel is that filing a “no merit” brief is tantamount to ineffective assistance. He contends that counsel should have raised on appeal the issues presented in this petition.
The decision to file an Anders brief is a matter of professional judgment. Counsel, not the appellant, must decide whether the issues raised at trial are meritorious. See Jones v. Barnes, _ U.S. _, 103 S. Ct. 3308 (1983). Moreover, the sanity issue was not raised at trial and could not have been reviewed on appeal. If there were other issues which appellant wished to raise on appeal, he had the opportunity to raise them himself since he was informed of his right to file a brief in accordance with Supreme Court Rule 11 (h) but did not do so.
Petition denied. | [
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George Rose Smith, Justice.
The appellant Hartford was the corporate surety on a contractor’s bond given to secure the payment of bills for labor and material furnished to the contractor on a private construction job. The contractor ceased work on the contract on March 26,1976. Some two years later, on May 31, 1978, the appellee Stewart Brothers brought this action against Hartford to recover an amount owed for materials furnished to the contractor, plus the statutory penalty and attorney’s fee. Hartford pleaded as its defense a one-year limitation period contained in the bond sued upon. The trial court rejected the plea of limitations and entered judgment for the plaintiff upon undisputed facts. Our jurisdiction of the appeal is pursuant to Rule 29(1 )(c).
The principal question is that of limitations. The governing statute provides that no action upon such a bond shall be brought against the corporate surety after six months from the date final payment is made on the contract. Ark. Stat. Ann. § 51-636 (Repl. 1971). It is stipulated that the last payment was made on October 2, 1978. Since this suit was brought four months before that date, it was apparently timely.
The bond, however, provides in substance that no action on the bond shall be commenced after the expiration of one year following the date on which the contractor ceased work on the contract, “it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof,” then the limitation shall be the minimum permitted by the law. This action having been filed more than two years after the contractor ceased work, Hartford argues that the one-year contractual limitation is a bar to the suit.
Hartford relies on our holding in City of Hot Springs v. National Surety Co., 258 Ark. 1009, 531 S.W.2d 8 (1975), but that reliance is misplaced. There the common-law bond in question had a two-year limitation from the due date of the final payment on the contract. We held that the parties were free to contract for a limitation shorter than the general five-year statute applicable to written instruments if the stipulated time was not unreasonably short “and the agreement did not contravene some statutory requirement.” Upon the facts in that case the plaintiff had, under the terms of the bond, more than a year and eight months for bringing suit. We considered that to be ample time and upheld the contractual limitation.
By contrast, here the specific statute, supra, allows the suit to be filed up to six months from the date of final payment on the contract. That is a reasonable point of beginning, for the materialman may not know the exact amount of his claim, if any, until that final payment has been made. The one-year contractual limitation, however, began to run from the date the contractor ceased work and would have actually barred this suit even before the statutory limitation had been set in motion b.y the final payment. We hold, therefore, that the contractual limitation was prohibited by the controlling statute, so that the alternative minimum period recognized by the bond became controlling. The action was brought within that period and so is not barred.
Hartford argues secondarily that an attorney’s fee allowance cannot be sustained in the absence of proof of the nature and extent of the attorney’s services. That is not the law. When the trial judge is familiar with the case and the service done by the attorneys, the fixing of a fee is within the discretion of the court. Tech-Neeks, Inc. v. Francis, 241 Ark. 390, 407 S.W.2d 938 (1966). Here the allowance of a $3,000 fee was based upon the recovery of an $11,571.11 judgment. We do not regard the amount as excessive.
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Robert H. Dudley, Justice.
The Arkansas State Health Planning and Development Agency granted a certificate of need to appellant, Rehab Hospital Services Corporation, to construct a hospital in Jonesboro. Frances Flener, the Executive Director of appellee, Delta-Hills Health Systems Agency, the regional health planning agency for the Jonesboro area, filed a motion for reconsideration after conducting a telephone poll of most of the Executive Committee of the appellee’s board. Appellant filed suit for a declaratory judgment, and argued that the motion for reconsideration should be voided because the appellee, in conducting a telephone poll, had not abided by the Freedom of Information Act. Ark. Stat. Ann. §§ 12-2801 through 2807. The trial court refused to void the motion for reconsideration. We affirm. Jurisdiction to interpret the Freedom of Information Act is in this Court. S.Ct. Rule 29(1 )(c).
Declaratory judgment actions are intended to supplement rather than replace ordinary causes of action. Mid-State Const. Co. v. Means, 245 Ark. 691, 434 S.W.2d 292 (1968). As such, the parties are required to exhaust administrative remedies prior to seeking a declartory judgment.
It seems to be now a recognized doctrine that requires administrative relief to be sought before resorting to declaratory procedure, wherever administrative relief is afforded and this requirement is not one merely requiring the initiation of administrative procedure, but the administrative procedure must be pursued to its final conclusion before resort may be had to the court for declaratory relief.
W. Anderson, Actions for Declaratory Judgments, § 204, at 433 (1951). This court likewise requires exhaustion of administrative remedies before resorting to an action for declaratory judgment. See Ragon v. Great American Indemnity Co., 224 Ark. 387, 273 S.W.2d 524 (1954).
A basic rule of administrative procedure requires that the agency be given the opportunity to address a question before resorting to the courts. Truck Transport, Inc. v. Miller Transporters, Inc., 285 Ark. 172, 685 S.W.2d 798 (1985). Furthermore, the procedure of the agency before us provides for further administrative review of the agency’s decision. S.H.P.D.A. Rule 11(13). By filing the declaratory judgment action, the appellant circumvented the established agency appeals procedure. Under most circumstances we would dismiss the appeal without reaching the merits of the case. However, we choose to decide the case on its merits because it involves the interpretation of the Freedom of Information Act, a matter of significant public interest.
The trial court was in error in holding that appellee, Delta-Hills, was not subject to the Freedom of Information Act. Appellee is incorporated as a non-profit regional health planning corporation under the requirements of federal law. 42 U.S.C. § 3001-l(b). Its function is to assist the Arkansas Health Planning and Development Agency in the regional review of proposed state health systems’ changes. An indication of the public purpose served by appellee is demonstrated by a section of the act which mandates the creation of appellee and provides that adequate public notice must be given and that business must be conducted in public meetings. 42 U.S.C. § 3001-l(b)(3)(B)(viii). The primary source of funding for the appellee is the federal government. The Freedom of Information Act applies to all organizations of the State supported wholly or in part by public funds, except as otherwise specifically provided by law. Delta-Hills is not excepted by law, so it is subject to the requirements of the act. Since there was no emergency exception involved, and no emergency notice to the press, the appellee violated the terms of § 12-2805 of the Freedom of Information Act.
The most significant issue in this case is what remedies, if any, are appropriate, other than the express statutory remedies, when a violation of the act occurs. The act expressly establishes criminal penalties for willful violations of the statute, Ark. Stat. Ann. § 12-2807, and a mechanism by which one denied rights under the act may challenge that denial. Ark. Stat. Ann. § 12-2806. However, appellant chose not to bring the matter to the attention of appellee and does not seek an injunction against future similar telephone polls by appellee. Appellant seeks only judicial invalidation of the motion for reconsideration. Thus, it seeks to use the Freedom of Information Act solely to mandate the result of a meeting.
The last paragraph of § 12-2805 provides that when a public entity fails to reconvene in public session and ratify the matter, after arriving at a decision in executive session, it shall not be legal. However, that section is not applicable to the facts of this case. Here, there was no meeting in executive session. Instead, there was a telephone poll of those members of the executive committee who could be reached over a three day period. Unlike an executive meeting, without later public ratification, this telephone poll, if conducted with proper notice, and if conducted with telephones available to the public and press, could have been an acceptable type of open meeting. Therefore, the act does not expressly provide that the meeting “shall not be legal.”
Some states hold that when the “public meeting” statute sets out specific remedies, the courts are limited to those remedies set out. For a listing of those jurisdictions see Annotation - Statutes - Proceedings Open to Public, 38 A.L.R.3d 1070, § 7. We decline to take such a limited approach but instead, in order to effectuate the laudable public purposes of the act, hold that some actions taken in violation of the requirements of the act may be voidable. It will be necessary for us to develop this law on invalidation on a case-by-case basis.
While we consider voidability a valid option to enforcement of the Freedom of Information Act, we decline to invoke it in this case for the reasons set out below.
First, there has been no showing that appellee’s board members knowingly violated the law by participating in the telephone poll and the appellant did not bring it to their attention. The agency was never given the opportunity to address the issue. Instead, appellant circumvented the agency and directly filed suit asking for invalidation. If we allowed invalidation on that basis, the potential for harm would be great. It would mean that any person who did not like a resolution, ordinance, rule, or regulation passed since the inception of the act could have it invalidated, under the subterfuge of freedom of information, because of some unintentional past violation which had never been brought to the attention of the governmental entity. Such an interpretation would create a substantial amount of undesirable uncertainty. See Elmer v. Board of Zoning Adjustment of Boston, 343 Mass. 24, 176 N.E.2d 16 (1961); Open Meeting Statutes: The Press Fights for the “Right to Know", 75 Harv. L. Rev. 1199, at 1214 (1962). It is only in the event invalidation is sought that we require that the board or agency be given the opportunity to address the issue. The opportunity to address the issue does not necessarily have to be given to the agency when the public or the press seeks only those remedies expressly set out in the act. See Arkansas Gazette v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975); Mayor, etc. of El Dorado v. El Dorado Broadcasting, 260 Ark. 821, 544 S.W.2d 206(1976).
Second, the telephone poll was not necessary to authorize the motion for reconsideration. The full board had already met in an open meeting and voted to contest the granting of the certificate of need. After that, there was no need for the board, or any committee, to meet and vote on each step of the adjudication. It would be unrealistic and intolerable to hold that every step taken on behalf of a board in a lawsuit or adjudication must be approved at a public meeting. If such were required, counsel could not even perform those routine tasks such as preserving an appeal by timely filing the jurisdictional notice of appeal without a public meeting of the board. We decline to take such an unreasonable approach. Accord: Florida Parole and Probation Comm. v. Thomas, 364 So.2d 480 (Fla. App. 1978).
Third, the appellant does not seek to protect the public’s right to information, it seeks invalidation solely to build a hospital.
Affirmed. | [
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Robert H. Dudley, Justice.
Appellant was convicted of first degree carnal abuse of a person who was less than fourteen years old. There is no need to review the facts since the sufficiency of the evidence is not questioned. We affirm the judgment.
Appellant first contends that the trial court erred in denying his motion to take the discovery deposition of three prosecution witnesses. He argues that the Due Process Clause gives the accused a right to discovery, and, as authority, cites Wardius v. Oregon, 412 U.S. 470 (1973). The argument is without merit. The Wardius opinion makes it clear that the Due Process Clause does not, by itself, require discovery procedures in criminal cases. Rather, it mandates that when a state imposes discovery against a defendant, due process requires that equivalent rights be given against the state. Arkansas statutes do not provide for discovery against a defendant, as does the Oregon notice-of-alibi rule, at issue in Wardius, which requires that when a criminal defendant intends to rely on an alibi defense, he must notify the State of the place where he claims to have been at the time in question and of the names and addresses of witnesses he intends to call in support of the alibi. Wardius does not mandate discovery under the Arkansas procedure. Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982). Instead, it is discretionary with the trial judge. Sanders v. State, 276 Ark. 342, 635 S. W.2d 222 (1982). Since appellant has not included any trial testimony in the record we cannot determine whether the trial judge abused his discretion. We do not reverse for failure to grant discovery in a criminal case without showing an abuse of discretion. Sanders v. State, supra.
Appellant next contends that the trial court erred in refusing to quash the information or in suppressing their testimony because the prosecutor took three witnesses to the courtroom and went over their testimony. Again, we find the argument to be without merit. The appellant moved to quash the information, or alternatively to suppress the testimony, or alternatively for a continuance. The court granted the requested alternative motion for a continuance. A party cannot complain of a ruling that was made at the insistence of his own attorneys, Sheppard v. State, 239 Ark. 785, 394 S.W.2d 624 (1965).
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Darrell Hickman, Justice.
Edwin L. Mendenhall, the appellant, was arrested for shoplifting at one of the appellee’s Little Rock stores. Wilbur Page, an off-duty policeman employed by the appellee as a detective, testified that he observed Mendenhall place two bottles of men’s cologne in a paper bag and leave the store. Page followed Mendenhall from the store, stopped him, identified himself as a police officer, took Mendenhall to the store office, and arrested him. A store supervisor corroborated Page’s testimony. Mendenhall denied he had stolen the items but maintained that he brought the items in to exchange them. Mendenhall was convicted of theft of property in municipal court. On appeal to the circuit court, the jury was unable to reach a verdict, and a mistrial was declared. Mendenhall sued the appellee for false arrest and false imprisonment. The jury found for the appellee and we affirm.
On appeal Mendenhall argues that the court erred by instructing the jury that probable cause is a defense to false arrest by a private citizen for a misdemeanor. This is the instruction given to which Mendenhall objected at trial:
Where a person has probable or reasonable cause to believe that another person is attempting to take property without payment, he is legally justified in detaining the person for a reasonable length of time for the purpose of making an investigation in a reasonable manner. It is for you to determine whether any restraint or detention shown by the evidence in this case was reasonable in time and manner.
This is the instruction proffered by Mendenhall and rejected:
An arrest by a private person for a misdemeanor is legally justifiable only if the Plaintiff is guilty of the offense for which it is claimed he was arrested, and the Plaintiff is not bound to show either want of probable cause or malice to entitle him to recover.
Mendenhall argued at trial that the instruction given was erroneous because he was “arrested” rather than “detained.” He also contends it was wrong to give instructions which track the theft of property statute (Ark. Stat. Ann. § 41-2203 [Repl. 1977]), the shoplifting presumption statute (Ark. Stat. Ann. § 41-2202 (2) [Repl. 1977]), and the shoplifting detention statute (Ark. Stat. Ann. § 41-2251 [Supp. 1983]). The Arkansas shoplifting statute, Ark. Stat. Ann. § 41-2251, provides in relevant part:
(a) A person engaging in conduct giving rise to a presumption under Section 2202 (2). . . may be detained in a reasonable manner and for a reasonable length of time by a peace officer or a merchant or a merchant’s employee in order that recovery of such goods may be effected. Such detention shall not render such peace officer, merchant or merchant’s employee criminally or civilly liable for false arrest, false imprisonment or unlawful detention.
* # W W # TT It TP
(c) A peace officer may arrest without a warrant upon probable cause for believing the suspect has committed the offense of shoplifting. Sufficient probable cause may be established by the written statement by a merchant or merchant’s employee to the peace officer that the affiant has observed the person accused committing the offense of shoplifting. The accused shall be brought before a magistrate forthwith and afforded the opportunity to make a bond or recognizance as in other criminal cases.
Mendenhall’s argument, which is more clearly presented on appeal than below, is that the shoplifting statutes are not applicable because in this case the policeman was employed by Skaggs, and was, therefore, an employee of the appellee and could only “detain” Mendenhall rather than “arrest” him under Ark. Stat. Ann. § 41-2251. The appellee admitted that Page was acting as its employee when he arrested Mendenhall. Mendenhall argues that a private person can only arrest one committing a felony; that a private person cannot arrest a misdemeanant even upon probable cause; and since shoplifting is only a misdemeanor and Page was acting as a private person, probable cause is no defense.
We reject this argument. Unlike some other states, we have recognized for some time that probable cause is a defense to a civil action for false arrest or false imprisonment in connection with a misdemeanor. In Kroger Grocery & Baking Co. v. Waller, 208 Ark. 1063, 189 S.W.2d 361 (1945), we rejected an instruction which stated that the grocery store could justify an arrest for shoplifting only by showing that the plaintiff actually committed a misdemeanor. We plainly stated that this was not the law. We held that if the store employee acted in good faith in stopping the plaintiff and causing her arrest then no civil action would lie against the defendants. In so holding we affirmed the rule of Mo. Pac. R.R. Co. v. Quick, 199 Ark. 1134, 137 S.W.2d 263 (1940), that, as a matter of law, probable cause would defeat an action for false arrest.
Mendenhall asks us to ignore these precedents since in his case he was actually arrested by a store employee rather than just detained. Does it matter that the merchant or his employee actually arrested, rather than just detained, the suspect? The appellant would argue so. There is no doubt that if a merchant detains a person, calls the police and causes the arrest, probable or reasonable cause is a defense. Kroger Grocery & Baking Co. v. Waller, supra; Ark. Stat. Ann. § 41-2251 (Supp. 1983).
In this case, without objection, the jury was instructed that if they found Skaggs was not "legally justified” in arresting the appellant or in falsely imprisoning him it should find for the appellant, and the converse. Was Page detaining Mendenhall as an employee of Skaggs but arresting him as a police officer? This question was never presented to the jury. While the appellant asked the word "policeman” be changed to “employee” in one of the instructions, the argument the appellant makes was never clearly made to the court. Neither was an instruction requested which explained the distinction. The proffered instruction would have been meaningless to the jury without an instruction asking the jury to decide if the policeman was acting in his official capacity or as an employee of Skaggs when he detained and arrested the appellant. See Dillard Dept. Store v. Stuckey, 256 Ark. 881, 511 S.W.2d 154 (1974). It was appellant’s duty to present his theory of the case through his instructions. Since he did not present instructions which embodied his theory, we find no error. Bovay v. McGahhey, 143 Ark. 135, 219 S.W. 1026 (1920).
Affirmed.
Purtle, Dudley, and Newbern, JJ., dissent.
. The distinction in the shoplifting statute between “detain” and “arrest” may be insignificant so far as a civil suit for false arrest is concerned. See W. Ringle, Searches & Seizures, Arrests and Confessions, 928.3 (c)(1984). | [
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Robert H. Dudley, Justice.
Appellant, Jeffery Mosier, was found guilty of an aggravated robbery, rape, and theft of property. We need not state the proof in detail because the sufficiency of the evidence to support the convictions is not questioned. Mosier contends the trial court erroneously refused to give his requested instructions on the defense of voluntary intoxication and erroneously refused to grant a mistrial when a recording of appellant’s confession contained references to other criminal activity. We find no reversible error and affirm the convictions. Jurisdiction is in this Court under Rule 29(l)(b) because a cumulative sentence of more than 30 years imprisonment has been imposed.
The trial court correctly refused to give the requested instruction on voluntary intoxication as a defense because the proposed instruction gave contradictory burdens of proof and would have misled the jury. On the one hand, it provided “In asserting the defense, he is required only to raise a reasonable doubt in your minds,” but on the other hand, it would have told the jury “[appellant] has the burden of proving an affirmative defense by a preponderance of the evidence.” There was no error in refusing to give an instruction which would have misled the jury.
We are aware that some confusion surrounds the defense of voluntary intoxication. See Liebman, Voluntary Intoxication as a Defense to Crime, Ark. L. Notes 29 (1983). We may choose to re-examine our position when we have adversary briefs on the subject.
Appellant next argues that the trial court erred in refusing his motion for a mistrial. One of the state’s witnesses, a police officer, played appellant’s recorded inculpatory statement, in which appellant admitted to the unrelated wrong of “hanging around and dealing with some fellows that’s selling and buying stolen property” and to attempting to avoid trial on unrelated burglary and theft charges. At the time of playing of the statement, the appellant did not object to this evidence of other wrongs or crimes. See Rule 404(b) Ark. Unif. Rules of Evid. Then, toward the end of the tape, the appellant finally objected to the evidence of other wrongs which had long been before the jury.
The trial judge ruled that the objection was well taken, although too late, and ordered the objectionable part of the tape deleted before he admitted the tape into evidence, and ordered the police officer to read the balance of the statement from a transcript. After that, the appellant moved for a mistrial. His counsel admitted he had earlier read the transcript of the statement, and that he knew it contained the evidence of other wrongs. Yet, he did not make a timely objection. The trial judge ruled that the motion for a mistrial was not timely. We agree. The trial judge may well have thought that the failure to object to the evidence in the statement and then later moving for a mistrial on the basis of that same unobjected-to evidence, was a deliberate trial tactic, for two reasons. First, most of the evidence was already before the jury, without objection, by another witness. Second, appellant’s counsel indicated that his strategy was to let the jury know that his client had associated with criminals and, because of his fears of them and not for the purpose of committing a robbery, he was carrying a pistol. The trial court is granted a wide latitude of discretion in granting or denying a motion for mistrial,, and this court will not reverse except for an abuse of that discretion or manifest prejudice to the complaining party. Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983). A trial judge does not abuse his great discretion in granting or refusing a motion for mistrial where counsel appears, as a matter of trial strategy, to have allowed testimony into evidence without objection, and then later moves for a mistrial on the basis of that same evidence.
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Steele Hays, Justice.
The Alcoholic Beverage Control Division has appealed from an order of the Pulaski Circuit Court reversing the Division’s cancellation of the permit of Delmer Barnett , appellee, to sell beer at his grocery store on Kellogg Road in North Little Rock, lying in Gray Township.
In 1981 the Division discovered that a part of Gray Township thought to be “wet,” was actually “dry” as a result of a 1956 local option election. That fact had not been reported to the Division and consequently, three permits to dispense alcoholic beverages in the dry area had been issued prior to the discovery, one of which was held by the appellee.
In September, 1982 the Director of the Division notified the three permittees of the problem and of a scheduled hearing. The facts developed before the Director were not disputed: in December, 1954 Gray Township held a local option election and voted dry by a vote of 528 to 473. In February, 1956 the Pulaski County Court entered an order altering the boundaries of several townships. Gray Township was enlarged and the added tract included the locations of the appellee and the other two permittees. The following November a wet-dry election was held in Gray Township, as newly composed, and the drys won, by a vote of 421 to 219. On these grounds the Director ordered the permits cancelled, allowing ninety days for the permit holders to apply for transfer to other locations.
On appeal to the Alcoholic Beverage Control Board the permit holders argued that the two publications of notice of the 1956 local option election were deficient in that the notices failed to include the full text of the proposal, as required by Ark. Stat. Ann. § 2-307 (Repl. 1976).
The published notices informed the public of a local option election affecting Gray Township to be held on November 6,1956, the date of the next general election. The notice stated, “the text of this measure and its ballot title read as follows:
GRAY TOWNSHIP INITIATIVE ACT NO. 1. AN ACT TO LEGALIZE THE MANUFACTURE, SALE, BARTERING, LENDING AND GIVING AWAY OF INTOXICATING LIQUOR WITHIN GRAY TOWNSHIP, PULASKI COUNTY, ARKANSAS. FOR PROPOSED INITIATIVE ACT NO. 1. _ AGAINST PROPOSED INITIATIVE ACT NO. 1__
Had the full text of the proposed act been published, it would have included the following:
“Be it enacted by the people of Gray Township, Pulaski County, Arkansas: Section 1. The manufacture, sale, bartering, lending, or giving away of intoxicating liquor is legal within Gray Township, Pulaski County, Arkansas, and License shall be granted for said purposes.”
On January 17, 1983, the Board reached a decision granting the permittees an additional five and a half months to find alternate locations, failing in which the permits would be cancelled as of June 30, 1983.
Appellee Barnett filed a petition in the Pulaski Circuit Court to review the Board’s decision pursuant to the Arkansas Administrative Procedure Act (Ark. Stat. Ann. § 5-701, et seq., Repl. 1976), and obtained a stay of the cancellation pending the appeal.
On June 25, 1984, the Circuit Court reversed the Board upon findings that the administrative ruling of the Board was based on an error of law in that the Board failed to recognize that the 1956 local option election was void because the notice failed to publish the full text of the proposed act as required by Ark. Stat. Ann. § 2-307 (Repl. 1976) and because the election in 1956 violated Ark. Stat. Ann. § 48-802, which requires that two years elapse between local option elections.
The Division’s appeal to this court is predicated on two arguments: the Circuit Court had no jurisdiction in 1984 to decide an election matter which occurred in 1956, and the Cirucit Court erred in ruling the 1956 election was void because two years had not elapsed, inasmuch as the boundaries of Gray Township changed between the two elections. We sustain the arguments.
The dispute over the timing of the two elections can be easily disposed of — it was not raised by the appellee or by either of the other two permit holders before the Board. In Arkansas Cemetery Board v. Memorial Properties, Inc., d/b/a North Hills Memorial Gardens, 272 Ark. 172, 616 S.W.2d 713 (1981), we said this is essential to a judicial review under the Arkansas Administrative Procedures Act. We quoted from a decision of the United States Supreme Court in Unemployment Commission v. Oregon, 329 U.S. 143 (1946):
A reviewing court usurps the agency’s function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the Commission of an opportunity to consider the matter, make its ruling, and state the reasons for its action.
See, Truck Transport, Inc. v. Miller Transports, Inc., (decided March 11, 1985).
On the remaining point the Division submits that election contests must be brought within twenty days of certification (Ark. Stat. Ann. § 3-1001, Repl. 1976) and Circuit Court has no jurisdiction to settle such disputes nearly thirty years later. It points to those cases holding that compliance with pre-election requirements is mandatory before an election and becomes discretionary afterwards. Gay v. Brooks, 251 Ark. 565, 473 S.W.2d 441 (1971).
In response, appellee contends that this is not an election contest, but an action on review to prevent an administrative agency from enforcing the results of an election held on November, 1956 which was null and void. Phillips v. Rothrock, 194 Ark. 945, 110 S.W.2d 26(1937). We agree to this extent — this is a proceeding to review an administrative agency, brought expressly under the Administrative Procedure Act, but that very reason compels us to a different result. We need not decide the timeliness of this dispute, because the issue is not the power of the Circuit Court to examine the election results, but whether the Alcoholic Beverage Control Division has a duty under our statutes to look beyond the results of a wet-dry election, however recent or distant in time. The Circuit Court was not hearing this case de novo, but on review to determine whether the Division’s order was in excess of the agency’s authority, or was affected by an error of law, or was arbitrary, capricious or an abuse of discretion, or breached any of the six considerations listed in Ark. Stat. Ann. § 5-713(h) (Supp. 1983). We hve referred to the appellate review under the act as “narrowly prescribed” [Arkansas Poultry Commission v. House, 276 Ark. 326, 634 S.W.2d 388 (1982)] and as being “a role of limited scope” [City of Newport v. Emery, et al, 262 Ark. 591, 559 S.W.2d 707 (1977)].
While our statutes impose a variety of assignments on the Alocholic Beverage Control Division, they can be described in general as limited to the issuance and revocation of licenses for dispensing intoxicants and overseeing the enforcement of laws and regulations pertinent to that responsibility. We find nothing in the statutes suggesting that it is intended the Division, through its five member board who are not expected to be proficient in the law, to undertake the often difficult task of deciding whether election procedures have been complied with. That role has been handled, more or less effectively, by the judicial branch and we think the clear intent of our statutory scheme is such that the Division is not expected to look beyond the results of wet-dry elections in discharging the functions assigned to it. Whether appellee could still challenge the results of the 1956 election, we are not deciding, but the forum for that effort is the courts, rather than an administrative agency, and the Administrative Procedures Act makes express provision for recourse to other remedies. § 5-713(a).
The effect of the Circuit Court’s order would thrust a difficult and unintended assignment on the Division — to decide the legality of wet-dry election procedures. That would result in a dilemma for the Division. Section 48-802 directs the Division, in the event a majority of the electors vote against the sale of intoxicating liquors, to immediately cancel any permit for the sale of intoxicants within the territory covered by the election. Obviously, the Division cannot effectively enforce the provisions directly imposed upon it by law, if at the same time it must decide whether pre-election procedures were observed.
For the reasons stated, the order of the Circuit Court is reversed.
Delmer Barnett died on August 4,1984 and this litigation proceeded under an order substituting Mrs. Edna Barnett as petitioner. ARCP Rule 25. | [
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John I. Purtle, Justice.
A Benton County Circuit Court jury awarded appellee the sum of $8,000 on his complaint against the appellant for $9,000. On motion of appellant the trial court reduced the judgment by the amount appellee had collected from the drawer of the bad checks, Arthur L. Wagner, of Springfield, Missouri. Appellant appeals from the jury verdict on the ground that the trial court gave an erroneous instruction. The appellee cross appeals from the action of the trial court in reducing the judgment. We hold that the instruction was not prejudicial and that the court erred in reducing the jury verdict.
Arthur L. Wagner wrote appellee, Paul Chitty, three checks in 1981. All three were dishonored, the first two for insufficient funds and the third because the account was closed. The sequence of events is important in understanding the facts. The first check, in the amount of $4,750, was written on August 18, 1981, and deposited in appellee’s account in the appellant bank on August 25, 1981. The second check, in the amount of $4,500, was dated September 9, 1981. The first check was returned to the appellant bank on September 10, 1981, because of insufficient funds. The first check was sent back through banking channels for collection on September 11, 1981. On this same day Wagner wrote appellee a third check in the amount of $9,000. The second check was deposited by appellee in the appellant bank on September 14, 1981. The third check was deposited on September 16, 1981. On October 5, 1981, the appellant learned through its wire service that the second check was being returned for insufficient funds. The appellant also learned by wire service on September 24, 1981, that the drawer’s account had been closed. The first two checks were charged back to appellee’s account on October 7, 1981, and the third on October 15, 1981.
The appellee payee filed suit for damages against the appellant bank in the amount of $9,000 plus costs and prejudgment interest. The complaint alleged negligence in breach of a fiduciary duty owed to the depositor (appellee). The bank filed a general denial and attempted to reserve the right to counterclaim or cross-claim. However, the answer was not amended before trial.
Prior to trial the appellee had expended over $2,000 in attempting to obtain satisfaction from the maker of the bad checks. Proof of collection costs was introduced at the trial. Upon a post-trial motion of appellant, the trial court amended the judgment to give the bank credit for the $5,703 which appellee had collected from the maker of the bad checks.
Both parties appeal. The bank contends it was prejudicial error to give appellee’s instruction #8. The appellee contends that the court erred in giving the bank credit for the amount collected from the maker of the bad checks.
The instruction upon which the appellant relies for reversal reads as follows:
RIGHT OF CHARGE-BACK OR REFUND
If a collecting bank has made a provisional settlement with its customer for a check and said check is dishonored, the collecting bank may revoke the settlement given by it and charge back the amount of any credit given for the check to its customer’s account or obtain a refund from its customer if, by its midnight deadline or within a longer, reasonable time after it learns the facts of the dishonored check, send notification of the facts to the customer. The right to revoke, charge back, or obtain a refund from the customer, terminates if and when a settlement for the check received by the bank is or becomes final.
The objection to the instruction was that it related to the bank’s action in making charge backs to appellee’s account and that the issue of charge back was not before the jury. In looking at the complaint it alleges a breach of a fiduciary duty in failing to notify appellee that the first check was returned for insufficient funds. Thus, appellee alleges, the bank’s negligence in not notifying him resulted in damages in the amount stated in the complaint. Admittedly, there was no mention of an illegal charge back in the complaint. The challenged instruction did not inform the jury that the amount of the charge was to be considered in arriving at a verdict on damages. It did inform the jury that the bank could make a charge back if it acted by its midnight deadline or within a longer reasonable time, provided it notified the customer. Therefore, the court was simply instructing the jury on the bank’s duties to its customer. The verdict was not in an amount of any or all of the checks which were charged back to the customer’s account. The instruction was not contrary to appellee’s theory of negligence.
Ark. Stat. Ann. § 85-4-103 (1) (Add. 1961) states that a bank may not disclaim its responsibility for “failure to exercise ordinary care or . . . limit the measure of damages for such lack or failure ...” “The measure of damages for failure to exercise ordinary care in handling an item is the amount of the item reduced by an amount which could not have been realized by the use of ordinary care, and where there is bad faith it includes other damages, if any, suffered by the party as approximate consequence.” Ark. Stat. Ann. § 85-4-103 (5). Thus it may be seen that the amount of recovery is limited to the amount of the item[s] in the absence of bad faith. Also, the damages are decreased by the amount which would not have been recovered had the bank exercised ordinary care.
According to the definitions set out in Ark. Stat. Ann. § 85-4-104 (1) (h), “midnight deadline” is midnight on the next banking day following the banking day on which the item is received. A bank must use ordinary care in sending notice of dishonor after learning that an item has not been paid or accepted and the burden is on the bank to establish the reasonableness of notice provided beyond its midnight deadline. Ark. Stat. Ann. § 85-4-202 (1) (b) and (2) (Add. 1961 and Supp. 1983). In First National Bank of Springdale v. Hobbs, 248 Ark. 76, 450 S.W.2d 298 (1970), this court affirmed a judgment against the bank which had paid checks on an unauthorized signature. Hobbs sued the bank for checks totaling $31,001.49 and obtained a judgment for $12,495.33. The judgment was upheld on the grounds that there was evidence upon which the jury could have found that the bank failed to use ordinary care. Likewise in the present case there was evidence before the jury from which it could find that the bank failed to use ordinary care in handling the three dishonored checks.
Rule 15 (b) of the Arkansas Rules of Civil Procedure states in part: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” The complaint here specifically pled lack of ordinary care in the handling of the first check. The parties stipulated facts about the dates the three checks were written, deposited, returned and charged back to appellant’s account. The first check was deposited to appellee’s account on August 25,1981, and the charge back occurred on October 7, 1981, the same date check number two was charged back, although it had been deposited on September 14, 1981. The third check was deposited on September 16, 1981, and charged back on October 15, 1981, although the bank received notice it had been dishonored by the paying bank on September 24, 1981. The jury had before it evidence and instruction relating to “midnight deadline,” “reasonable time,” “charge back,” and “ordinary care.” It could have found that appellee was damaged in the amount of any item less an amount which would have been lost even if appellant has used ordinary care. The drawer of these three items was apparently still around and in business when at least two of the items were handled and possibly when the third was handled. Under the facts presented here the jury may have found the $8,000 was the amount of the item[s] less the amount which would have been lost even had the bank exercised ordinary care. The consequential damage instruction was requested by the appellee and not objected to by the appellant. The pleadings never identified damages as anything but “damages.” The prayer was simply that appellee recover “the sum of $9,000, plus accured interest.” We agree that under the facts presented the appellee was not entitled to consequential damages because there was not even an implication that the bank acted in bad faith.
Cross appellant argues the court erred in amending the judgment to give the bank credit for the amount appellee had collected from the bad check writer. We agree with this argument because the judgment was supported by the evidence and there had been no amendment to the general denial answer filed by the bank. Rule 13 (a) of the Arkansas Rules of Civil Procedure states in part: “A pleading shall state as a counterclaim any claim which, at the time of the filing of the pleading, the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.” The subrogation claim by the bank arose out of the same transactions as the allegations of the complaint and there were no other parties necessary. Therefore, failure to assert the counterclaim prevented the court from reducing the judgment by the amount already collected by the appellee at the time of trial.
Affirmed on direct appeal and reversed on cross appeal. | [
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David Newbern, Justice.
This is an appeal of a conviction of DWI under Act 549 of 1983 and of speeding. Questions of interpretation and constitutionality of the Act are raised, thus our jurisdiction is based on Arkansas Supreme Court and Court of Appeals Rule 29.1. a. and c. Facts necessary to understanding the appellant’s points will be considered as each point is discussed.
1. Sufficiency of Citation
The appellant complains that he was charged with DWI by an instrument entitled “complaint” rather than “citation.” The appellant does not suggest how he was prejudiced by this misnomer. Neither his abstract or the record shows the point to have been argued to the trial court, so we will not consider it on appeal. Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). For the same reason we decline to consider the appellant’s argument that the “complaint” did not notify him of the time and place of the trial. There was no objection in the trial court. Stiles v. Hopkins, 282 Ark. 207, 666 S.W.2d 703 (1984).
The appellant contends the “complaint” was insufficient because it simply charged him with DWI and was issued within ninety days after the adjournment of the General Assembly session which passed Act 549. The argument is that no case had yet decided the validity vel non of the emergency clause which accompanied the Act. The short answer to this argument is that all legislation is presumed to be constitutionally valid. Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180(1980).
2. Culpable Mental State
The appellant argues Act 549 should be declared invalid because it does not require a culpable mental state and is thus in violation of the requirement of Ark. Stat. Ann. § 41-204(2) (Repl. 1977). That section says if a statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required. It clearly does not require that any criminal statute make a culpable mental state an element of the crime in so many words.
3. Conflict with Act 409
The appellant argues that Act 409 of 1983, which deals generally with sentencing, came into effect after Act 549 and thus invalidates the sentencing limitations of Act 549. Act 549 had an emergency clause, and it came into effect March 21, 1983. Act 409 had no emergency clause, and it came into effect July 1, 1983. The appellant argues that the act which comes into effect later is controlling. The argument is not correct. If there is a conflict which cannot otherwise be resolved Act 549 is the later expression of the legislative will, and thus it is controlling regardless of its having become effective earlier than Act 409. Williams v. State, 215 Ark. 757, 223 S.W.2d 190 (1949).
4. Radar Operator’s Qualifications
Testimony at the trial was that the appellant drove 45 mph in a 25 mph zone. The appellant contends the officer who operated the radar device upon which the testimony was based was in violation of Act 672 of 1983, and the testimony should have been stricken. The officer testified he had been certified in 1980. The Act, codified in relevant part as Ark. Stat. Ann. § 42-1013(b) (Supp. 1983), provides that police radar operators have one year from March 22,1983, to complete new training or have previous training determined to be equivalent. The appellant’s trial was in January, 1984, thus the officer’s certification was not invalidated by the Act.
5. Observation Time
The appellant was given a breathalyzer test showing his blood alcohol content to have been in excess of the minimum permitted for drivers under Ark. Stat. Ann. § 75-2503(b) (Supp. 1983). He contends he was not kept under observation for a twenty-minute period before the test was administered. Evidence showed the appellant was stopped in his car no later than 11:31 p.m., and the test was administered at 11:54 p.m. During that twenty-three minute period the appellant was in the presence of officers. We have held that substantial compliance with the state health department regulation requiring the observation period is sufficient. Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985). There was substantial compliance in this case.
6. Presentence Report Requirement
Ark. Stat. Ann. § 75-2506 (Supp. 1983) requires that before sentence is pronounced the court must have received a presentence report from the “Highway Safety Program or its designee. ” In this case there was no such report, so the court was in error in pronouncing sentence. However, no objection tjvas made before or after pronouncement of sentence. After sentencing defense counsel said, “Doesn’t he have to visit the alcohol treatment center?” After colloquy between the court and the prosecutor the defense counsel said, “But you’re not requiring visiting the treatment center before sentencing?” Neither of these interrogatories can be characterized as an objection. No mention was made of the specific statutory requirement, and thus the court was not given an opportunity to rule on it. The issue was thus not preserved for appeal. Stiles v. Hopkins, 282 Ark. 207, 666 S.W.2d 703 (1983).
Two other points were raised by the appellant, but we will not consider them because they were supported neither by authority nor by convincing argument. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
Affirmed. | [
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Steele Hays, Justice.
Tommy Mason contends on appeal that his conviction of first degree murder with a sentence of life imprisonment must be reversed because of insufficient evidence. We disagree.
The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Substantial evidence must be forceful enough to compel a conclusion one way or another beyond suspicion and conjecture, Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982), and circumstantial evidence can present a question for the jury and provide the basis to support a conviction. Yandell v. State, 262 Ark. 195, 555 S.W.2d 561 (1977).
Some four months before the dismembered remains of Elbert Jones were found, Jones was last seen getting into Mason’s car. By Mason’s account, the two men argued over Elaine Grandy, Jones’s girlfriend, Mason’s former girlfriend. As they fought in the front seat of the car Mason reached under the seat for a pistol and in the struggle the pistol went off, striking Jones in the left temple. Afraid to report the incident, Mason cut off Jones’s head, arms and legs and deposited the parts in different places. He later retrieved the head and smashed it into pieces small enough to be disposed of indiscriminately.
Mason submits there was no proof the shooting was deliberate. There was proof that on the day Jones disappeared Mason was looking for him, and had asked several people where Jones might be. When Jones was told Mason was looking for him he said he would meet Mason to show him he was not afraid of him.
Elaine Grandy testified that she had gone with Mason for about two years. She described him as jealous. She said he would choke her when he was angry and had told her if she ever broke up with him he would do something to her and no one would ever find her again. She tried to end the relationship because Mason was seeing another woman and she started going with Elbert Jones. She said Mason tried to continue the relationship but she refused..
We find the evidence enough to support the conviction. The jury could have inferred the shooting was deliberate. Mason wanted Elaine Grandy to be his girlfriend again; he sought Jones out, concealing a loaded pistol under the driver’s seat. Even by Mason’s version the jury could have concluded from the case as a whole that Mason drew the pistol, not to defend himself, but to kill Jones. Other circumstances point to that conclusion. After his arrest, Mason escaped but was recaptured. We have consistently held that flight to avoid arrest or trial is admissible as a circumstance in corroboration of evidence tending to establish guilt. Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1980); Smith v. State, 218 Ark. 725, 238 S.W.2d 649 (1951); Stevens v. State, 143 Ark. 618, 221 S.W. 186 (1920).
Too, Mason denied having seen Jones on the day Jones disappeared, both to the police and to Jones’s relatives. Though Mason claimed Jones came looking for him, there was proof it was Mason who sought out Jones, whom he did not know. Even the macabre method of disposing of Jones’s body suggests more than the mere fear of discovery, particularly in light of the comment to Elaine Grandy that if she ever tried to break up with Mason no one would ever find her again. When the evidence is viewed most favorably to the state, the proof creates a permissible inference that Jones’s death was the result of a deliberate act.
Premeditation and deliberation and intent may all be inferred from the circumstances, such as the character of the weapon used, the manner in which it was used, the nature, extent and location of the wounds inflicted, the conduct of the accused and the like. McLemore v. State, 274 Ark. 527, 626 S.W.2d 364 (1982).
We have examined all other objections made during the trial pursuant to Rule 11(f), Rules of the Supreme Court, Ark. Stat. Ann. Vol. 3A (Repl. 1977) and find no error. See Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).
The judgment is affirmed. | [
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Per Curiam.
The appellants Sagely, Donehue, and Davis, tendered a consolidated record for filing, but the clerk refused to file it on the ground that it was tendered too late as to some of the 14 named appellants. William Cromwell, counsel for these three appellants, insists that the tender of the record was timely and has filed a motion for a rule on the clerk to compel the filing of the record.
Each of the appellants is in a different position. In Sagely’s case the trial was in January, 1984, and notice of appeal was filed on February 21, but the judgment was not entered until July 31. The premature notice of appeal was timely, but the 90 days for the entry of an order extending the time for filing the record necessarily ran from the entry of the judgment. The order of extension was not entered until November 14, more than 90 days after July 31. The extension order was therefore invalid, and the record was tendered too late.
In Donehue’s case the j udgment was entered on July 31, the notice of appeal was filed on August 17, and the order extending the time for filing the record was entered within 90 days, on November 14. The record was tendered within the time allowed by the extension and was timely.
In Davis’s case the j udgment was entered on July 31, but the notice of appeal was not filed until September 4, which was past the 30 days allowed. Counsel is in error in arguing that three extra days for mailing are to be allowed under Civil Procedure Rule 6 (d). That provision does not apply to a judgment, which is not a pleading. A party is expected to keep himself informed about the entry of judgment. Karam v. Halk, 260 Ark. 36, 537 S.W.2d 797 (1976). If an attorney receives a copy of the judgment three days after its entry, he is obviously not prejudiced by having only 27 days more in which to file a simple notice of appeal.
As to Donehue, the tender of the record was timely; so the record was properly filed in his case. As to Sagely and Davis, the tender was not timely. The motion is therefore denied as to them. If counsel will file another motion assuming full responsibility for the errors or showing other sufficient cause for granting the motion, the motion for a rule on the clerk will be granted. See Per Curiam opinion, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. (This opinion replaces an earlier one handed down on February 25, 1985. | [
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George Rose Smith, Justice.
Upon the jury’s verdicts of guilty the appellant was sentenced to (1) a $5,000 fine and five years’ imprisonment with three years suspended, for possession of cocaine with intent to deliver, and (2) four years’ imprisonment with two years suspended, for possession of marihuana with intent to deliver, the sentences to be concurrent. The Court of Appeals certified the case to us as presenting a significant and important issue concerning the effect upon our law of recent Supreme Court decisions modifying the exclusionary rule in search-and-seizure cases. United States v. Leon,_U.S__, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); Massachusetts v. Sheppard,-U.S--- 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984). By now we have expressed our intention of following the modified rule, a position to which we shall adhere. McFarland and Soest v. State, 284 Ark. 533, 684 S.W.2d 233 (1985). There is no merit in the appellant’s six arguments for reversal.
First, the search-and-seizure issue. On the evening of February 15, 1983, police officers obtained a warrant to search Lincoln’s Fort Smith apartment for cocaine. The seárch was conducted immediately and yielded the drugs upon which the present charges were filed. Counsel for the appellant, in challenging the sufficiency of the affidavit for the search warrant, relies upon the law that was applicable before the Leon and Sheppard cases, although they were decided three months before the appellant’s brief was filed. The earlier law is no longer applicable. There is no vested right in a rule of evidence. Reid v. Hart, 45 Ark. 41 (1885). Indeed, the Supreme Court applied its new rule retroactively in Leon, reversing a federal Court of Appeals decision which had invalidated a search-warrant affidavit in reliance on the pre-existing law.
The appellant’s only argument falling within the possible purview of Leon is the contention that statements in the affidavit were false. In Leon, the court said that deference to the magistrate’s finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the supporting affidavit. Here the affidavit stated that recently an informant had obtained a sample of cocaine that was purchased from Lincoln. The affiant admitted at the suppression hearing that he should have said that the informant obtained the sample from somebody else who reported to the informant that it had come from Lincoln. There is no reason to think the circuit judge who issued the warrant would have acted differently had the affidavit been exact. To the contrary, the really vital statement in the affidavit was that another informant who had been in Lincoln’s residence that very evening said she had purchased cocaine from Lincoln at that time and that Lincoln had stated he had more cocaine available, but it was selling fast. Evidently the judge relied on that statement, for the warrant contains a finding that the objects to be seized were in danger of imminent removal, and the search was carried out at once. We attach no importance to the fact that the affidavit said that the informant had knowledge of “the penal implications” of her statement, for even though she was released without being charged, her release was conditioned on her promise to cooperate in the prosecution of Lincoln. We hold that under Leon the affidavit was sufficient to support the issuance of the search warrant.
Second, the court allowed the State to prove, for the purpose of showing Lincoln’s possession of the drugs with intent to deliver, that various witnesses had bought drugs from Lincoln in the past. One witness, for example, testified that for about a year he had bought drugs from Lincoln once or twice a month. The court cautioned the jury that proof of prior sales was admitted only to be considered with regard to the intent with which Lincoln had possessed the drugs on the evening in question. Such prior sales are admissible if not too remote in time, which is not the case here. Rowland v. State, 262 Ark. 783, 792, 561 S.W.2d 304 (1978); Cary v. State, 259 Ark. 510, 514, 534 S.W.2d 230 (1976). Our holding in Moser v. State, 266 Ark. 200, 583 S. W.2d 15 (1979), is not in point, for there the prosecutor charged possession with intent to deliver, instead of the actual sale that was proved, as a subterfuge to get before the jury prior sales, as bearing on intent.
Third, the court did not improperly limit the appellant’s cross examination of five codefendants who were also present when the police searched Lincoln’s apartment and arrested all six persons. The court simply confined cross examination to the drugs in question. We find no abuse of its discretionary authority to confine cross examination to matters relevant to the charges on trial.
The remaining arguments do not need extended discussion. A requested instruction about the weight to be given to proof of prior sales was properly refused, for it was heavily slanted in favor of the defense, even to the point of being a comment on the weight of the evidence. See per curiam order, AMI Criminal, viii (1982). The court’s refusal to grant Lincoln a separate trial is not shown to have been error for either of the reasons argued: that a codefendant’s statement that a certain substance was “cutter” instead of cocaine was admitted in evidence or that there was proof of a single sale by another resident of the apartment, in addition to the many sales by Lincoln that were shown. Neither ruling can be said to have been substantially prejudicial to the defendant, for there was abundant proof of drug activity in the apartment. Finally, we do not perceive that the proffered proof that two codefendants had pleaded guilty to possession of a different drug, LSD, was relevant to the charges on trial.
Affirmed.
Purtle, J., dissents. | [
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John I. Purtle, Justice.
Appellant was convicted of aggravated robbery and theft. He appeals from his conviction and thirty-five year sentence on the ground that his written statement should have been suppressed. Under the circumstances of this case we hold that the trial court properly refused to suppress the statement.
While in custody as a suspect in an aggravated robbery and attempted capital murder case, the appellant gave a written statement in which he admitted he was the driver of the getaway car in the robbery under investigation. The attempt charge was the result of shots being fired at the police officer while the robbers fled the scene. Two accomplices were charged with aggravated robbery and attempted capital murder. The investigating officers agreed not to charge appellant with attempted capital murder in return for his statement, which was used against him at his trial on charges of aggravated robbery and theft.
The issue before us is whether the inculpatory custodial statement, given in exchange for a promise not to prosecute appellant! for an additional crime, should have been suppressed. There is no dispute that the statement was given in exchange for the promise not to charge appellant with attempted capital murder. The Miranda warnings were given prior to the statement being made. Custodial statements are presumed involuntary and the state must overcome the presumption by a preponderance of the evidence. Campbell v. State, 281 Ark. 48, 661 S.W.2d 363 (1983). Statements given with hope of reward are not voluntary. Hutto v. Ross, 429 U.S. 28 (1976).
We considered this same problem in Williams v. State, 281 Ark. 91, 663 S.W.2d 700 (1983). Williams initiated the deal with the officers and the prosecuting attorney. Williams had an attorney but appellant here did not. In Williams we held that the promise of reward (to charge first degree murder rather than capital murder) was given in good faith and was kept. Considering the totality of the circumstances we held Williams’s statement was properly admitted. A false promise which misleads an accused renders his statement involuntary. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982).
Under the facts and circumstances of this case, when considered in their totality, we think the trial court was correct in admitting the statement. The appellant struck a bargain, which was closely related to a plea bargain, and both sides kept their promises. Most likely the deal was a wise one for the appellant. In any event we can find no prejudicial error.
Affirmed. | [
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Darrell Hickman, Justice.
Paul C. Lou, a pharmacist with twelve years experience, received a prescription calling for the drug Reglan, at a dosage of 1 milligram, four times daily. Because Lou had only 10 milligram tablets of the drug, and because he assumed the prescription was for an adult and that the doctor had made an error, he wrote in a zero after the “ 1 ” on the prescription slip so that it prescribed 10 milligrams, four times a day. It was, in fact, a prescription for Charlotte Smith’s four month old daughter, Sarah. When Mrs. Smith returned home that evening and gave Sarah the dosage, she suffered severe reactions. The child was taken to the hospital immediately and survived apparently without permanent injury. Charlotte Smith, her husband, and Sarah filed suit against the pharmacist and his employer, the Walgreens Company, for damages. The jury returned a verdict awarding compensatory damages to the mother in the amount of $3,250, $2,000 for the daughter, and punitive damages in the amount of $3,750 in favor of the mother, father and the daughter. On appeal there is only one real issue and that is whether the court was right in allowing the jury to consider awarding the mother damages for mental anguish alone when she suffered no physical injuries. We affirm the judgment.
The appellee filed suit for damages based on the allegation that Charlotte Smith had suffered mental anguish which was caused by the willful and wanton misconduct of the pharmacist with his company liable as his employer. As early as 1920 we recognized that there is a right to recovery for mental anguish without contemporaneous physical injury where the anguish resulted from a willful wrong directed at a person other than the plaintiff. Rogers v. Williard, 144 Ark. 587,223 S.W. 15 (1920). While we denied the parents of a child any recovery for mental anguish in a case a year later, Miles v. American Railway Express Co., 150 Ark. 114, 233 S.W. 930 (1921), it was because there was no willful misconduct, only negligence.
In M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980), we traced the law regarding recovery for mental anguish and reaffirmed the common law rule that “there can be no recovery for fright or mental anguish caused by mere negligence, but a recovery may be had where fright or mental anguish is caused by willful conduct.” Counce extended the law to allow recovery for intentional or willful and wanton misconduct which results in emotional disturbance without any physical consequences whatsoever. See also R. Leflar Mental Súffering and Its Consequences - Arkansas Law, 7 Ark. L.S. Bull. 43 (1937).
This case does not present some of the problems often encountered in cases where the wrongful conduct is not directed at the plaintiff such as determining the relationship between the plaintiff and the victim or the proximity of the plaintiff to the injury. Here, the plaintiff is the mother of the child who was injured by the wrongful conduct in her presence. The father, who was not present, did not seek damages for his suffering. Therefore, we only have to determine whether there was indeed willful and wanton misconduct in this case.
The appellants argue that Lou’s conduct in adding the zero was mere negligence rather than willful and wanton misconduct. The evidence revealed that Lou received the prescription from Tammy Kelly, Charlotte Smith’s friend, who was holding a baby at the time and had several children with her. The prescription slip had a blank for the patient’s age which was not filled in. Lou conceded that he did not ask the age but could have. He said that he did not call the doctor because it was after five o’clock, and that when prescriptions are for children, they are usually prescribed in liquid form. Lou maintained that the doctor in this case should have instructed him to prepare the dosage in syrup form. However, Lou admitted that he knew at the time how to convert a 10 milligram tablet into a one milligram dose. Lou testified that he knew of the dangerous consequences of a Reglan overdose.
The appellee presented a pharmacist as an expert witness who testified that the prescription could have been filled as written and that altering a prescription under these circumstances violated the standards of practice. The prescribing doctor testified that the prescription could have been filled by suspending it in syrup and that if Lou had been unable to fill the prescription as written, he should have telephoned the doctor or refused to fill it. He said that where a pharmacist alters a prescription so that the dosage is changed, that is totally unacceptable.
In Ellis v. Ferguson, 238 Ark. 776, 385 S.W.2d 154 (1964), we described willful and wanton misconduct:
.... [OJne who willfully and wantonly, in reckless disregard of the rights of others, by a positive act or careless omission exposes another to death or grave bodily injury, is liable for the consequences, even if the other was guilty of negligence or other fault in connection with the causes which led to the injury. It is not necessary to prove that the defendant deliberately intended to injure the plaintiff. It is enough if it is shown that, indifferent to consequences, the defendant intentionally acted in such a way that the natural and probable consequence of his act was injury to the plaintiff.
As a matter of law the court was right in submitting the issue to the jury and on appeal if there is substantial evidence to support the finding of the jury, we affirm. E.I. DuPont De Nemours and Co. v. Dillaha, 280 Ark. 477, 659 S. W.2d 756 (1983). We conclude there is substantial evidence which would support a finding that the appellants were guilty of willful and wanton misconduct.
The appellants argue that since there was no willful and wanton misconduct the award for punitive damages should have been dismissed. They concede that this argument depends upon our answer to the first argument. Since we have found substantial evidence that Lou’s conduct was willful and wanton, the appellants cannot prevail on this issue.
The appellee cross-appeals on the issue of whether the court was right in refusing to allow her to introduce the financial worth of the defendants. It is not a true cross- appeal. The appellee does not request us to reverse the case. She only requests that if we reverse, we rule in her favor on this issue. Therefore, we do not address the issue. Myers v. Muuss, 281 Ark. 188, 662 S.W.2d 805 (1984).
Affirmed.
In Rogers there was bodily injury resulting from the emotional disturbance. | [
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Darrell Hickman, Justice.
This motion to dismiss the appeal arises out of the same case as Ford Motor Credit Co. v. Rogers, 84-290, decided February 25,1985, where we denied a petition for a writ of prohibition. Contemporaneously with its petition for a writ of prohibition, Ford Motor Credit sought an appeal of the order of the trial court certifying the case as a class action under A.R.C.P. Rule 23. We denied prohibition because the court had jurisdiction to decide if the case ought to be maintained as a class action. The question presented in this appeal is whether the action certifying the case was correct. This motion raises the issue of whether the order is one that is final and, therefore, appealable. Ark. R. App. P.2.
Ford Motor Credit concedes it has no right to appeal from the trial court’s order of certification because the decision was not a final or appealable order as defined in Ark. R. App. P. 2 but asks us to change our rule. The respondents rely on that rule in seeking dismissal.
We have never had a case in which a party sought to appeal from an order certifying a class action. We have only had appeals from orders denying requests for certification. Clearly, such an order of denial is a final disposition of the case as to those who would be joined as class members and is appealable under Rule 2. Drew v. First Federal Sir L Assn., 271 Ark. 667, 610 S.W.2d 876(1981);Ross v. Ark. Communities, Inc., 258 Ark. 925, 529 S.W.2d 876 (1975).
We did not adopt the federal rule of civil procedure pertaining to class actions. See Fed. R. Civ. P. 25. However, we believe it would be best to allow appeals from such orders and our reasoning is the same given by the United States Court of Appeals for the Second Circuit in Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2nd Cir. 1973):
An order sustaining a class action allegation involves issues ‘fundamental to the further conduct of the case’;. . . the order is also separable from the merits of the case; and irreparable harm to a defendant in terms of time and money spent in defending a huge class action when an appellate court many years later decides such an action does not conform to the requirements of Rule 23, is evident.
Therefore, we amend Ark. R. App. P. 2 to permit an appeal from an order certifying a case as a class action. Issued contemporaneously is a per curiam order to that effect.
Denied.
Purtle, J., dissents.
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Steele Hays, Justice.
This case comes to us on appeal on the issue of whether the interest charged on a matured debt was usurious.
In July, 1981, Larry Cain, appellee, established an open account with Central Flying Service, Inc., appellant, and began receiving flight training. All services had been performed by the end of October, 1981 and the balance on the account as $4,771.11. Nothing was paid on the account and after several months Central began charging interest on the amount due at a rate of 10% per annum . In December, 1982, when Amendment 60 of the Arkansas Constitution became effective, Central began charging interest at the rate of 17% per annum. Cain refused to pay the account and Central filed suit. The case was submitted on the merits to the Circuit Court of Clark County, Arkansas, on a joint stipulation of fact and the pleadings.
Both parties agreed that the law at the time of the making of the contract determines whether a contract is usurious. General Contract Corporation v. Duke, 223 Ark. 938, 270 S.W.2d 918 (1954); Sloan v. Sears Roebuck & Co., 228 Ark. 464, 308 S.W.2d 802 (1958), but disagreed as to when the contract was made. Appellee argued below that the contract was formed in July, 1981, and was controlled by Article 19, Section 13 of the Constitution, providing for maximum interest rate of 10%. Appellant, citing Bank of Evening Shade v. Lindsey, 278 Ark. 132, 644 S.W.2d 920 (1983) argued that because it was not obligated to renew the debt, any renewal or extension was in essence a new contract. The statement sent for the month of December, 1982, was a new contract and therefore Amendment 60, allowing a higher interest rate, would control. The trial court rejected appellant’s argument and found the contract was controlled by the 10% interest rate of Article 19, Section 13.
On appeal appellant renews the argument made below and we find the argument persuasive.
It is a general rule of contracts that payment is due within a reasonable time upon completion of the services contracted for, and there is no objection raised by appellee that the account was not so due. Once a debt has matured and become due, the creditor may begin to charge interest, even if no interest has before been charged or agreed to. State of Tennessee v. Barton, 210 Ark. 816, 198 S.W.2d 512 (1947); Temple v. Hamilton, 178 Ark. 355, 11 S.W. 465 (1928). Under the circumstances of this case then, the appellant was justified in charging the appellee interest on the debt owing. The only question that remains is whether appellant was justified in charging the higher rate allowed by Amendment 60 when it sent out its charges to appellee in the December, 1982 statement. In Bank of Evening Shade, supra, the bank renewed a loan and charged a rate of interest allowable by law at the date of the renewal but which was higher than that allowed when the contract had originally been entered into. We found inasmuch as.there was no obligation or commitment to renew the loan, a new contract could be made and the existing interest rate was applicable. While that decision was made within the context of the Monetary Control Act and federal regulatory guidelines issued pursuant to the Act, the underlying rationale applies with equal force to this situation which presents essentially the same considerations.
Here, the appellee’s debt was due and the appellant was under no obligation or commitment to renew the loan or extend time for payment. Appellant was free to file suit to recover its debt, or defer that action in the hope that payment would occur. At the end of each monthly billing period a new loan or agreement was implied, extending the appellee’s indebtedness for an additional month. In the month of December another contract was formed, this time however, the appellant had available to it, the higher rate of interest allowed by Amendment 60. Based on our decision in Bank of Evening Shade, we find that under such a contractual arrangement the appellant was justified in charging the higher interest rate. See also, Barrier, Usury in Arkansas: The 17% Solution, 37 Ark. L. Rev. 572 at 578-82.
Appellee points out that Amendment 60 did not become effective until December 3, 1982, whereas the stipulation between the parties recites that interest at the rate of 17% began on December 1, 1982. Thus, appellee contends the charge of 17% would be usurious even if Amendment 60 were . found to be applicable to this indebtedness.
But it is clear from the arguments made both here and below that the intent of the stipulation was to simplify the factual basis by which the real issue was presented, that is, whether an indebtedness which originated prior to the effective date of Amendment 60 was subject to the higher interest allowed by the amendment. Whether Amendment 60 took effect on December 1 or December 3, is irrelevant in the context of this case and we note the trial court did not rely on that fine distinction.
Even if the stipulation is taken literally, as appellee urges, it also recites that an itemized statement of account attached to the complaint is an accurate recapitulation of the account. That account shows the interest charge for December, 1982, to have been $60.51, whereas 17% would have been $65.76. That leaves a difference of $5.25, and thus the appellant could not have calculated interest on December 1 at 17%.
The order is reversed and remanded to the trial court for the entry of a judgment consistent with this opinion.
The amounts of interest allowable under Amendment 60 are not argued. | [
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Riddick, J.,
(after stating the facts.) The only question for us to determine is whether, under the facts as stated in the complaint, it was necessary for the plaintiff to return, or offer to return, the money received by him upon the compromise agreement, before commencing his action at law upon the policy of insurance.
The complaint alleges that one Miles, the agent of the company, claimed that the policy had-' been forfeited “in divers ways, and that plaintiff could not recover anything at law.” It also alleges that he stated to plaintiff that, if the offer of compromise was not accepted, “the defendant company would never pay him a cent, and would prosecute him to the bitter end.” These.allegations show that this was a disputed claim. The company, through its agent, asserted that the policy had been forfeited, but offered a compromise, which plaintiff accepted. He agreed to receive, and did receive, one hundred dollars in full settlement of his .claim against the company, and gave his receipt to that effect. He understood the nature and éffect of the compromise, and knew the contents of the instrument that he signed. Under these circumstances, as was said in a similar case by the supreme court of Massachusetts, the settlement and discharge, “although obtained by false and fraudulent representations, constitutes a good defense until rescinded and avoided by a return of, or an offer to return, the money paid by the defendant to obtain it.” Brown v. Hartford Fire Ins. Co., 117 Mass. 479; Home Ins. Co. v. Howard, 111 Ind. 544; Vandervelden v. Chicago & N. W. Ry., 61 Fed. Rep. 54.
This is not a case where a debtor compromises with his creditor by the payment of a part of an undisputed debt in satisfaction of the whole, nor is it a case where a party has been induced by fraud to sign a release of his claim through ignorance of the character and contents of the instrument signed. In each of these cases a different rule would apply. Reynolds v. Reynolds, 55 Ark. 373; Mullen v. Old Colony Railroad, 127 Mass. 89. This case rests on the rule that one who receives money or property in consideration of making an agreement, and afterwards seeks to avoid and hold for naught such agreement, must first give back to the other party the consideration received. Gould v. Cayuga Co. National Bank, 86 N. Y. 75; Home Ins. Co. v. Howard, 111 Ind. 544; Brown v. Hartford Fire Ins. Co., supra; Bowden v. Spellman, 59 Ark. 259; Desha v. Robinson, 17 id. 240.
The plaintiff had no right of action at law upon his policy until he had rescinded the agreement annulling such policy by offering to return the money received from defendant upon such agreement.
Our opinion is that, as the facts stated appear in the complaint, the judgment of the circuit court is correct, and it is affirmed; but the judgment of dismissal is without prejudice to a future action.
Bunn, C. J. dissents. | [
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Wood, J.
This suit was brought by Hill, Fontaine & Co. against Yarborough and wife, to foreclose a mortgage which, it is alleged, was executed by them April 22, 1890, to secure a note of even date for $1,390, due December 1, 1890. The answer set up fraud in the execution of the mortgage, in that Mrs. Yarborough was illiterate, and that the justice of the peace taking the acknowledgement represented to her that the mortgage did not cover the homestead, but conveyed a different tract. The court rendered a decree setting aside the mortgage, and Hill, Fontaine & Co. appealed.
1. There was proof to justify the finding that the signature and acknowledgment of Mrs. Yarborough to the mortgage were obtained through a misapprehension of the facts, superinduced by the misrepresentations of the justice taking the acknowledgement. The mortgage was in proper form for conveying the homestead and dower. It was shown to have been executed by Yarborough himself, to secure a pre-existing debt then due, upon the understanding that time for payment should be extended to a definite day.
We cannot agree with counsel that Yarborough signed the mortgage “only on condition that his wife would sign it.” The proof by Yarborough himself shows the contrary. He says that he signed the mortgage at the request of the attorneys of Hill, Fontaine & Co., who were about to sue him upon the debt, and, that he did not know that the justice had misrepresented the facts to his wife until after she had signed. True, he also said that he had told them he did not know whether his wife would sign or not; that they could go down to the farm and see her, with the understanding that, if she would sign the mortgage, it would be all right, and, if not, it would be of no account, and they would have to bring suit; but this latter statement only goes to show that Yarborough knew and was expressing what would be the effect of his wife’s failure to sign the mortgage, and not that he had signed only upon condition that she would sign. It appears that Yarborough at this time had property over and above his exemptions, which Hill, Fontaine & Co. could have subjected to the.payment, of their debt. The justice testified that Yarborough, sent him down to take the acknowledgment of his wife. The only conclusion justified by the proof is that Yarborough executed the mortgage to procure' an extension of time for the payment of his debt, and to avoid an impending law suit.
When defective homestead5of
Since the signature and acknowledgement of the wife were obtained through the misrepresentation of the justice as to the material facts, this would render the mortgage void as to the husband, under the act of 1887, making every conveyance of a homestead by a married man, except for certain purposes, of no validity, “unless the wife joins in the execution of such instrument and acknowledges same.” But the sweeping provisions of the curative act of April 13, 1893, made the mortgage as “valid and effectual as though the act of 1887,” supra, “had never been passed.” Por said act (1893) provides that “all deeds, conveyances, instruments of waiting affecting or purporting to affect the title to the real estate, which have been executed since the 18th day of March, 1887, and which are defective or ineffectual by reason of section one (1) of an act entitled ‘An act to render more effectual the constitutional exemptions of homesteads, approved March 18, 1887,’ be and the same, and the record thereof, are hereby declared as valid and effectual as though said act had never been passed.” If the act of 1887 had never been fassed, the mortgage in controversy would have conveyed the homestead. The legislature, by the act of 1893, dispensed with the prerequisites for the alienation of the homestead which they had prescribed by the act of 1887, as to all conveyances which had been executed between the passage of said act and the act of 1893, where the rights of no innocent party had intervened.
As was held by this court in Sidway v. Lawson, 58 Ark. 117 : “The legislature never undertook to create any interest or estate by the act, but to prescribe the manner in which instruments affecting the homestead of a married man should be executed and acknowledged; at the same time recognizing the homestead as the husband’s, and not the wife’s, nor as the joint property of husband and wife.” Bank of Harrison v. Gibson, 60 Ark. 269. The curative act of 1893 is broad enough in terms tó cure all instruments which are ineffectual because of the failure of the wife to join the husband in the execution of same, or where she has failed to acknowledge same, as well as those where she has joined in the execution, and has acknowledged the instrument,' but has done so in a defective manner.
£y!fíaud.Cttred
2. The mortgage also in form was properly executed and properly acknowledged for the relinquishment of dower. Is Mrs. Yarborough bound by it? It appears that the mortgagees were ignorant of the fact that the signature and acknowledgment of Mrs. Yarborough were procured by the misrepresentations of the justice. There was nothing to charge them with notice. The mortgage was sent to them duly executed and acknowledged, and they readily accepted- same as security for the debt, and extended the time of payment for a definite period. When the debt became due, plaintiffs had the right to sue, and, by doing so then, could have enforced the payment of their claim. Since that time, Yarborough’s condition financially has changed, as it was shown by his deposition in this case on the trial that he was worth only five or six hundred dollars outside of the farm included in the mortgage. Upon the faith of this mortgage then, and at the time of its execution, appellants gave up their right to sue and collect their debt. It may not be technically accurate to speak of the mortgagees as bona fide purchasers for value, as against the mortgagor, Mrs. Yarborough, both being the immediate parties to the instrument; and yet the above facts certainly entitle them, as against her, to all the rights of an innocent purchaser, Under the proof, if fraud was perpetrated upon Mrs. Yarborough, it was done by the justice of the peace who was sent by her husband to take her acknowledgment. The mortgagees were not parties to the fraud, and had no notice thereof, and they were purchasers for value, as shown supra. Jones, Mort., sec. 459-61, and authorities cited. Fargason v. Edrington, 49 Ark. 207, and authorities cited.
But, if the rights of Mrs. Yarborough are to be determined upon the doctrine of estoppel, the result will be the same, for it will be found difficult to distinguish this case in principle from Donahue v. Mills, 41 Ark. 422, and Meyer v. Gossett, 38 Ark. 377; and the doctrine there announced as to acknowledgments of married women has become a rule of property in this state. See also Petty v. Grisard, 45 Ark. 117; Holt v. Moore, 37 Ark. 145.
The decree of the court below is therefore reversed, and cause remanded, with directions to enter a decree of foreclosure, in accord with this opinion, and for further proceedings. | [
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Bunn, C. J.
This is an action of unlawful detainér, as contended by plaintiff and appellee, and of forcible entry and detainer, as claimed by defendant and appellant, for the recovery of a tract of land containing about sixteen acres, and damages for the detention thereof. The cause was heard and determined in the Jefferson circuit court, resulting in a judgment for the plaintiff, Florence V. Duncan, against defendant, J. W. King, from which he appeals.
Florence V. Duncan, nee Vassar, by inheritance from her father, J. F. Vassar, was the owner of her deceased father’s farm, which included the land in controversy, the same being within the farm enclosure at the time of his death, and of which he had possessipn for many years previously, claiming to be the owner. In 1892 J. F. Vassar died, leaving his daughter, the said Florence V., his sole heir, his wife also being dead.
Soon after the death of J. F. Vassar, one B. F. Tuttle was appointed administrator of his estate, and held possession of the farm, including the land in controversy, until the close of administration, and then surrendered possession to appellee, sole heir as aforesaid, who about this time or soon afterwards was married to one Duncan, and afterwards, to-wit, in December, 1893, Tuttle leased the farm from appellee for the term of five years, and was put in possession by her. In the early part of the year 1894, Tuttle sub-rented the farm to one L. Coontz for that year, having previously, however, moved the fence boundary of a portion of the leased farm back, so as to leave the land in controversy outside the inclosure. Shortly after this, Duncan, husband of plaintiff, acting for her, replaced the fence on the line where it stood before Tuttle moved it. After that, by permission of Coontz, appellant, King, placed the fence back to the line on which Tuttle had built it, thus turning the disputed territory again into his farm and inclosure, he being the owner of the adjoining farm by inheritance; and, on appellee’s further attempt to place the fence back on the original line, she was met by appellant, and forbidden to do so, and thereupon this suit was instituted, after demand made in writing.
The defendant claimed that the tract in controversy was part of his father’s farm, now his own as aforesaid; and that, while his uncle, J. F. Yassar, had had possession of the tract up to the time of his death, it was only by permission of himself, the sole heir of his deceased father. He also alleged, by way of excuse for his delay in asserting his rights, that, after his parent’s death, he lived with his uncle, and from that fact, and the further fact of his uncle’s financial condition, he did not desire to disturb him.
We do not deem it necessary to attempt to settle the controversy as to the name to be given to this action; that is to say, to determine whether it be an action of unlawful detainer founded upon the second clause of section 3444 of Sand. & H. Digest, as contended by appellee’s counsel, or whether it be an action of forcible entry and detainer, founded upon section 3443, as contended by appellant’s counsel. In either case the plaintiff must needs show a present right of possession in herself. Neither is it necessary for us to consider and determine how far the amendatory act of February 5, 1891 (section 3443 of the Digest), has done away with the necessity of charging and proving force in every case of forcible entry and detainer.
The right of possession is still the essential question in all actions, under this possessory statute. We are first, then, to inquire as to the plaintiff’s right of possession. She had leased the premises to Tuttle, and put him in immediate possession, under the lease, and this lease had several years yet to run when the alleged entry was made by the defendant. At this time Coontz, as sub-renter from Tuttle, for that year, was in possession as such. Of course, he had no further right than Tuttle had when he rented to him for that year, and Tuttle had no other rights than those conferred, upon him by the contract of lease from appellee; and neither had any right or authority to do anything, outside his contract of lease or rental, that would conflict with the rights of landlord and owner. But, as we are not dealing with their particular rights as atfirst question, it is not necessary to inquire whether they, or either of them, were doing right or wrong as tenants. We must first determine the present possessory right of appellee — her right to sue — before any other questions may be considered.
As between appellee and her lessee, Tuttle, he was entitled to the possession under the terms of his lease, and would be for more than four years after suit was brought. Coontz simply held under Tuttle for that year, having no privity of contract with appellee, and was only bound to attorn to Tuttle, and could defend under him in so far, and could sub-let to another so far as anything to the contrary appears. The only thing to be kept in view in all this by either or both or all the parties was that neither of them could do anything to prejudice the rights of appellee as landlord and owner ; nor could they all combined do anything to prejudice her rights as such.
But appellee, under the state of case made, certainly had no present right of possession, for, according to her contract, that was in Tuttle, or in Coontz holding under him. All that appellee could ask was that the premises be restored to her at the termination of her lease to Tuttle, intact, as when leased to him. This suit was brought before that time had arrived. It was therefore brought prematurely, and consequently when there was no right in appellee to bring it.
The transaction between Coontz and appellant, however far it might have gone to terminate his tenancy under a different state of case, where there are limitations and restrictions in the lease or rental, were not such in the present case. Tuttle is not complaining, and appellee alone cannot, but must submit.
There being- no present rig-ht. of action in appellee, in the absence of her rig-ht of possession, the judg-ment of the court below is reversed, and judg-ment without prejudice will be entered here.
Battle, J., absent. | [
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Hughes, J.
(after stating the facts). The law, as found in Sandels & Hill’s Digest in the sections read to the jury by the court, seems to us to be too plain to require comment or construction. Eor a case in point, we refer to the case of Snap v. People, 19 Ill. 80. Under our statute, it is malicious mischief to kill or wound any animal of another, the stealing of which is larceny, with or without malice toward the owner of the animal, if the killing or wounding of the animal is done unlawfully, maliciously, or wantonly.
Astodefenses to mfscweff
when error not prejudiciai.
witness may restate testimony.
It is no defense that the animal, when killed, was trespassing upon the grounds of the defendant, unless he show that, at the time, his grounds were enclosed by a lawful fence. Nor is it any defense that the animal was breachy, and had previously trespassed upon defendant’s grounds, though this might go, and is admissible, in mitigation, as the circumstances attending the offense might materially affect the punishment, which the statute fixes at not less than twenty nor more than one hundred dollars.
In this case, however, there was no prejudicial a j error in excluding this evidence, as the lowest fine was imposed.
There was no error in permitting the witnesses to , restate their testimony to the jury m the presence and by direction of the court, after the cause had been submitted to the jury, and they had retired to consider of their verdict.
We find no substantial error. The judgment is affirmed. | [
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Battle, J.
The indictment against the defendant is based on section 1541 of Sandels & Hill’s Digest, which is as follows : “If any person shall maliciously or contemptuously disturb or disquiet any congregation * * * * by profanely swearing or using indecent gestures, or threatening language, or committing any violence of any kind to or upon any person so assembled, or by using' any language, or acting in any manner that is calculated to disquiet, insult, or interrupt said congregation, he shall, upon conviction thereof, be fined in any sum not less than twenty nor more than fifty dollars.” This section is a consolidation of two acts of the general assembly, the first of which makes it an offense to maliciously or contemptuously disturb a religious congregation by profanely swearing, or using indecent gestures, or threatening language, or committing-any violence of any kind to or upon any person so assembled.” Finding that many disturbances which are contrary to good morals are not embraced in this act, the legislature enlarged its scope, and by a second act, of which section 1541 of Sandels & Hill’s Digest is in part composed, made public offenses of all malicious or contemptuous disturbances of congregations assembled for religious worship or the transactions of church business which are caused “by using any language or acting in any manner that is calculated to disquiet, insult, or interrupt said congregations.” (Act Jan. 10, 1857). State v. Hinson, 31 Ark. 638.
To constitute an offense under the second act there must be a disturbance; the disturbance must be caused by language or acts; and the language or acts must be calculated to disquiet, insult, or interrupt the congregation. To accuse a person of an offense under it, it is not sufficient to allege that a religious congregation was maliciously or contemptuously disturbed by him, but, in order to complete the offense, it must be further shown that the disturbance was caused by using language or acting in a manner calculated to produce such a result. State v. Hinson, 31 Ark. 638.
The indictment under consideration is based on the second act. It alleges that the defendant maliciously and contemptuously disturbed a religious congregation by “laughing and talking, and putting his head in the lap of William Shute, and making remarks upon a sermon as it was being delivered.” It alleges that the disturbance was made and the conduct or acts which caused it, but does not show in any manner that the acts or conduct was calculated to produce it. In this it is fatally defective. “For an indictment upon a statute must state all the circumstances which constitute the statutory offense, no case being brought by construction within a statute unless it is completely within its words.” Wood v. State, 47 Ark. 488. “It is not indeed necessary that the words of the statute should be precisely followed. Words of equivalent import, or more extensive signification, which necessarily include the words of the statute, may be substituted.” Wood v. State, 47 Ark. 488.
The demurrer to the indictment was properly sustained, and the judgment of the circuit court is affirmed. | [
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Wood, J.,
(after stating the facts). Did the court err in allowing the trustee to pay off the note for the purchase money of the machinery held by Goldman out of the proceeds of the sale of the farm under the mortgage ? The purchase money note for the machinery was not secured by the deed of trust, and the court erred in so holding. But it by no means follows that the error is one of which appellants can complain. Before equity will interpose in their behalf, they must show some injury. If the machinery was actually sold with the land, and enhanced the purchase price to the extent of the unpaid purchase-money note, it is impossible that appellants could have been prejudiced by the transaction.
Now the note shows that it was the “second one of two.” It was dated Sept. 19th, 1890, and was originally for $296.67, but, upon it had been paid $150, leaving a balance due on the day of the transfer to Goldman of $203.30. The machinery for which these notes were given was “one mill and cotton gin and twenty-horse power steam engine, all complete.” The note was transferred to Goldman on the 13th of February, 1893, the day of the sale. The machinery, therefore, was about two and one-half years old, and, as the outstand ing note was the “second one of two,” the chancellor might have reasonably concluded that the machinery cost originally $593.34, and, being still comparatively new, enhanced the value of the farm to which it was attached, and increased the purchaser’s bid at the sale (if it was sold) to at least the amount still due upon it,— $203.30.
Then, the only question remaining is, was it sold with the land in the deed of trust? The machinery is specifically described in the deed of trust. But, even if this were not so, a mortgage simply of the land “with its appurtenances” would generally carry with it such machinery, especially where it was firmly attached to the freehold by being “set in masonry,” as was the case here with the engine and boiler. And, but for the fact of the title to the freehold and to the machinery being in different persons, such machinery would have passed here under the mortgage. True, this machinery was not a fixture, because in equity the title to it was not in the owner of the land. And, since the vendor of the of the machinery expressly reserved the title until the purchase price was paid, the vendee could vest no absolute title in another until he had paid the purchase money. But he did have an interest in it, which he could sell or mortgage. He testifies that “the property described in the note to Batesville Iron Works Company is a part of the same property described in the mortgage to the Adler-Goldman Commission Company; that he “put it on the land as a permanent improvement, expecting it to remain there,” — thus showing that he intended to and did include the machinery in the deed of trust. Now, appellants’ complaint alleged that the trustee “is proceeding to foreclose said deed of trust on said property, ” and has advertised the said property for sale, and, according to the terms of said advertisement, “said property is to be sold.” It is shown in the answer of appellees that the amount of the purchase-money note was included in the account of Wycough, the mortgagor, with Adler-Goldman Commission Company, which the trustee was foreclosing the mortgage to pay, and the trustee applied the proceeds of the sale to the payment of the account, of which the note was a part. This clearly indicates that the note was treated by the trustee and appellees as an incumbrance, and that the machinery was sold with the land. Notwithstanding this was shown, and in effect alleged in the answer, appellants nowhere in their replication deny this, but impliedly admit it. In this way it was treated in all the subsequent proceedings, without anything to indicate that it was questioned. The appellants except to the ruling of the court in “approving and sustaining the appropriation by the trustee of the proceeds of the sale to the payment of the purchase-money note ;” but that is not an objection that the machinery was not sold. Having treated the machinery as sold in the court below, they are bound by that action here. Appellants do not deny that, if the machinery was sold, it increased the proceeds of the sale as much as was due on it. They evidently proceeded entirely upon the theory that the note was not secured by the mortgage, and not upon the theory that the property was not actually sold. If appellees were the owners of the machinery by reason of the purchase by J. D. Goldman of the purchase- money note for same, — as claimed by appellants, — they were also the owners of the mortgage, and they could certainly have had the machinery sold with the land if they desired. We conclude that the record makes a strong" prima facie case that the machinery was sold with the land, and that it increased the proceeds of the sale to the amount of the outstanding" note. As the burden was upon appellants, and they have failed to make the error of the court, if any, appear, the motion for reconsideration must be overruled, and the decree will stand affirmed.
Farmers L. & T. Co. v. Minneapolis E. & M. Works, 35 Minn. 543; McKim v. Mason, 3 Md. Ch. 186; Burnside v. Twitchell, 43 N. H. 390, and other authorities cited in 8 Am. & Eng. Enc. Law, 50, title, “Fixtures.”
Witherspoon v. Nickels, 27 Ark. 332; Stirman v. Cravens, 33 Ark. 384.
Carroll v. Wiggins, 30 Ark. 402; McIntosh v. Hill, 47 Ark. 363; McRea v. Merrifield, 48 id. 160; Cincinnati Safe Co. v. Kelly, 54 id. 476; Simpson v. Shackelford, 49 id. 63; 1 Jones, Liens, sec. 820 ; 3 Am. & Eng. Enc. Law, 436.
McRea v. Merrifield, 48 Ark. 160. | [
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Per Curiam.
Motions for Rule on Clerk were filed in both of the above-styled cases. Both motions state that the parties in the respective cases have been notified that the transcripts of the Crawford County proceedings cannot be filed by the Supreme Court Clerk because the court reporter who transcribed them, Mickey Sparks, is not properly certified as a court reporter.
This court adopted a rule providing for the certification of court reporters on July 5, 1983. In Re: Arkansas Supreme Court Bd. of Certified Court Reporters Examiners, 280 Ark. 598, 656 S.W.2d 694 (1983). Section 9 of that rule provides as follows:
Scope.
As to all transcripts taken from and after the effective date of this Rule, all courts in Arkansas will accept as evidence only those transcripts which are certified by a court reporter who holds a valid certificate under this Rule.
By Per Curiam order September 26, 1983, this court approved certain rules and regulations with reference to Certified Court Reporters, including the following provisions:
12. Any eligible applicant not certified pursuant to the per curiam Order of the Supreme Court of Arkansas, dated July 5, 1983, or any eligible applicant who is certified in another state, may be granted a non-renewable temporary certificate, at the discretion of the Board, to enable said applicant to work. Applicants issued a temporary certificate shall be given a period of one year from the date of said certificate to complete certification requirements.
13. In the event of an emergency where no Certified Court Reporter is immediately available, a judge of a circuit or chancery court may in his discretion, grant a thirty-day, non-renewable emergency certificate in order to continue the conduct of the court’s business; provided a copy of the thirty-day emergency certificate is forthwith filed with the Clerk of the Arkansas Supreme Court and Secretary of this Board.
It is undisputed that Mickey Sparks, the Court Reporter in both cases, was not certified. Under Section 9 therefore, the transcripts cannot be accepted by this court as evidence unless Mr. Sparks has a valid temporary certificate or emergency certificate as defined in the regulations.
The records of the Clerk of this Court reflect that Mr. Sparks made formal application on June 27, 1984, for “a temporary permit” from our Clerk to continue reporting until such time as he obtained certification, taking exception to the paying of his fee. On July 2,1984, he was advised in writing by Judge Cracraft, Chairman, Board of Court Reporting Examiners, that our Clerk does not issue temporary certificates and they are only issued by action of the full Board of Examiners upon payment of his application fee. Mr. Sparks was not heard from again until January 18, 1985, at which time he resubmitted an application for “a temporary work permit” together with tender of application fee.
On January 24,1985, Chancellor Bernice L. Kizer issued orders In the Matter of the Adoption of Ronald Lee Hill, Van Buren Probate No. P-83-101 declaring an emergency to exist and ordering that Mickey Sparks be allowed to serve as certified court reporter on August 7, 1984. At the same time an identical order was issued in Julia Fulbright et al v. John Pullan, Van Buren Chancery No. E-83-543 specifying that Mickey Sparks was not certified on July 31, 1984, declaring an emergency and ordering that Mickey Sparks be allowed to serve as certified court reporter in the proceedings on that date. In each instance these orders were entered in the trial court nunc pro tunc but were not filed with the Clerk of this Court or with the Secretary of the Board of Certified Court Reporters Examiners as required by Regulation 13.
It is obvious that Mickey Sparks was not a properly certified court reporter on July 31, 1984, and/or August 7, 1984, and that the court’s order of January 24, 1985, entered nunc pro tunc to these respective dates does not satisfy the regulations.
The actions of applicant Sparks and of the trial court which issued orders allowing him to serve as “Certified Court Reporter” are in direct conflict with the court’s Per Curiam orders and regulations, thus violating the purpose and spirit of the certification of court reporters. Although application is a matter for the person desiring to be certified as a court reporter, it is the responsibility of all courts in Arkansas to ascertain and insure that his or her court reporter is properly certified.
It is our intention to adhere strictly to § 9, however, an exception will be made in this instance, since this is the first airing of our Rule and its strict application.
In the interests of allowing the litigants in these cases their opportunity to appeal and because of the burdensome effect on our court system of such a harsh result, we will accept transcripts in each of these cases, provided the attorneys of record will certify to the Supreme Court Clerk, by affidavit, statements that the transcripts are true, accurate, and complete and provided the trial court certifies that this reporter is not now employed as court reporter without proper certification.
In the future, remedies of this nature may not be available. | [
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Steele Hays, Justice.
The single issue presented by this appeal is whether a proposed tax assessment under Ark. Stat. Ann. § 84-4718 (Repl. 1980), if contested, will toll § 84-4715(a), which limits the time in which an assessment can be made to three years.
The appellant, Charles D. Ragland, Commissioner of Revenues, conducted a gross receipts (sales) tax audit of the books and records of appellee, Alpha Aviation, Inc., for the audit period April 1, 1977 through November 30, 1979. The appellant also conducted an individual income tax audit of the appellees, Tom W. and Betty Rogers for the years 1976, 1977, and 1978. Mr. Rogers was the president and majority shareholder of Alpha, and certain deductions involving Alpha were disallowed on Mr. and Mrs. Rogers’ individual income tax returns for the years in question. The appellees were sent a notice of proposed assessment as required by § 84-4718(a) . After receipt of the notice the appellees pursued and exhausted the administrative remedies set forth in § 84-4720. At the termination of the administrative proceedings, which was more than three years after appellees had filed their returns, a notice of final assessment was sent to them as provided by § 84-4712 and § 84-4720.
Unsuccessful at the administrative level, appellees filed suit in chancery court pursuant to the provisions of § 84-4721. In a motion for summary judgment, appellees then contended that the term “assessment” as used in § 84-4715(a) actually referred to a notice of final assessment. The pertinent section of § 84-4715(a) provides:
Except as otherwise provided in this Act [§§ 84-4701 —84-4744], no assessment of any tax levied under the State tax law, shall be made after the expiration of three (3) years from the date the return was required to be filed or the date the return was filed, whichever period expires later. The Commissioner shall not begin court proceedings after the expiration of the three (3) year period unless there has been a previous assessment for the collection of the tax.
The appellees argued that under § 84-4715(a) the failure of the appellant to provide a notice of final assessment within three years from the time they filed a return effectively barred the appellant from further collection efforts.
The Chancellor found that appellees received a notice of proposed assessment within the three year statute of limitations. However, he also determined that the term “assessment” as used in § 84-4715(a) meant “final assessment.” As the final notice was not sent out until after the three year limitation the Chancellor issued an order abating all tax, penalty or interest assessed against the appellees. The Commissioner has appealed.
It is a general rule of construction that statutes establishing procedures for collection and assessment of taxes will be construed in favor of the government. “[A]s a general rule courts have been tolerant in construing statutes prescribing the procedure for assessment... A statute barring the state’s right to bring actions for taxes is usually strictly construed in favor of the government.” Sutherland, Statutory Construction, (3rd. Rev. 1974) § 66.06; see also 84 C.J.S. Taxation, § 393; R. J. Reynolds Tobacco v. Carson, 213 S.W.2d 45 (Tenn. 1948); Southern Pac. Ry. Co. v. State, 284 P. 117 (N.M. 1930). “The existence of a time limit beyond which the government may not sue to recover unpaid taxes is therefore dependent upon some express statutory provision, and provisions limiting the time for the collection of taxes are strictly construed in favor of the government.” Jensen v. Fordyce Bath House, 209 Ark. 478, 190 S.W.2d 977 (1945).
The primary rule in the construction of statutes is to ascertain and give effect to the intention of the legislature. It is the court’s duty to look to the whole act and, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious and sensible. Shinn v. Heath, 259 Ark. 577,535 S. W.2d 57 (1976). We also decline an interpretation that results in absurdity or injustice, leads to contradiction, or defeats the plain purpose of the law. Carter v. Bush, 283 Ark. 16,677 S.W.2d 837 (1984); Berry v. Gordan, 237 Ark. 547, 376 S.W.2d 279 (1964).
Considering the Tax Procedure Act (§84-4701 — §84-4744) as a whole, and applying the applicable rules of construction and law, we find that under these circumstances the legislature intended the proposed assessment to toll the statute of limitations.
The limitation statute can serve two purposes. The first limits the time for which a taxpayer must be responsible for answering to an assessment. The notification for such an assessment can be accomplished through either the proposed or final assessment which states the amount owed. The second arises in the situation where a proposed assessment is made. In that case, the proposed assessment fulfills the first purpose; but a final assessment must also be sent out for reasons of certainty and finality. Here, the proposed assessment meets the substantive requirements of the limitations statute, but under the procedural scheme, when a proposed assessment is challenged, there is no provision for a final notice until the termination of the administrative proceedings. It is the obvious result as well as the general rule that the pendency of the hearing must toll the running of the statute, for the final assessment.
In this case an “assessment” defined in the statute as a “determination and imposition of the amount of any state taxes due and owing” [§ 84-4703(a)] had been made within the three year limitation through the proposed assessment sent to appellees. The substance of the requirement was met through the proposed assessment by informing appellees of the Commissioner’s action and the deficiency amount assessed. There is no surprise or prejudice to the taxpayer if the statute of limitation is effectively extended under these circumstances. To the contrary, it is only because of the procedure of redress afforded to and pursued by the appellees that the time when a final notice could be sent out was delayed. See Ark. Stat. Ann. § 84-4720. Under § 84-4720 the commissioner is not authorized to send out anything other than a proposed assessment once a taxpayer challenges that assessment under the act. He is not directed to send a final notice until the completion of the administrative proceedings. [§ 84-4720(d)].
As the legislature has provided proceedings for taxpayer redress which would be of uncertain duration, and at the same time given no authorization for a final assessment until the termination of such proceedings, we believe a tolling of the statute was assumed by the drafters of this legislation. Such a statutory scheme by its nature incorporates the analogous and established principle that the pendency of litigation will suspend the running of the statute of limitations. See Dendy v. Greater Damascus Bapt. Church, 247 Ark. 6, 444 S.W.2d 71 (1969). Where an individual is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right... 54 C.J.S., Limitations of Actions, § 247.
To hold otherwise and adopt the appellees’ interpretation would bring about an incongruent result. It would require the Commissioner to anticipate potential protests by a taxpayer, and somehow determine with accuracy and make allowance for the time required by the taxpayer to exhaust all administrative remedies provided under the act, and by calculating backwards from the limitation period, send out the proposed assessment early enough that the final assessment would fall within the three years allowed. Even if that could be done effectively and consistently, a doubtful assumption at best, contingencies could be expected to arise in many cases to delay the administrative process and prevent the giving of a final notice within the three year period. This interpretation would result in thorough confusion in the collection of taxes and deprive the Commissioner of the three year time period allotted him under our statutes dating back to 1929 in which to file a proposed assessment. (See Act 140 of 1939, § 4, and Act 135 of 1947, § 5). Such an implausible interpretation would put the Commissioner in a most difficult position and would in any case severely reduce the three year time period we think was plainly intended under the act to allow for an assessment on the taxpayer. It could not have been the intent of the legislature to allow the taxpayer to forestall the sending of a final notice past the deadline by protesting and pursuing an administrative remedy.
Appellees submit that § 84-4715(c) provides a means by which the taxpayer and the Commissioner may agree in writing to extend “the time within which the Commissioner may make a final assessment, as provided in Section 12,” and, therefore, § 84-4715(a) must be read as referring to the final assessment, rather than to the proposed assessment. We reject the argument. The provision is permissive only, allowing an extension by mutual agreement. Its evident intent is to provide a means of extending time limits under the act without forcing the taxpayer to protest. There may be situations where it is advantageous to both side to extend the time limits provided in the act.
We conclude the statute was tolled at the time the appellees initiated their administrative remedies pursuant to § 84-4719 and § 84-4720. The Chancellor was incorrect in his finding that because the final assessment was not sent within three years the Commissioner was precluded from any further tax collection efforts.
Reversed.
Hickman, J. and Purtle, J., dissent.
§ 84-4718(a). If any taxpayer fails to file any return as required by any State tax law, the Commissioner, from any information in his possession or obtainable by him, may determine the correct amount of tax for the taxable period. If a return has been filed, the Commissioner shall examine the return and make any audit or investigation that he considers necessary. When no return has been filed and the Commissioner determines that there is a tax due for the taxable period, or when a return has been filed and the Commissioner determines that the tax disclosed by the return is less than the tax disclosed by his examination, the Commissioner shall propose the assessment of additional tax plus penalties, as the case may be, and shall give notice of the proposed assessment to the taxpayer. The notice shall explain the basis for the proposed assessment and shall state that a final assessment, as provided by Section 12 [§ 84-4712], will be made if the taxpayer does not protest such proposed assessment as provided at [by] Section 12 [§ 84-4719]. | [
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Darrell Hickman, Justice.
This appeal concerns the estate of Major William Lewis. His daughter and sole heir, Carmen Lewis Petty, sued Tommy Lewis, the original administrator, and Ron Burton, the attorney for the estate. The suit was essentially for damages for breach of fiduciary duties and sought an accounting. After a thorough hearing, a special master found no impropriety but did find that Tommy Lewis owed the estate an amount to be offset by his administrator’s fee and by a debt owed to him by Major Lewis. The master’s nine page report was adopted by the Faulkner County Probate Court, and it is from those findings that Carmen Petty appeals. We affirm.
Major Lewis, a cattleman who owned and operated a livestock auction barn in Conway, Arkansas, died in October, 1977. He had no lineal heirs other than the appellant, Mrs. Petty, who is his illegitimate daughter. The probate court declared her to be Major Lewis’ heir, and we affirmed in Lewis v. Petty, 272 Ark. 250, 613 S.W.2d 585 (1981).
Two days prior to Major Lewis’ death, he held a sale at his barn. After the sale he wrote thousands of dollars in checks to the sellers of cattle. The checks were to be paid from a custodial account required by the Packers and Stockyards division of the United States Department of Agriculture. It developed that the account did not have sufficient funds with which to pay the checks. Tommy Lewis, Major Lewis’ nephew, who was the administrator of the estate, and George Hartje, Major Lewis’ attorney, made arrangements with the bank to hold the checks until sufficient funds could be amassed to pay the outstanding checks. All of Lewis’ cattle and other assets were gathered, and the checks were paid. This is the basis for one of Mrs. Petty’s chief contentions. The record reveals that gathering the assets was a monumental task.
Every witness who had access to Major Lewis’ books testified that his records were inaccurate and incomplete. His former bookkeeper had to be hired by the estate to interpret those books and determine which of the accounts receivable were valid. No records were kept of Major Lewis’ cattle and they had to be found. Even the attorney who represented Mrs. Petty at the time testified that Tommy Lewis had done a commendable job in marshalling Major Lewis’ assets and in being totally cooperative with Mrs. Petty during his administration.
During the appeal of Lewis v. Petty, supra, in October, 1980, Mrs. Petty fired her attorney and hired her present counsel. At that point an inventory and an accounting had been filed. Another accounting had been made and circulated among the parties but, inadvertently, was not filed until the trial of this case. After Mrs. Petty was determined to be Major Lewis’ sole heir, Tommy Lewis was relieved as administrator and Mrs. Petty was appointed. That was on June 2, 1981. No objection was made to any action by Tommy Lewis or Ron Burton until September 27, 1982, when this action was filed.
The suit sought a final accounting by Tommy Lewis and made 16 specific allegations of wrongdoing which included contentions as to the inventory being filed late and the second inventory not being filed at all. Additionally, the suit alleged breach of fiduciary duties by Tommy Lewis and Ron Burton. The special master heard extensive testimony from the parties and numerous other witnesses. With respect to the inventory, he concluded that the estate was in such disarray that it would not have been possible to file an inventory in 60 days. He also found that although the second accounting should have been filed, Mrs. Petty’s attorney had knowledge of it, no objection to it was filed, all the records were turned over to Mrs. Petty, and there was no evidence of any damage to the estate. As to the prayer that Tommy Lewis be ordered to file a final accounting, the master found that Tommy Lewis turned over all records for the estate at the time Mrs. Petty was appointed administratrix, and that no demand was made for a final account. He found, therefore, that Mrs. Petty waived her right to demand a final accounting and that it would be useless to order one at that late date.
The special master, after reviewing all the evidence, also found that there was no negligence in the handling of the custodial account, as had been alleged by Mrs. Petty. He observed that it appeared that Mrs. Petty believed she might receive a windfall by the estate being found wrong in honoring the checks written by Major Lewis. In summary, the special master found no evidence of bad faith or fraud on the part of either of the appellees.
On appeal Mrs. Petty makes several arguments that ignore that, in reality, there has been as complete an in-court accounting as possible. The parties that were responsible for the administration of the estate were under oath and, except for the expenditures made by Tommy Lewis found to be unnecessary, there was no evidence upon which Mrs. Petty could be found to be entitled to damages. The fact that an accounting was not duly filed and that other formalities were not strictly observed does not entitle Mrs. Petty to recover. Mrs. Petty was not able to show what could have been revealed by forcing Tommy Lewis to submit a final accounting. The master concluded that all information was given to Mrs. Petty, and to simply order Tommy Lewis to file a form would be pointless.
To support her arguments that information was withheld from her, Mrs. Petty claimed that Lewis had an interest in a trucking partnership that was unaccounted for. An offer was made to Mrs. Petty to sell that interest in the partnership which was rejected by her. This matter is in litigation in a separate case and any interest owned by Major Lewis will certainly be awarded to his estate. Mention was also made of real estate that should have been accounted for. The witnesses answered every question asked in this regard and Mrs. Petty was unable to show any wrongdoing.
Several arguments are made on appeal as to the handling of the custodial fund. Again, the special master investigated the actions of the administrator and George Hartje thoroughly and concluded that only Major Lewis’ just obligations had been paid. There is nothing in the record which would lead us to a different finding.
Mrs. Petty has been unable to demonstrate any wrongdoing on the part of the appellees. The evidence totally supports the finding that Tommy Lewis was honest and forthright with Mrs. Petty in every way. Indeed, it was his testimony that made it possible for her to establish heirship in her former lawsuit. He testified there that she was Major Lewis’ daughter and had always been treated as such.
We agree with the trial court’s finding that Mrs. Petty is entitled to no relief other than the specific findings made in her favor in the master’s report.
Affirmed.
Ron Burton, one of the appellees, was George Hartje’s associate and assumed Hartje’s responsibilities for handling the estate when Hartje was appointed to the bench in January, 1979. | [
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George Rose Smith, Justice.
By stipulation the only question in this case is one of law: Did Act 900 of 1975 prohibit the appellee, Travelers Indemnity, from inserting in a group disability insurance policy a clause providing that total disability benefits under the policy would be reduced by the amount of Social Security benefits received by the disabled employee? Ark. Stat. Ann. § 66-3709 (Repl. 1980). Our jurisdiction is under Rule 29(l)(c).
The unambiguous language of the statute itself unmistakably dictates a negative answer to the question at issue. Act 900 provides that no contract of group disability insurance shall contain any provision for the reduction of benefits because of the existence of “other like insurance.” That phrase is then specifically defined:
The term “other like insurance” may include group or blanket disability insurance or group coverage provided by Hospital and Medical Service Corporations, government insurance plans, union welfare plans, employer or employee benefit organizations, or Workmen’s Compensation Insurance or no-fault automobile coverage provided for or required by any statute.
The enumeration of various private insurance plans as constituting “other like insurance” by implication excludes from the prohibition governmental social programs such as Social Security benefits. In fact, the General Assembly itself later so construed Act 900, for a later statute not applicable to this case amended the original act by including Social Security benefits in the prohibition. Even then, however, Social Security benefits were not classified as “other like insurance.” Instead, those benefits were placed within a new exclusion of “other such coverage.” Act 702 of 1981; Ark. Stat. Ann. § 66-3709 (Supp. 1983).
The appellant argues that Social Security benefits should be included as other like insurance because the emergency clause in Act 900 recites a legislative purpose to prohibit “denial or reduction of benefits under any contract of group disability insurance.” That statement in itself is too sweeping to have any practical force if treated as an enactment, which it is not. In cases of ambiguity we may refer to the language of the emergency clause to clarify the legislative intent. City of Fort Smith v. Brewer, 255 Ark. 813, 817, 502 S.W.2d 643 (1973). Here, however, there is no ambiguity, for the act itself defined the term “other like insurance.” We do not find in the all-inclusive language of the emergency clause any intent to nullify that definition. The trial judge’s interpretation of the statute was right. The. appellant is not entitled to recover additional amounts under the policy in view of the exclusion of Social Security benefits.
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David Newbern, Justice.
This appeal and cross appeal are from a condemnation judgment which, after a jury trial, awarded $40,000 to the appellant. It is the second appeal in the case, and as the first appeal was decided in this court, we have jurisdiction. Arkansas Supreme Court and Court of Appeals Rule 29. 1. j.
In July, 1955, Mr. and Mrs. D’Angelo conveyed to Pulaski County an easement for the right of way for State and U.S. Highway 67. The easement disected a parcel of land owned by the D’Angelos. The deed contained this language:
This conveyance is made for the purpose of a freeway and adjacent frontage road and the grantor hereby releases and relinquishes to the grantee any and all other abutter’s rights including rights appurtenant to grantor’s remaining property in and to said freeway, provided, however, that such remaining property shall abut upon and have access to said frontage road which will be connected to the freeway only at such points as may be established by public authority.
On September 8, 1955, the D’Angelos conveyed their remaining interest in the parcel by warranty deed to Kenneth and Bessie W. Coffelt. Mr. Coffelt subsequently conveyed his interest in the parcel to Mrs. Coffelt.
As the north-south highway was constructed, entrance and exit ramps existed permitting entrance and exit to and from the highway upon a road known as Coffelt Road which runs east and west contiguous to the southern boundary of the Coffelt property on both sides of the highway. For a time, one could, by numerous stops and starts, cross from west to east, and vice versa, directly from the Coffelt land on one side of the highway to the Coffelt land on the other side. It required stopping at each of the frontage roads and stopping prior to crossing each of the two double lanes of Highway 67.
Pulaski County transferred its right in the easement to the Arkansas State Highway Commission, and in 1972 Mrs. Coffelt sued the Commission to enjoin it from interfering with the Coffelt Road crossing, alleging the Commission was planning to close Coffelt Road and thus deny her direct access from her property on one side of the highway to her property on the other side.
In her complaint Mrs. Coffelt alleged the Commission had promised to construct an overpass. While that point was apparently not pursued, it is mentioned here as an aid to understanding what is at stake in this case. Had an overpass or underpass been constructed permitting Coffelt Road to remain passable across the highway, Mrs. Coffelt would have had no claim against the Commission.
This court ultimately affirmed injunctive relief awarded to Mrs. Coffelt. We held the initial entry of the Commission on the land to construct the highway was consistent with its easement. Thus the initial construction was not notice that the Commission was taking the fee and therefore Mrs. Coffelt was not barred by a statute of limitations from asserting her right in the fee underlying the easement. The taking of Mrs. Coffelt’s interest remaining in the fee under the easement will permit closing Coffelt Road where it crosses the highway. We said whether Mrs. Coffelt would be entitled to damages from taking the fee was a matter yet to be determined. Arkansas State Highway Commission v. Coffelt, 257 Ark. 770, 520 S.W.2d 294 (1975).
That very matter was sought to be determined in the case before us now. The Commission sued to condemn the fee. In her appeal of the damages judgment in her favor, Mrs. Coffelt alleges she was erroneously prevented from giving her testimony as to the value of her land before and after the interruption of Coffelt Road. In the cross appeal the Commission contends the court erred in not granting a motion in limine, in refusing to strike expert testimony offered by Mrs. Coffelt’s witness and in allowing Mrs. Coffelt to state that the court was taking judicial notice of the earlier chancery decree.
1. Mrs. Coffelt’s Testimony
Mrs. Coffelt’s attorney began his questioning of her by asking her generally about her land. She responded that her land on the east side of the highway was 2.9 acres and gave figures on its length, width and depth. She gave similar testimony about the approximately 20 acres on the other side where she and Mr. Coffelt had resided nearly thirty years. She discussed the topography of the land and its usefulness as commercial property, noting that at one corner she had an antique shop. She spoke of the lack of drainage problems and of the accessibility to city water and utilities. She also testified about the nearest access points to the highway from the frontage road and about the nature of nearby commercial uses.
When Mrs. Coffelt’s lawyer then asked her the value of her land before taking, the Commission objected on the basis that Mrs. Coffelt was not shown to be an expert or to be qualified as a landowner to testify as to the value of her land. Her lawyer then asked her if she was “familiar with land values in that area generally, particularly commercial properties, ’ ’ to which she responded in the negative. She was then asked if she were familiar “with the fair market value of these properties.” The Commission again objected. Her lawyer then asked:
Based upon the information you have, Mrs. Coffelt, do you have an opinion as to the fair market value of your property immediately prior to the taking?
Whereupon the judge said:
Well, now I’ve got to sustain the objection, Mr. Worsham. I thought you were going to ask her some more questions about what she based her evaluation on.
More questions followed, but Mrs. Coffelt was not permitted to testify as to value, except to proffer her testimony out of the jury’s presence.
While we can understand some of the confusion caused by questions asked of Mrs. Coffelt by her attorney which would more properly have been asked of an expert witness, it is clear that Mrs. Coffelt had shown sufficient knowledge of her own property to qualify her to state its value in her capacity as owner of the land.
On this point the Commission cites only Arkansas State Highway Commission v. Darr, 246 Ark. 204, 437 S.W.2d 463 (1969), in which a landowner’s testimony as to the value of land was held to have been properly stricken. But there was no showing in that case that the witness had ever lived on the land. Nor was she asked about the fair market value of her land. Instead, she was asked how much the land was “worth” with no definition of “worth.” She had also given statements about the land which were contradicted by other witnesses, and the evaluation reached in the judgment was entirely dependent on her testimony, as it was too high to have been based on the testimony of other witnesses.
In the case before us, it is clear that although there were other questions Mrs. Coffelt could not answer, the ones to which she quite adequately responded were sufficient to show she had a thorough knowledge of her land. In Arkansas State Highway Commission v. Taylor, 269 Ark. 458, 602 S.W.2d 657 (1980), we held that as long as a landowner demonstrates an intimate knowledge of his own property he may give his opinion as to its value, and he need not know the value of other, comparable properties. A demonstrated familiarity with his land is sufficient. Arkansas State Highway Commission v. Duff, 246 Ark. 922, 440 S.W.2d 563 (1969). Thus it was error for the court not to allow Mrs. Coffelt to testify with respect to the value of her land before and after the taking.
2. Motion in Limine
The Commission moved at the outset to prevent testi mony having to do with diminution of the value of Mrs. Coffelt’s land due to inability to enter the highway at its intersection with Coffelt Road. The motion was based on the deed from the D’Angelos to the county which had so clearly given up that right and to which their deed to the Coffelts made reference. We have no doubt the motion should have been granted.
Had there been a correct ruling on the motion in limine, the Commission’s next point would have been obviated. Mr. Larrison testified for Mrs. Coffelt as an expert. The evaluation he gave was clearly based on failure to understand that the D’Angelos, and thus their successor Mrs. Coffelt, had conveyed away their right of access at the Coffelt Road intersection to Highway 67. Mr. Larrison said specifically his evaluation had been done on the basis of loss of such access and not just loss of the right to cross the highway from one side of the Coffelt land to the other. He was given an opportunity to separate the right to cross the highway from the right of direct access to the highway, and he was unable to do it, thus it was error to permit Mr. Larrison’s estimate to go to the jury. Arkansas State Highway Department v. Wallace, 247 Ark. 157, 444 S.W.2d 685 (1969).
3. Judicial Notice
This point need only be discussed because it may come up upon retrial. As stated earlier, the only question in the first appeal in this case was whether a statute of limitations had run, preventing Mrs. Coffelt from seeking damages for condemnation of the fee underlying the easement across her land so as to permit closing Coffelt Road where it crossed the highway. We held the statute had not run. We said:
We do not pass upon the effect of the various deeds on damages claimed in this case, but we are of the opinion the chancellor’s finding that the appellee owns the fee title to at least twenty feet of Coffelt Road is not against the preponderance of the evidence. We conclude, therefore, that the chancellor did not err in granting the injunction until the question of damages, if any, is fully determined. [257 Ark. at 780, 520 S.W.2d at 300]
Our decision was thus a very narrow one; so was the chancellor’s and yet the following exchange appears in the record in the case before us now:
Your Honor, the defendants are preparing to rest. But before we do, I believe before the recess I had tendered a decree. Your Honor, at this time we are proposing to withdraw the decree because it’s my understanding the Court is taking judicial notice that a decree was entered on April 17,1974, giving the defendants the right to the free use of Coffelt crossing and to the right of ingress and egress on said Coffelt crossing and to the free flow of traffic thereon. Is that correct, Your Honor?
THE COURT: I’m so taking judicial notice.
This characterization of the earlier decree was thus at least possibly misleading. Two paragraphs of the chancellor’s decree are set out in our earlier opinion 257 Ark. at 778, 520 S.W.2d at 299. The chancellor made it clear that Mrs. Coffelt had no right of access to the highway from Coffelt Road but that the right to cross over had not been compensated and thus the Commission was enjoined from closing Coffelt Road without condemning the remaining interest of Mrs. Coffelt.
The judicial notice taken could easily have been interpreted by j urors as being in excess of that j ustified by the decree, and certainly in excess of this court’s interpretation of that decree in the first appeal. We need not decide whether the judicial notice thus taken and possibly misleading was error; however, we caution that upon retrial if there is another attempt at condensing the first decree and our opinion affirming it, more care should be taken to see that it is accurately limited.
Reversed on appeal; reversed on cross appeal, and remanded.
Justice Hickman not participating. | [
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Robert H. Dudley, Justice.
Appellants, Central Utilities Constructors, Inc., a construction company, and Harold Williams, its primary shareholder, filed suit alleging that appellees, Joyner-Cranford-Burke Construction Co., and United Pacific Insurance Company, its bonding company, refused to pay appellant Central the $27,999.98 balance due on its written subcontract for construction of sewer laterals in the Mabelvale-Alexander Sewer Improvement District #142. Appellants further alleged that appellees’ conduct and failure to act in a commercially reasonable manner was so egregious that appellees were guilty of the tort of bad faith. Appellees contended that appellants could not bring an action in either law or equity for the breach of any contract related to the District since neither appellant was licensed as a contractor pursuant to Ark. Stat. Ann. § 71-701 et seq. (Repl. 1979), the contractor’s licensing act. Section 71-713 provides generally that contractors who undertake construction jobs, excluding residences, with a cost to the contractor of $20,000.00 or more must be licensed to do business by the State Licensing Board for Contractors. Failure to obtain such a license constitutes a misdemeanor, and the statute additionally prohibits the contractor from suing". . .either at law or in equity to enforce any provision of a contract entered into ...”
Appellees further answered that appellants failed to state a claim upon which relief could be granted for the alleged tort of bad faith non-payment.
Appellants subsequently amended their complaint to plead that they were not seeking reimbursement for work performed under the original $500,000.00 written contract but for work performed pursuant to 16 separate and distinct oral contracts for the construction of the laterals, none of which exceeded $20,000.00. The trial court granted summary judgment in favor of both appellees. We affirm. Jurisdiction is in this court pursuant to Rule 29(1 )(c) of the Rules of the Supreme Court.
The affidavits submitted by the appellees in support of their motion for Summary Judgment establish the following:
(1) Neither Harold Williams nor Central Utilities Constructors, Inc. was a licensed contractor with the Arkansas Contractors Licensing Board pursuant to the requirements of Ark. Stat. Ann. § 71.-701 at the time the written subcontract with Joyner-Cranford-Burke was executed.
(2) The total approximate price for the job to be completed under the subcontract by Central Utilities was $500,000.00.
(3) The laterals set out in the plaintiffs’ amended complaint were all a part of the Sewer Improvement District No. 142 project, and these laterals were add-on items to the original subcontract. The laterals were created by change orders issued to Joyner-CranfordBurke from the engineers on the project and in some cases they replaced the laterals listed on the written contract between Joyner-Cranford-Burke and Utilities.
(4) All payments to Central Utilities for the work performed by it on Sewer Improvement District No. 142 were governed by the written contract, and the terms of performance of the extra work were governed wholly by the written subcontract.
In response, Appellant Harold Williams filed an affidavit which stated:
(1) The contracts referred to in my Amended Complaint were sixteen separate and distinct oral contracts. Each lateral listed in my Amended Complaint constitutes a separate and distinct oral contract entered into between myself and Joyner-Cranford-Burke.
The appellants contend that their amended complaint coupled with Williams’s affidavit raise genuine issues of material fact. We find the argument without merit.
Even though affidavits for summary j udgment are to be construed against the movant, Leigh Winham, Inc. v. Reynolds Ins. Agency, 279 Ark. 317, 651 S.W.2d 74 (1983), once the moving party makes a prima facie showing of entitlement to a summary judgment, the responding party must discard the cloak of formal allegations and meet with proof by showing a genuine issue as to a material fact. Hughes Western World, Inc. v. Westmoor Mfg., 269 Ark. 300, 601 S.W.2d 826 (1980). Our summary judgment rule, ARCP Rule 56, requires that proof offered to meet a properly supported motion for summary judgment “must set forth specific facts showing that there is a genuine issue for trial.” Turner v. Baptist Medical Center, 275 Ark. 424, 631 S.W.2d 275 (1982). Affidavits which consist merely of general denials, without any statement of specific facts, are insufficient. Id. at 427.
In the case at bar, it is undisputed that appellants were not licensed; that their overall subcontract called for payment of $500,000.00; and that all laterals were a part of the Improvement District No. 142 project. By affidavit the appellees swore that these laterals were add-on items to the original contract and were caused by change orders from the engineers and that the terms of performance on these added laterals were governed wholly by the written subcontract. To those specific facts, the appellants merely gave a conclusory affidavit that each lateral constituted a separate and distinct oral contract. The appellants failed to meet proof with proof. They did: not allege that the extra laterals were negotiated separately, nor that there was anything separate and distinct about these laterals, nor did they deny that the terms of performance for the laterals were governed by the original contract.
The summary judgment must be affirmed for another reason. The appellants offer no facts to dispute appellees’ statement that all of the laterals were a part of the Improvement District No. 142 project. The statute applies when “the cost of the work to be done” is $20,000.00 or more. The “cost of the work to be done” by appellant on the project was $500,000.00, and the statute cannot be circumvented by dividing the project into many contracts of less than $20,000.00. See Cochran v. Ozark Country Club, Inc., 339 So.2d 1023 (Ala. 1976). The word “cost” refers to the aggregate amount which a contractor is to receive on any one project. The trial court correctly granted the motion for summary judgment on the claim for breach of contract.
The appellants’ complaint also contained a count for the tort of bad faith. The trial court ruled that the claim failed to state facts upon which relief could be granted. Appellants ask us to problematically decide whether the contractors licensing statute precludes an unlicensed contractor from bringing a claim sounding in tort. We need not decide that issue, for this claim does not state a cause of action for the tort of bad faith, no matter how we interpret the statute.
The count is as follows:
That due to JCB’s and UPIC’s [Appellees] willful conduct and failure to act in a commercially reasonable manner the Plaintiff, Harold Williams, has been irreparably harmed, in that he has been psychologically injured by the infliction of mental distress and his business reputation, as well as the business reputation of CUC, has been damaged beyond repair and as a result of these actions of JCB and UPIC he has been forced to file personal bankruptcy pursuant to Chapter 11 of Title XI, United States Code, on March 21, 1983. (R. 3)
It will be seen that the count does not assert any affirmative action on the part of the appellees which would constitute the tort of bad faith. Under our rules of civil procedure we do not recognize “notice pleadings,” we recognize “fact pleadings.” ARCP Rule 8; Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361 (1984). In notice fofm the complaint states that it is for willful conduct. It fails to state any facts from which one could conclude that appellees engaged in dishonest, malicious, or oppressive conduct in order to avoid their liability. The trial court correctly ruled that the tort count for bad faith failed to state facts upon which relief can be granted.
The appellants next ¿ontend that the contractors licensing statute is intended to protect the public, not contractors, and it should not be used as a shield by a contractor to avoid an otherwise valid obligation to a subcontractor. We have examined the statute in light of appéllants’ argument, but the statute is so clear that to quote it in the pertinent part is to fully answer the argument. “No action may be brought either at law or in equity to enforce any provision of any contract entered into in violation of this act.” Ark. Stat. Ann. § 71-713 (Repl. 1979). Unfortunately for the appellants, the statute is a penal one, and, at times, harsh results flow from construction of penal statutes.
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George Rose Smith, Justice.
This is another in a number of cases questioning the validity of the Omnibus DWI Act. Act 549 of 1983. In this case Tausch pleaded guilty in the municipal court to a first DWI offense, but he contested the charge in the circuit court. After a non-jury trial the circuit court made a finding of guilty and imposed the same punishment as that in the municipal court: Twenty-four hours in jail, a 90-day suspension of Tausch’s driver’s license, and a $500 fine. Among many arguments presented to the circuit court, only two are asserted on appeal.
First, it is argued that the statute violates the constitutional separation of governmental powers by prohibiting trial judges from suspending the execution of the sentences mandated by the act. In a supplemental opinion on rehearing in Lovell v. State, 283 Ark. 434, 681 S.W.2d 395 (1984), we held that as a matter of statutory interpretation the sentencing provisions of the Omnibus DWI Act are mandatory. The constitutional question was not then before us, but we have no hesitancy in upholding the validity of the act. In Hill v. State, 276 Ark. 300, 634 S.W.2d 120 (1982), we adhered to our many prior cases holding that the courts have no inherent authority to suspend the execution of sentences; the power to grant or withhold that authority rests with the General Assembly. Those cases are controlling here.
The appellant’s second argument, that under the act the blood-alcohol level creates a conclusive presumption of guilt and compels a person to incriminate himself, has been rejected in earlier cases construing the Omnibus DWI Act. Steele v. State, 284 Ark. 340, 681 S.W.2d 354 (1984); Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).
Affirmed. | [
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Per Curiam.
Appellant, Leamon Styles, by his attorney, William R. Wilson, Jr., has filed a motion for rule on the clerk.
The motion admits that the record was not timely filed and it was no fault of the appellant. His attorney admits that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Steele Hays, Justice.
These parties were granted a divorce and the only points raised on appeal by Mr. Marshall, appellant, concern two of the Chancellor’s holdings on the property division. We address first a challenge to the division of appellant’s retirement benefits.
Prior to his marriage to Mrs. Marshall, appellee, Mr. Marshall was employed by Reynolds Aluminum, and is now receiving retirement benefits of $1,050 per month. He was employed by. Reynolds for thirty-five years and was married to appellee for the last ten of those thirty-five years. The Chancellor found the retirement benefits to be marital property and awarded one-half of those benefits to the wife pursuant to Ark. Stat. Ann. § 34-1214, Division of Property.
The appellant argues that appellee is only entitled to that portion of the benefits which accrued during the marriage or one-half of 2/7ths, approximately $150 per month. He maintains the remainder of the benefits were acquired prior to the marriage and under § 34-1214 would constitute separate property. We agree with appellant.
The Chancellor’s order came on December 30, 1983 before our decision in Day v. Day, 281 Ark. 261, 633 S.W.2d 719 (1984). In Day we overruled our previous decisions and held that pension plan benefits vested but not yet due and payable, constituted marital property and as such should be divided under § 34-1214 unless the court finds such a division to be inequitable. We relied on Re Marriage of Brown, 15 Cal. 3d 838, 126 Cal. Rptr. 633, 544 P.2d 561 (1976). In Brown, the California court overturned its previous rule of not recognizing nonvested property rights as marital property. The court in Brown did not address directly the question raised here but recognized implicitly that such a division as appellant suggests is correct. In stating the facts of the case the court said a substantial portion of the “points” the husband had accumulated for his company was “attributable to his work during the period when the parties were married and living together.” A footnote to that sentence reads: “Since it concluded that non-vested pension rights are not divisible as a community asset, the trial court did not determine what portion of [the appellant’s] pension rights is owned by the community.” The case was remanded for proceedings consistent with the opinion.
Brown is annotated in 94 ALR3d 176 where we find in those jurisdictions recognizing retirement benefits as marital property, there appears to be no question that benefits based on contribution or services not made during the marriage constitute the separate property of the recipient. And in a more recent Arkansas case, Gentry v. Gentry, 282 Ark. 413, 668 S.W.2d 947 (1984), although not addressing the issue presented here, citing Day, supra, we found the retirement benefits of the husband to be marital property and as part of the basis of that decision we stated that the “required years of service and contribution occurred during the marriage.” (Our emphasis).
We agree that such a classification of previously acquired benefits as separate property is in keeping with the spirit and letter of our own property division statute. Our statute (§ 34-1214) requires that all property owned prior to the marriage shall be returned to the owner and if separate property is not returned to one party, the court must state in writing its reasons for not returning it to the party who owned it at the time of the marriage. The Chancellor here made no finding of separate property, nor gave any reasons for not returning the separate property to the appellant.
Under the clear language of § 34-1214 and its logical application to Day, supra, we must find that the court erred in finding that all the retirement benefits constituted marital property. As twenty-five years of Mr. Marshall’s contributions were made prior to the marriage to Mrs. Marshall, that portion acquired before marriage is his separate property. Accordingly, the award of retirement benefits should be modified to reflect the correct proportionate share due each party.
As his second point, appellant argues error in the Chancellor’s finding that the home was marital property and should be divided equally.
At the time Mr. Marshall married appellee, he had a home in his name on a lot he owned, which he purchased for $5,000 and with improvements made by both parties the value was about $15,000. The house burned and the Marshalls collected $20,000 insurance — $15,000 for the home and $5,000 for the contents. It is not disputed that the $5,000 insurance proceeds for contents were for marital property. With the $20,000 insurance proceeds and a note of $5,000 signed by both parties, a mobile home was purchased and placed on the lot owned by the husband.
The court found it undisputed that both parties had contributed separately owned property to the improvement of the home, that at the time of the marriage the house was valued at $5,000 and that the home was personal property to be divided one-half to each, less the indebtedness.
The appellant makes two arguments. First he argues that the original house was his separate property and under § 34-1214(B) the increase in the value of separate property acquired prior to the marriage is not considered marital property. Therefore, the mobile home is nothing more than property acquired in exchange for property acquired before the marriage. In the alternative, appellant argues that if it was correctly decided that the home was marital property, the Chancellor erred in not giving appellant credit for the original payment for the property.
As to appellant’s first point there is no merit. There appears to be agreement from the testimony of both parties, that after the $5,000 investment of the husband, the remaining increase in value was a result of the efforts of both parties, the increase in value representing the greater portion of the value of the home. We find no error in the Chancellor’s finding the new home replacing the burned home was marital property.
We find merit however in appellant’s contention that he should receive credit for his original investment of $5,000. In a somewhat analogous situation in Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983), we allowed the husband credit for salvage from a house he owned separately which had been destroyed by a tornado but had been rebuilt with joint funds with his wife. Although we did not deal with any question of his original investment other than the salvage, it was not questioned that a portion of the proceeds were paid to satisfy the husband’s remaining mortgage. The only proceeds in issue were for the contents jointly owned and used toward the building of the new home. Under the facts and our decision in Williford and the separate property provision of § 34-1214, we find there should be an allowance for Mr. Marshall’s original investment which constituted his separate property.
The court found that the husband had made an original $5,000 investment and that fact is undisputed. No credit was allowed for that amount, nor any reason given why that amount should not be returned to him as required by § 34-1214. We therefore find that the division of the proceeds of the mobile home should be modified to allow Mr. Marshall credit for his $5,000 investment.
The case is remanded for modification of the order consistent with this opinion. | [
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John I. Purtle, Justice.
The appellant was convicted of possession of marijuana with intent to deliver [Ark. Stat. Ann. § 81-2617(a)(l)(iv) (Supp. 1983)] and of aggravated assault [Ark. Stat. Ann. § 41-1604 (Repl. 1977)]. He was sentenced to 10 years for possession and four years for aggravated assault. Sentences were ordered to run consecutively. On appeal appellant argues: (1) that the court erred in refusing to suppress evidence; (2) that the trial court erred in refusing to order the state to identify the confidential informant; and (3) that the conviction for possession is a misdemeanor rather than a felony. We do not find that the court committed prejudicial error for the reasons set out in the opinion.
The appellant and his wife, Lisa Toland, were arrested and charged with possession of a controlled substance with intent to deliver. They were also charged with aggravated assault as a result of placing a shotgun “booby-trap” in a field near their marijuana patch. A motion to suppress contested the validity of the descriptions and directions on the search warrant and the identity of a confidential informant. During the omnibus hearing the court ordered the confidential informant’s identity be disclosed to appellant’s wife. Thereupon, the state dismissed the charges against Mrs. Toland.
Officer Jenkins received a tip from a confidential informant that the appellant was involved in the marijuana business. He obtained the use of an airplane and flew over appellant’s property. He stated he saw marijuana growing in an open field about 100 feet behind appellant’s house. The officer and the unidentified informant drove to the vicinity of appellant’s property. They did not stop or go onto the property but the informant pointed out the house and land to the officer. So far as the record shows, this was the first and last information obtained from this informant. Officer Jenkins appeared before a magistrate and swore to an affidavit to obtain a warrant. Without setting out the facts in detail, it suffices to state that the directions on the warrant were impossible to follow and the information obtained from the unidentified informant was not even alleged to be reliable. For reasons to be stated below this improper procedure does not affect the result of this case.
I
THE COURT ERRED IN REFUSING TO SUP-
PRESS EVIDENCE.
For the purposes of this opinion it is stated that the directions given on the warrant in this case were absolutely defective. No person could have followed the directions and ended up at the site where the search was supposed to have been conducted. So far as the record is concerned the informant furnishing the original information to Officer Jenkins was not proven dependable. There is however no rule, statute, or other procedure which prevents officers from following through and investigating any information received by them whether by confidential informant or otherwise. In the present case Officer Jenkins did not rely solely on the informant’s tip nor did he need the directions given on the warrant. He personally confirmed the information given by the informant and drove to appellant’s property on the ground and flew over it in the air. Under the totality of the circumstances test stated in Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983), we have no hesitancy in affirming the trial judge’s refusal to suppress the evidence received as a result of this search and seizure. This search could also be upheld under the “good faith” exception to defects in search warrants as stated in United States v. Leon, 104 S. Ct. 3405 (1984). Officer Jenkins was obviously acting in good faith although the warrant he used was defective. The “good faith” spoken of in Leon was an instance wherein the information supporting the warrant was on the wrong form. In the present case the officer executing the warrant knew exactly where he was going and what he was looking for. The results would have been the same had the information and directions in the affidavit and on the warrant been completely accurate. The appellant probably had no reasonable expectation of privacy concerning his outdoor marijuana farming operation. Oliver v. United States, 104 S.Ct. 1735 (1984); Ford v. State, 264 Ark. 141, 569 S.W.2d 105 (1978), cert, denied, 441 U.S. 947 (1979). Had Officer Jenkins not personally had the necessary information then it could have been argued that he was not acting in “good faith.”
II
THE TRIAL COURT ERRED IN REFUSING TO ORDER THE STATE TO IDENTIFY THE CONFIDENTIAL INFORMANT.
We agree with the trial court that it was not necessary to reveal the identity of the confidential informant because appellant was charged merely with “possession.” Jackson v. State, 283 Ark. 301, 675 S.W.2d 820 (1984).
Ill
THE CONVICTION FOR POSSESSION IS A MISDEMEANOR RATHER THAN A FELONY.
Appellant’s third contention for reversal is that a violation of Ark. Stat. Ann. § 82-2617(a)(l)(iv) (Supp. 1983) is a misdemeanor. We do not find in the abstract or record that this argument was presented to the trial court. Therefore, it cannot be raised for the first time on appeal. Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980). This argument will be decided very shortly in another case.
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David Newbern, Justice.
The trial court entered a declaratory judgment to the effect that no sales tax need be collected by the appellees on charges levied for installation of telephones. The applicable statute, Ark. Stat. Ann. § 84-1903(c)(1) (Repl. 1980), says the tax will be levied on “all service and rental charges having any connection with transmission of any message.” The court held the statute was unambiguous but that it should not be interpreted as including the installation charge as taxable because the appellant had acquiesced in the contrary interpretation from the time the statute came into effect, July 1,1941, until 1982. In 1982 the appellant issued a “revenue policy statement” requiring collection of the tax on telephone installations. The statement’s operation was prospective only. As this is a case involving statutory interpretation, our jurisdiction rests upon Arkansas Supreme Court and Court of Appeals Rule 29. 1. c.
The arguments of the appellees are essentially (1) that the trial court should be sustained in its finding that the statute is unambiguous because it has been unambiguously construed for over forty years, and (2) that even if the language of the statute requires the tax to be levied it may be varied by a principle of statutory construction giving weight to the manner in which the statute has been construed by the state official or agency responsible for its implementation.
1. Unambiguity of construction
The appellees contend the trial court’s ruling was that the statute in question here was unambiguous regardless of its language, because it had been construed for over forty years as not requiring the tax. If indeed that was the holding we cannot sustain it. To determine ambiguity or lack of it we must look to statutory language rather than to unambiguous “construction.” The appellees have cited no authority, and we have found none, in which a decision is premised on unambiguity of construction as opposed to unambiguity of statutory language.
2. Construction absent ambiguity
We agree with the trial court that the statute is unambiguous. Its language leaves no doubt the General Assembly intended that all charges levied in rendering telephone service be subject to the tax. Thus, there was no reason to resort to principles of construction. Vault v. Adkisson, 254 Ark. 75, 491 S.W.2d 609 (1973).
The appellees have cited Prewitt v. Warfield, 203 Ark. 137, 156 S.W.2d 238 (1941), for the proposition that principles of statutory construction apply even when a statute is unambiguous. In that case language of no particular statute was found to be ambiguous, but the question was whether a previously enacted statute had been impliedly repealed by a later statute. It thus involved an ambiguity created by conflicting language of two statutes.
The two principal cases relied on by the appellees as permitting construction of statutory language by considering the consistent and long-standing interpretation by the state agency responsible for its implementation are Arkansas Public Service Commission v. Allied Telephone Company, 274 Ark. 478, 625 S.W.2d 515 (1981), and Walnut Grove School District v. County Board of Education, 204 Ark. 354, 162 S.W.2d 64 (1943). It is enough to say of those cases that each properly applied the construction principle urged here because each involved interpretation of ambiguous statutory language.
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Steele Hays, Justice.
By this appeal we are asked to reverse a probate court finding that Mrs. Alren Morrison was domiciled in Ft. Smith, Arkansas when she executed a will in November, 1979, and when she died in August, 1983. This dispute over a part of her estate is between her brother, the devisee under her will, and her son-in-law and two granddaughters, the appellees.
Mrs. Morrison and her husband had lived in Ft. Smith for many years. After Mr. Morrison’s death in 1975 she continued to live in the home until 1979, when she fell and broke her hip. When she was ready to leave the hospital her adopted daughter, Andrea Garmon, arranged for her to be moved to a Norman, Oklahoma, nursing home, near where Mrs. Garmon lived.
In September of that year, Mrs. Garmon died from a recurrence of hepatitis. Some days later, Mrs. Morrison executed a will leaving her estate to John Garmon, expressing confidence that he would care for her two minor granddaughters, Kristin Garmon and Katherine Garmon. John Garmon and his daughters are the appellees. On Mr. Garmon’s petition, Mrs. Morrison’s assets were placed in a conservatorship. In October, 1979, Mrs. Morrison’s brother, appellant Harold Morris, moved Mrs. Morrison to a nursing home in Ft. Worth.
In November of 1979, shortly after arriving in Ft. Worth, Mrs. Morrison executed a new will leaving everything to Harold Morris, or if he failed to survive her, to another brother, and if he failed to survive, to a niece. In August, 1983, Mrs. Morrison died in Ft. Worth.
Harold Morris offered the will for probate in Tarrant County, Texas, and letters testamentary were issued. He then obtained an order in Oklahoma, directing the con servator to deliver the Oklahoma assets to him as executor.
In January, 1984, John Garmon petitioned the Sebastian Probate Court for letters of administration on the grounds that Mrs. Morrison was domiciled in Ft. Smith when she died and that her two granddaughters were pretermitted heirs under the Texas will. Harold Morris responded, alleging that Mrs. Morrison was a domiciliary of Ft. Worth. The probate judge found Mrs. Morrison to have been domiciled in Ft. Smith when she executed the second will and when she died, that the will should be construed according to Arkansas law, under which Mrs. Morrison’s granddaughters were undisputably pretermitted heirs. The order directed Mr. Morris to deliver to the administrator the assets he was holding as executor.
Two points are presented on appeal: The Sebastian Probate Court erred in failing to give full faith and credit to the order of the Tarrant County Probate Court, admitting the will to probate in Texas, and the finding that Mrs. Morrison was domiciled in Ft. Smith is clearly erroneous.
The appellees maintain the full faith and credit argument was not presented to the probate judge, and the record bears out this contention. We find no mention of the argument in the proceeding below. The appellant introduced the will, the order of probate and other filings from the Texas and Oklahoma proceedings, but those documents were offered on the issue of domicile and do not impliedly express a full faith and credit argument not otherwise stated. Moreover, at the outset of the hearing below both sides informed the probate judge that the disputed issue was whether Mrs. Morrison was domiciled in Arkansas or in Texas when her will was made and when she died. We conclude the constitutional argument was not presented to the trial court and, hence, cannot be raised on appeal. Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983).
Appellant argues the issue of domicile is res judicata as that question was decided between these parties in connection with the Oklahoma proceedings. As with the full faith and credit issue, the point was not presented nor ruled on below.
Appellant’s argument fails in any case. The Arkansas court could properly address the issue of domicile, as such a finding by a foreign court in a probate proceeding goes to jurisdiction and can be considered collaterally by a second state without a violation of the full faith and credit clause. See Leflar, American Conflicts Law, pp: 411-412; Wills, 80 Am. Jur.2d § 1056, p. 185; Matter of Will of Lamb, 30 N.C. 452, 279 S.E.2d 781 (1981); Burbank v. Ernst, 232 U.S. 162 (1914); Re: Clark’s Estate, 148 Cal. 108, 82 P. 760 (1905); Smith v. Normart, 75 P.2d 38 (Ariz. 1983); Scripps v. Durfee, 131 Mich. 265, 90 N.W. 1061 (1902). And see Phillips v. Sherrod Estate, 248 Ark. 605, 453 S.W.2d 60 (1970).
With respect to the second point, we cannot say the finding as to domicile was clearly erroneous. “To effect a change of residence or domicile, there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence in another place or jurisdiction, with the intention of making the last-acquired residence a permanent home.” Phillips v. Sherrod Estate, supra; Oakes v. Oakes, 219 Ark. 363, 252 S.W.2d 128 (1951). The intent to abandon one’s domicile and take up another must be ascertained from all the facts and circumstances in any particular case. Oakes v. Oakes, supra.
Here, the decedent was a long time resident of Ft. Smith. After her fall there was no one to care for her in her home so she was moved to nursing homes, first to Oklahoma, then to Texas. While in the Ft. Worth nursing home, she fell again, prolonging her convalescence in Ft. Worth.
After Mrs. Morrison was moved to Oklahoma, and thereafter in the Texas nursing home, her home in Ft. Smith was kept in a state of readiness for her return. None of the furniture was removed, utilities were kept on, her car was parked in the carport and the yard was regularly maintained, all with her knowledge and approval. She maintained her membership in the First United Methodist Church of Ft. Smith and on numerous occasions expressed to her grandchildren and to neighbors a steadfast hope of returning to her home in Ft. Smith — to be with friends, and to engage in normal activities. Although there was evidence of a contrary intent, we cannot say the finding of the probate judge was clearly erroneous. ARCP 52(a).
Our holding in Oakes v. Oakes, supra, is instructive. Mrs. Oakes, an Arkansas domiciliary, developed tuberculosis and entered a sanitarium in New Mexico in 1947. She took only her clothing, leaving her furniture and household goods in her home in Arkansas. Her two children went to live with grandparents in Texas. She returned to Arkansas three years later to testify in the divorce case she had filed against her husband. She told the court she planned to return to the sanitarium for an indefinite duration. We found no evidence that Mrs. Oakes had acquired a new domicile and added: “A change of residence for the purpose of benefiting one’s health does not usually effect a change of domicile. Such a change is looked upon as temporary merely, even though the actual time spent in the new residence may be long.”
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John I. Purtle, Justice.
This is an appeal from the order of the Pulaski County Circuit Court setting aside a j udgment rendered on a writ of garnishment. It is argued the trial court erred in quashing the service and setting aside the judgment and that such action was the result of bias and insufficient evidence. We find no prejudicial error by the court.
The appellants obtained a judgment against the Gwatneys in the amount of $2,200. The Gwatneys failed to satisfy the judgment. Appellants thought one of the Gwatneys was employed by a “Pizza Hut” on Camp Robinson Road. A call to the Secretary of State’s office indicated the owner was Pizza Hut of America, Inc., with headquarters in Wichita, Kansas. A call to Wichita indicated each Pizza Hut was individually franchised. Appellants were advised that the local Pizza Hut should be contacted. The Camp Robinson Pizza Hut informed appellants that its headquarters was on Foxcroft Road in Little Rock. Thereafter appellants placed allegations and interrogatories as well as a writ of garnishment in the hands of a process server who was directed to proceed to Foxcroft Road for the purpose of serving the papers. An affidavit of service was executed on May 4, 1984, in which it was stated that service was had upon Marty Couk at the Foxcroft address.
A second set of garnishment papers was served on C.T. Corporation, agent for service of process for Pizza Hut of America, Inc., on June 18, 1984. There was no response to either of these two sets of documents. Judgment was entered against Pizza Hut on July 3,1984. The appellants obtained a writ of execution on August 10, 1984, which directed the sheriff to execute against the estate of Pizza Hut on Camp Robinson Road.
An attempt to execute on the Camp Robinson Pizza Hut property brought out the real owner, National Pizza Company, which sought immediate relief on September 4, 1984. The relief sought and obtained was to set aside the judgment against the garnishee. The written order was filed on September 6, 1984.
The order setting aside the judgment against the garnishee stated, among other things, that service of process was not obtained on Marty Couk. The evidence on this issue was very disputed. The court found that Marty Couk was not the proper person to serve even if he had been served. The court also found Mr. Peterson was in the office at the time of the alleged service and that he was the proper person for service. The court considered the testimony of the process server that he served Couk although he did not remember doing so. Couk and Peterson testified that Couk was not served, was not at the office at the time, and was not the agent for the appellee or in charge of its office.
The jurisdictional statement in appellant’s brief implies that all appeals from an order dismissing a garnishment are appealable to this court. There must be other grounds before this court will exercise jurisdiction. The order appealed from is appealable pursuant to Ark. R. App. P. 2 (a)(5). However when the words Supreme Court appear in the rules of appellate procedure, one must substitute the words Court of Appeals in cases where the appellate jurisdiction is in that court under Ark. Sup. Ct. R. 29. See Per Curiam of May 5, 1980, 269 Ark. 980, wherein we amended Ark. R. App. P. 1. Our jurisdiction is exercised here pursuant to Ark. Sup. Ct. R. 29 (l)(c) because this appeal involves the interpretation or construction of Ark. Stat. Ann. § 27-347 (Repl. 1979).
The appellant correctly states the question to be decided is whether the requirements of Ark. Stat. Ann. § 27-347 were met. The statute in question requires service to be had upon the person in charge of the office of business. The trial court made a factual determination that the person in charge was not served in this instance. We will not reverse unless the decision of the trial court was clearly erroneous. Walker v. Hooker, 282 Ark. 61, 667 S.W.2d 637 (1984). We have previously held that the person in charge must be served. American S&L Assn. v. Enfield, Judge, 261 Ark. 796, 551 S.W.2d 552 (1977). It was almost undisputed that the person in charge of appellee’s office was not served with process.
Having found the appellants failed to comply with the mandatory provisions of Ark. Stat. Ann. § 27-347, it is not necessary to discuss the other points relied on for reversal.
Affirmed. | [
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Jack Holt, Jr., Chief Justice.
The appellant, Norma Foster, was convicted of first degree murder and sentenced to life imprisonment. This appeal from that conviction is before us under Sup. Ct. R. 29( 1 )(b). We reverse and remand.
The appellant’s conviction stemmed from her alleged participation in the contract killing of Orin Hendrickson of Arkadelphia. At the time of the murder, the appellant was a housemother at Ouachita Baptist University in Arkadelphia. Mrs. Foster was accused of having conspired with Hendrickson’s wife, Pat, and Mark Yarbrough, a student at OBU, to hire Howard Vagi, another OBU student, to kill Hendrickson in return for money. Vagi did in fact kill Hendrickson and is serving a life sentence in prison for that crime. Yarbrough was granted immunity from prosecution in return for his testimony at Mrs. Foster’s trial.
The appellant raises numerous issues on appeal, and we find merit in her contention that the trial judge erred by refusing to suppress her taped statement. The facts surrounding the taping of the statement were as follows: Four officers went to the appellant’s home at about 2:30 a.m. They knocked on the door, and, when Mrs. Foster answered, told her that the prosecuting attorney, W. H. “Dub” Arnold, would like to see her and for her to come with them to his office. The officers testified that they went to pick Mrs. Foster up at the prosecuting attorney’s request. Once she arrived at Arnold’s office, the appellant was questioned by two of the officers. The prosecuting attorney did not participate in the questioning although he was in the building. He entered the room where Mrs. Foster was being questioned once to bring a tape recorder into the room and play part of a taped statement by Mark Yarbrough. Arnold told the appellant, “We know whatever the truth is. You might as well tell them.” He then left the room. Before taping Mrs. Foster’s statement, one of the officers informed her of her rights and she signed a waiver form.
The appellant contends that she was unlawfully brought to the prosecutor’s office for questioning and she is right. When we review a ruling on a motion to suppress evidence, “we make an independent determination based upon the totality of the circumstances.” Grant v. State, 267 Ark. 50, 589 S.W.2d 11 (1979). We do not set aside the trial judge’s finding unless it is clearly against the preponderance of the evidence. Ibid.
There are several legal mechanisms by which an individual can lawfully be picked up for questioning, but none of them were used in this case.
Arkansas R. Crim. P. 2.2 provides that a law enforcement officer may request a person to furnish information or to otherwise cooperate in the investigation of a crime. Rule 2.3 provides that if, pursuant to this rule, the officer asks any person to come to or remain at a prosecuting attorney’s office, the officer shall take steps to make it clear that there is no legal obligation to comply with the request. To the contrary, no such steps were taken here. In fact, one of the officers agreed during his testimony that Mrs. Foster did not volunteer for questioning but only went to the prosecutor’s office “because four officers came out to her house and picked her up and carried her down there.” The fact that Mrs. Foster accompanied the officers without being arrested or forced to comply does not demonstrate acquiescence. “[C]onsent to an invasion of privacy must be proved by clear and positive testimony — a burden that is not met by showing only acquiescence to a claim of lawful authority.” Meadows v. State, 269 Ark. 380, 602 S.W.2d 636 (1980). Such acquiescence is all the state has been able to demonstrate here.
Ark. Stat. Ann. § 43-801 (Repl. 1977) authorizes a prosecutor to issue subpoenas in all criminal matters under investigation. These written subpoenas must substantially follow a form provided in the statute. Here there was no subpoena used, the officers merely acted at the prosecutor’s direction.
It is illegal to use a prosecutor’s subpoena power “to obtain the presence of a witness for questioning by a police officer, absent the prosecutor.” Duckett v. State, 268 Ark. 687, 600 S.W.2d 18 (Ark. App. 1980). It is unquestionably illegal therefore to use the office of the prosecutor, absent even a subpoena, to obtain the presence of a witness for the same purpose. The officers picked Mrs. Foster up in the middle of the night ostensibly because the prosecutor wished to see her. The prosecutor however did not participate in the subsequent questioning except for one brief appearance to play a portion of a tape. The entire procedure whereby Mrs. Foster’s presence at the prosecutor’s office was obtained was merely a guise to let the officers detain her and interrogate her. Based on the totality of the circumstances, the illegality of this procedure has impermissibly tainted Mrs. Foster’s subsequent statement and it should have been suppressed.
Since the case will be remanded, we will address the other issues raised by the appellant which are likely to arise on retrial.
The jury in this case was sequestered. The appellant argues that it was error for the trial judge not to administer the mandatory oath to the persons he placed in charge of the sequestered jury. We agree.
The oath is provided for in Ark. Stat. Ann. § 43-2121 (Repl. 1977):
The jurors, before the case is submitted to them, may, in the discretion of the court, be permitted to separate, or be kept together in the charge of proper officers. The officers must be sworn to keep the jury together during the adjournment of the court, and to suffer no person to speak to or communicate with them on any subject connected with the trial, nor do so themselves.
The appellant’s attorney objected twice to the trial judge’s failure to swear the officers pursuant to the statute. His first objection was lodged when the officers were placed in charge of the jury at the beginning of the trial. He objected again the next day before the first witness was called. The judge obviously erred by not administering the oath as required by statute.
The appellant also contends that the trial judge erred by refusing to sequester a witness, W. H. “Dub” Arnold, the prosecutor, with the other witnesses. The appellant asked the trial court to sequester the prosecutor because he expected to call him as a witness for the defense. The court did not err. Uniform R. Evid. 615 provides:
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of . . . (3) a person whose presence is shown by a party to be essential to the presentation of his cause.
Here, Arnold stated and the court found, that he was essential to the case because he was the attorney trying it for the state. In McCoy Farms, Inc. v. J & M McKee, 263 Ark. 20, 563 S.W.2d 409 (1978), this court found that neither the statutes on sequestration nor the Code of Professional Conduct requires the exclusion of a party’s attorney when the attorney is called as a witness by the adverse party. We said in McCoy that a party’s only lawyer falls within the category of Rule 615(3) essential persons. “The rule against the attorney who becomes a witness continuing as an advocate was not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him.” Ibid. However, had Arnold played a greater role in the interrogation of Mrs. Foster he might have been properly subject to sequestration. Instead the questioning was done by the officers and Arnold entered the room only once to play part of a tape and speak briefly to the appellant.
The appellant also assigned as error the trial judge’s refusal to allow the appellant to introduce the results of Pat Hendrickson’s polygraph test. The admission of the results was sought to bolster Mrs. Foster’s testimony that her suspicions about Mrs. Hendrickson’s involvement in the murder were dispelled when she heard that Mrs. Hendrickson had taken and passed a polygraph examination.
Ark. Stat. Ann. § 42-903 (Repl. 1977) provides that the results of polygraph tests “shall be inadmissible in all courts in this State.” We have held that the results are only admissible if both parties enter into a written stipulation agreeing on their admissibility. Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982). There was no stipulation between the parties and the results were therefore inadmissible. The mere mention of the test, under the circumstances, makes obvious its results, which is inadmissible hearsay.
The court erred however, when it permitted the prosecutor to call Pat Hendrickson, the wife of the deceased, who was charged with capital felony murder, as a witness even though both the court and the prosecutor knew that Mrs. Hendrickson would be advised to plead her fifth amendment privilege against self-incrimination. At the appellant’s bail bond hearing, Mrs. Hendrickson’s attorney informed the prosecutor, the appellant’s attorney and the court that he would advise his client to invoke the fifth amendment if she was called to testify at Mrs. Foster’s trial. The appellant argued that calling her in light of her attorney’s statement was a “grandstand play” and sought a mistrial.
When she was called to the stand, Mrs. Hendrickson recited her name, address, the relation of the victim to her, his age at his death, and their child’s name and age. She was then asked, “Mrs. Hendrickson, I will call to your attention the time immediately prior to March 10, 1983 and ask you if you knew Norma Foster?” At that point, the witness invoked her fifth amendment right.
The Court of Appeals dealt with this same question in great detail in Sims v. State, 4 Ark. App. 303, 631 S.W.2d 14 (1982). The court quoted the state’s brief as follows:
The evil in the non-testimony of such a witness is not the mere calling of the witness, but the obvious inferences drawn by a jury to a series of questions, to all of which the witness refuses to answer on Fifth Amendment grounds. In that case the questions themselves “may well have been the equivalent in the jury’s mind of testimony.” Douglas v. Alabama, 380 U.S. 415, 419, 85 S. Ct. 1074, 13 L. Ed. 2d 934, 937 (1965). Such improper questioning, not technically being testimony at all, deprives an accused of his right to cross-examine the witnesses against him as guaranteed by the Confrontation-Clause of the Sixth Amendment to the federal constitution [made obligatory on the states by the Fourteenth Amendment.] Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970); Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969); Douglas v. Alabama, supra.
The court also cited a Wisconsin decision, Price v. State, 37 Wis. 2d 117, 154 N.W.2d 222 (1967) which held: “no error is committed by the mere fact of calling a witness who will claim the privilege.” Instead the court said Namet v. United States, 373 U.S. 179 (1963) “makes it clear that the forbidden conduct is the ‘conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege.’”
Applying this rule to the instant case, there was an attempt by the prosecutor to build the state’s case out of inferences arising from Mrs. Hendrickson’s assertion of her fifth amendment privilege. “[T]he granting of a mistrial is a drastic remedy which should be resorted to only when the prejudice is so great that it cannot be removed.” Gross v. State, 8 Ark. App. 241, 650 S.W.2d 603 (1983); Gammel & Spann v. State, 259 Ark. 96, 531 S.W.2d 474 (1976). Here the prejudice is great.
Reversed and Remanded. | [
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John I. Purtle, Justice,
dissenting. I would grant the writ because I think all parties are entitled to know whether they are trying a misdemeanor or a felony. The time and money saved is great if we hold that the offense is a misdemeanor. On the other hand, if we hold it is a felony no one is injured because all trial courts have plenty of cases to try without these. Needless to say an accused will not suffer harm unless he is being held in custody awaiting trial.
Newbern, J., joins in this dissent. | [
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David Newbern, Justice.
The question in this case is whether the confession of the appellant, Cage, should have been suppressed because it was induced by a promise made by police officers. After hearing evidence from Cage and from the police officers who arrested and interrogated Cage, the judge admitted the confession into evidence. A jury returned a verdict of guilty, and Cage was sentenced to serve forty years in prison for rape. Our jurisdiction is based on Arkansas Supreme Court and Court of Appeals Rule 29.1. b.
At a hearing on his motion to suppress, Cage testified that Officer Presley had promised him "mental help” if he would sign a confession; that if he did so he could probably be out of a mental institution in three or four years and otherwise they could put him away for fifty to one hundred years and he would never see West Memphis again.
At the same hearing, Presley testified that Cage had initiated discussions of his needing help because he, Cage, did not know why he had committed the crime. Presley testified he agreed with Cage, that he needed help, but Presley clearly testified that no promises were made. Similar testimony was given by Officer Sudburry who also said no promise was made to Cage.
When involuntariness of a confession is alleged, we make an independent review of all the circumstances surrounding the confession. Davis v. State, 275 Ark. 264, 630 S. W.2d 1 (1982). We determine whether the record shows the will of the accused was somehow overcome at the time he confessed. Dewein v. State, 114 Ark. 472, 170 S.W. 582 (1914).
The factors we consider are set out in Cessor v. State, 282 Ark. 330, 668 S.W.2d 525 (1984); Perkins v. State, 258 Ark. 201, 523 S.W.2d 191 (1975). See also Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The appellant here was thirty-four years old. He was literate and had gone through the twelfth grade in school. He was advised of his rights before confessing and before the conversation about "mental help” occurred, and he acknowledged his understanding of his rights. Before confessing, the appellant was detained about one and a half hours, during which time he was questioned intermittently and he was allowed to phone his father twice.
Cage’s testimony conflicted with that of Presley and Sudburry as to whether or not there was a promise and as to his allegation that Presley used profanity toward him. His allegation of the latter did not amount to what we might call undue mental pressure. No physical abuse was alleged. With respect to the conflict in testimony as to whether a promise was made, the trial court obviously resolved it against the appellant, and we have been given no substantial reason to say the trial court was wrong. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984); Fuller v. State, 278 Ark. 450, 646 S.W.2d 700(1983).
Affirmed. | [
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David Newbern, Justice.
In this action for tortious interference with a contract, a summary judgment was entered in favor of the defendants who are now the appellees. The appellant, Hufsmith, was not a party to the contract which was allegedly subverted by the appellees. Rather, he based his standing to sue on his position as a third party creditor beneficiary. The trial judge held the allegations of the complaint were insufficient to sustain the contention that the appellant was a third party creditor beneficiary. To that we add that there was no remaining genuine issue of material fact, as shown by the record, when the summary judgment motion was made, thus summary judgment was proper. Ark. R. Civ. P. 56(c). As this was a tort action, our jurisdiction arises under Arkansas Supreme Court and Court of Appeals Rule 29. 1. o.
The allegations of Mr. Hufsmith were that he, as president and majority shareholder of Razorback Ready Mix Concrete Company, Inc. (Ready Mix), entered into a contract to sell the assets of that company to Razorback Quality Concrete Company. He further alleged that the sale was dependent upon the issuance of industrial revenue bonds pursuant to Ark. Stat. Ann. §§ 13-1601 through 13-1616(Repl. 1979andSupp. 1983), popularly known as Act 9 bonds. Finally, Hufsmith alleged that the bond issue failed because of a “false and fraudulent” lawsuit filed by the appelles to block the issuance of the bonds, and that the appellees, who were competitors of Ready Mix, knew that failure of the bond issue, and thus of the sale, would cause the financial ruin of Ready Mix.
In an affidavit in support of his opposition to the appellees’ motion for summary judgment, Mr. Hufsmith stated that because of the failure of the sale he was forced to use his own assets to pay off obligations of Ready Mix which he had personally guaranteed. It is this posture as guarantor of the obligations of Ready Mix, which was known to the appellees, which Hufsmith contends makes him a third party beneficiary to the contract of sale and thus gives him standing in this lawsuit.
Neither the allegations nor the affidavit was sufficient to show a remaining factual issue on the matter of Mr. Hufsmith’s standing. With respect to the relationship of pleadings and summary judgment see Joey Brown Interest v. The Merchants National Bank of Fort Smith, 284 Ark. 418, 683 S.W.2d 601 (1985). Hufsmith cites no case showing that a third party beneficiary may bring an action for tortious contract interference. More importantly, the cases he cites to demonstrate his third party beneficiary status are woefully inadequate.
Hufsmith cites Wilson v. General Mortgage Co., 638 S.W.2d 821 (Mo. App. 1982), for this language: “one upon whom the promisee intends to confer the benefit of performance of the contract and thereby discharge an obligation or duty the promisee owes the beneficiary” is a third party creditor beneficiary (638 S.W.2d at 823). While the quoted language sounds good and is correct in the abstract, it is not helpful to Hufsmith’s argument. In the Wilson case the plaintiff was a mortgagor who alleged the mortgagee had promised the Federal Housing Commissioner to make diligent efforts to acquire fire insurance to replace that which had been cancelled on plaintiff’s mortgaged home. The plaintiff’s home burned, and she sued the mortgagee claiming to be a third party beneficiary of the mortgagee’s promise to the Commissioner. After citing with approval ALI, Restatement, Contracts § 133(1 )(b) (1932), and discussing the standard fare on creditor and donee beneficiaries, the court held the plaintiff had not stated a cause of action because she alleged no facts showing the Commissioner owed her a duty which would have been discharged had the contract been performed by the mortgagor.
The same is true here. Accepting Mr. Hufsmith’s statement that he was the guarantor of obligations owed by Ready Mix, there is no allegation or evidence that Ready Mix owed Hufsmith anything when the contract was entered.
The contract was entered on February 26, 1982. According to Hufsmith’s affidavit, it was not until May 29, 1982, that he received a demand letter requesting that he, personally, pay the notes he had guaranteed for Ready Mix. No duty of Ready Mix to Hufsmith would have been discharged had the sale been consummated, because, as Hufsmith contends, there would have been no default by Ready Mix, and no duty on the part of Ready Mix to reimburse Hufsmith would have arisen. For a very similar situation in which status as a third party beneficiary was denied, see Shamburger v. Moody, 322 F. Supp. 196 (E.D. Ark. 1970).
The duty or obligation of the promisee to the purported third party creditor beneficiary and the prospect of satisfaction of that duty by performance are integral elements of the description of a third party creditor beneficiary according to the Restatement. ALI, Restatement of Contracts, Second, § 302(l)(a) (1981). For an article analyzing the Arkansas cases in light of the first Restatement, cited earlier, see Comment, Enforceability of Third-Party Beneficiary Contracts in Arkansas, 5 Ark. L. Rev. 66 (1950). A more recent review is contained in Ozark Milling Co., Inc. v. Allied Mills, Inc., 349 F. Supp. 553 (W.D. Ark. 1972)..
The other case cited by Hufsmith on this point is Southern Farm Bureau Casualty Co. v. U. S., 395 F.2d 176 (8th Cir. 1968), which involved an insurance contract in which the promise in the contract was to indemnify accident victims. It was properly conceded by Mr. Hufsmith’s counsel in oral argument that such a case is not applicable here.
The appellees have argued that Hufsmith could not bring this action as a shareholder on behalf of Ready Mix. We find that argument inapposite, as Hufsmith sued as a third party beneficiary, not as a shareholder representing Ready Mix. They also argued the Noerr-Pennington privilege. See Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127(1961); United Mine Workers v. Pennington, 381 U.S. 657 (1965). We need not consider whether their lawsuits against Hufsmith were privileged in view of our agreement with the trial court that Hufsmith lacked standing to bring this action.
We hold summary judgment in favor of the appellees was correctly entered because there was no remaining genuine issue of material fact as to whether Hufsmith was a third party creditor beneficiary, and thus Hufsmith lacked standing to bring this action.
Affirmed.
Hays, J., not participating. | [
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George Rose Smith, Justice.
The State Board of Education, after a hearing, revoked the appellant’s certificate as a school superintendent. The circuit court upheld the revocation. Upon this appeal, which comes to us under Rule 29(1 )(c), the appellant does not question the accuracy of the State Board’s finding that Balentine knowingly falsified the records of the Timbo School by overstating the number of students enrolled, the number of students transported to the school, and the number of school lunches for which reimbursement was claimed. Instead, the appellant makes one argument, that the State Board’s action was not authorized by the controlling statute, Ark. Stat. Ann. § 80-1228 (Repl. 1980).
The pertinent part of the statute is its first sentence:
The State Board of Education is hereby directed to revoke the teachers certificate of any teacher of this State who knowingly falsifies any attendance records kept by such teacher that are used in computing the average daily attendance of the school district in which the teacher teaches, and the State Board of Education is hereby directed to revoke the certificate of any superintendent of schools who knowingly permits or requires any teacher to falsify such attendance records.
It is argued that the statute directs the State Board to revoke a superintendent’s certificate only when he permits or requires a teacher to falsify an attendance record, not when he falsifies the record himself.
We are not persuaded by this argument. Attendance records are ordinarily kept by teachers or other employees, not by the superintendent. The legislature expressed its intention to prohibit falsification of the records by punishing teachers who falsify them and superintendents who permit or require teachers to do so. Even though the statute is penal, it is a civil measure, not a criminal one. We must not construe it so narrowly as to exclude cases which the statutory language, in its ordinary acceptation, would embrace. St. Louis I.M. & S. Ry. v. Waldrop, 93 Ark. 42, 123 S.W. 778 (1909). In the case at bar the circuit judge was right in his understanding of the legislative purpose:
The obvious purpose of the Act in question in this case is to prevent the falsification of attendance records to the State. The purpose of the Act was not to prevent superintendents from directing teachers to falsify records, but to prevent anyone in authority including the superintendent from falsifying records to the State.
We adopt his reasoning and affirm his judgment.
Affirmed. | [
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Jack Holt, Jr., Chief Justice.
This appeal presents a question of whether actions can be maintained in separate counties to foreclose on parcels of land in each county constituting security for a single note and mortgage when a judgment has already been entered on the note and mortgage in one of the counties.
This case was transferred from the Court of Appeals to this court under Sup. Ct. R. 29 (4) (a) since it involved the interpretation of a statute.
Ark. Stat. Ann. § 27-601 (Repl. .1979), provides in part:
Actions for the following causes must be brought in the county in which the subject of the action, or some part thereof is situated, . . .
Third, For the sale of real property, under a mortgage,
Ronald L. and Anne W. Archer owned lands in both Pope and Randolph Counties, which were subject to a single note and mortgage held by Planters Production Credit Association (PCA), the appellees.
Prior to filing the present suit, PCA obtained a consent judgment and decree of foreclosure on the note and the Randolph County lands. No attempt was made to foreclose on the realty in Pope County, although the same note and mortgage was involved.
After perfecting foreclosure in Randolph County, PCA filed this action to foreclose the Pope County land. After a hearing, the trial court awarded PCA judgment against the Archers and declared PCA third in priority over Helen Steelman, an intervenor, who was found by the court to hold a fourth lien.
Steelman contends that PCA did not have a right to maintain its action in Pope County in light of the Randolph County proceeding. PCA insists that Ark. Stat. Ann. § 27-601 requires this action to be brought in Pope County because subject matter jurisdiction and venue lie in Pope County for the Pope County land, and in Randolph County for the Randolph County land. The chancellor agreed with PCA and Steelman appealed. We reverse and dismiss.
The statute in question does not require isolation of causes of action for the sale of mortgaged real property to the extent that the Randolph Chancery Court could not take jurisdiction over lands in Pope County which were subject to a common note and mortgage with Randolph County lands. To the contrary, in Wasson Bank Comm’r v. Dodge, Chancellor, 192 Ark. 728, 94 S.W.2d 720 (1936), this court stated that the Jefferson Chancery Court was the proper forum to exercise foreclosure over lands in Jefferson and Pulaski Counties, and that no other court of equal dignity, or one having concurrent jurisdiction, had any right to interfere.
The Randolph Chancery Court had rightfully acquired jurisdiction of the necessary parties, included PCA, and the subject matter of the indebtedness of the Archers, secured by note and mortgages on the lands in both counties. That the appellant was not a party to the Randolph County litigation is immaterial.
When the appellee PCA obtained judgment against the Archers in Randolph County, it substituted the judgment for its note which constitutes a merger.
The Restatement (Second) of Judgments § 18 (1982) states:
JUDGMENT FOR PLAINTIFF — THE GENERAL RULE OF MERGER. When a valid and final personal judgment is rendered in favor of the plaintiff:
(1) The plaintiff cannot thereafter maintain an action on the original claim or any part thereof, although he may be able to maintain an action upon the judgment; and
(2) In an action upon the judgment, the defendant cannot avail himself of defenses he might have interposed, or did interpose, in the first action.
This position is also supported by Hazard and James in their treatise, Civil Procedure pp. 542-543 (2d ed. 1977). The authors point out:
A good place to start critical analysis of the whole matter is with the question: why should not a party be compelled to join all the claims which he may join? . . .Wherever there will be a large overlap of issues of evidence if two trials are held, it is wasteful to society and harassing to the adversary to have more than one, and there should be no more than one unless there is some very good reasons. This will be the case in many situations where the evidence and issues are not identical.
See also 46 Am. Jur. 2d, Judgments, § 383, p. 552 (1969).
When PCA obtained judgment on its note, it could have asked the Randolph Chancery Court to foreclose on both tracts of land, appointing a commissioner to sell the lands in Pope County. Ark. Stat. Ann. § 30-501 (Repl. 1979). This it did not do. It would be unreasonable and unfair to permit PCA to take this same note, which has been reduced to judgment, and sue again for a separate judgment in another court. “Upon the merger of the cause of action in a judgment the old debt ceases to exist and the next judgment takes its place”. 46 Am. Jur. 2d, supra § 384, p. 553.
The Randolph Chancery Court, having assumed jurisdiction for one purpose, has retained it for all and can grant all of the relief, legal and equitable, to which the parties are entitled. Merchants & Farmers Bank v. Harris, 113 Ark. 100, 167 S.W. 706 (1914). Therefore, the Pope Chancery Court is without jurisdiction in this matter. Wasson Bank Comm’r, supra.
The question of the reasonableness of the consideration paid for the Randolph County land by PCA should be addressed to the Randolph Chancery Court for the reasons stated.
Reversed. | [
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Robert H. Dudley, Justice.
The appellant, Patricia Hendrickson, stands convicted of capital felony murder. The State contends that appellant conspired with Norma Foster, a college dormitory housemother at Ouachita Baptist University, and Mark Yarbrough, a student, to hire Howard Vagi, another student, to kill her husband for $16,000.00. Vagi did in fact murder appellant’s husband and, upon a plea agreement, received a life sentence. Yarbrough was granted immunity from prosecution in return for his testimony. Norma Foster was convicted of first degree murder and was sentenced to life. Her conviction has recently been reversed. Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985). We also reverse this case and remand for a new trial. Jurisdiction of this death penalty case is in this Court. Rule 29(1 )(b).
Appellant’s first assignment of error is that the trial judge erred in denying her motion to suppress her inculpatory statement. The contention is meritorious. Prior to her being charged in this case, appellant’s personal attorney was W. H. “Dub” Arnold. In addition, he also represented her in her capacities as personal representative of her deceased husband’s estate and guardian of her son’s estate. She testified that she frequently consulted with Arnold as her attorney in one capacity or another. Arnold also serves as Prosecuting Attorney of the district having venue in this case. Immediately before appellant was interrogated, Arnold told the police that he did not want to see appellant, and that he could no longer personally represent her. While the officers were reading appellant’s Miranda rights to her, she stated that she wanted “to talk to Dub.” The interrogating officers knew the response meant that appellant wanted to speak to her attorney but they had been told by Arnold that he could not represent her. Instead of terminating the questioning at that point, the officers told her that Arnold was not there and he could not represent her. She subsequently executed a waiver of her Miranda rights and gave the inculpatory statement.
In Smith v. Illinois, 105 S.Ct. 490 (1984), the Supreme Court clearly set forth the twofold test we are to apply in the situation before us:
An accused in custody, “having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him,” unless he validly waives his earlier request for the assistance of counsel. Edwards v. Arizona, 451 U.S., at 484-485, 101 S.Ct., at 1885. This “rigid” prophylactic rule, Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 2569, 61 L.Ed.2d 197 (1979), embodies two distinct inquiries. First, courts must determine whether the accused actually invoked his right to counsel. See, e.g., Edwards v. Arizona, supra, 451 U.S., at 484-485, 101 S.Ct., at 1884-1885 (whether accused “expressed his desire” for, or “clearly asserted” his right to, the assistance of counsel); Miranda v. Arizona, 384 U.S., at 444-445, 86 S.Ct., at 1612 (whether accused “indicate[d] in any manner and at any stage of the process that he wishfed] to consult with an attorney before speaking”). Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked. Edwards v. Arizona, supra, 451 U.S., at 485, 486, n. 9, 101 S.Ct., at 1885, n. 9.
The threshold inquiry is whether appellant invoked her right to counsel in the first instance. Some courts have held that all questioning must cease upon any request for or reference to counsel, however equivocal or ambiguous. See, e.g., Ochoa v. State, 573 S.W.2d 796, 800-801 (Tex. Crim. App. 1978). Others have attempted to define a threshold standard of clarity for such requests, and have held that requests falling below this threshold do not trigger the right to counsel. See, e.g., People v. Krueger, 412 N.E.2d 537, 540 (1980) (“[A]n assertion of the right to counsel need not be explicit, unequivocal, or made with unmistakable clarity,” but not “every reference to an attorney, no matter how vague, indecisive or ambiguous, should constitute an invocation of the right to counsel”), cert. den., 451 U.S. 1019, 1981. Still others have adopted a third approach, holding that when an accused makes an equivocal statement that “arguably” can be construed as a request for counsel, all interrogation must immediately cease except for narrow questions designed to “clarify” the earlier statement and the accused’s desires respecting counsel. See, e.g., Thompson v. Wainwright, 601 F.2d 768, 771-772 (5th Cir. 1979); State v. Moulds, 105 Idaho 880, 888, 673 P.2d 1074, 1082 (App. 1983). The Supreme Court has not ruled on the matter.
We need not choose between these standards in the instant case because appellant’s statement was neither vague not indecisive. She unequivocally asked to speak to “Dub”, who was her attorney.
Invocation of the right of counsel and waiver are entirely distinct inquiries. Once the right is invoked, a valid waiver cannot be established by showing only that the accused responded to further police-initiated custodial interrogation. Edwards v. Arizona, 451 U.S. 477, at 484 (1981) . Therefore, the trial court erred in not suppressing the statement.
Because we reverse and remand for a new trial, we answer those assignments of error which are likely to arise again upon retrial.
Prior to trial, appellant filed a motion asking that the state be prohibited from “death qualifying” the jury and from challenging for cause . those jurors who expressed conscientious opposition to capital punishment. The trial court, relying upon our decision in Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), correctly refused to grant the motion and, upon retrial, should again refuse to grant the motion. The appellant urges us to abandon our position taken in Rector, supra, and adopt the position taken later by the Eighth Circuit Court of Appeals in Grigsby v. Mabry, 758 F.2d 226 (1985). While we have great respect for the opinions of the Eighth Circuit, we decline to change our position. Other Circuit Courts of Appeal which have considered the issue have ruled the same as we have. See Keeton v. Garrison, 742 F.2d 129 (4th Cir. 1984); Smith v. Balkcom, 660 F.2d 573 (5th Cir. 1981). The Supreme Court of the United States has not yet ruled on the issue, but may soon grant certiorari to resolve the dispute between circuits since it is a matter of significant public interest.
Next, upon remand, the trial court should again allow Mark Yarbrough to testify about statements by Norma Foster in furtherance of the conspiracy. The case of Spears, Cassell & Bumgarner v. State, 280 Ark. 577, 660 S.W.2d 913 (1983) is dispositive of this issue. Rule 801(d)(2)(v) of the Ark. Unif. Rules of Evid., Ark. Stat. Ann. § 28-1001 (Repl. 1979) provides that testimony about an out-of-court statement by a co-conspirator during the course and in furtherance of a conspiracy is not hearsay. Id. at 584. Thus, Yarbrough’s testimony about statements by Norma Foster was properly admissible.
Also, the trial court should again exclude from the penalty phase of the trial the results of a polygraph examination given to appellant. The rules of evidence are not applicable to the penalty phase of the trial. See Ark. Stat. Ann. § 41-1301(4) (Repl. 1977) and Hobbs v. State, 273 Ark. 125, 617 S.W.2d 347 (1981). However, the evidence offered must be probative of some issue to be properly considered in the penalty phase. The proffered test results were not probative of any issue in the penalty phase.
If the appellant, upon retrial, is again sentenced to death the trial court should again reject appellant’s argument that the death sentence is disproportionate in this case. It is true that the one who pulled the trigger is serving only a life sentence, but he was a young college student, while the appellant was a mature adult and, under the proof, the procuring cause of the murder. There was evidence that appellant entered into the contract to have her husband killed for a financial gain of over $600,000.00. The death sentence is not disproportionate under the circumstances of the case. In addition, there is sufficient evidence of aggravating circumstances.
Appellant argues other points but they are not likely to arise again, and therefore, we do not address them.
Reversed and remanded.
Holt, C.J., Hickman and Purtle, JJ., concur.
Hays, J., dissents. | [
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Darrell Hickman, Justice.
The Pulaski County Circuit Court ordered John Nabors’ 1982 Datsun forfeited because it had been used to deliver controlled substances. On appeal Nabors makes three arguments: the Arkansas forfeiture statute is unconstitutional because it violates Ark. Const. Art. 2 § 22 (1884); the burden of proof in such cases should be beyond a reasonable doubt rather than by a preponderance of the evidence; and the trial court improperly limited the cross-examination of the state’s chief witness. Finding no merit to any of these arguments, we affirm.
The appellant concedes that under the United States Constitution and federal cases such statutes have been found to be legal. He argues, however, that the Arkansas Constitution has a unique provision protecting private property which is violated by this statute. That is Ark. Const. Art. 2 § 22, which reads:
Property rights — Taking without just compensation prohibited. — The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.
We held in Albright v. Muncrief, 206 Ark. 319, 176 S.W.2d 426 (1943), that personal property, which is not contraband per se, could still be considered contraband, subject to forfeiture, if used for an unlawful purpose. There we stated that the moment property is used in an unlawful business, it is liable to forfeiture and that under those circumstances the owner has no greater right in the property than any other person. In discussing a forfeiture statute which allowed forfeiture of gambling devices, we said:
“For the promotion of the general welfare the state, under its police power, has the undoubted right to adopt the most expeditious, inexpensive, and effective mode of abolishing and abating the same.”
Therefore, private property enjoys no constitutional privilege when it is knowingly used to defy the state’s criminal laws and trafficking in drugs is an especially insidious evil in our society.
The argument that the state must prove beyond a reasonable doubt that the vehicle was used for unlawful purposes has been rejected. One 1961 Lincoln Continental Sedan v. United States, 360 F.2d 467 (8th Cir. 1966). The overwhelming authority relies on the preponderance of the evidence standard. Utley Wholesale Co. v. United States, 308 F.2d 157 (5th Cir. 1962); United States v. One 1955 Mercury Sedan, 242 F.2d 429 (4th Cir. 1957); D’Agostino v. United States, 261 F.2d 154 (9th Cir. 1958) cert. denied, 359 U.S. 953 (1958).
Nabors also argues that the trial court erred in limiting the cross-examination of the state’s chief witness. The argument is answered by quoting from the transcript which demonstrates the objection was waived:
Q. Have you been granted immunity?
A. Yes, I have.
Q. And since that time, you have been financially supported by the United States government.
[Prosecutor]: I object, your honor, that’s a misleading question.
The Court: I don’t think that is relevant and material.
Q. Since that time, let me ask it another way — well, that’s all right. Anyway, you have been granted immunity to testify against him, right?
A. Yes, sir.
The defense waived any objection it had by not pursuing the subject. We, therefore, do not consider the point on appeal. See Jones v. State, 224 Ark. 134, 273 S.W.2d 534 (1955).
Affirmed. | [
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Darrell Hickman, Justice.
This is an appeal of a wrongful death action arising from a truck accident in Akron, Ohio, in which the driver of the truck, Dennis Lee Allen, was killed. The appellees, Allen’s wife and heirs, filed this lawsuit against C & L Trucking, which owned the trailer, Kelly Capps, who owned the tractor, and Junior Landis, who owned J & L Trucking, Dennis Allen’s employer. The appellees had already recovered workers’ compensation benefits from J & L Trucking. Junior Landis was dismissed as a party during the trial. The jury found for the appellees. The trial court signed the judgment of joint and several liability in the amount of $152,000. On appeal the appellants make several arguments which were either not timely made to the trial court, are unsupported or are unconvincing. We, therefore, affirm.
First, it is argued that the action against C & L Trucking is barred because C & L and J & L are so interrelated that they are one and the same company, that they were both Dennis Allen’s employer; therefore, since the appellees had already recovered from J & L, the tort action against C & L is barred. This argument was first raised at the close of the appellees’ case. The basis of the argument was that the same court had ruled in another case that employees of J & L are, in fact, employees of C & L. At that point the only evidence concerning the ownership of the companies was that Junior Landis testified that he and his wife were partners in J & L and that Dennis Allen was paid by J & L. The trial court ruled that the prior case was not res judicata on the issue; that the issue of that case was commingling assets and employees of the two companies for purposes of determining workers’ compensation insurance premiums.
The argument was not raised again at the close of the case. The appellees made a prima facie case that C & L and J & L operated as separate entities. It was shown that C & L owned the trailer, that Capps owned the tractor and leased it to C & L; that Capps worked for C & L and that Allen was paid by J & L. Junior Landis testified during the appellees’ case as follows:
Q. Mr. Allen the decedent was an employee of J & L, is it correct?
A. Yes.
Q. What is the relationship between J & L Trucking and C & L Trucking, Inc.?
A. J & L, we had a few trucks, me and my wife ourselves, two or three trucks. We own C & L. We personally own both companies. We had our insurance under J & L Trucking.
Q. Was there a distinction in how you handled your books? Is J & L’s books different than C & L’s books. Were they all handled as one set of books in conjunction with profits of C & L?
A. All profits and losses.
Q. And expenses?
A. And expenses and everything went through C fe L’s books.
On cross-examination Landis said that C & L stood for “Capps and Landis.” He said that Capps leased trucks to C & L, and that C & L owned about 40 trucks and that J & L owned 6 or 8 trucks. Then Landis was asked:
Q. Does your CPA keep your records on C & L Trucking?
A. Yes.
Q. Aren’t the J 8c L records kept in your office?
A. I think so, if there is any records.
In a motion for a new trial, the appellants raised the argument again and attached an affidavit signed by Mr. and Mrs. Junior Landis which averred that J & L’s trucks are used and directed by C & L, that J & L does no hiring because C 8c L handles all personnel matters, and that although checks are written on J & L’s account, all money received is from C & L’s business.
When the trial court rejected this argument, there was no convincing evidence before it that the companies were one and the same. After some evidence of interrelation was presented during the appellants’ case, the argument was not raised again. In the motion for a new trial the appellants made the same argument and tried to introduce more evidence in support of the argument. That evidence could have been introduced at trial but was not. At the time the court rejected the argument, there was no evidence from which we could say that the court was clearly wrong in its decision. ARCP Rule 52. The argument could have been raised again at the close of the appellants’ case but was not. Therefore, we find no error.
The appellants also argue that Dennis Allen had been loaned by J & L to C & L and, therefore, C & L was the employer at the time of Allen’s death so that the only remedy against C & L would be worker’s compensation. The trial court ruled before trial that the issue could be presented to the jury. There is no evidence, however, that the appellants ever raised the question again or asked that the issue be resolved by the jury. No instruction was requested or proffered. Therefore, we will not consider the issue on appeal. See Bovay v. McGahhey, 143 Ark. 135, 219 S.W.2d 1026(1920).
The argument that C & L and J & L were j oint venturers and therefore immune from tort liability under workers’ compensation law was not raised to the trial court, nor submitted to the j ury, and we will not consider it. Sanders v. Newman Drilling Co., 273 Ark. 416, 619 S.W.2d 674 (1981).
The appellants argue that the appellees did not sustain their burden of proving that their negligence was the proximate cause of Allen’s death. Appellees produced two witnesses that testified that the accident was caused by worn tires on the truck. One of the witnesses was an expert, the other was the Ohio policeman who investigated the accident. Proximate cause is ordinarily a question for determination by the trier of facts. Cragar v. Jones, 280 Ark. 549, 660 S.W.2d 168 (1983); Keck v. American Employment Agency, 279 Ark. 294, 652 S.W.2d 2 (1983). We find substantial evidence to support the jury’s verdict.
The jury returned a verdict which stated: “We the jury find in favor of the Plaintiffs against the defendant C 8c L Trucking, Inc., on the issue of liability.” Written out was the following notation: “Equally liable w Capps.” It was signed by the foreman and then written below was “50% liability” and it was again signed. The same verdict was returned against Capps with the same notations. The trial judge sent the jury back to determine damages and said: “In addition to that for clarity in the record, the Court would like to give you back the verdict forms that were signed and returned, and ask you to prorate on the basis of percentages equalling what you think is appropriate with regard to these two Defendants in this case.” The jury returned a verdict against Kelly Capps for $76,000 and against C 8c L for $76,000. This all occurred without objection. The trial court entered a judgment finding Capps and C 8c L jointly and severally liable in the amount of $152,000. The judgment was approved by both attorneys.
The appellants argue that they are not jointly and severally liable and, if they are, they are only liable for $76,000. After trial C & L filed a bond admitting liability in the amount of $152,000 and gave land as collateral. The appellees objected. The trial court ruled that an appropriate bond must be posted. C & L convinced the court to amend the judgment so that the words “jointly and severally” were stricken. C & L then posted a bond for $76,000. The appellees petitioned this court for a writ of mandamus. We held that the amended judgment should be set aside and that a supersedeas bond should be secured in the amount of $152,000. We are convinced we were right because to hold otherwise would be to iignore that the jury found these joint tortfeasors to be equally liable. The jury returned separate verdicts against Capps and C & L finding each to be liable in the amount of $76,000. We cannot assume from the verdicts rendered that the jury intended to limit damages to only $76,000. Neither the judge nor the attorneys made that assumption when the judgment was entered without objection. Each was found to have negligently caused Allen’s death. They were joint tortfeasors and were, therefore, jointly and severally liable for the judgment returned against them. See Ark. Stat. Ann. § 34-1001 et seq. (Repl. 1962); see also Scalf v. Payne, 266 Ark. 231, 583 S.W.2d 51 (1979).
Affirmed. | [
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John I. Purtle, Justice.
This appeal results from the trial court’s dismissal of appellant’s complaint to terminate a family trust on grounds that it was operating contrary to public policy of the State of Arkansas inasmuch as the primary beneficiary of the trust had killed his parents. The complaint also alleged fraud in the management of the estates of the decedents before such assets were merged into the trust.
Appellants argue several reasons for reversal but the arguments essentially allege that the trial court erred in applying the doctrine of res judicata and in failing to conduct a hearing.
Calvin Leslie Booth and his wife, Betty Renfro Booth, were killed on December 17, 1978. The son of the decedents, Thomas Joe Booth, was charged with voluntary manslaughter in connection with his parents’ death. Estates were opened for Calvin and Betty Booth. At the time Calvin and Betty Booth died, Calvin’s father, Roland Booth, was past 80 years of age and was in a nursing home. A guardian was appointed to act on his behalf in making a claim for the estates of Calvin and Betty Booth. The son and the grandfather eventually came to an agreement whereby the decedents’ estates were merged into a family trust. The “Booth trust” was established on February 11, 1981. The assets of Roland Booth were included in the family trust. At the time the trust was created Roland Booth’s estate had a value of $30,000, Betty Booth’s estate had a value of $40,500, and Calvin Booth’s estate was valued at $242,700. The terms of the trust provided that Roland Booth would receive $850 per month for the rest of his life. Roland Booth died on September 2, 1981, survived by several siblings or their children.
While Calvin and Betty’s estates were pending the court found that Tom was the sole heir. During his lifetime Roland Booth petitioned the Probate Court to redetermine heirship in Calvin’s estate on the basis that Tom should not profit from his parents’ deaths. No hearing was held on this petition. Sometime after the redetermination petition had been filed a compromise agreement was reached whereby the estates were merged and the trust created. The complaint to terminate the Booth trust was filed on October 4, 1983. On May 23, 1984, the Chancellor and Probate Judge dismissed all pending cases attacking the trust on the grounds of res judicata. The cases are consolidated on appeal.
The primary attack on this estate is on the grounds that a person should not be entitled to benefit from the death of any person when the beneficiary caused the death. We reaffirm our holding that public policy prevents an heir from sharing in the victim’s estate when the death is purposely caused by that heir. Wright v. Wright, 248 Ark. 105, 449 S.W.2d 952 (1970). In the present proceeding there was an allegation that Tom Booth had been convicted of voluntary manslaughter; however, no such proof was presented when the estates of his parents were opened. The appellants argue that they did not enter into the-estate proceedings because they did not receive notice. Tom and Roland Booth were the only possible heirs of Betty and Calvin Booth. Therefore, notice was not required to be given to appellants. Ark. Stat. Ann. § 62-2111 (Repl. 1971). The reason notice was not required is that these appellants had no direct interest in the estates of either Calvin or Betty Booth. In ARCP Rule 17(a), it is said that every action shall be prosecuted by the real party in interest. With respect to the question whether Tom could inherit from his parents, Roland was the real party in interest, and it was Roland who raised the issue and entered into the settlement. These appellants had no standing to do so then, and the fortuity of Roland’s death gives them no standing now.
While the trial court’s ruling was on the basis of res judicata rather than the appellant’s lack of standing, it is clear that the correct result was reached, and on that basis we can affirm. Greeson v. Cannon, 141 Ark. 540, 217 S.W. 786 (1920). See also, Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979), and the cases cited in that opinion.
Affirmed.
Hays, J., dissents. | [
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Per Curiam.
Petition for review is denied.
Hickman, J., concurs. | [
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